Trump Moves to End Federal Environmental Permitting Tug-of-War

President Donald Trump effectively ended a long-standing fight over federal environmental permitting rules on the first day of his administration, vaporizing the rules altogether instead of parrying Biden-era changes with changes of his own.

In so doing, Trump appears to fulfill a long-standing Republican goal of speeding up the permitting process, paring the timelines down “from seven years to maybe six months,” said Marcella Burke, former deputy solicitor for energy and natural resources at the Interior Department.

But opponents say the Monday executive order will further destabilize the climate, endanger communities’ water and air, fracture the nation’s permitting rules into a crazy quilt of different approaches across different agencies, and is destined to be challenged in court.

Trump’s order effectively ends the back-and-forth his first administration and the Biden administration engaged in. During his first term in office, Trump made a series of technical rule changes designed to make permitting happen faster, which were later rolled back by President Joe Biden’s team.

Many observers expected Trump to fire back with yet another lurch to the right. Instead, his executive order revokes a 1977 order from the Carter administration that gave the Council on Environmental Quality the power to issue regulations in the first place.

Trump’s executive order tells CEQ to consider rescinding all rules issued under the National Environmental Policy Act and replace them with non-binding guidance. After that, the CEQ chair will assemble a working group to harmonize the revised rules across the agencies.

Broadly, the order requires agency-level rules to speed up approvals and prioritize efficiency and certainty “over any other objectives, including those of activist groups.”

Agencies will still produce environmental assessments and impact statements, but the reviews will be “much more skeletal,” said Burke, now founder of Burke Law Group PLLC. “It turns NEPA into a purely procedural statute.”

Legal challenges are inevitable, but the president has the authority to rescind regulations, so litigants will have to find procedural violations to challenge, Burke said.

To Eric Beightel, who led the Federal Permitting Improvement Steering Council under Biden, the legal path forward for opponents is murky.

“There is a lot of legal precedent with the CEQ regulations and unwinding all of that could get messy, but it’s not immediately clear to me what the legal challenge would be to this EO,” Beightel said.

Moreover, “for all of the bluster about certainty and efficiency, changing the rules of the game so frequently introduces a lot of unknowns which equate to risk on the part of developers,” Beightel said. “I know where the Trump team is trying to go, but they are using a machete instead of a scalpel.”

In many ways the order echoes a recent US Court of Appeals for the District of Columbia Circuit decision, known as Marin Audubon Society v. FAA, that found CEQ’s authorizing statute doesn’t empower it to act as a regulatory agency. The Federal Aviation Administration and National Park Service filed a petition for a rehearing in the case, which arose over tourist flights over national parks in California, but the court hasn’t reached any decisions.

The Trump team isn’t likely to challenge the D.C. Circuit’s decision, Beightel said.

Jan Hasselman, a senior attorney at Earthjustice, said the goal “appears to be to essentially rubber stamp fossil fuel projects,” but the result of revoking CEQ regulations is “likely chaos for project sponsors, local governments, and communities. That chaos will lead to more delays and worse outcomes.”