Trump takes on 50 years of environmental regulations, one by one

It was 1970. Congress was wrestling with whether to give the right-of-way necessary to build a huge, 800-mile oil pipeline across Alaska, when a district judge blocked the project, using a brand new law requiring federal agencies to consider the environmental impact of projects.

“The Interior Department was stunned,” recalls William Reilly, a staff member in the Nixon administration at the time and later Environmental Protection Agency (EPA) administrator. The law’s environmental impact statements, common today, were completely novel at the time. Even the authors of the statute, he says, “never anticipated it would have that effect.”

Exactly 50 years later, that law – the National Environmental Policy Act (NEPA) – is under attack. The Trump administration last week announced proposed reforms to the act that would significantly reduce its scope. It’s the latest move in an unprecedented effort to roll back not only recent Obama-era environmental regulations but also some of the bedrock laws that have shaped federal environment policy since the 1970’s.

“It’s not unique in being a pushback against regulation, or even in favoring the energy industry, but it’s unique in just how relentless it has been, and how many regulations they’ve tried to undo,” says Daniel Farber, a law professor at the University of California in Berkeley. There have been at least 50 significant environmental regulations President Trump has targeted, Professor Farber notes. “They’re leaving no stone unturned.”

For Mr. Trump, who as a developer has had his own battles with environmental reviews, it’s a pendulum swing that is long overdue.

“The United States will not be able to compete and prosper in the 21st century if we continue to allow a broken and outdated bureaucratic system hold us back from building what we need: the roads, the airports, the schools, everything,” he said last week in announcing proposed changes to NEPA.

Environmental consideration versus delay

Critics of the act, who often complain about lengthy environmental reviews and the impact statements required for major projects, welcomed his proposal, which would not only impose new deadlines on such studies but would also narrow the range of what could be considered.

“This is not about anti-regulation,” says Marty Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute. “It’s about having a smart process in place and a certain process in place, so that we can get decisions that will unlock the investment necessary to get these projects built as critical infrastructure.” If there’s no certainty about when a project will be approved, it’s harder to attract investors, he adds.

But others note that NEPA has played a critical role simply by ensuring that the environment gets consideration.

“It’s something that says: ‘Consider, reflect. Is this something you want to do? Is this the best way to do it? Are there any other ways you could do it?’” says Mr. Reilly, the former EPA administrator.

In the case of the trans-Alaska pipeline, it took more than four years of wrangling, an Arab oil embargo, and a special act of Congress before the permits were approved.

But Mr. Reilly recalls the chairman of the oil company in charge telling him that the final project was more robust and sound as a result of the environmental-review process. “In the eyes of the person most closely concerned about it, it was a very constructive intervention,” he says.

A 2016 Congressional Research Service report says critics overstate the permitting process’ effect on project delays. Insufficient data, lack of funds, and state and local issues are far more likely to increase project length than environmental reviews.

Some projects languish in permit purgatory for up to a decade, but the vast majority do not. The average length of time for a full environmental impact statement takes 4.5 years, according to the Council on Environmental Quality. Furthermore, only 1% of projects within the NEPA umbrella complete an EIS, according to a 2014 Governmental Accountability Office report.

Many people want a speedier process, acknowledge Mr. Reilly and others. And if that were the administration’s sole objective, the proposed changes would be less controversial. But by narrowing the range of projects that require environmental review and no longer requiring consideration of a project’s “cumulative” effects – which, under President Barack Obama, were expanded to include long-term climate change impacts – the administration is targeting the backbone of U.S. environmental policy for 50 years.

Beyond Obama-era regulations

Early deregulation efforts from the Trump Administration targeted Obama-era rules: the “Clean Water Rule” that defined what waters are subject to federal water protection; the Clean Power Plan, designed to regulate carbon dioxide pollution; and methane rules, regulating the release of a potent greenhouse gas. One of Trump’s most controversial actions, the legality of which is still being tested in the courts, has been an attempted reduction of two National Monument designations in Utah. And there is evidence of a significant shift toward less enforcement of regulations and policies that remain on the books.

Whittling away the government’s regulatory structures has always been part of Mr. Trump’s agenda, but his dismantling of the EPA is unique, says Caitlin McCoy, a fellow in the Environmental and Energy Law Program at Harvard Law School who tracks such changes. Changing NEPA is the latest sign that the administration wants to undermine the statutory foundations of the EPA.

“They’re trying to take away the very things that the agency relies upon to do its job and to really severely damage its legal authority to function,” she says. “With other agencies, it’s similar, like, yes, we’re relaxing some of these tax rates, but it’s not like we’re trying to keep the IRS from doing audits.”

It’s not clear how successful the administration will be.

“For at least some of these regulations, the appeals will not hold up in court,” says Professor Farber. It’s not clear in the case of NEPA, for instance, whether Trump has the power to drastically reinterpret a major law enacted by Congress.

But for Trump, the payoff politically, showing his determination to undo environmental regulations that many view as overly burdensome, may be enough.

“Trump is doing overreach, and getting his comeuppance in the courts,” says Douglas Brinkley, a history professor at Rice University. “But it looks good [to his supporters] in 2020.”