Aerial/Drone view of a wind farm with multiple wind turbines at sunrise

New NEPA Rule Eases Permitting Process while Advancing Environmental Justice

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On the final day of April 2024, a week and a half after Earth Day, the Biden-Harris Administration announced that the White House Council on Environmental Quality (CEQ) finalized a rule intended to simplify and modernize the federal environmental review process under the National Environmental Policy Act (NEPA). A pillar of environmental law passed in 1970, NEPA requires federal agencies to assess the environmental, social, and economic impacts of a wide array of agency activities, such as land management, infrastructure construction, and permitting decisions. This is the second of CEQ’s multi-phase rulemaking process, the first of which occurred two years ago (covered by ELM here), and which was intended to roll back the prior administration’s own rollback of NEPA, which resulted in protracted environmental-justice-based litigation.

The focus this time around was on the acceleration of federal permitting for clean-energy projects while still protecting communities that receive a disproportionate share of environmental pollution or hazardous climate-change impacts. More specifically, Phase 2 of the “Bipartisan Permitting Reform Implementation Rule” incorporates amendments pursuant to the Fiscal Responsibility Act and 2023’s BUILDER Act, with a particular focus on placing length and time limits for environmental assessments and environmental impact statements. According to the White House, this phase includes “setting clear deadlines for agencies to complete environmental reviews, requiring a lead agency and setting specific expectations for lead and cooperating agencies, and creating a unified and coordinated federal review process.” It also establishes new ways by which federal agencies can create “categorical exclusions,” the speediest form of environmental review, for projects that advance the administration’s environmental justice and climate-change-related goals. Finally, this phase prioritizes early public participation and engagement in environmental review processes.

This rulemaking phase is intended to emphasize the importance of a secure clean-energy future while minimizing supply-chain disruption and rebuilding American infrastructure.

According to CEQ, it conducted a thorough review of nearly 150,000 public comments on the proposed rule. The effective date of the Bipartisan Permitting Reform Implementation Rule is July 1, 2024.