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New NEPA Rules Will Delay Permits and Increase Emissions

This article was originally published by ClearPath.

The electric grid is on the cusp of a huge expansion. With a massive amount of new energy demand on the horizon, grid operators are already bracing for huge amounts of growth. The sudden increase in 5-year load growth expectations is driven by a surge in new data centers supercharged by artificial intelligence and cryptocurrency, increased American manufacturing and industrial activity, and new projections for hydrogen fuel plants, batteries and electrified transportation. 

>>>READ: California’s Rail Regulation Is Bad Economic and Environmental Policy

The U.S. will need to build as many as 13,800 new energy projects by 2030 — an average of 7 projects per day — to provide enough clean, reliable, and affordable energy. Given the need to build more energy infrastructure of all types, it is right to question why the Biden Administration’s Phase II National Environmental Policy Act (NEPA) rulemaking is filled with new requirements that make it more difficult to get projects permitted. The U.S. needs to deploy more clean energy infrastructure projects, not fewer, at a faster pace and scale than the status quo.

Instead of revising the proposed rule to account for challenges ahead, the Biden Administration’s final NEPA permitting rule increases uncertainty, adds new requirements to permitting reviews that move the process in the wrong direction and ultimately increases emissions through permitting delays. The Biden Administration’s voluntary actions prioritize a political agenda rather than build upon the newly enacted changes to NEPA.

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The most favorable parts of the rulemaking actions to implement permitting reforms championed by House Republicans, including key provisions passed in H.R.1, the Lower Energy Costs Act and codified on a bipartisan basis in the Fiscal Responsibility Act (FRA). But beyond those new reforms that Congress mandated, the Administration is actively self-sabotaging its climate goals in this proposed rule. 

Among the reforms championed by House Republicans are new standards to keep reviews on track, including deadlines and page limits. Federal agencies have begun to use a new provision from the FRA allowing them to adopt categorical exclusions from other agencies, as the Bureau of Land Management (BLM) recently did for geothermal exploration activities on federal lands. Beyond BLM, a broad range of agencies from the Defense Advanced Research Projects Agency (DARPA) and NASA to the Department of Energy (DOE) have also used these new authorities to adopt categorical exclusions to accelerate reviews for high-impact projects.

>>>READ: A Welcome Step to Ease Geothermal Permitting on Federal Land

CEQ notes that it received many comments opposing this new categorical exclusion authority, with at least one going as far as to call it a “disastrous policy.” While CEQ was obligated to enforce the law enacted by Congress, CEQ still managed to limit its scope to exclude categorical exclusions that were enacted legislatively rather than through an administrative process. CEQ should have sought to maximize these new bipartisan provisions, not undermine them. 

Failing to maximize new authorities will only increase delays in the years ahead as more energy projects enter the queue. Absent change, these permitting delays are bound to get worse under the status quo as clean energy projects face the same delay tactics and legal risks that can jeopardize financing. 

When the proposed rule was released last August, ClearPath identified five additional missteps from CEQ’s NEPA guidance that actually make the Administration’s emissions reduction goals more difficult. These five issues remain in the final rule announced this week. 

  1. Defaults to the status quo that is making permitting worse 
  2. Creates more confusion and uncertainty for project developers
  3. Allows agencies to base project reviews on unrelated alternatives
  4. Increases bureaucracy and red tape by removing jurisdictional boundaries
  5. Invites more litigation to oppose project permits

Unfortunately, there is little in the final rule focused on fast approvals for projects with limited environmental impacts, reducing litigation risks after permits have been issued, or fundamentally getting more projects built without bureaucratic delay. If anything, the final rule invites more legal challenges to projects before they can even get off the ground.

There are many opportunities to improve the permitting process. Judicial review reforms remain an unaddressed opportunity. As this rule injects new uncertainty and increases litigation risk, Congress could step in to fill the gap to provide more certainty for projects looking to move forward to meet America’s record energy demands.

Matthew Mailloux is a Program Manager of Clean Energy and Permitting at ClearPath

The views and opinions expressed are those of the author’s and do not necessarily reflect the official policy or position of C3.

Copyright © 2020 Conservative Coalition for Climate Solutions

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