Trump Takes the Knife to Key Law Requiring Feds Carry Out Environmental Impact Assessments

The Standing Rock Sioux Tribe and allies protesting the construction of the Dakota Access Pipeline in September 2016. (Photo: Robyn Beck/AFP, Getty Images)
The Standing Rock Sioux Tribe and allies protesting the construction of the Dakota Access Pipeline in September 2016. (Photo: Robyn Beck/AFP, Getty Images)

On Wednesday, Donald Trump’s administration eviscerated a key law that requires federal agencies assess the environmental impact of planned projects, likely making it far more difficult to block the construction of new gas and oil pipelines, mines, highways, and other infrastructure.

Trump pitched his “top to bottom overhaul” of the National Environmental Policy Act (NEPA), signed into law by Richard Nixon in 1970, as removing “mountains and mountains of bureaucratic red tape,” according to NPR. What NEPA actually does is ensure that all environmental impacts of a federal project (as well as projects that can only proceed with federal permits) are examined and alternatives are considered before construction moves forward, as well as gives local communities the right to have their voices heard during the approval process. When the changes were first announced earlier this year, Interior Secretary David Bernhardt hailed them as affecting “virtually every significant decision made by the federal government that affects the environment.”

Per NPR, the White House’s changes are expected to slash the number and types of projects subject to environmental assessment mandates. The new rules limit the timeline for those assessments to one to two years, an unrealistic timetable given that many of the reports currently take many years longer to conclude. According to the New York Times, the White House will now allow federal agencies to create categories of projects exempt from environmental assessment entirely, as well as remove requirements the reports consider “cumulative” impacts like climate change. Instead, the reports will only be required to examine “reasonably foreseeable” effects.

As the Verge noted, NEPA has been instrumental in legal victories for environmental activists and indigenous groups. The Standing Rock Sioux Tribe’s July 2020 victory shutting down the construction of the Dakota Access Pipeline relied on a finding that the U.S. Army Corps of Engineers didn’t properly address concerns that oil could leak into Lake Oahe and the Missouri River. A federal judge ordered construction on the pipeline cease until a proper NEPA assessment was finished (though it’s since started back up pending the outcome of an appeals process). In 2018, half-assed environmental assessments led to a court order halting the construction of the Keystone XL pipeline, and NEPA has continued to be central to ongoing lawsuits attempting to stop the project permanently.

In terms of impact, this decision ranks alongside many of the White House’s worst assaults on decades of environmental law, such as rollbacks to the Endangered Species Act, loosened emissions requirements for cars and power plants, gutted clean water protections, and dramatically reduced enforcement at the Environmental Protection Agency. Other than pipelines, weakened environmental analysis requirements could help usher in everything from more heavy industry and major polluters in low-income neighbourhoods to new infrastructure, mining and drilling, and highways on sensitive ecosystems.

“This may be the single biggest giveaway to polluters in the past 40 years,” Centre for Biological Diversity government affairs director Brett Hartl told the Times. He added the White House is “turning back the clock to when rivers caught fire, our air was unbreathable and our most beloved wildlife was spiraling toward extinction.”

“What the Trump administration is doing is fundamentally changing those regulations and really gutting them,” Natural Resources Defence Council senior attorney Sharon Buccino told NPR.

“[Trump] and his administration have no regard for the impact their actions will have on our most vulnerable — who are already overburdened by pollution, lack of access to healthcare, structural racism and other environmental injustices,” former EPA Office of Environmental Justice associate administrator Mustafa Santiago Ali, told the Verge in a statement. “This move is callous and reckless. It’s really that simple.”

The NEPA rollback won’t affect already approved projects. It may also be short-lived. As the rule was passed by executive fiat, Democrats could easily overturn it within 60 days of its finalization under the Congressional Review Act by majority vote in Congress and the president’s signature. If Trump is re-elected, a prospect that looks dimmer by the day but is by no means impossible, the new NEPA rules could be fought over in federal court for years.