Trump Weakens Major Conservation Law to Speed Construction Permits
President Trump on Wednesday unilaterally weakened one of the nation’s bedrock conservation laws, the National Environmental Policy Act, limiting public review of federal infrastructure projects to speed up the permitting of freeways, power plants and pipelines.
In doing so, the Trump administration claimed it would save hundreds of millions of dollars over almost a decade by significantly reducing the amount of time allowed for completing reviews of major infrastructure projects.
The president announced the final changes to the rule at the U.P.S. Hapeville Airport Hub in Atlanta, making the case that “mountains and mountains of red tape” and lengthy permit processes had held up major infrastructure projects across the country, including a lane expansion to the perpetually clogged Interstate 75 in Georgia.
“All of that ends today,” he said. "We’re doing something very dramatic.”
Revising the 50-year-old law through regulatory reinterpretation is one of the biggest — and most audacious — deregulatory actions of the Trump administration, which to date has moved to roll back 100 rules protecting clean air and water, and others that aim to reduce the threat of human-caused climate change.
Because the action is coming so late in Mr. Trump’s term, it also elevates the stakes in the November elections. Under federal regulatory law, a Democratic president and Congress could eradicate the NEPA rollback with simple majority votes on Capitol Hill and the president’s signature.
Republican lawmakers, the oil and gas industry, construction companies, home builders and other businesses have long said the federal permitting process takes too long, and accused environmentalists of using the law to tie up projects they oppose.
“This will modernize and rationalize the permitting process so that we can get these projects built at a state and local level,” said Martin Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute. The final rule, he said, “is a big step forward and it’s about our nation maintaining its global competitiveness.”
The final rule sets new hard deadlines of between one and two years to complete environmental studies, according to two people who have seen the document but were not authorized to speak about it publicly.
The rule will also allow agencies to develop categories of activities that do not require an environmental assessment at all.
And in one of the most bitterly contested provisions, the rule would free federal agencies from having to consider the impacts of infrastructure projects on climate change. It does so by eliminating the need for agencies to analyze a project’s indirect or “cumulative” effects on the environment and specifying that they are required to only analyze “reasonably foreseeable” impacts.
“This may be the single biggest giveaway to polluters in the past 40 years,” said Brett Hartl, government affairs director at the Center for Biological Diversity, an environmental group. He accused the Trump administration of “turning back the clock to when rivers caught fire, our air was unbreathable and our most beloved wildlife was spiraling toward extinction.”
With the economy still reeling from the coronavirus pandemic, the president has repeatedly said the government must loosen environmental rules to get the country back on its feet. In June he signed an executive order allowing energy and infrastructure projects to bypass parts of certain laws like the National Environmental Policy Act and the Endangered Species Act, with the justification that it will “strengthen the economy and return Americans to work.”
Belinda Archibong, an assistant professor of economics at Barnard College of Columbia University, said if the Trump administration wanted to improve the economy, the president would actually call for more regulations to protect vulnerable communities already highly susceptible to coronavirus from the threat of increased air pollution.
“Saying ‘We’re going to pull back on regulation’ does not mean that firms are going to start hiring more people. That’s complete nonsense. All that’s going to happen is it’s going to lead to more pollution, period,” Dr. Archibong said.
Conservationists like to call the National Environmental Policy Act the “Magna Carta” of environmental law. Just as the charter of rights protected English citizens from monarchical rule, activists note, the foundational environmental policy gives United States citizens a voice in every federal road, housing project, airport or major infrastructure development.
It requires agencies to analyze and disclose the extent to which proposed federal actions or infrastructure projects affect the environment, from local wildlife habitat to the projected levels of greenhouse gas emissions that cause climate change.
Activists opposed to fossil fuel expansion have used the environmental policy to challenge a proposed major coal terminal in the state of Washington. Last year a federal judge found that the Obama administration did not adequately take into account the climate change impact of leasing public land for oil gas drilling in Wyoming, a ruling that also presented a threat to Mr. Trump’s plans for fossil fuel development.
Earlier this month, a district court shut down the Dakota Access Pipeline, an oil route from North Dakota to Illinois that has inspired intense protests and legal battles, pending more detailed environmental review. Oil and gas industry officials said while changes to the law will not retroactively help the case for the Dakota Access Pipeline, it will speed decisions on future permits. The same week the United States Supreme Court upheld a district court order that cited the environmental policy act when it halted construction on the Keystone pipeline. The decisions were major blows to Mr. Trump, who has been determined to see those projects become reality.
Mr. Trump, a former real estate developer who has had personal run-ins with state-level versions of the law, had made weakening it a top priority of his administration.
But despite tasking at least a half dozen people from various agencies to finish the regulation this summer, the final rule is not likely to be safe from the Congressional Review Act, a law that had hardly been used until Mr. Trump took office. Under the law, Congress can overturn a federal agency’s rule-making within 60 legislative days of its finalization, something Democrats have pledged to do next year if they have the votes. Otherwise, the rule is expected to be subject to a lengthy court battle.
The revisions, if they hold up in court, are expected to lead to more permitting for pipelines and other projects that worsen global greenhouse gas emissions. It could also make roads, bridges and other infrastructure riskier because developers would no longer be required to analyze issues like whether sea-level rise might eventually submerge a project.
Documents obtained under public records laws by Documented, a watchdog group that tracks corporate influence in government, show that the White House has been working with conservative allies to build support for the measure.
On Feb. 20, Francis Brooke, Mr. Trump’s energy adviser, held a call with Republican governors, according to an email describing the discussion. On the call Mr. Brooke urged state leaders to submit official comments praising the rule, and encouraged them to detail “illustrative examples from states where projects have been slowed or delayed due to NEPA permitting.”
The NEPA change is likely to have an outsized impact on low-income neighborhoods that are already disproportionately exposed to environmental hazards, said Kerene N. Tayloe, director of federal environmental affairs at WE ACT for Environmental Justice, an advocacy group. The polluting effects of a new toxic waste incinerator or a port expansion or roadway bringing heavy traffic cannot be considered in isolation in neighborhoods that already have high numbers of industrial sites.
“One new refinery in ‘cancer alley’ might not emit much alone, but combined, that cumulative effect would pose an unacceptable health risk,” Ms. Tayloe said, adding, “If we aren’t looking at legacy pollution, if we aren’t looking at long pattern of environmental degradation, we’re only going to harm communities even more.”