Trump Declares War on the National Environmental Policy Act

January 14th, 2020 - by Juliet Eilperin and Brady Dennis / The Washington Post

Trump Moves to Exempt Pipeline, Drilling Projects From Environmental Review

Juliet Eilperin and Brady Dennis / The Washington Post

 (January 9, 2020) — President Trump on Thursday proposed a change to 50-year-old regulations that would speed the development of new mines, pipelines and hundreds of other projects around the country, including some that could harm the environment and accelerate climate change. The move also could prevent communities from having as much say about what gets built in their backyards.

The proposed rules would narrow the scope of the National Environmental Policy Act (NEPA), which requires federal agencies to assess the impact of a major project before a spade of dirt is turned and to include the public in the process.

And it would mean that communities would have little say about what is built in their neighborhoods. Environmental groups, tribal activists and others have used the law to delay or block a slew of infrastructure, mining, logging and drilling projects since it was signed by President Richard Nixon in 1970.

Industry has long complained about the process, however. Surrounded by members of his Cabinet, along with representives of industry and organized labor, Trump told reporters gathered at the White House that it will allow builders to construct highways “in a fraction of the time.”

“We will not stop until our nation’s gleaming new infrastructure has made America the envy of the world again,” Trump said. “It used to be the envy of the world and now we’re like a third-world country. It’s really sad.”

The White House proposal will almost certainly face legal challenges. And Notre Dame Law School Professor Bruce Huber said in an email that since the regulations do not alter the underlying law, agencies are still required to report the environmental impacts of actions they take that significantly affect “the quality of the human environment.”

“Today’s proposal will involve changes to the way the law is implemented, and it will be up to the federal courts to decide whether those changes are faithful to the law,” Huber said.

Still, it represents one of the most forceful efforts to date by the Trump administration to strip away existing legal constraints on construction and energy production in the United States.

“This proposal affects nearly every major decision made by the federal government that affects the environment,” Interior Secretary David Bernhardt said at the White House event.

The proposed regulations would redefine what constitutes a “major federal action” to exclude privately financed projects that have minimal government funding or involvement.

That interpretation of the law would make it much easier to build most pipelines, which have become controversial as activists have sought to block projects that make it easier to extract, transport or burn fossil fuels linked to climate change.

Federal environmental reviews of the Keystone XL and Dakota Access pipelines dragged on for years during the Obama administration, but Trump has pushed to accelerate their construction since taking office.

Other aspects of the proposal would set deadlines and page limits for environmental reviews, so that, with rare exceptions, agencies would have to finish their most exhaustive reviews within two years.

Currently, environmental impact statements for major projects can take three times that long to complete and can span hundreds of pages.

It would also scale back what constitutes environmental “effects” from a given action, which could make it harder to include a project’s climate impact in any analysis.

Bernhardt told reporters in a phone call that the changes would maintain the core aims of NEPA, while ending unnecessary delays for a broad range of infrastructure projects.

“The consequences of the government being stuck in place are far-ranging,” Bernhardt said, citing the drawn-out process for approving new schools on Native American reservations, upgrading visitor centers at national parks and giving ranchers approval for grazing on public lands. “The list goes on and on and on. The reality is that the needless red tape has, over time, lowered the expectations of American exceptionalism and excellence. And that is backwards.”

Jay Timmons, president and chief executive of the National Association of Manufacturers, said his group had called for “exactly” the changes proposed by the White House because his members’ efforts “should be used for building the infrastructure Americans desperately need, not wasted on mountains of paperwork and endless delays.”

American Exploration and Production Council CEO Anne Bradbury, who represents independent oil and gas operators, praised the plan, saying in a statement that it “removes bureaucratic barriers that were stifling construction of key infrastructure projects needed for U.S. producers to deliver energy in a safe and environmentally protective way.”

Drew Caputo, vice president of litigation for lands, wildlife and oceans for the environmental firm Earthjustice, said in an interview that these changes could be vulnerable to a court challenge because they would remove so many projects from federal review.

“The whole idea of the law is to give better information in advance to decision-makers and the public. It appears that these changes are an effort to undermine both of those purposes of the statute,” Caputo said. “It would basically make the federal government become an ostrich, sticking its head in the ground rather than thinking about the environmental impact of its actions.”

Although the 1970 law is not well known outside certain legal and policy circles, NEPA compels agencies to analyze thousands of projects across the country each year. These can range from a mining company applying for a permit to drain a wetland to an energy company seeking federal approval to conduct seismic testing offshore or to lay down ice roads to hunt for oil.

According to the White House, each year agencies weighing projects prepare approximately 170 environmental impact statements — detailed documents that can run as long as 600 pages each — and 10,000 environmental assessments, which are less extensive.

Trump has repeatedly railed against federal judges who have delayed projects on the grounds that officials have not conducted a thorough enough review under NEPA.

“I think it’s a disgrace,” he said after a federal judge blocked the Keystone XL pipeline in the fall of 2018, faulting the federal government for failing to complete a thorough environmental analysis as required by NEPA. “I approved it; it’s ready to start.”

On Thursday, a coalition of business and labor groups launched a new lobbying effort aimed at backing the proposed overhaul.

“For the hard-working members of LIUNA, who have had their livelihoods put on hold as infrastructure projects become mired in a review process that is needlessly long, complex, and lacks transparency, the administration’s anticipated NEPA reforms are a welcome change,” said Terry O’Sullivan, general president of the Laborers’ International Union of North America.

But Hilton Kelley, an activist in Port Arthur, Tex., who has spent decades combating pollution from the petrochemical industry in his community, said weakening the law would have serious real-world consequences.

“The Trump administration is doing a serious injustice to people living in industrial communities,” Kelley said in an interview of the effort to scale back the bedrock environmental policy. “It’s a matter of life and death.”

Kelley said the law has long given residents near industrial facilities, pipelines and other projects the right to have a say in what is approved in their own communities. He said he fears the changes will take away that important tool.

“They don’t want due process,” he said of the administration. “We understand what we are dealing with here.”

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