We cannot afford to let regulatory overreach stand in the way.
With hundreds of billions of dollars in incentives already allocated to rebuild and expand infrastructure, we cannot afford to let regulatory overreach stand in the way.
A merica’s infrastructure is crumbling under the weight of outdated and burdensome regulations. Despite widespread recognition of the problem, meaningful reform remains elusive. The latest attempt — bipartisan legislation introduced by Senators Joe Manchin (I., W.Va.) and John Barrasso (R., Wyo.) — aims to break through the regulatory gridlock.
However, the bill’s attempts to accelerate permitting under the National Environmental Policy Act (NEPA) will fail as long as the Council on Environmental Quality (CEQ) continues to wield unchecked power over the act’s implementation. The Trump administration’s historic step in 2020 to streamline NEPA regulations for the first time in more than 40 years was swiftly undone by the Biden administration, adding yet more red tape to a process notorious for delays. Here we propose to cut through the bureaucratic mire by fixing NEPA regulations in two years, not ten.
At the heart of the issue is CEQ’s overreach in regulating NEPA, a role it was never meant to play. Congress never provided CEQ with the authority to develop regulations. Rather, the Environmental Quality Improvement Act of 1970 established the Office of Environmental Quality within the Executive Office of the President and directed it to assist agencies with implementing NEPA. However, instead of agencies taking the lead and consulting CEQ as appropriate, CEQ has come to establish expansive and binding limits on how agencies apply NEPA to their own authorities.
CEQ’s arrogation of regulatory power over NEPA did not occur right away. President Nixon’s Executive Order 11514 directed CEQ to issue “guidelines” to federal agencies for the preparation of environmental statements. Guidelines are not binding and fall within CEQ’s authority as a form of assistance in coordinating federal environmental standards. It was President Carter’s Executive Order 11991 that directed CEQ to “issue regulations to the Federal agencies” and was the “authority” cited by CEQ as the basis for issuing its implementing regulations in 1978. However, presidents do not confer regulatory authority to executive agencies; Congress does.
The administrative process to revise CEQ’s regulations (again) could span a decade. Both Trump’s and Biden’s CEQ took more than three years to complete the notice-and-comment rulemaking process. The regulations must then be defended against numerous lawsuits that will likely be appealed to the Supreme Court. Finally, if the rule is successfully defended, scores of agency procedures would need to be updated — each one potentially the subject of even more lawsuits.
The administrative process to fix our nation’s infrastructure need not take as long as an overdue environmental-impact statement. In its Loper Bright decision, overturning the concept of Chevron deference, the Supreme Court rightfully reasserted its role to interpret the law, stating that “agencies have no special competence in resolving statutory ambiguities. Courts do.” The Supreme Court has not addressed whether CEQ has the authority to develop these regulations, and the “substantial deference” given in Andrus v. Sierra Club (1979) to allow CEQ to dictate the implementation of NEPA is ripe for reconsideration. It is high time for courts to pare back the role of CEQ to realign it with its authorizing statute.
If Trump is elected, his administration should rescind EO 11991 and CEQ’s corresponding regulations. Federal agencies should immediately proceed to update their procedures using the (rescinded) 2020 regulations as a guide. CEQ can fulfill its statutory role by advising federal agencies as well as by participating in the inter-agency review process for draft rules.
Detractors of this method will likely cite case law surrounding CEQ’s implementing regulations and NEPA and the “havoc” and destruction of environmental protections that would supposedly ensue. The real havoc is caused by the permitting process and the government’s inability to complete a typical environmental-impact statement in under 4.5 years. Revoking CEQ’s regulations would not delay a single permit because each agency has its own NEPA procedures, and these can be relied on to issue permits until the agencies complete their updates. Additionally, NEPA is a procedural and not a substantive statute; all existing substantive and robust environmental safeguards such as the Clean Air Act, Clean Water Act, and Endangered Species Act would remain unaffected.
The Supreme Court’s recent decision in Loper Bright underscores the need for judicial clarity on the limits of agency power. The time is ripe for the courts to reconsider CEQ’s authority under NEPA. With hundreds of billions of dollars in incentives already allocated to rebuild and expand infrastructure, we cannot afford to let regulatory overreach stand in the way of progress. Streamlining NEPA implementation in two years instead of ten isn’t just possible — it’s necessary for America’s future.
Stuart Levenbach served in four different offices of the Executive Office of the President across three administrations, including as the senior adviser to the chairman of the Council on Environmental Quality. Aaron Szabo served in the Executive Office of the President across two administrations, including as senior counsel at CEQ.