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Even as the White House continues to negotiate with Congress over his infrastructure and social spending plans (more on that below), President Biden demonstrated that can also make major moves that impact cultural and natural preservation without Congress’ assistance.
First, on Thursday, the White House Council on Environmental Quality (CEQ) published a proposed rule undoing changes the Trump administration made to the nation’s cornerstone environmental law.
The National Environmental Policy Act (NEPA) requires federal agencies to consider the impacts on the environment of any major action, often working in tandem with the National Historic Preservation Act (NHPA) Section 106 process for considering the impacts of federally-back projects on cultural resources.
In 2020, the Trump Administration released its revisions to how CEQ will implement NEPA. The rule exempted classes of federal actions from NEPA review and restricted the types of project effects that are examined during the NEPA review process. In addition, the rule allowed agencies to exclude projects from a NEPA review if they determined another process or statute will cover stakeholder concerns. This gave agencies unilateral discretion over which projects merit review under NEPA, limiting the public’s ability to raise concerns about impacts to historic properties. The new rule also significantly expedited the NEPA review process, bypassing or reducing time arbitrarily to implement many of the steps that allowed agencies to listen to, address, and remedy public objections to a project’s impacts.
The rule also imposed an ill-defined and arbitrary limit on the number of alternatives that agencies can analyze. Further, even if agencies determine a project qualifies for NEPA review, the new rule effectively excluded consideration of any impacts that did not occur as a direct result of the project or in its immediate vicinity. Many impacts of major actions are indirect or happen over time; under the new rule, such impacts would be ignored.
The draft rule released last week undoes many of these changes, once again requiring federal agencies to conduct a climate analysis of major projects and give affected communities greater input into the process. Brenda Mallory, chair of the CEQ, said in a statement that the changes would not delay major projects because they would make it easier to forge a consensus on how they would be built: “The basic community safeguards we are proposing to restore would help ensure that American infrastructure gets built right the first time, and delivers real benefits — not harms — to people who live nearby. Patching these holes in the environmental review process will help reduce conflict and litigation and help clear up some of the uncertainty that the previous administration’s rule caused.” The rule is open for public comment until Nov. 22.
The same day, President Biden announced he will restore two national monuments in Utah to their original boundaries. His order will restore the Bears Ears National Monument to the boundaries set in 2016 that covered 1.36 million acres, reversing former President Trump's move that shrunk the monument and broke it into two separate parcels, a decision that also freed oil, natural gas and uranium deposits for potential extraction. Biden will also restore Grand Staircase-Escalante National Monument to the boundaries that existed before Trump cut it in about half in 2017.
Meanwhile, Congress and the White House continued their battling over the debt limit and President Biden’s domestic policy agenda. On Thursday, the Senate voted to raise the federal debt limit by $480 billion after 11 Republicans joined with Democrats to overcome a filibuster. The Treasury Department has said that without the increase, the federal government would not be able to pay its debts beyond Oct. 18, triggering a first-ever U.S. government default and potentially roiling the global economy.
In addition, Democrats continued to negotiate the parameters of their massive social infrastructure bill. What was once expected to be a $3.5 trillion package covering everything from universal pre-Kindergarten and expanded health care access to significant investments fighting climate change is now likely to be closer to a $2 trillion bill. The big debate for Democrats is not deciding what provisions to keep and which to jettison.
Looking forward, Congress and the White House have several major deadlines facing them: A temporary extension of federal transportation programs ends October 31, while temporary funding for federal agencies runs out in early December, around the same time that the new debt ceiling limit is likely to be reached. Each of these deadlines carries major implications for the broader economy, as government shutdowns and a potential default could push the country back towards recession.
For Congress, of course, perhaps the biggest deadline of them all is one that is still more than a year away: the 2022 midterm elections, when all House seats and a third of the Senate will be up for grabs. With very narrow majorities in both chambers, Democrats are anxious to deliver results before campaign season kicks into full gear. Expect a busy autumn on Capitol Hill.
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