What should be the federal government’s role in permitting?

A 55-year-old agency on the chopping block?

Happy Monday! Fresh off the press is my talk on the Michael Dukes Show this morning about Alaska LNG and Alaska’s energy future (hint: it’s not wind and solar), which you can watch here. Michael Dukes coined the “Montalbano Mondays” moniker, and I’m always happy to be back.

See below your regularly-scheduled Montalbano Monday post. I’m looking forward to seeing what happens with this case!

The U.S. District Court of Appeals for North Dakota has heard Iowa v. Council on Environmental Quality, which challenges a new rule that transforms permitting “into a substantive set of requirements to achieve broad and vague policy goals.” Attorneys general from Iowa and North Dakota are leading the lawsuit, with 21 states total.

The CEQ was established in 1969 alongside the passage of the National Environmental Policy Act (NEPA). In July, the CEQ finalized a rule that requires that, among other things, “Indigenous knowledge be given equal weight to other sources of scientific expertise” and “environmental justice and climate change be considered.”

The rules effectively require agencies to consider the global indirect and cumulative effects of greenhouse gas emissions and lowers the bar for wind and solar projects that may have environmental reviews waived if the agency believes the project will have “significant beneficial effects,” despite short-term negative consequences (like habitat destruction, in the case of wind and solar).

However, parties in Iowa v. CEQ must submit new briefs by December 13 due to a D.C. Circuit Court decision in November. The judges found that the CEQ “lacked authority to promulgate its umbrella regulations” interpreting NEPA. Two judges in the three-person panel agree that “CEQ never had authority to do more than advise its sister agencies on NEPA compliance.”

The plaintiffs in Iowa v. CEQ argued that the rule wrongly gives preferential treatment to certain projects and disfavors others, creates an “open-ended obligation and impossible-to-meet standard,” and resolves a question of “vast economic and political significance” without direct authority. The main question now may revolve around whether the CEQ has rulemaking authority whatsoever.

In Mission Impossible: Mineral Shortages and the Broken Permitting Process Put Net Zero Goals Out of Reach, Debra Struhsacker and I highlighted the CEQ’s inappropriate rulemaking (emphasis added):

The CEQ’s new NEPA regulations are the most troublesome new policy because they will complicate and delay any type of project that requires authorization from a federal agency anywhere in the U.S. These regulations unlawfully transform the National Environmental Policy Act, which Congress enacted in 1969, into the National Environmental Protection Act. When Congress enacted NEPA, it mandated that federal agencies prepare environmental documents that inform the public of the likely environmental impacts associated with proposed projects. Since 1969, Congress has enacted numerous environmental statutes mandating regulatory programs to protect the nation’s air, surface water, groundwater, endangered species, and cultural resources and other environmental laws governing waste disposal, hazardous wastes, toxic chemicals and more.

Fifty-five years later, the CEQ has inappropriately used rulemaking to blend these environmental protection laws into NEPA. The new NEPA regulations change NEPA from a procedural analysis of environmental impacts into regulations that require agencies to identify and select alternatives that achieve an environmentally preferable outcome — one that may be inconsistent with the agency’s purpose and need pursuant to its statutory obligations to issue permits that authorize certain levels of environmental impacts in order for a project to occur. Moreover, this new rule is inconsistent with the NEPA amendments that Congress enacted in the Fiscal Responsibility Act of 2023, which are designed to streamline the NEPA process.

It may well be decided that not only is the CEQ’s rulemaking unconstitutional, but that the 55-year-old agency should be defunct as well. A decision that big would go to the Supreme Court, so stay tuned.

This piece was originally published at Center of the American Experiment on December 4, 2024.