NEPA Under Attack
Often overlooked amid the relentless attacks on clean air, clean water, and clean energy by the current Administration and Congress is the unprecedented and systematic campaign of administrative and legislative attacks aimed at weakening or waiving the application of NEPA.
What is the threat to NEPA?
For nearly 50 years, we have counted on the National Environmental Policy Act (NEPA) to protect our clean air and water, wildlife and wildlands. But over time, polluter interests and their allies in Congress have tried to gut this protection.
Backed by polluters and corporate interests, scores of opponents in Congress have launched assault after assault on NEPA, eager to resurrect a “those in power know best” culture of complacency and secrecy.
Corporate polluters and their friends in Congress who seek to undermine our basic protections know they can’t do it by sponsoring legislation that would eliminate NEPA head on, so instead, they have mounted an unprecedented legislative and administrative campaign designed to dismantle the law piece by piece.
This “death by a thousand cuts” strategy is in full force. In the current Congress alone, over 100 pieces of legislation have been introduced seeking to undermine, weaken, or waive NEPA. Current legislative proposals in Congress, made bolder by the election of Donald Trump, are even more alarming. If passed, they would exempt large categories of government activity from the NEPA review process, allow federal agencies to ignore project design alternatives better protecting public health, and limit opportunities for the public to comment on and challenge agency decisions. This “death by a thousand cuts” strategy includes:
- Waiving the NEPA review process with Congressional waivers or the creation of inappropriate categorical exclusions
- Explicitly limiting the range of project alternatives and mitigation measures to be considered
- Imposing unreasonable time limits for the completion of environmental reviews and shortening the mandated time periods for public comment.
- Imposing arbitrary deadlines for agency decisions, resulting in lower quality analysis
- Levying unreasonable financial penalties on federal agencies (e.g., up to $20,000 per week) when agencies do not meet the imposed arbitrary deadlines
- Encouraging federal agencies to conduct a more condensed and expedited Environmental Assessment (a document valid only for projects deemed unlikely to have significant environmental impacts) even if a more comprehensive Environmental Impact Statement is warranted
- Limiting the statute of limitations for filing a claim under the Administrative Procedure Act (APA), the net effect of which would be less government accountability.
Supporters of reasonable protections and public engagement were able to fend off most attacks in the previous Congress, however, the job won’t get any easier. The bottom line is that if we don’t act now, Congress could, little by little, take away our right to have a say about federal government actions in our own backyards.
Opponents in Congress have mounted an unprecedented legislative and administrative campaign designed to dismantle NEPA piece by piece. The “Minnesota’s Economic Rights in the Superior National Forest Act” (H.R. 3905) would exempt the he Boundary Waters in Superior National Forest from the NEPA environmental review process, eliminate the President’s authority to establish new national monuments in Minnesota, and put the future of Minnesota’s public lands in the hands of a foreign mining giant with a history of environmental violations.
Big polluters have been stacking Congress with their friends for decades, and it’s no accident that hundreds of pieces of legislation have been introduced over the past four years seeking to undermine, weaken, or waive NEPA. The rollbacks strike at the heart of a statute explicitly enacted to allow for public disclosure and participation in federal decisions.
Many of the legislative and administrative proposals aimed at weakening the substance of environmental reviews under NEPA are labeled under the deceptive headings of “streamlining” and “permitting reform.” One of the worst examples of such legislation came in 2012 when Congress passed legislation a bill entitled “Moving Ahead for Progress in the 21st Century Act (MAP-21).” The anti-environmental measures were so extreme that Congressman Edward Markey (D-MA) refused to sign the final conference report, instead releasing the following statement:
“The Conference Report includes several broad new categorical exclusions from the National Environmental Policy Act, or NEPA. These new exclusions lack flexibility or adequate standards and will limit public participation and careful consideration of transportation projects that can have devastating impacts on neighborhoods and our natural, cultural and historic resources. In the end, the purpose of these provisions is to speed up highway construction, not by cutting alleged “red-tape” but by making it harder for local communities to gather information and have input in projects that may go right through their backyards.
Unbelievably, the Conference Report also includes a radical new idea that agencies should be fined, through rescission of up to 7% of their budgets, for missing arbitrary deadlines for environmental reviews. Given that the main reason agencies struggle to complete these reviews quickly is a lack of funding and staff, cutting their budgets as punishment will only make the problem worse.”
Current legislative proposals in Congress, made bolder by the election of Donald Trump, are even more alarming. If passed, they would exempt large categories of government activity from the NEPA review process, allow federal agencies to ignore project design alternatives better protecting public health, and limit opportunities for the public to comment on and challenge agency decisions.
More recent legislative attacks included the “Resilient Federal Forest Act” which would gut the NEPA process and categorically exclude up to 30,000 acres of clear-cutting in National Forests from environmental review – that’s a 50 square mile cut, or an area roughly the size of 22,000 football fields.
These legislative attacks strike at the fundamental principles of NEPA: environmental review, public participation, good science, examination of alternatives, and judicial review.
Over 100 pieces of legislation seeking to undermine, weaken, or waive NEPA have been introduced over the two years in Congress. Current legislative proposals in Congress, made bolder by the election of President Trump, are even more alarming.
Scapegoating environmental regulations also fails to acknowledge the great lengths to which federal agencies have gone to reform NEPA. If it is uncertain whether a proposed project will have significant effects on public health and the environment, federal agencies prepare a concise, preliminary evaluation of potential consequences. If the initial assessment demonstrates no significant effects, the agency issues a FONSI (“Finding of No Significant Impact”) and proceeds with the action without further environmental analysis. Preparation of a detailed Environmental Impact Survey (EIS) is only required for actions where an initial finding indicates that the action “may significantly affect the quality of the human environment.”
Because of this tiering process, over 99% of projects are cleared with minimal environmental assessment. The federal government undertakes 50,000 actions every year subject to NEPA review, but only 500 draft EISs are prepared annually. A Federal Highway Administration study found that from 1998 to 2004, no more than 3.5% percent of all proposed transportation projects required a detailed environmental study.
For decades Congress and the federal government starved local and state governments of badly needed money to finance infrastructure upgrades, effectively stalling projects before they even started. Rather than addressing the trillion-dollar elephant in the room and plugging the mile-wide funding gap, the opponents in Congress have instead peddled the persistently false claim that NEPA and other environmental regulations are responsible for otherwise unrelated project delays.
NEPA is not a significant inhibitor of project completion. More often than not, extended delays reflect a lack of community consensus about a project’s needs or are a product of insufficient funding. The fact of the matter is that we cannot streamline our way out of a lack of funding.
The net result of rolling back NEPA under the guise of such deceptive buzzwords as “streamlining” and “permitting reform” will be the construction of pipelines without regard to public health and safety.
Picture: Bears Ears National Monument. Interior Secretary Ryan Zinke has recommended that President Trump modify 10 National Monuments, including Utah’s Bears Ears and Grand Staircase-Escalante, Nevada’s Gold Butte, and Oregon’s Cascade-Siskiyou.
While opponents in Congress continue to introduce bill after bill aimed at weakening the NEPA, the Trump administration has simultaneously moved very rapidly to roll back the NEPA process and limit critical reviews protecting public health using various administrative measures.
These attacks are occurring across every federal agency, from the Department of Transportation to the Federal Communications Commission (FCC). Many of these administrative attacks reduce or eliminate environmental review and public input on federal projects, giving industries unfettered access to our public resources.
For example, on August 15, 2017, President Trump issued an Executive Order requiring federal agencies to “apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible.” The Executive Order undercuts NEPA’s fundamental purpose of assuring informed decision-making and public oversight.
In a related August 31st memo, Deputy Secretary of the Department of the Interior David Bernhardt directed that the department’s environmental impact statements “shall not be more than 150 pages or 300 pages for unusually complex projects.” The memo stated that it “dovetails” with a presidential executive order focused on infrastructure projects, adding that it was issued in the “context of the department’s overall effort to streamline the NEPA process.” The memo also imposes a “target” of completing the studies required under the National Environmental Protection Act within one year, regardless of the size or complexity of the project or the necessity of further review. Such artificial page and time limits have little to do with effective compliance with NEPA.
The Washington Post has also uncovered evidence that the Department of the Interior has been holding secret, closed-door meetings with state, county, local and native government representatives designed discuss the best ways to loosen environmental protections (including environmental reviews) and cut the public out of the decision-making process. During a September 21, 2017 webinar hosted by the Bureau of Land Management, members of the Western Governors’ Association and the National Association of Counties also took aim at the Equal Access to Justice Act, an important measure that allows plaintiffs to seek reimbursement of attorneys’ fees when they win cases against the government.
Under the guidance of Secretary Rick Perry, the Department of Energy has also moved to roll back meaningful environmental review. In May of 2017, Perry established a “Regulatory Reform Task Force” to address “regulatory burdens” hindering domestic energy production. In their subsequent report, the task force called for reviewing the agency’s NEPA guidelines and speeding up the permitting process for natural gas exports.
Administrative efforts to roll back NEPA have even reached such smaller agencies as the Federal Communications Commission (FCC). In March of 2018, the FCC voted to approve a proposal excluding small cell broadband deployment from any environmental review whatsoever.
In October 2017, President Trump nominated polluter-funded lobbyist and extreme climate denier Kathleen Hartnett White to Chair the White House Council on Environmental Quality (CEQ). White disputes the Supreme Court’s 2007 decision affirming that carbon emissions should be classified as a pollutant, believes “there is no environmental crisis,” and reportedly sought to hide the amount of radiation in drinking water as Chairperson of the Texas Commission on Environmental Quality (TCEQ).
Inside the Environmental Protection Agency, one of the federal agencies tasked with oversight of NEPA regulations, plans are also underway to move the NEPA office from its current home in the Office of Enforcement and Compliance Assurance to the Office of Policy. The Policy Office is organizationally housed within EPA Administrator Scott Pruitt’s office. In light of the Trump administration’s other attempts to undermine environmental regulations, this appears to be an attempt to weaken and inject politics into the NEPA process.
On October 12, 2017, President Trump nominated polluter-funded lobbyist and climate denier Kathleen Hartnett White to chair the White House Council on Environmental Quality (CEQ). She has been called “more extreme” than EPA Administrator Scott Pruitt – a description that almost defies believability – and has repeatedly stated that “there are almost no major environmental problems” In 2014, White went so far as to make the outrageous claim that the coal-fired industrial revolution helped end slavery (it exacerbated it).
To this day, White continues to argue that greenhouse gas emissions should not be considered pollutants under the Clean Air Act and refuses to accept the Supreme Court’s 2007 decision affirming that greenhouse gas emissions are in fact pollutants as governed by the law. Unsurprisingly, she also claims that fracking has “virtually no documented environmental problems,” despite mountains of scientific evidence to the contrary.
Although her nomination was eventually defeated, as Chair of the White House CEQ, White would have held the highest environmental post in government. She would have been charged with advising the President on the most important environmental issues facing our nation as well as with the oversight and implementation of the NEPA review process across the entire federal government.
NEPA – the People’s Voice – is Under Siege
Over the past six years, 180 pieces of legislation have been introduced seeking to attack, undermine, weaken or waive NEPA protections. Some leaders in the current 115th Congress have signaled their interest in attacking NEPA, and with President Trump’s appointment of an anti-regulatory cabinet, the attacks could have a devastating impact.