President Donald Trump took another step on Sunday toward making the United States a country that builds things. The White House Council on Environmental Quality rescinded the regulatory framework for implementing the National Environmental Policy Act, a law that has made everything from housing construction to road repairs more expensive and time-consuming since it was passed in 1970.
Unfortunately, as fast as Trump is moving on permitting reform, unless the law changes or NEPA is outright repealed, the regulatory environment Trump leaves behind could be worse than the one he inherited.
Some people like to refer to NEPA as the Magna Carta of environmental law, but that is wrong. All real progress made by the Clean Air Act and Clean Water Act are independent of NEPA. Those laws mandate real deliverable outcomes such as removing sulfur dioxide from the atmosphere and arsenic from the water. NEPA, on the other hand, is all about process, not outcomes. It is enforced by lawsuits and has become a tool for anti-growth interest groups to thwart everything from new housing to clean energy to faster transportation.
NEPA could be repealed tomorrow, and the environment would not suffer a bit. However, trillions of dollars in new infrastructure investment would pour into our economy.
Originally, NEPA was just a five-page law that required “all agencies of the Federal Government” to prepare an “environmental impact” of every federal action that “ significantly” affected “the quality of the human environment.” It was loosely enforced until former President Jimmy Carter issued Executive Order 11991 directing the Council on Environmental Quality to issue comprehensive regulations for agency NEPA compliance.
Late in his first term, Trump tried to minimize some of the costs of NEPA compliance by having the CEQ issue new regulations limiting the scope of environmental review to a project’s immediate impacts and setting time and page limits for reviews.
However, what one president accomplished through executive rulemaking, the next president can undo. Not only did Biden’s CEQ undo Trump’s NEPA reforms, but it added new regulatory burdens, including some forcing agencies to address future indirect impacts on climate emissions, “disproportionate adverse effects” on public health, and alternatives to mitigate “climate impacts.”
Federal courts have since pushed back on CEQ’s power, with one District Court and one Court of Appeals holding that the NEPA law did not authorize the CEQ to issue binding regulations. With those court decisions in mind, Trump issued an executive order on his first day in office revoking CEQ’s authority to issue binding NEPA rules. This sounds like a step in the right direction, but if the CEQ has no authority to issue binding NEPA rules, then under what authority can it erase existing CEQ regulations that federal agencies have relied upon for decades to comply with NEPA?
Trump’s Unleashing American Energy executive order promises that the CEQ will soon issue “non-binding guidance” on how federal agencies should comply with NEPA. Trump also promised that this guidance will be narrower in scope, as required by NEPA amendments made as part of the Fiscal Responsibility Act of 2023. However, it will still be up to each individual agency to issue its own regulations interpreting CEQ’s guidance. As long as Trump’s Office of Management and Budget maintains tight control over how each agency writes its regulations, this is good. However, Trump will not control OMB or each agency forever.
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Eventually, in four, eight, or 12 years, Democrats will regain control of the White House and the federal agency rulemaking apparatus. A Democratic president will be able, as Biden did, to undo Trump’s reforms and, as Biden did, make NEPA more burdensome. Worse, with CEQ removed as a clearing house for NEPA compliance, each agency will be free to create new oppressive NEPA compliance regimes. Each Democratic Party agency head will compete to be the most restrictive. It will be a race to see which Democratic agency can shut down economic growth fastest, and builders will be forced to navigate a separate NEPA compliance system for each agency they need to agree on a project.
The only way to solidify the progress Trump makes on permitting reform is for Congress to repeal NEPA or gut it to make sure interest groups are no longer able to hold economic growth hostage.
This article was originally published at www.washingtonexaminer.com
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