By delaying key reforms from the Trump administration, the president is undermining his own goals.
By delaying key reforms from the Trump administration, the president is undermining his own goals.
O ne of the Trump administration’s signature achievements was cutting the overwhelming red tape facing major infrastructure projects in America. This week the White House announced that it is delaying a key part of those reforms, with more significant changes to come. Rolling back the reforms would be a setback for all Americans, not least those who share President Biden’s commitment to social justice and climate action.
Most major infrastructure projects, such as bridges and solar projects, require federal permits and lengthy environmental reviews under the National Environmental Policy Act, or NEPA. Since the law’s enactment, the process had become exorbitantly costly, time-consuming, and unpredictable. The result is that America’s infrastructure is the world’s costliest to build, with often prohibitive risk to capital investment — and that includes clean-energy infrastructure.
No presidential administration can on its own sweep away the federal obstacles to American infrastructure and to the equitable, clean-energy future of Biden’s dreams. Only Congress can do that, and there is little in the latest infrastructure package to suggest that it has done so.
Still, Trump introduced major improvements to NEPA, both streamlining the convoluted process and restoring NEPA to something approaching the original intent of the law.
Trump’s process reforms limited environmental-impact statements to no more than 150 pages and required agencies to complete them in no more than two years. Agencies were also required to agree to a joint project schedule at the start of the process, so stakeholders could at least predict when key decisions would be made.
Other improvements clarified key statutory terms that courts have expanded far beyond Congress’s original intent. Trump’s changes helped ensure that NEPA is triggered only by actions that are truly federal, that agencies study their own alternatives rather than those of project applicants, and that time is not wasted studying environmental impacts that are speculative, remote, or negligible and beyond the scope of the agency’s permit review. I was involved in this effort at the White House Council on Environmental Quality.
This week the White House took a major step backward, extending by several years the deadline for agencies to adopt regulations implementing the new NEPA rules. The practical effect is to suspend indefinitely Trump’s process reforms, which are not enforceable by courts. On the other hand, Biden has left the rest of Trump’s changes in effect for now, so federal courts will still have to be guided by them when enforcing NEPA, a fact that agencies will have to consider at every turn.
That will leave much of NEPA in limbo, with agencies and project applicants wondering which set of rules applies to them. The White House has also signaled that more sweeping changes to the new NEPA rules are coming. Where Trump sought to make the process more predictable, Biden risks making it more unpredictable than ever.
That’s bad news for all Americans, the Biden administration most of all. Biden’s commitment to underserved communities and to a rapid clean-energy transition requires building new infrastructure on a massive scale that is impossible under the current system of federal permits and environmental reviews, no matter how much money Congress throws at it.
The current system imposes staggering burdens on agencies as well as the private economy. The environmental-impact statement for a single infrastructure project can require tens of thousands of agency man-hours. The entire federal government can barely manage to complete 70 or 80 of them per year. To put that in perspective, meeting the administration’s renewable-energy goals by 2030 alone would require thousands of environmental-impact statements in order for projects to start construction.
The process undertaken by the Council on Environmental Quality under Trump sought input from stakeholders across the spectrum, and clean-energy projects are among its main beneficiaries. By taking a step back from NEPA reform, President Biden may be caving in to pressure from radical environmentalists whose business model is to make sure no infrastructure gets built anywhere near anything, even if doing so hurts their cause.
That makes his improbable dream of an equitable, clean-energy future even more improbable. For his own sake and that of all Americans, he should reverse course and build on his predecessor’s reforms.