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Governor Joe Lombardo signs his first two executive orders (Photo: @JosephMLombardo)

Lombardo Leads Challenge To Biden’s Sweeping Revisions to Environmental Law

Critics contend the Biden administration’s revisions to NEPA will create confusion, increase litigation and thwart infrastucture and energy projects

By Megan Barth, September 26, 2023 1:36 pm

Governor Joe Lombardo is leading a chorus of Republican Governors who are pushing back against the Biden administrations’ Council of Environmental Quality (CEQ) revisions to the National Environmental Policy Act (NEPA) which include expanded and arbitrary environmental justice standards applied to infrastructure and energy projects.

The letter summarizes that “Biden’s proposed rule expands the size and scope of government agencies that will open future energy, infrastructure, and other building projects to new litigation and excessive delays. Additionally, the proposed rule fails to streamline the permitting process and ignores the will of Congress, expressed in the Fiscal Responsibility Act, of clear deadlines, page limits, and directives regarding environmental reviews.”

Brenda Mallory, Chair, CEQ (Photo: whitehouse.gov)

According to their letter to the CEQ:

The Proposed Rule eliminates the clarity of the existing rule, decreases NEPA’s efficiency, and drastically increases the potential for litigation related to NEPA decisions.

The Proposed Rule would largely undo many of the changes promulgated on July 16, 2020 (“2020 Rule”), which were designed to increase the overall efficiency and effectiveness of the NEPA process. Now, only three years later, CEQ once again proposes wholesale revisions to the implementing regulations. Implementing sweeping changes after only 3 years of application creates significant confusion and decreases the certainty associated with CEQ’s regulations.

Additionally, the general direction of the Proposed Rule will significantly impact management within the individual states, incentivize increased litigation, and decrease the overall efficiency of the process.

In addition to creating confusion, many of the changes in the Proposed Rule invite significant additional legal challenges.

The examples provided herein demonstrate that the Proposed Rule undermines the progress made in the 2020 Rule by decreasing certainty and efficiency in the NEPA process, increasing the potential for litigation, and minimizing the role of state government.

Since January 2023, the Biden administration has made phased changes to the law found in 236 pages of revisions to “remedy the harmful changes made under the Trump administration.” These “harmful changes” implemented in 2020 streamlined the approval for infrastructure and energy projects and set a goal of completing environmental reviews for construction projects within two years.

The Wall Street Journal refers to the Biden administrations’ revisions as a “regulatory onslaught.”

NEPA was enacted in 1970 and includes over 450 pages of regulations placed on local governments. The purported purpose of NEPA was to protect local environments by requiring federal agencies to assess the potential environmental effects of public works projects. NEPA demands that agencies must consider the aesthetic, historic, cultural, economic and social effects of proposed actions, and provide a document detailing those considerations to decision-makers in the executive branch responsible for issuing permits.

According to Earth Justice, NEPA “is our bedrock environmental law requiring the federal government to engage with communities and take health and environmental concerns into account when making consequential decisions” in relation to climate change and environmental justice.

According to critics, NEPA has arbitrary standards, politicized enforcement and protracted litigation measured in decades.

The Institute for Energy Research reports:

The Biden administration’s NEPA revision states, “Leases for oil and gas extraction or natural gas pipelines have local effects, but also have reasonably foreseeable global indirect and cumulative effects related to green house gas emissions.” A footnote states that this NEPA revision accords with the law’s decree that the federal government “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.”

What the Administration sees as the federal government performing this role may not be what is best for Americans, who want affordable and abundant energy, but who are seeing higher energy prices and warnings of blackouts to come based on Biden’s energy transition.

Governor Joe Lombardo signs his first two executive orders (Photo: @JosephMLombardo)

Upon his inauguration, Governor Lombardo released his own executive order on state energy that outlined and focused on “developing and maintaining a diverse energy supply portfolio” in Nevada. Lombardo emphasized “utilizing a balanced approach to electric and natural gas energy supply and transportation fuels” for Nevada’s energy needs. Within the order, Lombardo highlighted that his energy policies will ensure “Nevadans and businesses will have diverse energy options including gas and electric” and support “Nevada’s objectives of reliability, affordability, and sustainability.”

Lombardo also withdrew the Silver State from the U.S. Climate Alliance, a bipartisan coalition of over two dozen governors who committed to reduce greenhouse gas emission by at least 26-28 percent from 2005 levels by the year 2025, as outlined by the Paris Agreement. Established in 2016, the overarching goal of the Paris Agreement is to reduce the Earth’s temperatures through “economic and social transformation, based on the best available science.”

At the time, Lombardo stated that the goals of the alliance are “ambitious and well-intentioned” but that they “conflict with Nevada’s energy policy objectives.”

As the Biden administration seeks to expand environmental and social justice regulations to combat “climate change,” Nevada’s infrastructure and energy objectives may now be delayed by politicized enforcement, bureaucratic red tape, and environmental lawsuits which are cumulatively designed to impede Lombardo’s energy policy objectives.

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Megan Barth
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