After a lengthy revision process and a years-long regulations debate, the Council on Environmental Quality (CEQ) announced the Final Rule updating the National Environmental Policy Act (NEPA) regulations on July 15, 2020. This final rule gutted the environmental review provisions within NEPA, which has not been updated in decades. This all started on August 15, 2017, when President Trump issued Executive Order 13807, which directed the CEQ to review the existing National Environmental Policy Act (NEPA) and modernize the Federal environmental review process.

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Signed into law by former President Nixon on January 1, 1970, NEPA is often coined the Magna Carta of environmental laws. It was first introduced by Senator Henry M. “Scoop” Jackson to mandate federal agencies to consider the environmental consequences of infrastructure projects through written documentation prior to approval. It also included a range of screening actions that made decisions on the permit application, set requirements on adopting federal land and placed environmental restrictions on the construction of highways and other publicly-owned facilities.

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When introducing the bill, Jackson laid out three primary goals for NEPA: establishing a framework for lasting environmental policies, producing a growing interest in environmental research and permanently establishing national actions surrounding environmental regulation. With the passing of NEPA came the fruition of Jackson’s main goals and the beginning of comprehensive environmental legislation.

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What Does NEPA Do

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Title I of NEPA contains a Declaration of National Environmental Policy. The policy demands that the federal government utilize its resources to “create and maintain” conditions under which man and nature can coexist. Within this declaration, a call to action requires federal agencies to prepare detailed statements — known as Environmental Assessments (EA) — assessing the environmental impact of major federal actions. These federal actions encompass the construction of highways, airports, military complexes, and many federal and municipal buildings in general. The second portion of NEPA deals with accountability and establishes the President of the CEQ to oversee federal implementation of the EA process and issue guidance and regulations to agencies regarding NEPA compliance.

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The EA process has long been known to be a favorite among environmental activists, who utilize the revision process to stop and delay projects not complying with NEPA regulations. This process has thus become a long-time enemy of many federal agencies and is one of the key elements that has made NEPA so controversial.

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What Does Trump’s New Rule Do

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When first introducing NEPA, Jackson said, “In the last few years, it has become increasingly clear that soon some president and some Congress must face the inevitable task of deciding whether or not the objective of a quality environment for all Americans is a top-priority national goal.” Although this was meant to signify his own agenda regarding NEPA, it could not be more true today as Trump has stomped on some of the most significant provisions of NEPA.

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Trump’s new proposal was announced in an effort to streamline the development of infrastructure projects, which he claims were subject to a “slow and burdensome federal approval process.” Although the new proposal does expedite the process for many federal agencies, its limits on public review and deadlines on the timespan for EAs will speed up the permitting of freeways, power plants and pipelines- pushing the environmental movement one step back.

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Trump’s proposal crippled key actions regarding NEPA. Here are the key takeaways:

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1. Limits the definition of federal actions

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Prior to Trump’s final rule, NEPA required that federal agencies consider and document the potential environmental effects of any “major” federal actions. These actions have been broadly interpreted by courts and have spanned a range of infrastructure and parkland projects. Trump’s new proposal changes this previously broad interpretation of “major federal actions” and moves it to exclude actions where “minimal Federal funding involvement” limits control over the “outcome of the project.”

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Constricting the definition of NEPA leaves room for many agencies to utilize loopholes in order to avoid NEPA’s regulations and the formal EA process. This can be seen with the infamously controversial Dakota Access Pipeline. The Dakota pipeline has been the subject of much dissent as environmental activists and concerned citizens have fought to make the U.S. Army Corps conduct an environmental review. This pipeline is especially troublesome for the Standing Rock Sioux Tribe, which lives a few miles downstream from the pipeline and is exposed to the flow of nearly 570,000 barrels of crude oil per day. Despite the immense environmental issues posed by the pipeline, the army corps refused to conduct an environmental assessment by claiming that they were only responsible for the land where the pipeline crosses the lake formed by the man-made dam. These issues will only drastically increase with the free reign to choose when EAs are needed and when federal funding truly affects the outcome of the project.

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2. Diminishes public input

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One key provision of NEPA is the ability for the public to comment on and provide input through legitimate concerns regarding potential projects. Trump’s proposal virtually eliminates this public discourse by requiring the posting of a bond to offset prospective damages due to delays. This essentially means that money must now be set aside to cover the potential “damages” that include the clean-up of many of these major construction sites. This threatens to silence public discourse as taxpayer dollars immediately become set aside for the sole purpose of funding reclamation costs.

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Many environmental advocacy groups have come out admonishing the changes to the prima rosa of environmental legislation. Groups such as the National Resource Defense Council Inc. and the Sierra Club claim that the newfound freedoms given to agencies will exacerbate the climate impacts on minority and low-income communities. Many of these communities rely on the function of the public comment in order to protect their health and well-being. This can be seen in the environmental statement released for the Hoover Dam Bypass, which added many features proposed through public comment and researched alternatives suggested by environmental groups in order to ensure full NEPA compliance. Without the freedom of the public comment, the bypass (and many other projects) would not have lived up to the environmental measures enforced by NEPA.

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3. Eliminates conflict-of-interest requirements

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One major provision of NEPA is the conflict-of-interest requirement for contractors that prepare the EAs. Trump’s proposal allows agencies themselves to prepare their own EAs, which is an ethically unsound problem in and of itself. In most major decision-making processes, regulations and reviews are conducted by unbiased sources to avoid the manipulation of statistics and to maintain full disclosure. With the ability to conduct their own reviews, agencies can conveniently avoid mentioning certain environmental hazards and easily manipulate the true impact of their projects.

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This poses a further problem as it displaces accountability measures for agencies. Without an independent contractor, agencies are left without an accountability measure, allowing them to further rig the system and avoid any consequences resulting from discrepancies with NEPA regulations.

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4. Constricts the holistic extent of the review.

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As per CEQ guidelines, the planning process must be analyzed in the context of society as a whole, including the “affected region, the affected interest, and the locality.” Trump’s proposal dashes the broad review in favor of a more limited review that allows agencies to choose the scope based on national, regional, or local levels of impact. If agencies look at proposed actions in isolation, they effectively fail to recognize the negative effects that could occur elsewhere. This is evident in the plan in North Fork Valley, Colorado to lease 30,000 acres of land for oil and gas development. The impacts of this land cover more than the 30,000 acres and stretch to encompass a wide array of farming, water, hunting and fishing influences. Without NEPA, this land could have disrupted these entire and contaminated the water supply for many surrounding cities.

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The revisions proposed in this new plan are also expected to permit the construction of increasing numbers of pipelines and other projects that will significantly worsen our environment. They will also make the construction of many federal buildings and other infrastructure much riskier as developers will not be required to extensively analyze exterior impacts as before. This will lead to major negative effects on surrounding communities and will ultimately toss all environmental progress into the waste bin.

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5. Guts the consideration of alternatives.

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The CEQ avidly promotes a provision of NEPA that allows agencies to evaluate reasonable alternatives for their projects. The new proposal would eliminate the requirement to explore alternatives and thus constricts the planning and decision-making processes within NEPA guidelines. Proposal alternatives are essential to many construction projects as they creatively explore the best environmentally-friendly options for their designs.

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The Port St. Lucie Crosstown Parkway Extension in Florida is a perfect example of the efficacy of alternatives. After discussing many different options for this highway extension by examining many locations and no-build alternatives, the court finally ruled to accept the preferred six-lane highway alternative. This helped balance local impacts with environmental concerns and also fully lived up to NEPA guidelines.

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6. Eliminates requirements to analyze the cumulative effects of proposed actions

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The final rule also frees federal agencies from considering the impacts of infrastructure projects by eliminating the need for agencies to analyze the cumulative effects on the environment. The proposal essentially requires agencies to only analyze “reasonably foreseeable impacts.” These could be limited to short-term impacts, thus negating any discussion on the contribution of the project’s effects on climate change.

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With this freedom, agencies could simply report on the impact of the construction itself. This eliminates consideration of the impact on wildlife, communities, and nature. This also eliminates any discussion around future effects on the environment, such as increased carbon emissions. Plans such as the Savannah Harbor expansion in Georgia have been effectively shut down for their cumulative effects on the surrounding world. The Savannah harbor plan would have threatened Savannah Westland water upstream, endangered the federally protected shortnose sturgeon and contaminated freshwater sources. This project was shut down due to the violation of the cumulative environmental effects posed by NEPA guidelines, but now, it would easily pass as it has little to no direct impact on the local expansion area itself.

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7. Takes away the obligation to utilize relevant information for the planning process

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The obligation to utilize relevant and scientific information in EAs conducted by federal agencies has long been a major tenet of NEPA. If agencies are unable to obtain the information due to exorbitant costs, they must identify the unknown information and explain its relevance. Trump’s proposal changes the wording from “not exorbitant” to “not unreasonable.” This provides much leeway in what is reasonable. This will ultimately allow many agencies to excuse their reluctance to obtain legitimate scientific and technological information to conduct their EAs. The avoidance of utilizing major scientific information and data will allow many agencies to skate by environmental regulations and completely sidestep NEPA’s main environmental goals.

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8. Allows federal agencies to begin taking action before the completion of the NEPA process

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Allowing action before confirmation is like asking for forgiveness after instead of permission. The main principle of NEPA is to protect the environment and stimulate agencies to “look before they leap.” The new proposal allows for the “‘acquisition of interests in land’ while the NEPA process is still underway.” The proposal further delays NEPA compliance until after treaties and agreements have already been ratified. This will basically allow entire projects to become set-up, planned, and funded before NEPA regulations are even followed.

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All of this was in the name of “expediting” the EA process. While construction projects may indeed be streamlined, the new proposal blatantly disregards any potential environmental consequences. This will allow construction projects to begin their active environmental harm even before they have been assessed. Ultimately, the cost of an extra few months of revision will be much less than the environmental and societal costs of allowing agencies to begin projects with little to no NEPA limits or restrictions in mind.

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What Happens Now

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Large public outcry has led to a move to dismantle the changes to NEPA that the Trump administration has implemented. President Trump’s final rule will most likely be challenged in court prior to the November elections. Though this may be the case, the trial will likely roll into the next presidential term. A switch in candidates could potentially reverse the rule and put an end to the weakening of NEPA once and for all. Democratic Presidential Joe Biden has not only vowed to combat Trump’s environmental rollbacks but also has released his own $2 trillion climate change agenda to promote green infrastructure and energy.

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Although Trump’s new rule has been a major setback for many environmental justice organizations and for the overall fight to protect the climate, hope remains for the future as the people push back and environmental legislation takes the front of the political agenda.