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The Trump administration approved rules last month that environmentalists said will weaken the National Environmental Policy Act.
The Council on Environmental Quality of the White House, which oversees NEPA, said the reforms will streamline the review process to expand highways, bridges and ports, pipelines, approval of industrial scale farms, public lands actions and other infrastructure projects.
The National Environmental Policy Act, known as the “Magna Carta” of environmental legislation, was signed into law in 1970 and requires federal agencies to assess the environmental effects and related social and economic impacts of a proposed project or action before making a decision.
The law also requires that federal agencies provide opportunities for public review and comment.
The new regulations go into effect Sept. 14, but agencies can apply them to existing projects currently under review, including a Wilmington port expansion plan, and other projects that will have a meaningful impact on North Carolinians.
Speeding process or causing delays?
Proponents of the changes, including U.S. Chamber of Commerce CEO Tom Donohue said in a statement on the group’s website that the reforms are overdue.
“After two decades of discussion, we’re thankful that the Trump administration has made this issue a priority and taken thoughtful action,” Donohue said.
“These NEPA updates will make the federal permitting process more predictable and transparent.”
NEPA regulations require federal agencies to prepare an environmental impact statement describing the consequences of the proposal.
A paper on NEPA impact that the Federalist Society’s Regulatory Transparency Project issued said the average time to publish an environmental impact statement in 2006 was 3.4 years. By 2016, the average completion time was 5.1 years.
The Federalist Society is a conservative legal organization that has influence in the Trump administration on a range of topics.
But that estimate is misleading, according to Kym Hunter, an attorney with the Southern Environmental Law Center. Only 1% of all projects require a full EIS. Most projects are excluded from an EIS or must provide a less detailed environmental assessment.
Some project reviews, Hunter acknowledged, can take years to complete. However, a project decision “may be really controversial and difficult,” she said, such as the Bonner Bridge over Oregon Inlet at the Outer Banks, which was a highly contentious project that took years to plan and complete. Trump cited the bridge in 2018 as an example of environmental reviews taking too long.
“Some projects require thought and consensus building, but you can’t blame its length on the idea of NEPA,” she said.
Hunter said the regulation changes may, in fact, make approving projects, such as highways and bridges, more difficult.
“Every definition in NEPA that has changed will be litigated and disputed,” Hunter said. “The old NEPA rules have been in place for 40 years and are very well settled (in the courts). I think that the (reforms) will slow things down because it will create confusion and chaos to apply standards to every new process.”
Along with 16 other environmental organizations, the SELC, filed a lawsuit on July 29 against the White House, arguing the administration sidestepped the legal process to change the law.
Impact on NC projects
Joel Porter of Clean Air Carolina said environmentalists are keeping their eye on the Wilmington Harbor Navigation Port, a U.S. Army Corps of Engineers project to widen and deepen the channel through the Cape Fear River.
Since an EIS has not yet been completed, its completion will likely be guided by the new regulations.
Porter said the environmental impacts of dredging are concerning, but his group is focused on the health impacts of air quality caused by heavy-duty industrial equipment and construction traffic.
According to his organization, diesel pollution is associated with an increase in asthma, heart and lung disease, cancer and premature death. Black carbon in diesel exhaust also plays a role in climate change. The project, he said, may have a significant impact on lower-income, minority communities along the Cape Fear River.
“The rollbacks of NEPA will make it much harder for those communities to speak up,” he said. “It shuts out the most vulnerable populations from planning large projects that will have a long-lasting impact.”
While the SELC has a lengthy list of objections to the reforms, at the top are changes in how environmental effects will be considered in the NEPA review process.
The new regulations simplify the definition of environmental “effects” by considering impacts that are “reasonably foreseeable and have a reasonably close causal relationship to the proposed action.”
That reform, Hunter said, will limit the scope of the NEPA analysis by ignoring the “indirect” and “cumulative” effects of a project.
Indirect impacts are effects that may occur in the future or be geographically distant, such as how a highway may change land use patterns, population density or air and water quality.
The addition of “hot lanes,” or toll lanes, to existing roadways may relieve congestion for drivers, but it may change traffic patterns and increase pollution on existing roads elsewhere. New roads also change access and growth patterns that may benefit some neighborhoods but harm others.
The rules also impact how cumulative effects are viewed, such as, examining the collective impact of expanding a roadway by reviewing the impact of past, present and future actions.
For example, past NEPA regulations require that road projects in Charlotte’s center consider how entire road networks impacted neighborhoods, such as the West End, a historically Black neighborhood. The area was divided by Charlotte’s expressway system during the city’s economic expansion in past decades.
In addition, ignoring cumulative and indirect impacts may understate the effect of emissions that an urban road network will have on climate change.
“The idea of NEPA requires you to think about a decision and disclose it,” Hunter said.
“It’s worth making the point that, at the moment in our country, we’re looking for more racial justice and a more transparent society. This is going in the opposite direction.”
Forest Service projects
Sam Evans, also an attorney at the SELC, said the new rules would have immediate effects on Forest Service projects. In all, there are four national forests in North Carolina.
In addition to the new Council of Environmental Quality rules, the U.S. Forest Service has proposed and reviewed rule changes to NEPA that would enable the responsible official, such as a district ranger, to “right-size” public engagement to the needs of each project. The proposed changes would also allow projects to side-step environmental review and public comment.
The Forest Service’s proposed rules also include new and revised “categorical exclusions.” CEs are a list of activities that agencies have determined do not have significant environmental impact and therefore do not require additional environmental analysis.
The combination of the proposed Forest Service changes and the Trump rules are a “seismic shift for our region,” Evans said.
“To put it simply, this means no more public involvement at the site-specific level for timber sales, period.
“The Forest Service’s mandate is to balance the multiple uses in the most efficient way possible. The Forest Service’s job is almost perfectly synonymous with NEPA’s current emphasis on gathering good information on the ground and from the public.”
As a result, the “Forest Service would still be marching ahead with timber sales, based on lopsided information, with lopsided results,” such as impacting old growth and rare plant and animal species.
Evans said he expects the Forest Service to publish a final rule later this summer or early fall, “but they’re in a bit of a timing pickle,” and the rules may require further internal review due to the CEQ’s current reforms.
The agency did not respond to requests for comment.
A power shift away from citizens?
Evans is also concerned that the new rules shift power from citizens to more powerful interests in decision-making.
The new regulation “allows applicants/contractors to assume a greater role in preparing EISs.”
Under CEQ’s rule, said Evans, timber companies, for instance, “with a direct financial stake in a Forest Service decision to sell a tract of timber could be allowed to draft the environmental analysis saying what its impacts would be, and the public wouldn’t have a voice to argue the other side.”
Jonathan Wood, an attorney with the Pacific Legal Foundation, disagrees with Evans and wrote in a paper for the Property and Environment Research Center that “a complicated, yearslong process favors litigious special interest groups at the expense of participation by ordinary people.”
“Most people have never attempted to read a draft environmental impact statement, and the few who tried to review one likely got discouraged well before they reached page 1,000 of the document,” Wood wrote.
In addition, “analyzing every minor or speculative impact can have a significant cost and one that likely exceeds any benefit,” Wood wrote.
“The delays and expense associated with an overly bureaucratic process also pose real environmental costs. Most directly, they deplete funds that agencies otherwise might spend advancing their missions.”
Hunter of SELC isn’t so sure that the rules “do anything to help the problem” of lengthy environmental reviews. The new regulations, she said, don’t provide additional agency staffing or resources to complete reviews more efficiently.
The SELC’s lawsuit was filed several days before Trump signed the Great American Outdoors Act into law. Jay Leutze, a trustee of the Southern Appalachian Highlands Conservancy, called the law the “Holy Grail” of conservation legislation.
Nonetheless, the changes to NEPA may obscure President Trump’s stab to salvage a legacy as a conservationist.
At the signing on Aug. 4, Trump said, “We believe Americans know best how to conserve this magnificent land that we love and cherish and adore.”
That, Hunter said, is NEPA’s purpose.
“NEPA has given a voice to communities of lesser means that often bear the brunt of polluting projects,” Hunter said.
“It is a tool of democracy, a tool for the people. We’re not going to stand idly by while the Trump administration eviscerates it.”
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It wouldn’t matter if this was the greatest environmental law ever conceived, since it is a Trump deal it would be denigrated and lambasted by the leftist environmentalists anyway.