Senate Approves Rollback of Biden’s Infrastructure Permitting Rules

In what Republicans said was a bipartisan rebuke of the Biden administration’s strengthening of environmental permitting regulations for a wide range of infrastructure projects, the Senate approved a resolution on Thursday that would undo those rules.

The effort to repeal the administration’s major changes in the enforcement of the National Environmental Policy Act still faces an uphill path in Congress. The measure to do so, proposed by Alaska Republican Sen. Dan Sullivan, and approved in a largely party line 50-47 vote, must still pass the House. The White House also said on Thursday that President Biden would veto it.

However, Sullivan and a top official with the U.S. Chamber of Commerce see momentum even among Democrats in streamlining federal permitting, including the possibility of a two-year deadline to review projects, following passage of the bipartisan infrastructure law last year. 

Significantly, Sen. Joe Manchin, of West Virginia, broke with other Democrats in voting for the measure in the evenly divided chamber.

Though Manchin was the only one, Sullivan said other Democrats privately acknowledged to him that changes are needed with federal permitting requirements, which a range of business and labor groups say slow down infrastructure projects.

“I won't name names. But a number of Democrats came up to me after and said, ‘hey, look, I really couldn't vote for that, but I want to work with you on more permitting reform,'” Sullivan said in an interview.

“I think the reason we didn't get more Democrats is people are just scared to vote against the far left environmental groups who have so much sway with that party,” he added.

Sen. Tom Carper, a Delaware Democrat and chairman of the Environment and Public Works Committee defended the new rules as “narrow and targeted.” But he also said on the Senate floor that Democrats intend to take up permitting streamlining in the fall as part of the deal to win Manchin’s support for the multi-billion climate and health care package he and Senate Majority Leader Chuck Schumer of New York are backing.

Manchin, in announcing the deal two weeks ago, said Biden, Schumer and House Speaker Nancy Pelosi had “committed to advancing a suite of common sense permitting reforms this fall that will ensure all energy infrastructure, from transmission to pipelines and export facilities, can be efficiently and responsibly built to deliver energy safely around the country and to our allies.”

Schumer in a joint statement with Manchin said that Democratic leaders agreed to “pass comprehensive permitting reform legislation before the end of this fiscal year.”

Among the ideas being discussed, said Chad Whiteman, the U.S. Chamber of Commerce's vice president for environment and regulatory affairs, is setting the two-year limit to approve projects, requiring coordination between agencies to speed up review times, and identifying 25 major national projects that would be prioritized for reviews.

Up for debate in Thursday’s vote, however, were rules the White House’s Council on Environmental Quality announced in April that would restore enforcement of NEPA regulations to what they were before the Trump administration revised them in 2020.

The changes 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 with the 2020 rules. The Biden 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.

Weighing the cumulative and indirect impacts of projects is particularly important, Carper said on the Senate floor. “Considering such impacts can ensure that we can avoid actions that worsen climate change and have a negative impact on communities,” he said.

“Blocking policy improvements from taking effect is the policy equivalent of burying our head in the sand,” Carper added. “Refusing to consider the impacts of climate change will not keep climate change from happening.” 

The White House in stating the administration’s opposition to Sullivan’s measure said that undoing the rules “would slow the construction of American infrastructure, lead to the waste of taxpayer resources on poorly designed projects, and result in unnecessary and costly litigation and conflict that will delay permitting.”

It would also, “prevent the federal government from conducting efficient environmental reviews of federally funded infrastructure projects, create uncertainty and legal vulnerabilities for these projects, and eliminate the flexibility of agencies to work with communities to design projects that yield better outcomes and result in fewer costs and harms,” the White House added.

But a range of groups, including the Chamber of Commerce, Associated Builders and Contractors and the National Association of Manufacturers, as well as some labor unions, like the International Union of Operating Engineers and the Laborers’ International Union of North America, had pushed for repealing the Biden administration’s rules saying that they would slow construction projects spurred along by the bipartisan Infrastructure Investment and Jobs Act.

That could be influential when Congress takes up permitting reforms, even if Sullivan’s proposal fails, Whiteman said. “We’re really excited about it,” he said of Thursday’s vote. “It just shows how broad the support is in the business community and with labor.”

Sullivan, meanwhile, hung on to hope that should the resolution pass Congress, it will not be vetoed by Biden.

“‘Blue Collar Joe’ says he's for the men and women who build stuff. We'll see if he would veto it,” Sullivan said.

Speaking on the Senate floor, he said the rules would “kill jobs” and would delay the construction of projects such as roads, bridges, wind and solar power installations and development tied to manufacturing. “Pretty much everything is going to be slowed down by this,” he said.

Should efforts to streamline permitting not go far enough this year, Sullivan said it will be a “huge priority” should Republicans win control of Congress. But he said it is not a partisan issue. 

“If you go talk to governors and mayors,” he said, “it doesn't matter what party they're in. Democrat or Republican. They all care about this. Why? Because they all have these horror stories.”