“What in the world is President Joe Biden thinking?” That’s what we asked ourselves when we saw the White House Council on Environmental Quality, or CEQ, had proposed a new environmental rule that would slow, if not stop altogether, the federal permitting of major infrastructure and energy projects that are necessary for our country to thrive.
The proposed rule is called the “Bipartisan Permitting Reform Implementation Rule.” It would adopt the worst of California ’s environmental policies and take them national.
In California, the similar policies flowing from the California Environmental Quality Act have contributed to the rise in annual uncontrolled fires, a through-the-roof cost of living compared to the rest of the country, and skyrocketing costs of housing that have created the worst homelessness crisis the nation has ever seen.
As a result, hordes of Californians have fled the state for good, as U-Haul statistics on one-way moves out of the state demonstrate. But where most of the country sees California as a masterclass on how not to run a state, Biden apparently sees the public policy wreckage and wants to make the country more like California anyway.
There are a number of problems with the proposed rule, but let’s focus on three.
First, the rule would require all federal agencies to consider how projects subject to their approval will affect climate change. Scientists base climate change predictions on models, and even the most relied-upon models struggle to make accurate predictions of future temperatures across the globe. Expecting bureaucrats to predict the climate change impact from a single permitted project is asking for the impossible.
This climate change impact requirement would cause significant delays in project approvals and discourage new projects. California’s environmental laws, which require much the same, have proved as much.
Second, when evaluating how a project will affect climate change, the agency will also have to consider how the project would affect minority and disadvantaged communities to achieve “environmental justice.” The proposed rule defines “environmental justice” as “the just treatment … of all people” so that people are: “(1) … Fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and (2) Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.”
This definition creates regulatory quicksand that many projects will fall into and never escape. How are those asking for a federal permit supposed to demonstrate that their project is “environmentally just” and that their project will prevent anyone, anywhere, from experiencing any negative consequence ever? This rule would put a pie-in-the-sky “project must eliminate all known and unknown risks” requirement into federal law.
Ultimately, this requirement will become an easy excuse for regulators to abuse their authority and deny permits, even though the proposals pose no realistic threat to the environment, leaving needed infrastructure and energy projects undone.
Finally, the rule is blatantly illegal. The White House CEQ was created by the National Environmental Policy Act to coordinate environmental and public health efforts across agencies, not to address these problems substantively. Nowhere in that act does Congress give CEQ any authority whatsoever to address climate change.
Because of this illegality, you can expect to see the rule challenged in court. To date, the Supreme Court has repeatedly rebuffed the Biden administration on big statutory questions, striking down several of its executive actions as government overreach. It looks like the administration is aching for yet another judicial check.
Or, Biden could tell his administration to withdraw the rule before it forces bad California environmental policies onto the rest of the nation.
This op-ed was originally published in The Washington Examiner on November 1, 2023.