The National Environmental Policy Act (NEPA) is America’s environmental charter. Signed into law by Richard Nixon, it has three central tenets. First, federal agencies must look before they leap and examine the full environmental impacts of most major actions that receive federal funding, including the direct, indirect, and cumulative effects those actions will have. Second, agencies must involve the public by taking public comment and responding in a meaningful way. And finally, the agencies must examine a range of alternatives, including environmentally-friendly ones. The Trump regulations are a direct attack on all three principles.
This particular bundle of get-out-of-jail-free cards, with its explicit focus on infrastructure and transportation projects, targets underserved communities. Country clubs and gated communities are rarely displaced by a highway interchange, and there’s a cynical reason for that. Railways, highways, toxic waste dumps, and industrial zones are typically located in the poorest communities. NEPA has given the disenfranchised communities a voice in the process, an ability to speak out and to object before their interests are run over, and a chance to sue if the law is broken. But lo, the new NEPA regulations contain a loophole for nonfederal projects that are federally funded, so now these types of projects might require no environmental review at all when it’s a local government or state agencies spending federal money.
Changing these rules hits particularly close to home for low-income and communities of color, but it directly affects everyone. Every major project on federal public lands that has significant impacts on the environment will now be filtered through the new NEPA regulations. That includes oilfields, strip mines, livestock herds, renewable energy, transmission lines, pipelines, wildlife killing, and land-use plans covering a million acres or more. Every American has a stake in these lands, and the new shortcuts in the environmental review process gore every American’s ox.
For example, future environmental reviews won’t have to consider impacts of climate change, despite it being one of the most pressing crises facing the Earth and its inhabitants. Under the new rules, “[e]ffects should generally not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain.” Thus a 40,000-well oil and gas project that will contribute to a major rise in global temperature within 20 years? Not significant, remote in time! A massive federal coal project on the High Plains that adds to greenhouse gas pollution causing the polar ice caps to melt and polar bears to go extinct? Not significant, geographically remote! Even if the cumulative effect of a series of projects promoting an “energy dominance” agenda were to cause sufficient warming to result in rising sea levels and changes in rainfall patterns, leading to protracted droughts and temperatures unsuitable for crops in the world’s breadbaskets, and ultimately causing the extinction of humanity, it’s not a significant impact under the regulations! Our extinction is the product of a lengthy causal chain.
Under NEPA, a cumulative impact analysis typically gets its own separate chapter in today’s Environmental Impact Statements (EISs), a chapter that will cease to exist under the new regulations. A cumulative impact analysis is what forces agencies to consider the effects of oil and gas projects that include pipelines that run across sacred lands and through wildlife migration corridors in places that are already affected by fragmentation. It’s common sense – environmental impacts don’t exist in a vacuum, but instead are additive impacts to both nature and people, and they build upon every other problem we’ve caused in the past. At any time, one new project could be the proverbial straw that breaks the camel’s back. NEPA forces the agencies to consider this part of the equation. But under the new rules, “Cumulative impact … is repealed.”
There is a “scoping” stage at the outset of every federal project or plan. This is where the agency first notifies the public, presents an outline of its plans, takes public input, and starts developing alternative courses of action. Under the new rules, agencies can skip the scoping process altogether by rolling it into the environmental assessment. The problem is, by the time an environmental assessment is done, the agency most likely has already settled on its proposed action. And since project proponents (read: those who profit from exploiting public resources) get inside access to the NEPA process from its outset, and can even write their own EIS, they will have exclusive influence over designing the alternatives. Does anyone see a conflict of interest here? Corporations and businesses (and their allies in local government) already have far too much influence in dictating project design, and under these new rules they will have an even more privileged seat at the table, designing projects without any public input.
And speaking of special privilege, the new regulations redefine the purpose and need of a project to reflect the applicant’s preferences, recasting the definition of “reasonable alternatives” to focus on the goals of the applicant rather than the public interest in environmental protection and sound land management. Science-based alternatives then be considered legally out-of-bounds as “unreasonable.” When only alternatives compatible with the applicant-defined “purpose and need” are deemed “reasonable,” then applicants will always get their way, steamrolling public concerns. And the environment loses every time.
Additionally, the Trump administration’s new NEPA rules allow agencies to require “bonding,” creating a pay-to-play environment in which only well-moneyed interests can object to federal projects. With nonprofit environmental groups chronically constrained by tight funding, there would be fewer public interest appeals, and fewer lawsuits to challenge agencies’ illegal actions. Underprivileged communities and individuals would effectively be excluded from the part of process where bad plans can be stopped. It’s a gatekeeping system in which the big corporations and industry lobbying groups can afford the new bonding fees but the public gets cut out of the process.
This is just a sampling of the Trump administration’s plans to corrupt the management of public lands, warping and distorting the process so that profits rule the day and the public can do little to stave off environmental catastrophe. To be fair, even the old NEPA regulations weren’t sufficiently watertight to prevent some environmental disasters, but the new rules take the potential for ecological collapse to a whole new level, portending future wastelands.
Western Watersheds Project and 19 other environmental justice, conservation, and outdoor groups – led by the attorneys of Earthjustice and Western Environmental Law Center – are fighting back in court, because a sound NEPA process is the least the public deserves. If major projects involve federal funding or federal public lands, then the public interest – not private profits – should come first. But this administration seems hellbent on cutting the public out of the process entirely with its regulatory rollback of environmental requirements.