The Trump administration is proposing sweeping reforms to the 50-year-old National Environmental Policy Act (NEPA) which mandates federal regulatory environmental oversight of major infrastructure projects.
According to the U.S. Environmental Protection Agency, NEPA “requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. The range of actions covered by NEPA is broad and includes: making decisions on permit applications, adopting federal land management actions, and constructing highways and other publicly-owned facilities.”
Signed into law by President Richard Nixon in 1970, NEPA has not been substantially updated in decades.
“Since 1978, the Council on Environmental Quality has made only one limited substantive amendment to the regulations, in 1986,” said the White House press release announcing the changes.
‘Tied up and Bogged Down’
In explaining the impetus for the NEPA reforms at a White House signing ceremony, President Donald Trump said approvals for critical federal and nonfederal infrastructure projects are being unnecessarily delayed for far too long because of delays in the developing and processing of required environmental impact assessments.
“America’s most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process, and I’ve been talking about it for a long time,” Trump said, when signing the proposed reforms on January 9. “These endless delays waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers.
“Now, we’re going to have strong regulation, but it’s going to go very quickly,” said Trump.
The White House Council on Environmental Quality reports the average time for agencies to complete an environmental impact statement (EIS) is four and a half years, and an even longer seven years for highway projects, with the average EIS exceeding 600 pages.
The proposed NEPA reforms would require the federal government to complete all future environmental reviews within two years.
Assessing Direct Effects
To speed infrastructure development, the federal government will no longer require EISs for projects that, although they need federal approval, are nonfederal and receive little or no federal funding.
In addition, the NEPA reforms would establish that in undertaking an EIS, the project developer need only assess the project’s direct effects on the environment and human health, those that are “reasonably foreseeable” and have a demonstrably “close causal relationship” to the project.
“Effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain,” the NEPA reform proposal states.
As a result, EISs will not be required to account for cumulative impacts the project might have as a result of, for example, their post-construction operations. For example, when developing EISs for pipeline or highway projects under the proposed reforms, project managers will not have to consider the potential climate effects of carbon dioxide emissions from the future uses of oil and gas flowing through the pipelines or from cars and trucks on the roads. Under the proposed changes, EISs will consider only the immediate, local, and direct environmental and human health effects of the project.
The public has 60 days to comment on the proposed NEPA reforms.
‘Powerful Tool Used to Delay’
NEPA has been abused by bureaucrats and environmental groups for decades to halt development, says Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute.
“NEPA’s environmental impact statement process has been turned into a powerful tool used to delay infrastructure and natural resource projects to death,” Ebell said. “The Trump administration’s proposed changes to NEPA’s regulations attempt to fix some of the language environmental pressure groups rely on to file legal challenges.”
‘Worst Regulatory Barriers’
NEPA is outdated and causes unnecessary delays and excessive costs for infrastructure projects, says Diane Katz, a senior research fellow in regulatory policy at The Heritage Foundation.
“The administration’s proposed reforms of NEPA target some of the worst regulatory barriers that inflate the costs of repairing the nation’s roads, bridges, airports, and railways,” said Katz. “The streamlining provisions, if enacted, would reduce project delays and expedite the benefits of modern—and safer—infrastructure.
“In fact, NEPA is entirely out of sync with current environmental, political, social, and economic realities, and outright repeal would not make a whit of difference to the environment or public health,” Katz said.
Simplifying the Process
Ebell says the new rule would repeal provisions of NEPA that halt infrastructure projects because of loose language and unnecessary requirements when undertaking an EIS.
“In particular, the new rule tries to limit the number of possible alternatives to the project that must be considered in an EIS, and it gets rid of the requirement, which was never part of the law passed by Congress, that all the ‘direct, indirect, and cumulative’ environmental impacts of a project must be considered,” Ebell said. “Getting rid of the requirement to consider cumulative impacts will allow regulators to ignore speculative and minuscule climate impacts if they want to.
“Time will tell whether creative federal judges will still find a way to block projects because of the alleged ‘climate emergency,'” said Ebell.
Stewardship Plus Prosperity
Contrary to opponents’ claims the NEPA reforms will lead to environmental degradation, Trump said his “administration is committed to ensuring that we are good stewards of our environment, while supporting American prosperity.”
The Trump administration says the proposed rule would enhance cooperation among different levels of government, which would advance environmental protection.
“The proposed rule would improve collaboration with state, local, and tribal governments,” the White House press release states. “Agencies would be allowed to establish procedures for adopting another agency’s determinations to increase efficiency.”
Chris Talgo ([email protected]) is an editor at The Heartland Institute.