The oil and gas industry loved the Trump Administration’s NEPA changes, and the green groups all hated it.
Predictable enough. But, as with many things, the truth for the National Environmental Policy Act changes that the Trump administration has rolled out lies somewhere in a complicated middle.
The Trump administration recently unveiled updates to the 40-year-old NEPA, which President Donald Trump said in media releases would “right-size” the federal government’s environmental review process and help the nation build the infrastructure it needs to assure a prosperous future.
NEPA has not changed much since 1978, the Trump administration has pointed out, when the Council on Environmental Quality first issued regulations for the law, signed by President Nixon in 1970. Much, of course, has changed since then, as critics of the law point out, among them, many North Dakota lawmakers.
“The 40-year-old NEPA process has become overly complex and time-consuming, resulting in unnecessary delays, litigation and inflated costs that ultimately fall on taxpayers,” N.D. Gov. Doug Burgum said. “Modernizing our roads, pipelines, flood protection and other critical infrastructure is crucial to the safety and economic success of North Dakotans and all Americans, and such projects deserve a timely, efficient and effective environmental review.”
Sen. John Hoeven, R-N.D., meanwhile high-lighted the new deadlines in the revisions, which set a two-year time limit for the completion of federal environmental impact statements and a one-year limit for environmental assessments.
“As we’ve seen with Dakota Access and other projects bogged down through litigation, the federal NEPA review process has often resulted in inflated costs and significant delays for a wide range of vital projects across our nation,” he said. “This final rule is a welcome effort that builds on our record of providing regulatory certainty for future projects and will help taxpayer dollars go further as we work to build and repair the nation’s infrastructure.”
Cramer, meanwhile, highlighted delays and costs the old rule caused.
“It should not take longer to get the government’s approval for a project than it would take to build it,” he said. “President Trump wants to rebuild America’s infrastructure with fewer hurdles from Washington’s overbearing bureaucracy.”
Under the new rules federal agencies can modify the time limits for a more complex project. But where NEPA reviews require multiple federal agencies, they are to establish joint schedules, prepare just one EIS, and issue a single record of decision.
“(That) should encourage more efficient action by agencies,” said Thaddeus Lightfoot, an attorney with the international law firm Dorsey & Whitney three decades of experience with environmental law. “And the rules should reduce duplication by facilitating use of documents prepared by state, tribal and local agencies to comply with NEPA.”
Industry groups, meanwhile, cited regulatory certainty for big-dollar projects, which, right now, face costly litigation that is adding millions to the price tag for projects America needs.
“While well-intended, NEPA has transformed into a burdensome web of bureaucratic, confusing, and overlapping hurdles that too often delay or halt infrastructure projects costing Americans’ jobs and weakening our economy,” said Craig Stevens, a spokesman for the Grow America’s Infrastructure Now Coalition. “The Administration’s commonsense updates should simplify the review process for infrastructure projects, spur infrastructure investment, and provide an enhanced level of regulatory certainty while still maintaining the integrity of our nation’s environmental protections.”
Radical environmentalists have transformed NEPA, the American Energy Association President Thomas Pyle said.
“(They have) leveraged the legal system to their advantage in a coordinated effort to slow and stop progress,” he said. “NEPA is one of the most inefficient, growth-slowing, infrastructure-stopping laws we have in the U.S., desperately in need of this modernization. Americans need, and deserve, updated infrastructure to get them safely where they need to go and ensure affordable, reliable energy arrives to their cities, communities, businesses, and homes. This long overdue modernization will get American infrastructure projects out of the courtroom and onto the construction site.”
Energy projects, in particular, have been in the legal crosshairs, American Petroleum President and CEO Mike Sommers pointed out. Among these are Keystone XL and the Dakota Access pipeline, but in the balance is more than $1 trillion in investments over the next 15 years.
“Today’s NEPA modifications support the efficient permitting and construction of this critical infrastructure, including lower-carbon energy options like natural gas and renewables, as well as future clean-energy innovations,” he said. “NEPA modernization will help America streamline permitting to move job-creating infrastructure projects off the drawing board and into development.”
Green groups, however, are focused on provisions in the new rule that do appear to conflict with the fundamental goal of NEPA to place environmental concerns on a level footing with economic considerations.
Among those changes, Lightfoot said, are changes that eliminate the evaluation of cumulative impacts. While those are not expressly forbidden, as they were in a previous version, the new approach substantially narrows the scope. Instead, agencies are required only to analyze those effects that are reasonably foreseeable and have a reasonably close causal relationship to a proposed project.
“In making these changes, the new rule appears to be an attempt to narrow the scope of NEPA analysis and potentially eliminates the need to assess climate change in NEPA reviews,” Lightfoot said.
While numerous federal courts have held climate change must be a part of a NEPA review, the terms direct and indirect effects don’t actually appear in the statute. The Trump administration is betting on that to move its new approach ahead.
“That conclusion is sure to draw a legal challenge,” Lightfoot said.
Indeed green groups have already indicated they will see the Trump administration in court over the changes, even before the final rules were released. Their criticism was no less strident once the rule was issued.
“Black, Indigenous, and People of Color communities bear the disproportionate burden of toxic pollution in their neighborhoods, and as a result, are dying from COVID-19 at higher rates,” said Lisa DeVille, Vice-Chair of Fort Berthold Protectors of Water and Earth Rights, from Mandaree, North Dakota. “My family and I live on my ancestral land in the center of the Bakken oil field, and the last thing my family needs right now is even less protection from the dangerous impacts of this development. NEPA is one of the few laws that require environmental analysis on the reservation and consideration of the disproportionate impacts of development on Indigenous people. We all deserve to breathe clean air but the Trump Administration is proposing to eliminate protections against environmental racism that occurs from oil and gas development near my home.”
Western Organization of Resource Councils Barbara Vasquez, from Colorado, said the rule creates a rubber stamp for pollution projects to pump toxins into the air and water.
“The Trump Administration’s gutting of the National Environmental Policy Act (NEPA) will take a serious toll on the health and safety of those of us in the rural West, at a time when millions of us are sacrificing dearly to protect our health,” she said. “We need the protection of thorough environmental and public health review now more than ever.”
And in Idaho, Shannon Ansley, with the Idaho Organization of Resource Councils said she has already seen the destruction that results from “loose” mining laws and “unscrupulous” companies.
“I know that the NEPA rule released today will result in even more environmental and health damages, minimal public participation, and unchecked dangerous projects,” she said. “The rule makes it clear that President Trump does not care about us, our families, or our communities--including his own supporters. Every one of us will suffer the consequences, even those who may not realize it yet.”
There are changes in the rules that are consistent with NEPA’s original purpose of elevating the environmental aspects of a project to economic concerns, Lightfoot added.
Among these is one that will allow project proponents to play a greater part in preparing an Environmental Impact Statement, as long as financial interests are disclosed and the federal agency supervises and performs an independent evaluation of the work.
While panned by environmental groups, this is already allowed on an Environmental Assessment.
“The process has worked well for EAs and should also work well in preparing EISs, so long as federal agencies carefully evaluate the project proponent’s work product and conduct an independent evaluation of the draft EIS analysis,” Lightfoot said, pointing out that public comments will still be allowed, to ensure agencies cannot just act as a rubber stamp.
The other change that has been controversial, Lightfoot said, but that is still in keeping with the law’s original purpose, attempts to better define when NEPA should apply.
While the original statutory language requires a “detailed statement” for “major Federal actions significantly affecting the quality of the human environment,” the term “major federal action,” is never defined.
“Federal courts have continued to struggle with when NEPA applies,” Lightfoot said. “Known as the ‘small federal handle’ problem, the analysis focuses on how much federal funding or control ‘federalizes’ a project and triggers NEPA review.”
Ultimately, the way it stands, the new law could frustrate both sides. Green litigants, on the one hand, could find they have an uphill battle finding purchase in a NEPA law that never spelled out any of the specifics on which they’ve come to rely to formulate court cases.
On the other hand, there are four decades of case law interpreting NEPA and establishing the parameters in use today. That, alone, could keep the courts — and energy projects — tied up for years to come.