“While our world is burning, President Trump is adding fuel to the fire by taking away our right to be informed and to protect ourselves from irreparable harm,” said Gina McCarthy, the new president and CEO of the Natural Resources Defense Council (NRDC). McCarthy, who served as administrator of the Environmental Protection Agency in the Obama administration, added: “We will use every tool in our toolbox to stop this dangerous move and safeguard our children’s future.”
Flanked by men in hard hats and orange construction vests, industry officials and members of his economic team, Trump stressed his aim to speed the building of highways, roads and bridges. But the NEPA impact that has proved most nettlesome to the administration has been stalling the oil and gas pipelines and coal leasing Trump’s administration has sought to push.
Trump’s move follows a series of federal court rulings that have stymied his efforts to spur fossil fuel projects—most notably the high-profile Keystone XL pipeline to expand U.S. imports of carbon-intensive Canadian tar sands oil. Trump had signed an executive order within days of taking office to reverse President Barack Obama’s decision to halt the project over climate concerns. But Keystone XL has been tied up in litigation since then, with a federal judge ruling last August that federal agencies “cannot escape their responsibility” to evaluate alternatives under NEPA.
Amid the Trump administration’s all-out effort to ease the regulatory burden on the fossil energy industry, federal courts have repeatedly ruled that agencies were failing to live up to their duties under NEPA. Courts slowed construction of a major natural gas pipeline in the Southeast, and expansion of coal mining in the Powder River Basin of Montana and Wyoming and on Navajo land in Arizona. The federal Bureau of Land Management’s Utah office in September voluntarily suspended 130 oil and gas leases under the threat of NEPA lawsuits.
Trump’s Interior Secretary, David Bernhardt, a former oil industry lobbyist now in charge of agencies that oversee oil, gas and coal leasing on federal lands and coastlines, called the NEPA plan “a really, really big proposal” that “affects virtually every significant decision made by the federal government that affects the environment.”
Turning from the podium to Trump, Bernhardt said, “I believe it will be the most significant deregulatory proposal you ultimately implement.”
Avoiding the Consideration of Climate Change
The fossil fuel industry and its allies have long railed against NEPA, especially over the past decade, when courts began ruling that NEPA required that both direct and indirect climate impacts be assessed. Sen. James Inhofe (R-Okla.) led an effort to amend NEPA to bar consideration of global warming impacts, but it never garnered sufficient support to advance in Congress.
From the start, Trump took up the cause of NEPA reform with all the enthusiasm of a real estate developer who saw his own projects derailed over environmental concerns.
His administration has issued and proposed five other pieces of guidance to circumscribe NEPA reviews, including a plan floated last summer to limit consideration of greenhouse gas emissions in planning for federal projects. But in the new proposal, the White House said it determined it was “not appropriate” to address a single category of impacts in regulations. Instead, the proposal seeks to limit the scope of all NEPA reviews in a way that appears to rule out consideration of climate change.
The only environmental effects that federal agencies would be required to consider are those that are “reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.”
“Effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain,” the proposal says. It also specifies that environmental reviews are not required under NEPA for non-discretionary decisions or for those with minimal federal funding or involvement—giving many developers an opportunity to elude the environmental review process altogether. The proposal sets a time limit of two years for detailed environmental reviews.
Vickie Patton, general counsel of the Environmental Defense Fund, said the proposal would “punch loopholes into long-standing protections under the National Environmental Policy Act and would put communities at risk and worsen climate change.”
Gene Karpinski, president of the League of Conservation Voters, called it “one of the most egregious actions the Trump administration has taken to limit the federal government’s response to climate change yet.”
Trump’s Red Tape Claims vs. White House Data
The proposal, in essence, would fulfill a wish list delivered to the White House last fall by 33 industry groups, led by the American Petroleum Institute (API) and the U.S. Chamber of Commerce, who complained of “unreasonable costs and long project delays” caused by NEPA.
API President and CEO Mike Sommers praised the proposal in a prepared statement: “Reforming the NEPA process is a critical step toward meeting growing demand for cleaner energy and unlocking job-creating infrastructure projects currently stuck in a maze of red tape.”
Trump’s description of the NEPA process—”It takes 20 years, 30 years, it takes numbers nobody would even believe”—is at odds with reality for the vast majority of projects. The White House Council on Environmental Quality’s own statistics show that 95 percent of the more than 50,000 actions subject to NEPA each year are already exempt from detailed environmental review.
Environmental groups argue that the subset of actions that require a detailed review—like the Keystone XL Pipeline—warrant the scrutiny, pointing to the spill of thousands of gallons of oil from the Keystone system in North Dakota this past October.
Responsibilities as ‘Trustee of the Environment’
NEPA, among the first environmental laws passed by Congress and signed by President Richard Nixon, requires comprehensive studies into the potential environmental impacts of “major” federal actions or projects—with an analysis of alternatives. The sweeping language of the statute asserts the federal government’s duty to “use all practical means. … To fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”
“As a global multigenerational problem that affects all of humanity and natural resources, climate change would seem to fit precisely within what the statute has in mind,” said Michael Gerrard, founder and director of the Sabin Center for Climate Change Law at Columbia University.
Gerrard, who spent many years as a litigator, said that if he were representing a project applicant he would want consideration of climate change included in the environmental impact analysis even if Trump succeeds in his NEPA overhaul.
“There’s a good chance the courts will … say it needs to be considered and an [environmental impact statement] could well be struck down for failure to consider it regardless of what this guidance says,” Gerrard said. “Rational planning involves looking at foreseeable conditions, and arguably it’s malpractice for an architect or engineer to ignore foreseeable considerations when designing a project.”
The overhaul of NEPA guidance is just the latest of dozens of actions by the Trump administration to throw open the doors to unfettered fossil energy development and abandon even recognition of the threat of climate change. Just this week, the Trump administration released the federal government’s latest annual National Preparedness Report, which for the first time in the eight-year history of the accounting of threats and hazards failed to mention climate change, drought or sea-level rise.
