Bill may advance Biden’s climate agenda

WASHINGTON — As Congress begins to assemble a once in-a-century federal investment in infrastructure, the Biden administration is taking steps to redefine the process for permitting such projects.

It’s a quieter set of actions that could amount to sweeping changes to how the money, once authorized by lawmakers, is directed across the Pittsburgh region and the country.

Biden officials are studying a 50-year-old environmental permitting law, widening the scope of reviews and restoring provisions rolled back by the Trump administration last year. The changes could advance President Joe Biden’s climate agenda by funneling federal dollars to specific projects, like those powered by clean energy, while stalling others, like those run by fossil fuels.

The actions to strengthen the permitting law, the National Environmental Policy Act, have pleased climate advocates pressing for all projects to consider a broader set of impacts

The speed of permit approvals is a tricky balance between the two sides, with President Joe Biden and congressional Democrats setting ambitious targets for zero greenhouse gas emissions by 2050, lawyers and advocates said in interviews last week.

related to climate change and environmental justice concerns.

But it has rankled industry proponents — particularly in oil and gas but also in construction, manufacturing and other sectors crucial to the region — who argue that badly needed infrastructure development will be unnecessarily delayed for years or blocked altogether.

The speed of permit approvals is a tricky balance between the two sides, with Mr. Biden and congressional Democrats setting ambitious targets for zero greenhouse gas emissions by 2050, lawyers and advocates said in interviews last week.

“If time is of the essence with regard to revamping infrastructure, the administration has to ask themselves exactly what NEPA is going to add or subtract to that process,” said Jennifer Smokel in, an energy and environmental lawyer for Reed Smith in Pittsburgh.

“If permits take too long under the NEPA process, then the goal of new infrastructure and a revamped electricity sector is going to be stymied,” Ms. Smoke lin said.

A wide scope

Permitting has always been a venue for contentious debate, with outside developers clashing with local interests over the technicalities of a project before government authorities. The majority of projects get a green light without generating much attention.

Under NEPA, passed in 1970, federal permitting reviews are triggered by any “major federal action” found to “significantly affect” the quality of the human environment. That includes projects proposed for federal land or waters, that cross state lines, that receive federal funding, that involve an endangered species or a historic property, or that otherwise require federal review.

The review process under NEPA “is your best opportunity as a member of the public to tell the government what it is you think about what they’re doing in your own backyard,” said Nathaniel Shoaff, a senior attorney with the Sierra Club’s Environmental Law Program. “These are realworld impacts; it is not just a paper exercise.”

NEPA is seen as a bedrock environmental law, in part because its scope and its assessment of impacts can be wider than state or local permits, said Abigail M. Jones, vice president of legal and policy for PennFuture, a statewide environmental group.

In December, PennFuture joined other groups in filing a federal lawsuit in Pittsburgh challenging the Federal Highway Administration’s approval of a project in Erie that the group said would potentially harm water and air quality in an environmental justice community. State and federal authorities hoped to avoid an environmental assessment and begin construction of the $70 million to $100 million Erie Bayfront Parkway Project in 2022.

For an oil and gas pipeline, she said, permits should consider impacts from drilling and power plants that burn the fuel.

“You’re not looking at a project in a bubble; you’re looking at its impact on the community, its impact on the regional or local air quality or water quality downstream,” Ms. Jones said. “How does this project fit into other projects? How are they combined going to impact our communities?”

A long timeline

Over time, project developers have bristled at NEPA reviews, claiming that environmental assessments swelled in page count and forced them to wait for years to get a final answer from agencies. Easy-to-file lawsuits, often pursued by advocacy groups opposing development, can delay the process even more, they argued.

“NEPA has become a tool to delay projects, and delay can be the death of a project — and project opponents know it,” said James Auslander, a Washingtonbased lawyer for Beveridge and Diamond environmental law firm, who works on project development and natural resources law. Among his clients are companies and developers in the Appalachian natural gas industry.

A June 2020 White House report of nearly 1,300 environmental impact statements over eight years — the highest level of review for major infrastructure projects — found the average completion time was 4.5 years. A separate analysis showed the impact statements run an average of 661 pages.

Of 21 federal agencies, the longest average timeline was in the U.S. Transportation Department, with a typical highway or aviation project taking more than seven years to receive approval. The U.S. Army Corps of Engineers, overseeing lock-and-dam projects like those around Pittsburgh, averages about six years.

Using the industry argument, the Trump administration put out new NEPA rules last year that sought to quicken reviews.

In addition to capping page counts and setting a two-year deadline for environmental impact statements, Mr. Trump eliminated the requirement to consider a project’s “indirect and/or cumulative effects” on the environment and limited the scope of reviews.

“You still have a review, but it happens in a more reasonable time frame” under the Trump-era rules, said Robert L. Burns Jr., a Pittsburgh-based energy lawyer for Buchanan Ingersoll and Rooney.

“If you’re trying to get an approval for a port facility, and the fear is that you’re going to ship either coal or liquified natural gas to somewhere else and it’s going to be burned, I don’t know how to measure the potential impacts of that very easily,” Mr. Burns said.

Rolling back

Mr. Biden’s climate agenda, outlined in executive orders he signed in his first hours in office, could put a halt to those permitting changes. Coinciding with orders to cancel the Keystone XL pipeline and block new drilling leases on federal lands, Mr. Biden demanded all federal agencies review, revise or rescind the NEPA rules.

Brenda Mallory, Mr. Biden’s pick to lead the White House Council of Environmental Quality, which sets NEPA standards, told E&E News last July that the rule “narrows what the agencies are looking at in a way that obscures what is really happening” and that “you almost don’t have a choice but to remove the whole thing.”

Ms. Mallory, who was council’s general counsel during the Obama administration, faced GOP criticism during her confirmation hearing last week before the Senate Environment and Public Works Committee. Sen. Shelley Moore Capito, R-W.Va., the committee’s top Republican, opposed her nomination. (The committee advanced her nomination by an 11-9 vote.)

“We simply cannot be content with an average of seven years to complete an environmental impact statement for a highway project,” Ms. Capito said. “If we want to build back better, we have to be able to actually build.”

The administration also took the position that states can unilaterally veto a federally approved interstate project, filing documents this month in a U.S. Supreme Court case involving a pipeline proposed to carry Pennsylvania natural gas to New Jersey, which blocked the project.

That position could also come into play as Michigan’s state government is seeking to obstruct a pipeline to carry crude oil and natural gas liquids to domestic refiners in Michigan, Ohio and Pennsylvania.

Rep. John Joyce, R-Blair, introduced legislation that exempts broadband projects from NEPA and National Historic Preservation Act reviews. He said the bill would “speed the deployment of broadband by cutting through red tape and exempting wireless facilities from undergoing lengthy and unnecessary environmental and historical reviews.”

Aaron Mintzes, senior policy counsel for Earthworks, called the argument that NEPA was the cause of project delays “demonstrably untrue.” He said infrastructure delays originated with the project developer’s financing and understaffed federal agencies that can’t process the permits quickly enough.

“NEPA helps the process; it doesn’t slow the process,” Mr. Mintzes said.

A debate

But Kevin Sunday, director of government affairs for the PA Chamber of Business and Industry, testified to Congress this month that the permit process, “while well-intentioned, has resulted in years of delay to the point where it can take longer to approve a project than to build it.”

“The delay there is a lot of back-and-forth between the project applicant and the different agencies over what they consider to be potential impacts,” Mr. Sunday said in an interview.

Cumulative impacts are so poorly defined, he said, that “you end up in a lot of these subjective areas over how far out into the future, how macro do you get in terms of any individual project’s potential impact on any number of things.”

Leo D. Lentsch, senior principal with Robinson based Civil and Environmental Consultants who works on reviews, said the indirect and cumulative impacts take time to study. He said he approaches reviews by analyzing the entire footprint of a proposed project, looking at intersections with certain species, socioeconomic factors, noise and aesthetics.

His reports are unbiased and fair, he said, with the goal of getting agencies all the information they need to make a decision. He also described the rules around his work as “in a state of flux,” with agencies taking more environmental justice concerns into consideration.

“Historically, a decision would often be made to drive that road through the community that has the lowest land values,” he said. “Well, if you do that, you may be subjecting communities to different levels of impact.”