Feds gut cornerstone environmental protection law

The Trump administration in an announcement today hobbled the nation’s bedrock environmental protection, the National Environmental Policy Act, a law that has given marginalized communities a say in what happens to them when governments propose life-altering projects like highways and pipelines.

In doing so, the administration illegally cut corners in a way that the courts have rejected time and time again.

“This is a blatant and transparent effort from the Trump administration to further silence communities that are not as well connected, not as wealthy, not as valuable to the White House as others,” says Senior Attorney Kym Hunter, who is heading the organization’s defense of NEPA.

SELC is representing 16 conservation organizations in the case.

And the fact that it is happening now, when so many in our communities are crying out for equity and fairness, is particularly appalling.

Kym Hunter, Senior Attorney

Oddly, President Donald Trump has chosen the I-75 project to add truck lanes as an example of NEPA delays. However, that project is in its infancy and has not undergone any NEPA reviews.

In addition to curtailing public voices, the NEPA rewrite also declares climate change cannot be considered in reviews and eliminates consideration of cumulative impacts. For example, when a new highway or bypass is proposed near a current interstate, the projected increase in pollution is added to the existing pollution levels to get a full understanding of how nearby communities will be affected—but this will no longer be mandatory.

SELC attorneys are preparing a lawsuit that will allege, among other things, the Trump administration made a mockery of the laws and policies that are designed to make changes like this a transparent and public process. Here is just a sliver of our reasoning:

• To alter what is often called the “Magna Carta of environmental laws,” the Trump administration held just two public hearings—in Denver and in Washington—in a country with a population of 330 million.
• Even so, the Council on Environmental Quality received more than 1.1 million public comments and has a duty to review each one. However, CEQ moved forward with rulemaking less than four months later, an impossibility if it followed its mandate.
• CEQ created a secret back channel for Trump administration cronies and supporters who complained that they were having a hard time mustering enough support to counter overwhelming public disapproval.

SELC used open-records laws to obtain more than 8,500 pages of internal documents from CEQ, and some show how those involved in the NEPA rewrite want to narrowly interpret the purposes of projects so alternatives from the public can’t be considered. For example, the documents say that the stated purpose of a proposed natural gas pipeline should be to move gas from one place to another, and not to meet a specific geographic area’s energy needs.

Under that thinner scope, solar or hydroelectric power can’t be alternatives because they don’t move gas, even if these energy sources are preferred by certain agencies or groups, explains Hunter.

Developers of the recently cancelled Atlantic Coast Pipeline were unable to overcome the widespread public opposition and legal challenges to the project, in part because the $8 billion pipeline was billed as a necessity for providing energy to the Virginia coast. Those arguments fell apart under public and legal scrutiny when experts showed the pipeline was not necessary to meet energy demand.

However, these changes to NEPA would largely prevent communities from mounting the same kinds of challenges to massive money-making pipeline projects that come at a high cost to affected communities and landowners in their paths.

Hunter says the CEQ documents reveal hints of industry fingerprints in the effort to weaken NEPA; however, the full extent of the influence isn’t clear because CEQ blacked out close to half of the records provided. SELC has filed a motion to gain full access to the records.

The authorship of documents released under FOIA is not clear. But the documents show whoever wrote them also wants to limit or eliminate objections from other federal agencies involved in permitting large projects.

In the documents, for example, an author complained that some agencies like the U.S. Fish and Wildlife Service are too diligent in protecting endangered species.

“As a result,” one document states, “the USFWS has become one of the stickiest wickets” in the process.