Posted on July 17, 2020 by Rebecca Beitsch, The Hill
The White House finalized its rollback of one of the nation’s bedrock environmental laws Wednesday, with President Trump calling the law the “single biggest obstacle” to major construction projects.
Critics say the rollback will gut the National Environmental Policy Act (NEPA), which for 50 years has required the government to weigh environmental and community concerns before approving pipelines, highways, drilling permits, new factories or any major action on federal lands.
The changes from the Trump administration aim to streamline environmental reviews that industry complains can take years to complete. The reviews can take roughly four and a half years, while the White House would like to reduce that to two years.
The rollback removes requirements to consider climate change before proceeding on a project.
Protocols for weighing concerns from nearby communities — often communities of color — would become far more complex.
It also opens the door for more industry involvement in reviewing the environmental impacts of their projects or nixing reviews entirely for some projects that receive little federal funding.
“Today's action is part of my administration's fierce commitment to slashing the web of needless bureaucracy that is holding back our citizens. I've been wanting to do this from day one,” Trump said to a crowd at the UPS Hapeville Airport Hub in Atlanta. “It's one of the biggest things we can be doing for our country.”
Trump promised the new rule would reduce traffic in congestion-plagued Atlanta, arguing the changes would help with the expansion of the three lane I-75 highway near the facility where an express lane was recently added. His overtures in the state come as Democrats are increasingly eyeing Georgia as a potential battleground in November.
Conservatives have repeatedly hailed changes in the law as a way to deal with traffic congestion, but NEPA covers a wide range of projects that emit a variety of pollutants.
Throughout his administration, Trump has hammered the law as being a roadblock to big construction projects he says will help create jobs as well as ensure construction of pipelines he promised to build during the campaign. The rule follows several executive orders that also aimed to weaken NEPA in the name of boosting the economy.
“Trump’s absolute gutting of these regulations runs completely counter to the intent of the statute,” said Christy Goldfuss, the former head of the White House Council on Environmental Quality under former President Obama. She now works at the Center for American Progress.
“The intent of the law is that humans and nature coexist for the benefit of all. These new regulations couldn't be farther from the original purpose, and they are unlikely to stand up in court,” she said.
Trump’s rewrite of the law eliminates the government’s responsibility to consider the cumulative effects of projects, something courts have largely interpreted as studying how a project might contribute to climate change.
In the case of a highway, that could mean not just the environmental damage from the road itself, but the impact of the greenhouse gas emitting vehicles that drive on it. The government would also need to weigh how the project would add to pollution already being emitted by other nearby roadways.
“This idea of cumulative impacts is really core to the way NEPA works, and arguably there is no greater environmental crisis that is tied to cumulative impacts than climate change,” Goldfuss said. “Because it's really about greenhouse gases on top of greenhouse gases and other pollution adding up to this global disaster that we're all experiencing.”
Failure to weigh the big picture could be particularly damaging to poor communities and communities of color that are disproportionately selected as the site for polluting industries and projects, critics say.
Historically, NEPA has allowed communities to challenge projects and push for alternatives, such as expanding solar and wind rather than building a pipeline in order to deliver power.
But the rewrite allows permit applicants to limit the range of alternatives that can be considered, while communities seeking to challenge a project will now need to offer far more onerous critiques.
“It requires comments to be really specific, to site page numbers and be really technical in ways that can be really challenging for communities. They may need to hire people to write their letters, if they can afford to do that,” said Kym Hunter, a senior attorney with the Southern Environmental Law Center, which has helped numerous majority-minority towns challenge polluting projects.
Rep. Nanette Diaz Barragán (D-Calif.), whose constituents have fought a number of projects, called NEPA a critical tool for civil rights.
“With today's Trump administration rule, fossil fuel corporations will be able to ram harmful projects through without considering the pollution dangers to people in nearby neighborhoods. NEPA gives our very vulnerable communities across the country an opportunity to make our voices heard and stop pollution in our own backyards,” she said. “President Trump is trying to rob us of our voice. We will not be silenced.”
The changes have been largely supported by industry.
“NEPA permitting reforms will allow the U.S. to safely build energy infrastructure, provide job opportunities to American communities, and help expand our national economy,” said Anne Bradbury, CEO for the American Exploration & Production Council, which represents oil and natural gas exploration and production companies.
However some have raised concerns the new language is vague and could slow down permitting by sowing more confusion.
The American Association of State Highway and Transportation Officials, which builds many of the nation’s roadways, pushed back on having to seek approval from a “senior agency official” in order to exceed the page and time limits set forth in the regulations.
“Agency decision-makers should have flexibility to shape the breadth and depth of NEPA reviews as needed to properly inform the decisions entrusted to them, including flexibility to exceed limits at their discretion,” the group said, referring to state-level officials. “The additional procedural step is an unnecessary administrative burden and will cause project delay.”
Environmental groups have already pledged to file lawsuits challenging the rollback, another element of uncertainty for businesses weighing new projects.
Hunter said she feels confident environmental groups have a good case. The White House has violated numerous procedural rules, she said, while its claims that it is seeking to modernize the law are undermined by its exclusion of climate change impacts.
But she’s worried if the rule is allowed to stand, the government will make poor choices with impacts that could last decades.
“NEPA is about forcing the government to think carefully before it makes decisions,” she said, adding that getting public feedback on a wide range of options is critical.
“They have to come to terms with what that action is going to look like and if it’s worth the costs. If the government doesn't need to do that hard look anymore, both from a community perspective and from a good government perspective, I don't think it’s going to have the tools it needs to make good decisions.”
This article originally appeared on The Hill's website and can be viewed here.