Trump Delivers Major Blow to the Foundation of U.S. Environmental Law

A new interpretation of the National Environmental Policy Act limits its power and scope, ignores climate change, and cuts marginalized communities out of decisions, critics say.

When a federal judge ruled last week that the controversial Dakota Access Pipeline must be shut down, it was because the Trump administration had not rigorously studied the project’s impacts as required by the National Environmental Policy Act, or NEPA. In May, a different federal judge voided 145,000 acres of oil and gas leases in Montana over a similar failure to provide the environmental analysis NEPA requires. One reason that yet another judge last October halted plans to loosen protections for the declining Greater Sage-Grouse? NEPA. 

The 50-year-old law is so fundamental and far-reaching that it’s sometimes called the Magna Carta of environmental policy. NEPA says that before federal agencies can issue a permit for logging or drilling, build a highway, adopt a land-management plan, or make other major decisions, the agency must assess how doing so will affect human health, wildlife, air and water quality, greenhouse gas emissions, and more. It also requires that the public get a chance to comment on such decisions, making it an especially important tool for marginalized communities to stop some projects and make others less harmful.   

NEPA has been a persistent thorn in the administration’s side as it has sought to advance drilling, mining, and major construction activity. But it will be a lot less irksome to that agenda—and, environmental advocates say, much less protective of public health—under a major reinterpretation of the law that President Trump announced today. 

Today's action is part of my administration's fierce commitment to slashing the web of needless bureaucracy that is holding back our citizens, Trump said during remarks in Atlanta. This, I would think, is maybe the biggest of all.

Designed to speed up big projects, the new rule from the White House Council on Environmental Quality restricts environmental reviews to two years and 150 pages—limits that critics call arbitrary and inadequate for major actions. It also enables agencies to skip environmental reviews for actions that have “minimal Federal funding or minimal Federal involvement,” though opponents say such projects can still have major environmental consequences. And, in a change that’s drawn significant criticism, it allows agencies to ignore a proposed action’s effects on climate change by excluding “cumulative” impacts and those that “are remote in time, geographically remote, or the product of a lengthy causal chain,” though it never mentions climate.

“We have lost approximately 3 billion North American birds since 1970 and climate change threatens extinction for two-thirds of bird species,” said Nada Culver, vice president of public lands and senior policy counsel for the National Audubon Society, in a statement. “Inscribing the administration’s willful ignorance of the need to address climate change into regulations is irresponsible and dangerous.”

Conservation advocates say the new rule is a giveaway to industries that have lobbied for less regulation, and one of the most harmful rollbacks from an administration that’s taken steps to weaken around 100 environmental policies

“What the Trump administration wants to do is have no speed humps, no guardrails, nothing whatsoever with any development projects. The goal is simple: Get it done and make as much money as you can,” says David Jenkins, president of the nonprofit Conservatives for Responsible Stewardship. “All the changes they’re trying to make, I think they’re just completely contrary to the intent of Congress when they passed NEPA, or Nixon when he signed it into law.”

The changes will be most harmful to Black Americans, low-income families, and others who are exposed to more pollution and are more likely to die from it, environmental justice advocates say. “NEPA is one of the best ways that communities of color can actually get into court where there is a project that has a disproportionate adverse impact” on them, says Chandra Taylor, a senior attorney with the Southern Environmental Law Center. 

Dropping the required review of cumulative impacts is one of Taylor's biggest concerns with the new rule. “If there’s not a requirement that cumulative impacts have to be analyzed, it eliminates the big picture of the environmental burden that a community is already facing,” she says. “That area may already be burdened by a landfill and a smokestack, and then there’s a new road proposed.”

She also warns that the rule limits public input by requiring that public comments be specific and should “include or describe the data sources and methodologies” to support any request for changes to a proposed project. “That is going to be a real burden for communities that don’t have a lot of money and aren’t already tied in to technical expertise,” she says. “It discounts the on-the-ground experience of environmental justice communities.” 

Industry groups, meanwhile, praised the new rule as a needed reduction in red tape. “Today’s action is essential to U.S. energy leadership and environmental progress, providing more certainty to jumpstart not only the modernized pipeline infrastructure we need to deliver cleaner fuels but highways, bridges and renewable energy,” said American Petroleum Institute President and CEO Mike Sommers in a statement. Environmental impact statements now average 650 pages and take four and a half years to complete, the White House says.

But opponents of the rollback say it’s a false premise that the law’s environmental review requirements are holding back needed infrastructure. The nonpartisan Congressional Research Service in 2012 found that delays in federal highway projects were rarely caused by NEPA and were more often due to funding issues, local opposition, and other factors.

“Despite NEPA, we haven’t exactly seen a stop of development, a stop of infrastructure projects,” says Jenkins, from the conservative conservation group. “You go anywhere in this country and you see constant building, constant road-widening, constant new housing developments. The NEPA process has never stopped this kind of development.”

The rule is set to take effect 60 days after it is published in the Federal Register, which should happen Thursday. Depending on how November’s election goes, however, Democratic lawmakers could kill the rule early next year, using their authority under the Congressional Review Act. More immediately, it will undoubtedly face legal challenges.

“We’re not going to sit back and allow a decision that could harm public health during a public health crisis go unscathed,” said Earthjustice staff attorney Kristen Boyles in a press release. “We’ll be seeing them in court.”