Republicans Look to Reverse Biden’s Infrastructure Permitting Changes

Senate Republicans are seeking to undo President Biden’s restrengthening of environmental permitting regulations for major infrastructure projects.

The effort, spearheaded by Sen. Dan Sullivan of Alaska, appears unlikely to pass the Democratically-controlled House and Senate or to withstand a veto. But it highlights fears among business and labor groups that reversing the Trump administration’s easing of National Environmental Policy Act rules could slow down projects funded under the bipartisan Infrastructure Investment and Jobs Act. 

The plan also offers a preview of the types of priorities that GOP lawmakers could take up if the party retakes one or both chambers of Congress in this November’s elections. 

For now though, the proposal seems headed for a dead end on Capitol Hill. A Senate Environment and Public Works Committee aide for Democratic chairman Tom Carper, of Delaware, told Route Fifty that Carper would oppose Sullivan’s plan. 

Sullivan, speaking on the Senate floor earlier this month about the infrastructure package, said that, “The President said he liked it. The unions really liked it. The building trades—the men and women who build stuff in this country—liked it.” 

But he also charged that, despite broad support for the IIJA, the administration’s revamped NEPA rules make it “much harder to actually build infrastructure.”

To push back against the rules, Sullivan plans to take action before Congress leaves for its August break under what’s known as a Congressional Review Act, which gives lawmakers a path to undo federal regulations with a simple majority vote in both houses. A vote is expected to follow on Sullivan’s proposal once lawmakers return to Washington after Labor Day. 

'We’ve Built Plenty of Infrastructure'

The controversy comes after the White House’s Council on Environmental Quality in April announced major changes in April to how NEPA is enforced, restoring the rules to how they were before the Trump administration revised them in 2020.

State and local officials, Republican politicians and construction industry leaders have long complained about the delays that the lengthy reviews can have on building infrastructure. 

Trump, in revising the rules, said “mountains and mountains of red tape” and lengthy permit processes had held up major infrastructure projects across the country.

However, environmentalists consider NEPA to be one of the most important environmental laws on the books. The law requires the federal government to review big projects—like highways and dams—to see how they would affect plants, animals and people before construction begins.

Environmental advocates and Democrats strongly opposed the Trump administration’s changes. 

Two months after the changes, for instance, top Democrats on Congress’ main environment and infrastructure committees filed a court brief in support of a lawsuit environmentalists unsuccessfully brought against Trump’s rules.

“Congress intended that the NEPA review process would protect the public by requiring agencies to carefully examine the environmental impacts of their actions,” wrote Carper, Rep. Peter DeFazio, of Oregon, who chairs the House Transportation and Infrastructure Committee, and Rep. Raúl Grijalva, of Arizona, who chairs the House Natural Resources Committee.

“The 2020 Rule, however, removes or weakens core elements of the NEPA review process, thereby undermining NEPA’s protections that have made the law so valuable to [our] constituents,” the three wrote.

Carper in a statement said he supports Biden reversing Trump’s move.

“The Biden Administration was correct in modifying the Trump NEPA rule, which would have burdened the public with severe environmental and health consequences by eliminating the requirement for agencies to consider cumulative impacts and indirect effects of proposed actions,” Carper said. 

“We’ve built plenty of infrastructure over the last 50 years, and, in many cases, NEPA helped us do so with less environmental impact and in accordance with the input of the affected community. Claims that the Biden Administration’s NEPA rule actions will block the implementation of the Bipartisan Infrastructure Law are unfounded,” he added.

Carper also pointed to provisions in the infrastructure law intended to speed up projects.

Brenda Mallory, chair of the Council on Environmental Quality, told county officials at a conference in Washington in February, that the Biden administration was targeting what it identified as “the most impactful” parts of the 2020 Trump rule that could potentially undermine “our ability to have good, thoughtful decisions.” 

The Biden administration’s new rules specify that federal agencies need to consider the “indirect” and “cumulative” environmental impacts of projects they are reviewing, not just the “direct” impacts, as had been the case in the 2020 rules. The administration specified that the effects on climate change should be one of the considerations taken into account.

The changes also give federal agencies more flexibility to consider alternatives to proposed projects that would meet the same goals. And they let federal agencies work with local communities to determine the “purpose and need” of a given project, which might differ from what a project’s sponsor (often a private company) has proposed.

In addition, agencies have greater leeway to tweak their environmental review processes for the types of projects they handle. That means they could be more stringent than the procedures specified by the Council on Environmental Quality.

A CEQ spokeswoman declined to comment on Sullivan’s proposal or his claims that the new rules could slow infrastructure construction. 

But the Biden administration on May 11, a month after reversing the Trump administration’s rules, did also unveil an action plan to “accelerate and deliver infrastructure projects on time, on task, and on budget.”

According to a White House fact sheet, the plan will among other things, “improve coordination among agencies, help avoid and resolve potential conflicts and bottlenecks, identify and share best practices, and accelerate information sharing and troubleshooting.” 

It would also designate a lead agency for projects to establish timelines for permitting projects and coordinate the work of other agencies to keep reviews on track.

Efforts along these lines are not new even among Democratic administrations. Back in 2015, when Biden was vice president, the Obama administration rolled out an initiative to “accelerate the nation’s critical infrastructure projects.”

Sullivan’s proposal is expected to receive support from Republicans who have bashed the new NEPA rules.

Sen. Richard Shelby, an Alabama Republican who serves on the Senate Environment and Public Works committee, declined to comment on Sullivan’s proposal until he has seen it. “But I'm not a big fan,” he said of the Biden administration guidelines.

A spokesperson for Grijalva declined comment on Sullivan’s plan. 

'Burdensome Requirements'

Sullivan, though, told Route Fifty in an interview that “I think there'll be a lot of Democratic interest” in trying to undo the rules. “I think the unions are going to support it.” 

The Laborers’ International Union of North America, which represents workers who build roads and other infrastructure, did not comment on Sullivan’s proposal. But, in a statement in April, the union’s president, Terry O’Sullivan, blasted the Biden administration rules.

“The rollback of updates to the National Environmental Protection Act (NEPA) reinstate burdensome requirements that will cause excessive permit delays and allow project adversaries to use frivolous lawsuits to disrupt or upend long overdue construction,” O’Sullivan said. 

Chad Whiteman, vice president for environment and regulatory affairs with the U.S. Chamber of Commerce’s Global Energy Institute, also expressed concern in an interview about the Biden administration's changes. 

“The NEPA process is broken,” Whiteman said, adding that he feared the unwinding of the Trump administration’s regulations will mean a return to federal permitting taking four to five years to complete in some cases.

The Biden administration’s changes “unfortunately rolled regulations back to the 1970s,” he said and could slow a range of projects, from roads to off-shore energy and broadband.

Nick Goldstein, vice president of regulatory and legal issues with the American Road & Transportation Builders Association, said the group supported the 2020 changes to the NEPA process "because we really thought it was long overdue.”

“NEPA had not been reformed in 40 years,” said Goldstein, whose group is part of a U.S. Chamber of Commerce coalition of 52 business groups and labor unions pushing for NEPA revisions. 

“The problem is this happens at the same time we passed the historic infrastructure bill,” he added, referring to the Biden administration's overhaul. “We’re not going to build back better by going backward.”