What Trump’s Attempt to Limit Environmental Review Really Means
Thomas Mullen
January 15, 2020
Last week, President Trump took his deregulation campaign to the heart of America’s environmental law, proposing to scale back the 50-year-old National Environmental Policy Act by potentially enabling some “major” infrastructure projects to skip the federal environmental review process altogether.
While the administration claims NEPA’s lengthy review process unnecessarily slows down projects critical to the country’s commercial and economic development, Trump critics warn that the planned revisions will increase pollution, hasten climate change and disproportionately affect poor and minority communities.
But is the proposal really as ironclad as it sounds? And what happens from here—particularly from the perspective of the consultants, regulators, planners, engineers and lawyers at the heart of the environmental review process? Here are five things you should know about Trump’s proposed NEPA rollback.
What The Proposal Would Actually Do
As the first practical rollback in NEPA’s history, Trump’s proposal aims to reduce both the number of projects subjected to federal review and the amount of time those reviews take.
It would do this primarily by creating a new class of federal infrastructure projects that would be exempt from a federal Environmental Impact Statement. Additionally, the proposal would limit an EIS on a large project to two years, while agencies would have a one-year deadline to complete an EIS on a smaller project.
“Today it can take more than 10 years to build just a very simple road,” Trump said during a press conference announcing his proposal.
In addition to these limits, Trump also wants to eliminate “cumulative impacts” from the list of considerations government agencies have to give heed to during an EIS — a somewhat nebulous category of concerns that courts have recently said includes the potential planet-warming impact of greenhouse gases.
It Could Seriously Impact Public Comment
Besides denying the public an opportunity to weigh in on projects excluded from the NEPA process, Trump’s proposal would also require public comments submitted about non-exempt projects to be more technical in nature.
Besides potentially spooking some commenters, it could also significantly limit the number of comments to be managed and responded by a project team during an environmental review.
“(T)hey’re saying public comments have to be specific, use page numbers, explain why issues raised are significant, include or describe data sources, identify additional sources,” Kym Hunter, a senior attorney with the Southern Environmental Law Center,” told The Hill. “It’s putting a lot of burden on the commenter which is a huge change.”
It Shouldn’t Be Surprising
In a way, Trump has been gearing up to go after NEPA—long regarded as the Magna Carta of environmental law—since before he was elected. With across-the-board deregulation featuring as one of the staples of his campaign, it was only a matter of time before his penchant for environmental rollbacks reached the headwaters of the modern environmental review process.
According to The New York Times, President Trump has initiated almost 100 environmental rollbacks during his time in office, affecting everything from endangered species protections, coal emissions rules, greenhouse gas limits—even the planned phaseout of incandescent light bulbs.
And last year, the Council on Environmental Quality – a division of the executive branch that coordinates federal environmental efforts – held a public comment period on NEPA, which included 20 questions about whether parts of NEPA could be updated or clarified, and whether environmental review could be more efficient or timely.
In other words, Trump’s NEPA broadside didn’t exactly come out of the blue.
It Could Take a Long Time To Go Into Effect. Maybe Even Never.
Posted to the federal register last week, the proposal now must undergo a 60-day comment period before any parts of it can be implemented. But the proposal’s legal road could actually take much longer than that due to the multitude of legal challenges that are likely to be initiated should it ever become law.
And if Trump’s track record on environmental proposals is any indication, there’s a good chance the proposal might not survive the courts at all.
In fact, only four of the of the 100 or so Trump environmental proposals have survived the dozens of legal challenges that came their way — many of which were legally compromised in the administration’s zeal to score quick wins in its deregulation fight, according to New York University School of Law data.
Rep. Raul Grijavla (D-Ariz.), said he expects this proposal to follow a similar pattern.
“The courts have been crystal clear that NEPA requires considering climate impacts, so this is just another inevitably doomed effort by this administration to try to illegally rewrite the rules it doesn’t like,” Grijavla said.
Environmental Reviews Will Continue
Despite the bluster on both sides, the reality is that only a small percentage of projects end up being subjected to NEPA’s guidelines. This means that no matter what happens with NEPA’s scope, the environmental review process is here to stay.
In fact, about 95 percent of all projects reviewed by environmental regulators receive a categorical exclusion from a full environmental review, with this process taking as little as a few days. Meanwhile, another 4 percent of projects undergo a less rigorous environmental assessment at the state level, which often takes between four and 18 months. That leaves less than 1 percent of projects subject to a full federal environmental review via and EIS, according to a 2014 report from Government Accountability Office.
In fact, EPA head Andrew Wheeler insisted the proposal is designed to streamline needlessly time-consuming elements in the environmental process and not to compromise ecological protections.
“The NEPA process today is more about preparing documents for litigation than protecting the environment,” Wheeler said. “This streamlined approach to NEPA will free up countless career employees to focus more of their time protecting the environment instead of protecting the jobs of attorneys who sued to stop each and every project.”