Last week, President Biden’s Council on Environmental Quality (CEQ) proposed their “Bipartisan Permitting Reform Implementation Rule.” CEQ administers the National Environmental Policy Act (NEPA), a more than half century old statute that requires our Federal Government to take a “hard look” at major decisions, analyze environmental impacts, review alternatives, and listen to community voices.
NEPA has a “look before you leap” process that often serves as the primary way people learn, become involved, and help influence decisions impacting their communities and environment. That essential check on potential harmful development is under attack.
Where it could, CEQ’s proposed rule largely restores the worst NEPA rollbacks from the previous administration. For instance, the 2020 NEPA rule dehumanized certain persons by specifically defining the “human environment” only for “Americans”, as if humans with differing immigration status no longer belonged to our environment. CEQ’s proposed rule now fixes this; and humans once again include all “present and future generations” (1508.1(p)).
Unfortunately, last June, Congress passed and the President signed the Fiscal Responsibility Act of 2023 (debt-ceiling law), which codified other 2020 NEPA rollbacks. That’s why the President calls this proposed rule “bipartisan”.
Climate Crisis and Environmental Justice Highlights
Starting with the positive, CEQ’s proposal would require agencies to consider climate change, cumulative effects (1508.1(g)(3)), and environmental justice (1508.1(k) “EJ”) in major decisions. This represents a crucial victory for all communities, especially underserved communities disproportionately impacted by fossil fuels and mining. For instance, proponents of extraction projects often try to make their climate and EJ impacts seem less significant, by artificially dividing bigger projects into a series of smaller segments. CEQ’s proposed rule prevents this common industry practice.
This proposed rule builds upon this Administration’s earlier Climate Change, Environmental Justice, Indigenous Knowledge Executive Orders, and CEQ’s “Phase 1” NEPA rule. Plus, tons of public comments, particularly from communities significantly impacted by our government’s fossil fuels and mining decisions. When final, these rules will result in more thoughtful and responsive environmental reviews with agencies more likely selecting preferred alternatives from those most impacted.
Fiscal Responsibility Act of 2023 Weakened NEPA
Still, the debt ceiling law, passed in June, resulted in devastating cuts to vital human services and environmental programs, including nutrition assistance, the Indian Health Service, and NEPA. While CEQ’s proposed rule maintains that the government ultimately has final say, many NEPA documents will be written by fossil fuels and mining companies. The debt ceiling law also limited timelines for community input and specifically green-lit the Mountain Valley Pipeline.
The changes to NEPA now direct agencies to periodically consider excluding whole categories of projects (categorical exclusions “CEs”). Other projects may evade site-specific review, if agencies already analyzed a related group of actions (programmatic). The next President may use CEs and/or programmatics to potentially include some plans for mineral exploration, mineral processing, carbon sequestration, petrochemicals, or fossil fuels exports.
An Extraordinary Time for Extraordinary Circumstances
CEQ should not allow NEPA exclusions for mineral exploration, processing, carbon sequestration, or fossil fuels exports projects, by listing them among examples where extraordinary circumstances may apply (1508.1(m)).
Here, the extraordinary circumstances for extractive projects include their disproportionate impacts to underserved communities as well as substantial contribution to the climate crisis—precisely the “hard look” NEPA requires.
The Inflation Reduction Act and Infrastructure Investment and Jobs Act (IRA and IIJA) created a variety of new, and expanded existing, authorities for some environmentally risky projects like copper smelters, lithium processing, or so-called “blue” hydrogen carbon management infrastructure. CEQ should specially note that IRA and IIJA loan guarantees and other financial assistance are major federal actions (1508.1(u)) deserving full NEPA review. This is because provisions of the IRA and IIJA gave agencies (especially the Department of Energy) discretion to exert sufficient program control and responsibility to address environmental effects and financing decisions.
The President touts the IRA and IIJA as his signature climate and EJ legislative accomplishments, even though he signed a debt-ceiling law that slashed through NEPA. CEQ’s proposed NEPA rule must still translate each law into tangible climate and EJ benefits. CEQ’s proposals attempt to fix some of the problems the debt ceiling bill created. But, as with their “Phase 1” NEPA rule, they will depend on public comments to ensure those fixes work.
The Biden administration’s new NEPA rulemaking will have a significant impact on any major mining or fossil fuel project that moves forward. Broad engagement is needed to ensure that frontline communities, environmental justice and the climate are prioritized.
The comment deadline is September 29.
Register here for one of CEQ’s four virtual public hearings.