Weather conditions in permit rule to add delays, energy lawyers say

Industry lawyers warn that the climate change provisions of the Biden administration’s new environmental clearance rules will throw more proposed projects through the courts, potentially jeopardizing the very projects the White House wants to promote.

Wind farms, solar panels and renewable energy transmission lines — all parts of the White House’s bid to halve national greenhouse gas emissions by 2030 — could be affected, according to the lawyers.

“I think they’re injecting a whole new level of uncertainty into the project licensing and development process,” said Byron Brown, who worked on Trump administration policy as deputy chief of staff. from the EPA for politics and previously as an aide to Senator James. Inhofe, R-Okla., and is now a senior attorney at Crowell & Moring LLP.

“You’re going to have individual judges having to weigh in and decide what’s good enough,” Brown said. “What kind of environmental analysis is sufficient? How far down the chain do you need to analyze the potential impacts of climate change? »

The new CEQ rule under the National Environmental Policy Act asks agencies to consider the climate change impacts of infrastructure projects, land management efforts and other activities.

The rule, which takes effect this month, would reverse a change the Trump administration implemented in 2020. The rule required agencies to consider only reasonably foreseeable effects with a close causal relationship to the proposed action. – a reversal of the policy that had been in place for decades before Biden reinstated it.

Extension of the authorization process

The Biden administration denies that its changes will cause clearance delays because they closed loopholes and resolved ambiguities created by Trump-era changes.

“Fixing these flaws in the environmental review process will help projects be built faster, be more resilient, and deliver greater benefits to people who live nearby,” CEQ President Brenda Mallory said in a statement. a statement when the rule has been finalized.

But Andrew Emrich, a former assistant attorney general in the Justice Department’s environment and natural resources division, said that compared to post-Trump rule changes, the new changes “almost by definition” expand the process. authorization, thus opening up more opportunities for justice. attacks.

“Agencies have gotten good at circumscribing direct impacts, but they now have to consider indirect impacts that might be some distance in the future, and cumulative impacts that might sweep away projects that might not even be federal projects. “said Emrich, now a partner. at Holland & Hart LLP.

NEPA applies only to projects under the control or responsibility of the federal government.

Marlo Lewis, a senior fellow at the Competitive Enterprise Institute, said the new rules raise the possibility that almost any project can now be challenged for reasons related to climate change.

“All environmental impacts assume a cumulative effects analysis because no one lives in the Garden of Eden today,” Lewis said.

Once a case reaches court, the results can be highly unpredictable, according to Brown, who also worked in the EPA’s Office of Legal Counsel in the George W. Bush and Obama administrations.

“You have different district courts coming out with different opinions,” he said. “It’s kind of a mess right now in the courts.”

Direction to come

At least some of the uncertainty could be dispelled when the CEQ releases guidelines telling agencies how to consider the climate impacts of proposed projects. This orientation is expected in the coming months, according to a spokeswoman for the agency.

Brett Hartl, director of government affairs at the Center for Biological Diversity, dismissed the idea that climate change would trigger an avalanche of litigation because agencies can devise “reasonable rules of conduct” for carrying out analyses.

“It’s not like everything under the sun is going to be litigated because of the weather,” he said. “Agencies can and should think about where these shows become important. You follow the science to know where the impacts are measurable, meaningful and have real consequences.

Hartl said industry lawyers’ concern that the policy would jeopardize energy projects “is a talking point, a boogeyman.”

The CEQ and the courts have repeatedly said that climate change “is fully within the jurisdiction of NEPA,” said Stephen Schima, senior legislative counsel at Earthjustice.

The CEQ spokeswoman also said the new rule “clarifies and reaffirms” the agency’s longstanding policy – predating Trump’s changes – which required agencies to analyze reasonably foreseeable effects, including the effects of climate change.

But that consideration was already creating legal delays, say opponents of Biden’s changes. The Trump administration tried to limit legal challenges in 2020 when it only required that a project’s effects be “reasonably foreseeable” and have a “reasonably close causal relationship” to the project.

Further help could come from reinstating the Trump-era “single federal decision” policy in the recently passed bipartisan infrastructure bill. The policy, which President Joe Biden previously revoked, requires agencies to collaborate on permits, conduct their reviews concurrently and meet set deadlines.

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