Early this month, the Trump administration released planned major changes to the National Environmental Policy Act (NEPA), the oldest environmental law in the U.S. The debate over NEPA is, like most other environmental debates in the U.S., a debate between people representing industry interests and people interested in protecting communities and the environment. And recently, the fossil fuel industry has helped push through another potential win against the law — and this one could have major consequences.
President Donald Trump has shown his hand in this debate many times — he’s continually on the side of corporations, which is unsurprising considering he, himself, is a businessman. Trump has rolled back or begun rolling back 95 environmental regulations as of December. He has been fixated on allowing the building of pipelines. This line of policy has come to a head with his administration’s recent proposal to roll back NEPA, the nation’s oldest environmental law.
NEPA is often described as the Magna Carta of environmental law, and for good reason. The policy was passed in 1969, as a reaction to the catastrophic Santa Barbara Oil Spill and decades of bulldozing neighborhoods for highway development. Since its passage, the policy, normally triggered when federal money is involved in a project, has helped ensure that government agencies have to take into account effects of a development on climate and the affected local community. This covers infrastructure projects like highways as well as, crucially, oil exploration and development.
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Trump wants to change all that.
The Council on Environmental Quality (CEQ), operating under the president, has proposed substantial revisions to the way that agencies will enforce NEPA. The changes are staggering in scope. The council has been working on them for about two years. Before these changes were released to the public, the CEQ was required to take meetings with any stakeholders — and so they did, with over 30 industry groups, including fossil fuel hard hitters like the American Petroleum Institute and the American Gas Association, as well as a number of electrical utilities like PG&E.
The new guidance will make project permitting easier for fossil fuel companies. New rules will eliminate consideration of climate change in environmental impact reports; limit the scope of projects that trigger NEPA, allowing companies to conduct their own reviews; implement hard deadlines on environmental reviews and possibly marginalize public input on projects.
These rule changes are billed as a way to make it easier for infrastructure projects to be built. In effect, they demolish environmental regulations on multiple fronts.
Environmental experts are concerned about the far-reaching consequences the proposed changes might bring. Most likely “project-wise, pipelines, oil and gas projects are just going to be green lighted faster than they otherwise would have been,” says Sally Hardin, former CEQ staff member and deputy director on energy and environment at the Center for American Progress (CAP).
When implemented correctly, NEPA has the ability to help communities, the environment and governing bodies by improving air and water quality, safety and even financial impacts. Wins from NEPA are countless. When agencies do not implement it correctly, environmental organizations can use NEPA as a tool to successfully sue over, for instance, an agency neglecting environmental concerns in such actions as approving oil and gas leases.
One of the most well-known cases of this is the Keystone XL pipeline. In 2018, a judge blocked the Trump administration’s attempts to fast-track the pipeline, saying that, among other things, the environmental review failed to take into account cumulative climate impacts — which the new rulings won’t require. As Hardin co-wrote for CAP, multiple rulings, including the Spring Creek Mine in Montana and a pipeline across the Southeast U.S., found that agencies had failed to take into account greenhouse gas emissions in their development. These rulings then forced the agencies to go back and provide more detailed analysis in their reports.
Of course, NEPA isn’t perfect, as generations of front-line communities can tell you. Cases like Keystone XL and the Spring Creek Mine have forced agencies to go back and consider greenhouse gases or climate impacts, but the law doesn’t currently require developers to reduce those impacts. The new rule changes, however, compound that issue. By making it so that agencies won’t have to include climate impacts in their findings, they arm decision makers with less information. As Nick Martin writes for The New Republic, “The change necessary, then, is to strengthen the law and its enforcement. The current administration, as expected, has done the opposite.”
The people these rule changes will likely disproportionately hurt are people living in front-line communities — people that have already been failed by lax policies in project citing. Hardin raises an example: Currently, if a certain region already has nine oil refineries, then the government agency’s project manager going in to assess the building of a 10th refinery would, because of NEPA, be aware of the other nine refineries. In an environmental report, the manager would be able to see the cumulative effects of the refineries on the area. The fear with the new rules is that, without a review on cumulative climate effects, the project manager may not even get that basic context.
“We’re already at a point where we’re seeing communities be the ‘sacrifice zone’ in many cases, and I think this will just exacerbate that issue,” says Kerene N. Tayloe, director of legislative affairs for WE ACT for Environmental Justice. Historically, places that suffer from the worst environmental impacts are poor, Black communities.
Another issue of concern with the new rules is the potential marginalization of public comment.
New rules will force the public to, as Hardin writes, “list any and all possible impacts of a proposed project — an exhaustive list — if they want to have any grounds of recourse once an environmental review has been completed.” Essentially, citizens will have to mirror the expertise of the people preparing the reviews themselves in order to have an input on projects. This goes against the democratic nature as well as the original intent of the law, placing the burden of proof on the public.
“What we’re noticing in the changes is some very surgical, strategic removal of the ability to have communities participate in the NEPA process,” Tayloe says.
There are many examples of public input changing a project for the better. Tayloe points out that, without public input on the recently struck-down Atlantic Coast Pipeline, the major environmental justice concerns associated with the projects might have been ignored.
The public comment period on the proposed rule changes is open until March 10, 2020, and two public hearings will be held — in Denver, Colorado, and Washington, D.C., which Tayloe points out are expensive locations to travel to for many of the people on the front lines. There were a mere 64 spots for speakers in Denver, and were filled in two minutes on Tuesday. Hardin says that 64 spots seems “low to me and like such an effort to sideline the actual public.” Nevertheless, groups like WE ACT for Environmental Justice are planning to rally the public to show up to oppose the rule changes. Because, while the rule might need some adjustments, the current “modernization” is anything but that — it’s a gutting.