Good-Bye to Permitting Reform

Biden’s new rule gives green projects a pass but maintains barriers for fossil fuels and public works. 

WSJ editorial. 

"Why pass laws when the Biden Administration ignores them? The latest example is a new rule that purports to codify permitting reform in Congress’s debt-ceiling deal last year. Instead, the rule creates a pocket veto for fossil fuels and public works while rubber-stamping green projects. Permitting reform for we, but not thee.

Members of both parties agree the 1969 National Environmental Policy Act needlessly delays and increases costs for projects. Housing, roads, pipelines and energy projects are routinely stuck in the law’s quicksand. Even the climate lobby frets that permitting woes hold back its grand designs.

Building transmission lines to connect solar and wind projects to the grid can take a decade. Renewable projects stall when they intrude on endangered-species habitats. Last year’s debt-ceiling deal included modest reform by imposing page limits on rules and a shot clock on environmental reviews.

The Administration’s new rule ignores the law by making it easy to kill projects that progressives oppose. The White House even had the nerve to call its 489-page beauty the Bipartisan Permitting Reform Implementation Rule, though there’s nothing bipartisan about it.

The rule will require regulatory agencies to assess a project’s indirect and cumulative effects on greenhouse-gas emissions rather than merely its direct environmental impact. So agencies will have to tally the many decades of emissions that would potentially be caused by the combustion of natural gas transported by a proposed pipeline.

They will also have to identify “reasonable alternatives” that “avoid or minimize adverse effects,” including CO2 emissions. Fossil-fuel projects can be rejected if agencies decree that renewable alternatives are better for the climate. Regulators could use the same logic to veto highway expansions because more mass transit might result in fewer emissions. Agencies could veto suburban housing projects by deciding that there would be fewer emissions if people lived in cities.

The rule will also require regulators to consider the impact on “environmental justice” communities—i.e., racial and ethnic minorities—and consult “Indigenous Knowledge” whose “special expertise” will be given equal standing to that of agencies like the National Marine Fisheries Service.

That is, unless you’re a renewable energy developer. The rule provides “categorical exclusions” from environmental reviews for projects that agencies determine will have minimal impact on the environment. Regulators will be the judge of what is “minimal.”

Senate Majority Leader Chuck Schumer promised West Virginia Sen. Joe Manchin he’d take up permitting reform in return for supporting the Inflation Reduction Act. But Democrats in Congress blocked significant reforms, and now the Administration guts even the minor permitting reforms in the Fiscal Responsibility Act.

“Once again they’ve disregarded the deal that was made, the intent of the law that was signed, and are instead corrupting it with their own radical agenda,” Mr. Manchin said Tuesday. “This will only lead to more costly delays and litigation.” He’s right, but he should have known he was being taken for a ride."