How to Kill American Infrastructure on the Sly

The White House revises NEPA rules that will scuttle new roads, bridges and oil and gas pipelines

WSJ editorial.

"Americans are going to need a split-screen for the Biden Administration’s policy contradictions. Even as the President on Tuesday promoted the bipartisan infrastructure bill he signed last November, the White House moved to make it harder to build roads, bridges and, of course, oil and natural-gas pipelines.  

The White House Council on Environmental Quality is revising rules under the National Environmental Policy Act for permitting major construction projects. CEQ Chair Brenda Mallory says the changes will “provide regulatory certainty” and “reduce conflict.” Instead, they will cause more litigation and delays that raise construction costs, if they don’t kill projects outright.

NEPA requires federal agencies to review the environmental impact of major projects that are funded by the feds or require a federal permit. Reviews can take years and run thousands of pages, covering the smallest potential impact on species, air or water quality. Project developers can be forced to mitigate these effects by, say, relocating species.

While the 1970 law was intended to prevent environmental disasters, it has become a weapon to block development. The Trump Administration sought to fast-track projects by limiting NEPA reviews to environmental effects that are directly foreseeable—e.g., how a pipeline’s construction would affect a stream it crosses.

Some liberal judges, however, have interpreted NEPA broadly to require the study of effects that indirectly result from a project such as CO2 emissions. Now the Biden Administration is mandating this. CEQ’s new rule will require agencies to calculate the “indirect” and “cumulative impacts” that “can result from individually minor but collectively significant actions taking place over a period of time.” This means death by a thousand regulatory cuts for many projects.

The Transportation Department will likely have to examine how a highway expansion could increase greenhouse-gas emissions in concert with new warehouses. The Federal Energy Regulatory Commission might have to calculate how a new pipeline would affect emissions from upstream production and downstream consumption.

Wait—didn’t FERC recently walk back its policy to do exactly this? The White House is thumbing its nose at West Virginia Sen. Joe Manchin, who blasted FERC’s now-suspended policy for shutting “down the infrastructure we desperately need as a country.”

The rule’s obvious intent is to make it harder to build pipelines, roads and other infrastructure that would enable more U.S. oil and gas production, even as the Administration makes phony gestures to reduce energy prices. Last Friday the Administration announced it would comply with a court order to hold oil and gas lease sales on public land. Those leases won’t matter if energy companies can’t get federal permits for rights-of-way.

While fossil fuels may be the rule’s political target, don’t be surprised if green energy is snagged in this trip-wire. Environmental groups have used NEPA to block new mineral mines and transmission lines that connect distant renewable energy sources to population centers. In this Administration, the left hand doesn’t seem to know what the far left hand is doing."