Trump Administration Proposes Major Update To Environmental Protection Rules

Jan 9, 2020

First page screenshot of the 194 page updates
Credit Council on Environmental Quality

The Trump Administration has proposed comprehensive updates to the National Environmental Policy Act (NEPA). According to the Council on Environmental Quality (CEQ), which oversees NEPA implementation, they would the biggest changes made in over 40 years.

NEPA, established in 1970, requires all federally-related developments to show what environmental impacts they will have. There are three types of reviews: Environmental Impact Statements (EIS), Environmental Assessments (EA), and Categorical Exclusions (CE).

In Wyoming, NEPA most often comes up in relation to the energy industry, but it's also used for federal highways, bridges, transmission lines and water infrastructure.

In 2017, President Trump issued an executive order directing CEQ to review its existing NEPA regulations and accelerate the Federal environmental review process.

CEQ explained in its statement the regulations are outdated and have slowed and impeded the development of needed infrastructure.

The Council said the average length of an EIS is over 600 pages and the average time to conduct the review is 4.5 years. In its updates, it would set both page- and time-limits. It also raised concerns over too many reviews getting brought to court, thereby slowing the process.

The Council argued these updates would, "facilitate more efficient, effective, and timely NEPA reviews by simplifying and clarifying regulatory requirements" along with eliminating obsolete provisions.

Sam Kalen, a law professor at the University of Wyoming and NEPA expert, said in some cases of the proposed updates there are simplifications and clarifications, but there are also major changes.

He points to a new certificate explained in the proposal that would make it harder for a judge to take issue with an environmental review. The certificate would show a company has considered all information whether that's its alternatives, comments, and ancillary information.

"That would establish a conclusive presumption that the agency has considered such information so when it gets to court the judge is going to, in their view, have to agree that the agency has acted appropriately and considered all relevant information," Kalen said. "I'm not sure that's going to work, but it's another effort to circumscribe the ability of a judge to second guess the adequacy of the environmental analysis."

Kalen said, given that NEPA is a relatively small statute, the proposal will take a lot of time to fully understand.

"It's going to upset a lot of folks who care about making sure the environmental analyses are done correctly. There's little doubt that maybe we ought to look at a more effective way to ensure that NEPA gets implemented in a rational way, but this may go well overboard," he said.

Responses have been swift in favor and opposed to the proposal.

Kathleen Sgamma, president of the Western Energy Alliance, an oil and gas trade group, said it's a bold stop by the Trump Administration. She said NEPA has deviated from its original intent; that it now takes too long to get development started and that it has been abused by environmental organizations in order to stop projects.

"Congress did not write the National Environmental Policy Act to be a tool to shut-down projects. It was a tool to analyze environmental impacts. So, this guidance getting back the more to the clear letter of the law," Sgamma said.

Gov. Mark Gordon also came out in support of the proposed reforms.

"[NEPA] is not a platform to engage in speculative fancy, nor should it be seen as a convenient mechanism to obstruct development. Rather, the NEPA process should inform and improve proposed actions by facilitating a better understanding of the potential impacts of those actions," said Gordon in a statement.

Sen. John Barrasso also came out in support, as did ranchers and other energy trade groups.

Environmental organizations called the proposal the "worst attack yet" on NEPA and an attempt to "gut bedrock environmental law." The overall concern is limiting what environmental reviews can consider.

Jesse Prentice-Dunn, policy director for the Center for Western Priorities, said, "the Trump administration is burying its head in an oil well to ensure corporations can drill and mine every corner of our country."

Bob Dreher, senior Vice President of Conservation Programs for Defenders of Wildlife, said NEPA is a bedrock statute that requires agencies to think about the consequences of their actions, but they aren't seeing it that way.

"They view it as as red tape and as a hindrance rather than as a key protection for the public and for the rights of the public to know about what federal agencies are doing," Dreher said.

"It's going to upset a lot of folks who care about making sure the environmental analyses are done correctly. There's little doubt that maybe we ought to look at a more effective way to ensure that NEPA gets implemented in a rational way, but this may go well overboard."

Dreher said the most problematic aspect of the proposal was cutting out consideration of climate change. He says that's done through a proposed change to not consider cumulative impacts or consequences, which are remote in time or geographically remote.

"This is code for helping federal agencies to ignore those impacts and keeping the public in the dark about the effects of federal policies that can cause this and accelerate this mountain harm from climate change," he said.

UW's Sam Kalen said he fully expects to see legal challenges of the updates. That could span from a simple NEPA violation itself to a group arguing there are arbitrary and capricious aspects.

Once the proposal is included in the Federal Register on January 10, public comment will stay open until March 10. CEQ lists on its website how to comment.

Have a question about this story? Contact the reporter, Cooper McKim, at cmckim5@uwyo.edu.