Last week, the Trump administration released a draft of its proposed changes to the regulations that implement the National Environmental Policy Act (NEPA)—the most important law that requires the federal government to consider the environmental impacts of its decisions and that gives the public a voice in federal decision-making. This is not an effort to “modernize” the environmental review process, as President Trump and Council on Environmental Quality (CEQ) Chair Mary Neumayr claim, but rather an effort to allow fossil fuel companies to quickly bulldoze communities with less public input and without disclosing harmful public health, environmental, and climate change impacts.
The following analysis details the five most drastic and egregious changes that the Trump administration’s January 2020 proposal would make to federal environmental review.*
1. Removing any analysis of climate impacts through changes to “cumulative impacts” or “effects”
The Trump administration’s proposal removes the requirement that agencies analyze cumulative impacts under NEPA; in fact, the proposed regulatory language states, “Analysis of cumulative effects is not required.” (see p. 1729) This would enable more polluting projects across the country, as federal actions would not be required to analyze how their project would pollute over time, affect communities with an existing legacy of toxic pollution, or contribute to climate change.
In fact, the proposed regulatory language essentially directs agencies not to consider climate change, without actually using the word “climate,” stating: “Effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain.” (p. 1729) Of course, climate change is by its very nature the result of cumulative effects. The effects of climate change, including stronger hurricanes, sea level rise, and more severe wildfires, are often far removed both geographically and temporally from the human causes of climate change—for example, burning fossil fuels at coal-fired power plants in the Midwest that in turn emit carbon dioxide. Therefore, removing the requirement for agencies to do a cumulative effects analysis is a huge win for polluting industries and could lead to quick rubber stamping of fossil fuel projects. This proposal is not a climate change solution; on the contrary, it would put the United States on a path to more emissions.
Removing analysis of cumulative effects would also spell disaster for communities already grappling with a toxic legacy of pollution—overwhelmingly, communities of color. Under the Trump proposal, agencies would be directed to consider each project separately, allowing for compounding pollution. For example, they could consider the public health effects of a new oil refinery without considering the three refineries that may already exist near a community.
The very first documents that the CEQ put out on NEPA underscored how cumulative effects of a project or multiple projects can ultimately be the most severe. In May 1970, just six months after the bill was signed into law, the CEQ wrote, “The statutory clause ‘major Federal actions significantly affecting the quality of the human environment’ is to be construed by agencies with a view to the overall, cumulative impact of the action proposed.” Later, in a 1997 25th anniversary report, the CEQ wrote: “Perhaps the most significant environmental impacts result from the combination of existing stresses on the environment with the individually minor, but cumulatively major, effects of multiple actions over time.”
2. Ignoring “indirect” effects
Not only do the proposed regulations state that a cumulative effects analysis is not required, but they also would allow agencies and fossil fuel companies to completely disregard potential “indirect” effects of federal actions. To achieve this, the Trump administration writes, “CEQ proposes to make amendments to simplify the definition of effects by … striking the specific references to direct, indirect, and cumulative effects.” (see p. 1708) For example, downstream water pollution from a coal mine or drilling operation would not be assessed.
The administration’s proposed changes could further narrow the scope of effects that are considered by environmental review when finalized, as the CEQ has explicitly invited comment on whether to “affirmatively state” that agencies do not need to consider indirect effects in their reviews. (see p. 1708)
3. Allowing blatant conflicts of interest
Another major change that Trump and Neumayr are proposing is allowing companies to conduct their own environmental review. Currently, reviews—environmental assessments and environmental impact statements—are prepared by federal agencies, and agencies can contract with an outside consulting firm when needed due to limited capacity. However, the current regulations ensure that any conflicts of interest for these companies are avoided by requiring financial and interest disclosures.
Trump and Neumayr are attacking this requirement by allowing for the first time companies to “assume a greater role in contributing information and material to the preparation of environmental documents, subject to the supervision of the agency”—meaning, companies could prepare their own environmental reviews. (see p. 1705) Fittingly, these proposed regulations appear to simply delete the requirement—previously in Section 1506.5(c)—that a contractor certify that it does not have a financial interest in a project. Therefore, under the new proposal, consulting or construction firms could complete the environmental review for a project that they were also contracted to build.
This brings to mind the recent controversy with Boeing Airlines, wherein the Federal Aviation Administration largely delegated testing and certification of Boeing’s 737 Max jets to the company itself. Subsequently, two of these new planes fatally crashed within five months of each other, leading to the grounding of the entire fleet and significant controversy. Similarly, the Trump administration’s proposal to allow companies to prepare their own reviews leaves the door open for companies to engage in bald-faced self-dealing that benefits no one but themselves.
4. Redefining “major Federal action”
The proposed regulations also change the definition of “major Federal action” to create loopholes that polluting industries can exploit. Currently, case law dictates that agencies have to conduct environmental review for “major federal actions significantly affecting the quality of the human environment,” acknowledging that “major” and “significant” reinforce each other. For example, if a federal action is relatively minor but has a significant environmental impact, or vice versa, a review must be completed.
Trump and Neumayr are proposing to overturn half a century of settled law by redefining what constitutes a “major” federal action, ultimately narrowing the scope of projects that require environmental review. According to the proposed regulations: “CEQ proposes to add two sentences to the definition to make clear that this term does not include non-Federal projects with minimal Federal funding or minimal Federal involvement such that the agency cannot control the outcome on the project.” (see p. 1709)
This could mean, for example, that a permitting decision where the federal government is only one of several partners—such as providing a federal grant for a state highway project—could no longer require federal environmental review, despite the potential for a significant environmental impact in one location.
5. Creating loopholes to ignore public comment
Finally, the draft NEPA regulations create loopholes that could allow federal agencies to ignore public comment. NEPA is the most important law to give the public a voice in federal decision-making, so any attempt to limit public comment silences communities that could be harmed the most by federal actions.
Through confusing language that requires public comment be “specific” and “timely,” as well as a new “Exhaustion” clause, Trump’s proposed regulations would place the burden on the public to provide expert-level comments. This new proposed language would require the public to list any and all possible impacts of a proposed project—an exhaustive list—if they want to have any grounds of recourse once an environmental review has been completed. The draft regulations state: “CEQ further proposes to provide that comments not timely raised and information not provided shall be deemed unexhausted and forfeited. This reinforces that parties may not raise claims based on issues they did not raise during the public comment period.” (p. 1693)
The intent of the public comment element of NEPA is that ordinary citizens, with no assumed subject matter or legal expertise, can raise concerns about a project that may have a measurable impact on their lives. There are numerous examples where the input of affected communities—not just experts—made all the difference in a project’s outcome. For instance, in the case of a crosstown parkway extension project in Port St. Lucie, Florida, input from the community ensured that a much-needed highway was sited where it would result in the fewest possible residential relocations and no commercial relocations. The Trump administration’s addition of the exhaustion clause places a much higher burden on ordinary citizens and their communities at the outset, making it much more difficult for affected parties to raise legal challenges on a project later on.
As U.S. Secretary of the Interior David Bernhardt told President Trump at the January 9, 2020, press conference during which Trump announced these changes: “I believe [this plan] will be the most significant deregulatory proposal you ultimately implement.” Given the Trump administration’s climate denial and egregious track record of anti-environmental attacks, this is something that should concern every community and the entire American public.
Christy Goldfuss is the senior vice president for Energy and Environment Policy at the Center for American Progress. Claire Moser is the director of the Energy and Environment War Room at the Center. Sally Hardin is the deputy director for the Energy and Environment War Room at the Center.
The authors would like to thank Steve Bonitatibus for his contributions to this column.
*Authors’ note: Page numbers cited throughout this column refer to the PDF version of the Trump administration’s proposed regulations published in the Federal Register for Friday, January 10, 2020.