Biden wants to rebuild quickly, but infrastructure bill may bulldoze underprivileged voices

For months, President Biden vowed to put combating environmental racism at the core of his plan to fight climate change. Cleaning up the air and water in poor and minority communities that often bear the brunt of pollution represents “a real chance to root out systemic racism,” he said in his first address to Congress. Now on the cusp of his first major legislative victory, a roughly $1 trillion bipartisan plan to rebuild the nation’s aging public works, some are warning that the bill as written may undermine Biden’s promise to African Americans and other groups who helped him reach the White House. The bill would curtail the way the public can weigh in on how projects building roads, laying pipelines, cutting timber and mining for hard-rock minerals are done. That rush to rebuild American infrastructure, advocates say, threatens to bulldoze over concerns from communities of color when federal officials analyze environmental effects.
If those provisions stand, said Mustafa Ali, vice president of environmental justice, climate and community revitalization at the National Wildlife Federation, Biden’s plan to restore underprivileged communities that were disproportionately harmed by zoning and pollution could be at risk. “I think it makes it so much more difficult for you to win on the issues you said are a priority,” said Ali, who served as a senior adviser and assistant associate administrator for environmental justice at the Environmental Protection Agency. Biden has called the infrastructure bill “a win for all Americans.” But that public praise is tempered by the interest his administration shares with environmental justice advocates about ensuring that the public can weigh in on projects done under the bill, according to a White House official who spoke on the condition of anonymity to discuss the matter. “The President has been clear that we need to build back better, which means ensuring that infrastructure projects get built in a way that meets the needs and priorities of local communities,” the White House Council on Environmental Quality said in a statement.
Businesses and labor unions have long complained that regulatory red tape and green groups’ lawsuits have unduly slowed construction. Looking forward, Biden’s goal of cutting carbon pollution from the power sector will require a quick and massive build-out of towering offshore wind turbines, vast solar-panel arrays and miles upon miles of transmission lines. Clean energy companies want environmental reviews to be completed quickly and without too much hassle. With U.N. scientists this week saying the world is running out of time to get climate change under control, the companies argue that there isn’t much time to lose. Humans have pushed the climate into ‘unprecedented’ territory, landmark U.N. report finds “There’s a real tension between looking at what the climate says we need to do in order to decarbonize the economy on the time scale that science says, and what it practically means to try and build transmission in America,” said Heather Zichal, head of the renewable energy lobbying group American Clean Power Association who coordinated energy and climate policy under President Barack Obama.
But environmental justice activists have long been at odds with corporations that dirty their neighborhoods and conservationists who support green energy initiatives. They say programs such as carbon taxing, which allow rich companies to pay for pollution, and environmental waivers for renewable projects that don’t benefit their communities, are not indicators of progress. Included in the more than 2,700-page infrastructure bill are essentially waivers for environmental review for many activities: logging or spraying pesticides on many areas smaller than 3,000 acres, building roads and bridges that get less than $6 million from the federal government, and constructing certain fossil-fuel pipelines through federal and tribal lands. It would also put tighter deadlines and resurrect page limits on many environmental reviews. Some of those restrictions were originally imposed by an executive order under President Donald Trump that Biden rescinded as one of his first actions in office.
The infrastructure bill passed the Senate in a 69-to-30 vote this week but still awaits a vote in the House. Chad Whiteman, vice president for environment and regulatory affairs at the U.S. Chamber of Commerce’s Global Energy Institute, said it is expensive and unnecessary for federal officials to write environmental impact statements that are thousands of pages long and inscrutable to most readers. “Those exist. That’s costly. That’s time-consuming,” he said. “And who’s really reading that anyway?” As the infrastructure bill started to take shape, a dozen conservation groups fired off a letter to House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) expressing concern over provisions that sought to water down the National Environmental Policy Act, a landmark environmental law.
At the top of the list was a provision to lessen consideration of alternatives to many large, complex projects that cost $200 million or more. Advocates for the streamlined permitting process, set up temporarily under Obama and made permanent by the infrastructure bill, hail it for cutting average review times from 4.5 years to 2.5 years. But the environmental groups think it would make government less adaptive to climate change and limit public input, as well as open it to court challenges. “The provisions … underscore a misplaced focus on limiting the environmental review and public input process, which threatens to undermine the principles of racial and climate equity that should guide an infrastructure package,” the July 19 letter said.
The groups — including the Center for Biological Diversity, the Environmental Law & Policy Center, Earthworks, the League of Conservation Voters, Natural Resources Defense Council and the Southern Environmental Law Center — said the bill would also legislate provisions called categorical exclusions. Categorical exclusions are extended to developers by government agencies in the NEPA process when it is determined that a specific project has no obvious impact on human health or the environment and therefore has no need for a long, potentially pricey environmental review. But that changes when Congress writes it into law, said Stephen Schima, a senior legislative counsel at Earthjustice. “It’s no longer a review. It’s just a waiver,” Schima said. “When they legislate these, they turn out to be waivers because there’s no opportunity for public comment or disclosure.” Schima recalled that discriminatory zoning that uprooted Black and other communities of color for freeways is one reason NEPA was enacted in the 1970s. “It’s because of how these projects were sited, and that’s why you have a law like NEPA,” Schima said. “When public input is limited and legal challenges are barred, it seems like a step backward for those communities.”
Considerations for public health and the environment are what make NEPA special, supporters said. “I don’t think people realize that NEPA really is considered the Magna Carta of environmental law,” said Rep. Debbie Dingell (D-Mich.), noting that the U.S. law has served as a basis for environmental statutes worldwide. Her late husband, longtime congressman John D. Dingell, helped pass the act more than half a century ago. The provisions that weaken the NEPA process would also rule out analysis of the impact of oil and gas gathering lines on rural federal lands and in Indian country, where hundreds of drillers, such as Crown Energy on the Pawnee reservation in Oklahoma, operate. Gathering lines are pipelines extending from well and drilling pads that carry gas, oil and wastewater to a centralized site. A company can have 1,000 wells with lines snaking from them, said Amy Mall, a senior advocate for the Natural Resources Defense Council.
What it says is they don’t have to be analyzed in the NEPA process,” Mall said. If new lines are added to an area where existing lines were previously studied, they could be exempt. According to a 2015 Government Accountability Office report, officials often don’t know the regulations that govern use of the lines or even where they are. “That’s why NEPA is important,” Mall said. “NEPA gives opportunity for the public to understand the location of the lines and give input.” Several of the provisions were championed by the two key architects of the infrastructure plan, Sens. Rob Portman (R-Ohio) and Kyrsten Sinema (D-Ariz.), who say that getting construction done on time is imperative. Sinema, whose sun-soaked state has among the highest potential for solar power, said that “simplifying burdensome permitting processes will ensure efficient, timely completion of critical infrastructure projects that will fuel jobs, boost renewable energy production, and expand economic opportunities for communities across Arizona.” The bill would also ease the way for mining minerals needed for electric vehicle batteries and for building transmission lines needed for conveying renewable power from the sunny and windy parts of the country to cities. “We have member companies already coming up to us saying, ‘Look, we cannot add more renewables in specific parts of the country just because we don’t have the capacity with the existing grid,’ ” said Zichal of the American Clean Power Association.
Developers and road builders have long complained that NEPA slows down work and increases project costs. But, said Schima, government reports have found that delays often have nothing to do with environmental review. Projects undergo changes in design or lose funding, setting them back. Both Schima and Ali say that the failure by departments to fund offices with scientists and researchers tasked with environmental reviews is a major problem. Understaffed and underfunded, they get bogged down by their workloads. It is crucial for Congress to give the Interior Department and other agencies enough funding in the next budget to do robust environmental reviews for the slew of coming construction projects, according Rep. Raúl Grijalva (D-Ariz.). “The infrastructure bill is going to create a lot of activity — in terms of jobs, in terms of building, in terms of repairing,” said Grijalva, chair of the House Natural Resources Committee. But he added: “If you want to expedite, you want to get things moving and follow the law and do it correctly and have public input, then you’ve got to fund it.” At the moment, the White House is working to revise a Trump administration rule it says limits public input under NEPA. And other parts of the infrastructure bill aim to alleviate pollution in underprivileged areas. One of Biden’s biggest infrastructure promises, for instance, is replacing every lead water pipe in the nation.
But the bipartisan package has only a third of the $45 billion the White House originally said is needed to dig up the more than 6 million lead service lines leaching the toxic metal that can cause irreversible brain damage in children into drinking water, particularly in poor and minority areas. “It’s obviously not going to be an inconsequential investment, but it’s not going to fully replace lead pipes,” said Erik Olson, a senior strategic director for the Natural Resources Defense Council. Most of Biden’s major climate initiatives, including a framework for boosting clean energy generation and financial incentives for buying electric vehicles, are not in the infrastructure package but in a separate budget bill. Senate Democrats kicked off the process of writing a budget this week by passing a blueprint in a party-line vote. Underscoring the alarm in the letter to Congress that his organization joined, Marty Hayden of Earthjustice reminded lawmakers of Biden’s commitment to disadvantaged communities, saying they were to receive 40 percent of investments in an infrastructure plan and play “a meaningful role” in decision-making. Now it appears they are being cut out. “We are deeply concerned about the provisions that will effectively silence these communities,” he said. 

Credit by The washingtonpost

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