Trump gutted NEPA regulations, but a Biden presidency could restore them

An environmental lawyer discusses the future of the country’s bedrock environmental law.

 

Last January, 50 years after President Richard Nixon signed the National Environmental Policy Act into law, the Trump administration announced its plans to issue new regulations to severely curtail the scope and breadth of the law in order to streamline new infrastructure projects. In September, those rules were finalized, marking a new era in which some of the most important environmental safeguards against industry influence and haphazard planning have been removed. 

The changes mark a swift departure from the original intent of a policy passed back in 1970. The act’s original goal was to ensure that government agencies fully assess the environmental consequences of all significant projects and consider alternatives to harmful actions whenever possible. The law does this by requiring environmental impact statements and soliciting meaningful public input. 

Lauren Crow / HCN

Since its creation, NEPA has given voice to communities both human and natural that face possible harm through industry actions. It has successfully rerouted highways that would have destroyed wildlife habitat and displaced residents from their homes, halted pipelines, protected important cultural sites from mining and provided a platform for people disproportionately impacted by environmental injustices. 

To understand what changes to NEPA might mean for the West and how a new administration might respond, High Country News spoke with Dinah Bear, an environmental lawyer and consultant based in Tucson, Arizona, who spent more than two decades — spanning from the Reagan administration through the George W. Bush years — working at The Council on Environment Quality, the federal agency charged with implementing NEPA. This conversation has been edited for length and clarity.

High Country News: What are your main concerns with the recent changes made to the NEPA process?

Dinah Bear: To sum it up, the Trump administration has significantly narrowed the purpose of NEPA, they’ve narrowed the application of NEPA, and they’ve narrowed the scope of analysis for actions when NEPA applies. They made the whole process extremely deferential to private sector applicants, and then they’ve tried to bar judicial review. 

The changes fundamentally mischaracterize the purpose of NEPA. The original regulations pointed out that the purpose of NEPA was essentially to try and implement the country’s environmental policies. Now, the new regulations say that agencies have satisfied NEPA if they’ve considered the relevant environmental information and the public has been informed regarding the decision. It narrows the process down to a paperwork process instead of meeting the goals of the statute.

It also gives agencies the ability to narrow the number of actions that NEPA applies to. Agencies can now determine whether or not Congress really intended for NEPA to apply to a proposed action. Did Congress really mean it to apply to mining or oil and gas development? There’s no guidance. It’s just up for the agencies to decide. Further, agencies can now adopt what’s called “the functional equivalence exemption,” which allows federal agencies to say, “Well, we’ve got these other statutory requirements for a resource management plan, so we won’t do NEPA at all.” The administration has also completely eliminated the conflict-of-interest provisions in the original regulations. Now a private sector applicant, like Exxon, can write their own environmental impact statement.

There is also the omission of cumulative effects. That may be the biggest jaw-dropping thing. Cumulative effects were the reason that NEPA was passed. If you go back and you look at the legislative history, there are many references to Congress realizing that there were many separate actions that combined to have a huge impact on the environment.

“Now a private sector applicant, like Exxon, can write their own environmental impact statement.”

HCN: What kind of projects would be streamlined by this new process?

DB: It’s hard to think of any project that won’t. If you are working on a forest management plan, you're now looking only at direct impacts — not cumulative ones. That means you might not be looking at the bigger picture on how an action under a plan affects water flow, for example. One of the main reasons the national forests were established was to protect watersheds.

When you look at something like energy development, whether it's oil and gas or solar, you're looking at a process, which if it kicks in, is going to be incredibly deferential to the applicant. Obviously, for lots of forms of energy development, there's also concern about how projects impact climate change. But that climate change advisory definition is a cumulative impact. And along with these revised regulations, the Trump administration also revoked the climate change guidance.

HCN: How will these new changes impact the ability of NEPA to protect communities from environmental harm?

DB: Public comment is still required, but there are much stricter limitations on how you comment now. Frankly, for people who are environmental professionals, it’s not going to be impossible to comply. But for people who aren't professionals, whether they’re an environmental justice community or not, submitting a comment is more daunting.

The NEPA process has been incredibly important for environmental justice communities and for sovereign Indigenous nations. I was involved in a case a few years ago, in Laredo, Texas, where Customs and Border Protection was going to spray an herbicide along the banks of the Rio Grande River to kill an invasive weed right across the street from a school and playground. We stopped that from happening, and instead, CBP had a meeting with the community and talk about alternatives. That was a community which, frankly, was terrified of the Border Patrol and wanted so badly to have a conversation, but wasn't sure how. They ended up doing it and stopped the spraying, and the way they did that was through NEPA.

HCN: Proponents of the changes argue that the process is too lengthy and inefficient. New changes shorten the time spent on review and limit the length of assessments. Having served in the Council for Environmental Quality for 25 years, what is your perspective? 

DB: When I first came on board, most major departments that do a lot of NEPA work, like the Department of Agriculture or the Department of the Interior, had maybe a dozen people — an interdisciplinary staff — who worked on NEPA. But over the years, and this is a bipartisan problem, that staff has been whittled away. Contractors do most environmental impact statements now. When agencies use contractors, it inevitably takes longer: You have to go through the contracting process, and contractors have to run things by the agency. The time limits and the page limits in the new regulations are not unreasonable if — and that’s a big if — there’s adequate staff.  We don’t have adequate staff in these agencies.

HCN: What’s at stake for the future of NEPA?

DB: If the agencies start actually implementing these regulations, I think virtually everything will be litigated, which is kind of ironic, because the rationale for these changes was to make everything more efficient. However, there is nothing that would stop a new administration from making changes in the regulations. There is also the Congressional Review Act, which allows Congress to overturn or stop the regulations from going into effect.

Editor’s note: This story was updated after the presidential election. 

Jessica Kutz is an assistant editor for High Country News. Email her at [email protected] or submit a letter to the editor

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