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 that the controversial Dakota Access Pipeline must be shut down, it was because the Trump administration had not rigorously studied the project鈥檚 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 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.听

The 50-year-old law is so fundamental and far-reaching that it鈥檚 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听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.听听听

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

Today's action is part of my administration's fierce commitment to slashing the web of needless bureaucracy that is holding back our citizens,听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听two years and 150 pages鈥攍imits that critics call arbitrary and inadequate for major actions. It also enables agencies to skip environmental reviews for actions that have 鈥渕inimal Federal funding or minimal Federal involvement,鈥 though opponents say such projects can still have major environmental consequences. And, in a change that鈥檚 drawn significant criticism, it allows agencies to ignore a proposed action鈥檚 effects on climate change by excluding 鈥渃umulative鈥 impacts and those that 鈥渁re remote in time, geographically remote, or the product of a lengthy causal chain,鈥 though it never mentions climate.

鈥淲e have lost approximately 3 billion North American birds since 1970 and climate change threatens extinction for two-thirds of bird species,鈥 said Nada Culver, vice president of public lands and senior policy counsel for the 探花精选, in a statement. 鈥淚nscribing the administration鈥檚 willful ignorance of the need to address climate change into regulations is irresponsible and dangerous.鈥

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鈥檚 taken steps to .听

鈥淲hat 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,鈥 says David Jenkins, president of the nonprofit Conservatives for Responsible Stewardship. 鈥淎ll the changes they鈥檙e trying to make, I think they鈥檙e just completely contrary to the intent of Congress when they passed NEPA, or Nixon when he signed it into law.鈥

The changes will be most harmful to Black Americans, low-income families, and others who are and are , environmental justice advocates say. 鈥淣EPA 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鈥 on them, says Chandra Taylor, a senior attorney with the Southern Environmental Law Center.听

Dropping the required review of cumulative impacts is one of Taylor's听biggest concerns with the new rule. 鈥淚f there鈥檚 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,鈥 she says. 鈥淭hat area may already be burdened by a landfill and a smokestack, and then there鈥檚 a new road proposed.鈥

She also warns that the rule limits public input by requiring that public comments be specific and should听鈥渋nclude or describe the data sources and methodologies鈥 to support any request for changes to a proposed project.听鈥淭hat is going to be a real burden for communities that don鈥檛 have a lot of money and aren鈥檛 already tied in to technical expertise,鈥 she says. 鈥淚t discounts the on-the-ground experience of environmental justice communities.鈥澨

Industry groups, meanwhile, praised the new rule as a needed reduction in red tape. 鈥淭oday鈥檚 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,鈥 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鈥檚 a false premise that the law鈥檚 environmental review requirements are holding back needed infrastructure. The nonpartisan Congressional Research Service in 2012 found that delays in federal highway projects were and were more often due to funding issues, local opposition, and other factors.

鈥淒espite NEPA, we haven鈥檛 exactly seen a stop of development, a stop of infrastructure projects,鈥 says Jenkins, from the conservative conservation group. 鈥淵ou 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.鈥

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鈥檚 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.

鈥淲e鈥檙e not going to sit back and allow a decision that could harm public health during a public health crisis go unscathed,鈥 said Earthjustice staff attorney Kristen Boyles in a press release. 鈥淲e鈥檒l be seeing them in court.鈥