White House announces changes to the NEPA regulations and what that means for infrastructure

Updated: Oct 19, 2021


This week, the Biden Administration proposed changes to the Council on Environmental Quality’s National Environmental Policy Act (NEPA), regulations which requires Federal agencies to conduct a climate and environmental justice analysis of major projects and give affected communities greater input into the process. If finalized, this week’s action would change the process put in place by the Trump Administration for how government agencies review infrastructure projects.


Many environmentalists praised the Biden Administration for this action while many developers said it could make it harder to secure approval for their projects. For more about the announcement, click here.


Engineering News Record reached out to Dawson & Associates colleague Larry Liebesman for his written thoughts on the action. During part of Larry’s time as a Justice Department environmental litigator, he worked with the President’s Council on Environmental Quality (CEQ) on the 1978 NEPA regulations.


Larry was quoted in the ENR article (here). What follows are his extended thoughts to ENR on this week’s announcement:


Overall, CEQ is proposing to reinstate some of the key provisions of the 1978 NEPA regulations on defining purpose and need, addressing alternatives and indirect and cumulative impacts with special focus on climate change impacts and Environmental Justice.

In my view, these changes bring the regulations more in line with the historic interpretation of NEPA which has been upheld by the Courts over the years. These changes could result in some delays for infrastructure projects, especially to address indirect and cumulative effects. For example, an Environmental Impact Statement (EIS) for a highway or pipeline project will have to consider the project’s indirect climate impacts more fully so that it is consistent with NEPA law.

A case in point is Sierra Club v. FERC (Sabal Trail), 867 F.3d. 137 (DC Cir. 2017) where the Court held that in authorizing construction of a pipeline, FERC was required to consider the downstream effects of GHG emissions from power plants serviced by the pipeline.

However, as CEQ noted in the proposal, it does not feel that such consideration will unduly delay final action on such projects given the likely efficiencies under the regulations. It remains to be seen if that actually happens.

There will be a lot of pressure on the Biden Administration not to delay infrastructure projects. I suspect that the action agencies will likely work with CEQ to not unduly delay such projects while efficiently considering direct, indirect and cumulative effects on climate and Environmental Justice.

Larry Liebesman, Esq.

Senior Advisor

A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).


 

The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.