Trump administration lays groundwork for overhauling environmental review process
The Trump administration late Wednesday tossed decades of environmental policy — laying the groundwork for an overhaul of how the federal government implements a bedrock environmental law.
That law, the National Environmental Policy Act (NEPA), requires the federal government to consider the environmental consequences before approving infrastructure projects ranging from roads and bridges to oil and gas pipelines to solar farms.
But NEPA is a fairly sparse law, and for decades, the federal government has relied on White House and agency regulations to spell out how to go about doing those environmental assessments.
This week, the Trump administration rescinded all White House regulations directing the implementation of the law, including some that go back to 1978.
At the same time, in a memo sent to agencies, White House official Katherine Scarlett directed agencies to “continue to follow their existing practices and procedures” for the time being.
However, the memo also directed agencies to revise their processes for taking on these reviews over the course of the next 12 months.
Under the Trump administration, agencies are likely to take an approach that maximizes the speed of approving new projects and minimizes environmental considerations.
Kevin Minoli, a long-serving former EPA official who was acting general counsel for the agency during part of the last Trump administration, said he expects the new agency-level guidelines to focus on speeding up projects to meet deadlines recently set into the law.
"The concept of having your regulations be aimed at expediting permitting approvals, I think is a ... new goal for these regulations and so I think you'll start to see that filter down into agency specific guidance and regulations," Minoli said.
Last time Trump was in office, his administration took a nationwide approach that reduced consideration of climate impacts and also sought to block consideration of “cumulative effects” in neighborhoods that faced more than one pollution source.
The memo indicates that agencies should take a similar approach in their rewrites.
“Federal agencies should analyze the reasonably foreseeable effects of the proposed action consistent with section 102 of NEPA, which does not employ the term ‘cumulative Effects,’” it states.
“NEPA instead requires consideration of ‘reasonably foreseeable’ effects, regardless of whether or not those effects might be characterized as ‘cumulative,’” the guidance document continues.
The memo also directs agencies not to carry out an “environmental justice analysis,” which looks at ways in which a new project may contribute to worsened conditions in disadvantaged communities that already face large amounts of pollution.
Despite these directions, Harvard Law professor Andrew Mergen says he believes that in practice, agencies will still have to consider the whole pollution picture.
"If they don't respond to the comments from affected communities, they are not going to be able to survive judicial review,” said Mergen, who is also a former Justice Department official.
“And so they can tell the agencies, 'don't think about environmental justice,' but if the communities raise this concern, the agencies are going to have to deal with that," he added.
However, Kristen Boyles, a managing attorney at environmental group Earthjustice, said the changes still present risks for the environment.
“The risks are that some of the agencies will try to go ahead with the harmful projects without … without really taking seriously the commands of NEPA to look at the impacts to the human environment and review whether or not there are better ways to do the same project that are less harmful,” Boyles said.
“The risks are that no matter how vigilant people are, there will be projects that get rushed through that are actually harmful: that do emit harmful air pollution, that do spew toxic chemicals into the waterways,” she added.
Boyles also said that she believes that undoing the decades' worth of rules governing environmental reviews will cause confusion.
"When you remove the rulebook, nobody quite knows what the play is going to be,” she said.
“Confusion is the point here. I think it's to try to undermine the way the law works,” she added.
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