Trump Proposes NEPA Changes

Trump Proposes NEPA Changes March 10, 2020

Trump Proposes Limiting Environmental Reviews and Eliminating Climate Change Considerations From NEPA

On the 50th anniversary of the National Environmental Policy Act (“NEPA”), the President has proposed making the first regulatory change to the Act in over 40 years. The White House Council on Environmental Quality (“CEQ”) recently proposed changes to NEPA. The Act requires environmental reviews of projects like highways and pipelines. The changes to NEPA will reduce the number of projects that would trigger environmental reviews, expand the number of project categories that can be exempted from NEPA review, and allow companies to conduct their own environmental assessments.

NEPA

NEPA was signed into law in 1970 under the Nixon Administration. The purpose of NEPA is to “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.” It requires federal agencies to assess the environment impacts of their proposed actions before making those decisions. This includes making decisions on permit applications, adopting federal land-management actions, and making decisions concerning highways and publicly-owned facilities.

Trump Proposal

Under the new changes that President Trump has proposed, the scope of NEPA would dramatically change. Large-scale projects like highways, pipelines, and mines would be exempt from the Act’s requirements. In a speech President Trump declared that “Most of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously burdensome federal approval process.” President Trump added, “these endless delays waste money, keep projects from breaking ground and deny jobs to our nation’s incredible workers.”

Proponents of NEPA “Modernization”

The limits on environmental reviews have been touted and criticized by sides of the political aisle. Those supporting the changes to NEPA have stated it would be good for industry, while those who are opposed argue it will be detrimental to environmental and public health. In November, over thirty industry groups that included the Chamber of Commerce and American Petroleum Institute, called on the CEQ to hurry the release of the NEPA “modernization.” As part of the “modernization,” the CEQ is expected to announce federal agencies will not be required to consider the impact of federal projects on “cumulative” climate change. A statement by Wyoming Governor, Mark Gordon, expressed support for the narrowed focus of NEPA. He stated Wyoming is proud of its environment and protective of its natural resources, while also stating NEPA “is not a platform to engage in speculation and it is not a convenient mechanism to obstruct development.”

Critics of NEPA Revision

Critics of the proposed changes argue that upending NEPA is irresponsible considering how it would negatively impact CO2 emissions and climate change. Environmental groups and advocates have raised concerns, stating that the NEPA regulatory process offers protections for communities that are directly affected by big projects. Raul Garcia, senior counsel at Earthjustice, stated, “A lot is riding on this.” He expressed concern that expediting the NEPA process would lead to “environmental reviews cutting corners and overlooking potentially hazardous impacts.” Gina McCarthy, former Environmental Protection Agency (“EPA”) Administrator in the Obama Administration and current president and CEO of the Natural Resource Defense Council (“NRDC”), has said the NRDC will use every tool it has to stop this proposal.

Critics have also said the environmental rollback could impact minorities and low-income communities the hardest. An article by Cheryl Katz in Scientific American indicates that air pollution contains more hazardous ingredients in nonwhite and low-income communities than that of affluent white ones. Katz writes, “the greater the concentration of Hispanics, Asians, African Americans or poor residents in an area, the more likely that potentially dangerous compounds such as vanadium, nitrates and zinc are in the mix of fine particles they breathe.” Latinos receive the highest exposure to these compounds, while whites experience the lowest exposure to such compounds. A study published in the American Journal of Public Health in 2018 echoed the results of Cheryl Katz’ article in Scientific American. It indicates persons of color suffer a greater burden of particulate matter air pollution than white people. According to the study, race is the greatest predictor of exposure to health-threatening particulate matter.

Stay Tuned

If Congress votes in support of the changes to NEPA (which is far from certain), it is likely that the decision will generate considerable controversy. Statutory changes are subject to public hearings before Congress votes to make a change. The proposed statutory changes will most likely face opposition from environmental groups. If the revisions are enacted, both public hearings and court proceedings will delay their implementation. The results of the upcoming presidential elections may also affect the outcome, depending on who is elected. Stay tuned for more information on the proposed changes to NEPA. If you have concerns or questions about NEPA, contact Whitcomb Selinsky PC and talk to one of our attorneys about the impact of the proposed changes.

Tags: environmental law