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,” said Kym Hunter, a Southern Environmental Law Center senior attorney who is heading the organization’s defense of NEPA. SELC is representing 16 conservation organizations.

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

Oddly, if early press reports are correct, President Trump may somehow invoke the proposed Atlanta I-75 truck-lane project as an example of NEPA issues. However, that project is in its infancy and is at the beginning of its NEPA review.

Note: The President may also invoke other Georgia projects as well. Please feel free to contact us for a response. 
 
In addition to diminishing public voices, the NEPA rewrite also curtails agencies from considering climate change in their reviews. Further, it also eliminates consideration of what is known as “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. The Trump administration NEPA rewrite eliminates the consideration of these “cumulative impacts.”

SELC is preparing to sue the Trump administration on behalf of its 16 clients alleging, among other things, the administration made a mockery of the laws and policies that are designed to make changes like this a transparent and public process.

•    Before its decision 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 D.C. -- in a country with a population of 330,000,000.
•    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 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.

Among other things, the Trump administration is reducing the amount of public input from NEPA’s requirements and making it far more difficult for communities and stakeholders to propose alternatives to major projects that may permanently alter communities.

SELC used open-records laws to obtain more than 8,500 pages of internal documents from CEQ, the agency in charge of the change. 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 “meeting the energy needs in a geographic area.” 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.”

Developers of the recently canceled Atlantic Coast Pipeline were unable to overcome 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 environmental and fiscal cost to affected communities and landowners in their paths.

Hunter said 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.

Quotes from some of the organizations represented by SELC:

“For decades, hunters, anglers, and other wildlife enthusiasts have relied on the National Environmental Policy Act to ensure that the government takes a careful look at the impact it will have before spending large sums of the public’s money. Today’s announcement by the Trump administration is an affront to all those who enjoy the outdoors.  It is also illegal and we look forward to fighting it in court.” – Tim Gestwicki, North Carolina Wildlife Federation.

“The National Environmental Policy Act is a critical tool to ensure government transparency and gives affected citizens — especially communities of color and low-income communities — a voice in agency decision making. The new rules put forth by President Trump’s Council on Environmental Quality would gut NEPA and are a threat to public health and our environment. They must not be allowed to stand.” – Julie Mayfield, co-director, Mountain True.

"Every community deserves to have a voice in projects that directly impact their health and safety. We should be welcoming local input, not restricting it. By gutting these crucial protections, the Council on Environmental Quality is endangering the health of all Americans."  -- June Blotnick, executive director, Clean Air Carolina.

"A weakening of NEPA would effectively silence the Upstate voice on projects ranging from pipelines and federal road projects all the way up to how the nearby national forests Pisgah, Sumter and Nantahala, where we hike, bike, fish and play, are managed. Those national forests also impact some of our drinking water sources. So clearly, the Upstate of South Carolina cares deeply about this issue." -- Shelley Robbins, energy and state policy director, Upstate Forever.

"This is a disgraceful attempt to lock the public out of decisions about our air, water, and forests. For decades, NEPA has enabled communities to expose threats posed by bad projects and to protect themselves. The Trump administration wants to be able to work behind the scenes to favor powerful and wealthy interests at the expense of the rest of us." – David Sligh, conservation director, Wild Virginia.

“This rollback would eliminate the opportunity for public review and engagement on proposals that impact our communities. Communities have a right to know when proposed federal projects threaten to pollute their air and water and put them in harm's way in exchange for corporate profit. NEPA is a crucial tool for the public to stand up for themselves against corporate giants.” – Emily Sutton, riverkeeper, Haw River Assembly.

“Before the advent of NEPA, highway and other infrastructure projects routinely destroyed historic places and damaged our older communities. By requiring full disclosure of impacts and alternatives, and a process to ensure that the voices of ordinary citizens are heard, NEPA was a game changer when it was enacted 50 years ago. The decision by the current administration to curtail the protections provided by NEPA is a huge step backwards, and will endanger historic places and cultural landscapes nationwide.” -- Paul Edmondson, president of the National Trust for Historic Preservation.

“Gutting the regulations implementing the National Environmental Policy Act is beyond reckless. We cannot allow another rollback of our environmental laws that will push imperiled wildlife to the brink of extinction. These regulations unabashedly encourage federal agencies to ignore direct, indirect and cumulative impacts to endangered and threatened species and their habitats from mining, drilling and other projects. From the polar bears facing unchecked pipeline development, to the orcas starving from unrestricted ocean contamination and the Florida panthers condemned to extinction because of unrestricted development, we will never stop fighting to protect our nation’s imperiled wildlife. We will take this fight to the courthouse.” – Jane Davenport, senior attorney, Defenders of Wildlife.