Trump’s Attempt to Rewrite NEPA Likely to Face Legal Challenges

The Trump Administration has fired another rocket in its ongoing campaign to strip the nation of federal environmental protections. At the behest of big business, the White House has proposed to eviscerate the nation’s oldest environmental law, the National Environmental Policy Act (NEPA), which requires environmental impact reviews of federally-funded projects.

Since President Richard Nixon signed it into law on New Year’s Day 1970, NEPA has compelled federal agencies to take into account the potential environmental consequences of any construction project — ranging from highways to airports, to dams and pipelines, to management of federal lands — that they commission or fund. It requires the agencies to consider alternatives to major projects that could cause significant environmental harm. The law established the Council on Environmental Quality (CEQ), which writes the regulations.

Unlike most other federal laws, each agency involved in a project is responsible for carrying out its own NEPA-mandated review. The law does not mandate any outcomes or penalties — it merely requires research on the environmental impact a project is likely to cause, from emissions to forest health to wetland destruction; and public input on the project.

On January 10, the CEQ announced significant changes to this landmark environmental law that would limit the scope of environmental analysis required for federally-funded projects, allowing for greater industry involvement in the review process and making it easier for federal agencies to approve projects without considering their climate change impacts.

CEQ says it is merely “proposing to update its regulations for implementing the procedural provisions of the” law, which haven’t been altered since 1978. The proposal would put a two-year time limit to wrap up environmental impact statements for most planned projects, and one-year limits for the less-cumbersome environmental assessments required for smaller projects. The council says that these reports can often go on 600 pages or more. The revised regulations would confine environmental considerations of a project to impacts deemed “reasonably foreseeable” and would not require consideration of “cumulative effects.”

The proposed rule changes would also cut down on public information by requiring assessments in most cases be limited to 75 pages. It would also require public comments to be more technical and include data and cite sources. And it would give agencies more discretion as to when to start a NEPA review — not necessarily at the beginning of the process as required now.

But while most of these revisions are ostensibly aimed at easing the workload and time required for environmental reviews, one of them adds a step that would benefit businesses: calling for agencies to consider economic and technical analyses along with ecological ones.

About six years ago, CEQ estimated that 95 percent of federally-funded projects qualified as “categorical exclusions,” meaning they didn’t need a detailed NEPA analysis because environmental impacts were deemed minimal. Most of the rest required an “environmental assessment.” Only about 1 percent of cases required an environmental impact statement — the most stringent review. These projects tend to be the biggest and most expensive ones and their reviews can drag on for years. But though the business community complains about this often, the fact is that such projects are the exceptions.

However, it appears that in revising the NEPA requirements, the administration acted at the behest of its corporate backers. The day the CEQ released the proposal, the US Chamber of Commerce and its allies announced a coalition called Unlock American Investment and launched a website seeking support for the changes, claiming that “outdated regulations are delaying American infrastructure, restricting job growth, and delaying environmental improvements.”

The coalition’s 39 initial members include the gang you’d expect: Association of Oil Pipelines, National Association of Home Builders, American Gas Association, American Coke & Coal Chemicals Institute, etc. The coalition complained that in some cases, projects have been delayed a decade or more waiting for reviews and court challenges over them.

The public comment period on the CEQ’s proposal to make these changes to NEPA ends on March 10, and is likely to face several legal challenges by then from environmental groups that say NEPA doesn’t need any changes.

The vast majority of cases go fine and most of the problems stem from agencies not doing their jobs properly, says The Center for Biological Diversity (CBD).

Unfortunately, there isn’t any sound analysis of whether NEPA has been effective legislation. Back in 1997, 25 years after NEPA went into effect, CEQ issued a study of the law’s effectiveness. It recognized that “NEPA has ensured that agencies adequately analyze the potential environmental consequences of their actions and bring the public into the decision-making process.” But the study said there were some problems with the process, such as certain reviews taking too long and the documents presented often being too complex.

In 2011, the Congressional Research Service found that data for that study was probably skewed because the only records of NEPA reviews most agencies keep track off are the most complicated ones. In 2014, the Government Accountability Office confirmed that finding. “Government-wide data on the number and type of most NEPA analyses are not readily available, as data collection efforts vary by agency,” it reported.

CEQ has proposed limiting the number of pages in these reviews despite being informed by state agencies it’s not a problem. The South Dakota Department of Game, Fish & Parks, for instance, said in its response to an advance notice of the proposed changes that “NEPA should not be reduced to subjective page length, rather held to a standard of substantive content. Some topics require little coverage while others such as effects analysis on endangered species, climate change, water, and air could be quite detailed, as they should be.” The department noted that its experience showed that “federal agencies concentrate more on avoiding litigation by adhering to a stringent, methodical NEPA matrix, rather than content accuracy.”

A 75-page limit may work for a simple project but for “more technical larger projects… a page limit could be an issue,” warns Duran Fiack, a political science professor at Lehman College in New York City who studies NEPA. “If you limit in page length on a project with many effects, [you might not] adequately conduct analysis. There might be a higher likelihood of a project being tied up in court due to inadequate analysis.”

Environmentalists say the proposed time limits can be too short as well. It can often take at least a year to collect necessary information about the impacts of a project, such as the effects on snowfall or migratory bird patterns in a region. The limit is especially short when you consider the required public comment period lasts 60 days. “It’s your only opportunity to have a voice,” notes CBD Government Affairs Director Brett Hartl.

“The administration is turning what used to be a thorough, meaningful review into a rubber stamp that doesn’t look at true impact,” Hartl warns. It’s necessary, for instance, to consider cumulative effects, he says, pointing out that “no one source alone causes climate change,” Under the revisions, the burning of fossil fuels a project requires wouldn’t have to be considered in a NEPA review. “It doesn’t say that directly but that’s the general conclusion,” he says.

And the “foreseeable future” requirement could mean that agencies wouldn’t have to consider long-term impacts — only, perhaps the carbon emitted during construction as opposed to decades down the road.

Arizona Democrat Representative Raul Grijalva, chairman of the House Natural Resources Committee, condemned the revisions in a prepared statement saying the “changes mean polluting corporations will have an easier time doing whatever they want, wherever they want, with even less consideration for climate change or local concerns than they’ve shown so far.” But the committee’s Communications Director Adam Sarvana says that while “none of the Democrats on the committee are happy,” they’ll follow standard practice and wait to see what the final regs say “before going nuclear.”

“There are thousands and thousands of projects and the ones that take a long time are the exceptions,” Hartl says, like the Keystone Pipeline, which required State Department approval because it crosses into Canada. The State Department struggled with the study as it lacked NEPA experience. “Because you suck at something doesn’t mean you should get a free pass,” Hartl says.

“The administration’s suggestion that the changes would modernize the policy is a joke,” says Todd Lookingbill, professor of geography, environmental studies, and biology at the University of Richmond. “Modernization would involve strengthening the components of the NEPA regulations that address climate change effects, not gutting the policy with demands not to consider any cumulative and indirect impacts.”

“The general feeling about NEPA is ‘it’s not broken, so don’t fix it,’” Sarvana says. Trying to improve it legislatively could backfire, he warns. “There is a reluctance to open the door to discuss NEPA reform. Then you have to put things on the table and let Republicans complain that their favorite projects aren’t being built…. If you are really going to pass something legislatively, you have to make some pretty ugly trade-offs.”