January 18, 2021

Volume XI, Number 18


January 15, 2021

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White House Updates Bedrock Environmental Rules, Setting Up Legal, Legislative Battle Over Energy, Infrastructure Permitting

On July 15, 2020, the White House released the long-anticipated Final Rule entitled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA).” According to the White House, the updated regulations will reduce federal permitting time for major projects to two years, at most. Opponents were quick to characterize the move as weakening environmental protections and promised to challenge the rule in court.

NEPA was passed in 1970. The law created the Council on Environmental Quality and requires executive branch agencies to review projects through environmental impact studies and environmental assessments. Increasingly, developers and industry have criticized that process for being overly burdensome and time-consuming. The Final Rule makes several changes to how agency review will be conducted moving forward and the considerations and priorities for those reviews. As the administration seeks to restart the economy, it continues to look for opportunities to remove barriers for industry.

Despite intentions, it’s possible that the release of the Final Rule and impending legal battles could create more confusion in the short-term. Opponents plan to challenge the proposal on several grounds, including that the new streamlined regulations do not fulfill the statutory language enacted by Congress. Opponents also point to the rule’s weakening on considering the cumulative impacts of climate change and the ability for individuals to participate in the review process of projects in their area.

The timing of the rule is noteworthy. This week, the House Transportation & Infrastructure Committee marked up its Water Resources Development Act reauthorization, and both chambers passed a broader infrastructure proposal earlier this month. The Senate Environment & Public Works Committee has also passed a reauthorization to the Highway bill, and both parties are looking to infrastructure as a critical driver of the country’s economic recovery.

Finally, it will be worth watching the political fallout around the move. The rule’s release falls within the window to potentially be repealed by the Congressional Review Act if Democrats are successful in the November elections. In fact, this could become an Election Day issue in some areas experiencing local issues from either side.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 202



About this Author

Joshua Andrews Faegre Drinker Public Policy
Senior Director

Josh Andrews helps clients identify and prepare for legislative challenges and opportunities on a wide range of issues. Drawing from his background as an operative in both chambers of Congress, he helps prepare and execute comprehensive federal affairs strategies that advance clients' goals. He advocates on clients’ behalf before decision-makers on Capitol Hill, in the White House and within federal regulatory agencies.

Energy and Environmental Policy

Josh has worked extensively on energy and environmental policy...

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Brandon W. Kirkham Public Policy Strategy & Government Advocacy Faegre Drinker Biddle & Reath Washington, D.C
Principal - Faegre Drinker Consulting

Brandon Kirkham helps clients advance their agendas through integrated public policy strategy and government advocacy. Drawing from two decades at the intersection of highly regulated businesses and government, Brandon partners with clients of varying size and complexity and across industries to develop and implement advocacy strategies that effectively assist clients in responding to legislative and regulatory challenges. He provides strategic advocacy on a broad range of policies of impact across the economy with significant experience assisting clients in managing energy, environment...

Delmar R. Ehrich Trial Attorney Faegre Drinker Biddle & Reath Minneapolis, MN

Delmar Ehrich is a nationally recognized trial lawyer who leads clients through complex chemical, toxic tort, product liability and commercial litigation in federal and state courts in every region of the country. With more than 30 years of experience, Del understands that litigation requires keen and unwavering attention to costs, risks and benefits. He develops and implements strategies to align with the risk of a particular litigation, including trying the case.

Environmental Litigation

With more than 30 years of experience, Del has represented businesses in...