On Friday, the Biden Administration proposed a new rule to amend the National Environmental Policy Act (NEPA) regulations. Unfortunately, the new rule risks slowing down urgently needed development under the guise of “environmental justice.” Even worse, this approach is likely to backfire, working not only against the administration’s stated goal of speeding up the transition to cleaner energy sources, but also against the very vulnerable communities whose interests the Administration is supposedly championing.
As background, NEPA requires federal agencies to assess the environmental impacts of major infrastructure projects before they receive federal approval. The Council on Environmental Quality (CEQ) plays an outsized role in shaping NEPA implementation through its regulations. Friday’s regulatory proposal constitutes an update to CEQ’s rules—what the Biden administration is calling “Phase 2” of its NEPA reforms.
As part of the 2023 Fiscal Responsibility Act, which negotiated a rise in the federal debt ceiling, Congress required some commonsense NEPA reforms such as page and time limits on environmental reports and consolidated decision making under one lead agency. These changes should modestly speed up project timelines, and they mirror similar reforms the Trump Administration implemented (and Biden subsequently withdrew under Phase 1 of his NEPA reforms). The new CEQ rules codify the Congressionally-mandated changes, but also go much further than that by adding new provisions around issues such as public input and environmental justice.
The CEQ rules exemplify the administration’s contradictory approach: simplify some processes to accelerate clean energy, but incorporate social justice elements that achieve the opposite effect.
Marginalized communities do sometimes bear an outsized share of environmental burdens. Low-income individuals and minorities are more likely to live near polluting facilities like power plants or along highways, thereby suffering the associated health effects. Addressing such environmental injustice is important. But paradoxically, provisions in the new rules that emphasize “meaningful engagement” will likely do more harm than good.
These added measures will enable obstruction and delays, undermining the Biden administration’s stated goal of faster environmental reviews. The key problem is that these collaborative processes can easily be weaponized by project opponents to cause delays. We’ve seen this happen time and again with local development projects. Well-organized local groups raise various objections and insist on endless rounds of consultation instead of greenlighting projects that would provide broad societal benefits. Often these NIMBY groups dress themselves up as champions of social justice, claiming to care about a lack of affordable housing, historic preservation or gentrification when their actual goal is to protect their own real estate investments and block new development.
These community engagement processes tend to advantage people who have time and resources. Retirees, activists without day jobs, and paid consultants can attend meeting after meeting, while ordinary working people are left out. Ironically, more “public participation” often means less representation of the public interest.
In fact, environmental regulations often impose disproportionate economic burdens on low-income families. When regulations raise costs for utilities, energy producers, manufacturers, and other businesses, these costs get passed on to consumers. Flat rate price increases hit low-income households hardest, since energy and other expenses make up a larger share of their budget.
Regressive costs also show up in countless other ways. For a single mom struggling to pay rent and feed her kids, regulations that increase electricity rates by even a few cents per kwh can mean the difference between having heat in the winter or not. Banning certain pesticides can raise food prices or make fruits and vegetables harder to find in poor neighborhoods. When regulations force manufacturing plant closures and job losses in industries like coal mining, workers may be able to transition to new jobs, but unemployed time and retraining costs bear a significant personal and financial toll.
Unfortunately, federal agencies spend a disproportionate amount of time focusing on how their policies benefit marginalized groups, without looking at how rules simultaneously harm them. For example, the EPA’s 120-page guidelines on incorporating environmental justice into regulatory analysis includes just three pages on regulatory costs.
EPA’s uneven approach also manifests itself in an environmental justice executive order from earlier this year, as well as in the new CEQ proposal, only in a slightly different way. Rather than downplay the costs of regulations and emphasize the benefits, as EPA does, the White House draws attention to adverse health and environmental effects from new development projects, while downplaying the benefits to vulnerable communities, in terms of employment, income, and health.
The Biden administration’s schizophrenic energy policy is the end result of a deep-seated refusal to evaluate policies objectively. With one hand they accelerate permitting for renewable projects, while the other hand throws up roadblocks under the guise of environmental justice. Until regulators take a more even-keeled approach to alleviating inequitable burdens, environmental justice will remain more rhetoric than reality.
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