The Trump administration’s proposal to gut environmental reviews under the National Environmental Policy Act is radical and ill-thought out, and will lead to more delays in the process—not less.
The plan is a regulatory attempt to overturn federal law—and the court decisions that have established a well-understood process for considering the environmental impact of major federal decisions. But regulations don’t trump statutes, so if this plan or something similar is adopted, it’s going to lead to more lawsuits—and, thus, more delays.
In fact, we already have evidence of what can happen when this administration tries to short-circuit the process.
Between 2001 and 2013, the federal government has prevailed in 70% of the 100 or so environmental impact cases filed each year. But, since 2017, this administration has sustained legal setback after legal setback over its rushed, shoddy environmental reviews. For all its bluster, the attempts to ram through pipelines in sensitive areas or similar projects hit roadblocks in court. In fact, on Feb. 27 a federal judge voided oil and gas leases on nearly 1 million acres of federal lands over the administration’s attempts to cut corners.
This is exactly the opposite of what any of us should want. The best outcome is for reviews to proceed in an orderly manner and have decisions take place under a predictable set of criteria.
Lose-Lose Under Proposed Changes
As a congressional aide, federal official, industry lobbyist, and environmental advocate, I have followed NEPA for a long time. I have seen first-hand the benefits of these reviews. Whether it was highway projects planned for flood zones, oil pipelines across sensitive aquifers, or hazardous waste incinerators in local communities, these reviews allowed people to make their voices heard before bureaucrats or industry destroyed a neighborhood or one of our treasured natural resources.
And we all have seen what short-changing environmental reviews can mean, as we watched the oil spewing out of the destroyed Deepwater Horizon oil rig in the Gulf of Mexico and have seen the government invest billions of dollars in reversing the damming of the Kissimmee River in the Florida Everglades.
Since President Richard Nixon signed NEPA into law 50 years ago, the law has imposed two important requirements on major government actions:
- the government must analyze the likely impacts of its proposed decisions on each of us—on our health and economic well-being, as well as on our natural surroundings; and
- residents must have a say in the projects that will define their neighborhoods and public lands for decades to come.
This fundamental idea of openness and public input might seem to be just the normal way a government functions. But that wasn’t the case before NEPA became law. And to those seeking to rush through oil pipelines, coal mines, or new gas export terminals, NEPA has always been a niggling distraction. They would prefer to have their way behind closed doors.
And so, we have seen these well-funded campaigns to push for the idea of “modernizing” NEPA. This push is not new. Over the past decade, I have fought or negotiated over pieces of legislation aimed at speeding up reviews, curtailing lawsuits, and limiting public participation.
The results have been mixed.
One transportation funding bill shortened the time period under which lawsuits could be filed to 150 days; the next transportation bill (FAST-41) reversed that because the short time period discouraged settlement negotiations, leading to more lawsuits instead of fewer.
Slapdash Attempt to Approve Pipelines and Coal Mines
In its initial, slapdash attempt to approve pipelines and coal mines, the Trump administration unintentionally sidetracked another aspect of FAST-41, which called for a federal coordinating body to streamline NEPA project reviews. With no clear direction, projects languished. Project sponsors were frozen and did not know which process to follow, according to a letter to the president by FAST-41’s lead sponsor, Sen. Rob Portman (R-Ohio).
Now, after the administration repealed Trump’s initial executive order, that federal board appears to be actually streamlining reviews. But that might not last for long.
The Trump administration is back at it, upending the regulatory cart and threatening a new round of chaos and delay.
The proposed new regulation from the White House Council on Environmental Quality (CEQ), released in early 2020, would purport to eliminate the requirement that agencies analyze the cumulative impacts of projects and sidestep environmental reviews altogether for an entire swath of projects.
This plan would undercut the careful legal precedents that have grown up around NEPA since the 1970s. If this proposal gets finalized in its current form, it’s going to lead to a flood of new litigation as developers and others seek to determine how the law and these rules apply.
That will mean both a challenge to the regulation itself, but also challenges to many environmental impact statements and government decisions not to do an environmental review.
Then there will be the inevitable confusion that will result when certain sections of the regulation are declared illegal. For instance, if the section disregarding cumulative impacts is held illegal, what is the sponsor and agency supposed to do, wait for new rules from CEQ or seek ad hoc determinations from individual departments?
This problem could and will be exponentially worse when multiple sections are found by courts to violate the law. CEQ says in the rule’s preamble that all previous guidance documents would be withdrawn, leaving those in the NEPA process—career officials, contractors, and project sponsors with no direction.
Even project supporters recognize the vulnerabilities here.
“Run like heck from relying on these changes,” Thomas Jensen, a Perkins Coie LLP attorney for developers, told a conference recently, according to a Bloomberg Environment story.
Jensen said he expected an onslaught of litigation as groups sought to establish the legal meaning of the lofty goals set out in the NEPA, such as working toward a “safe, healthful, productive” environment for all Americans.
Why this continuing war on NEPA? Blaming NEPA for project delays is simply a diversionary tactic. The problem with American infrastructure is the lack of money. A Treasury study of delays of national infrastructure projects looked at 40 projects; 39 were delayed because of a lack of funding and the last because governors couldn’t agree on the site of an interstate bridge.
But coming up with a workable infrastructure funding plan requires hard work and difficult choices. The president hasn’t shown any interest in doing that; instead, we have this primal scream of a plan, one that aims to divert attention so we won’t notice the real problem. That won’t solve any of the infrastructure challenges our nation faces.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Scott Slesinger is the former legislative director for the Natural Resources Defense Council. He has worked in and with Congress for more than 40 years as a congressional aide, EPA official, industry lobbyist, and environmental advocate.