Trump’s new environmental policy: Bury the facts

Posted Mar 05, 2020

By Steve C. Gold

The new regulations proposed by Trump’s Council on Environmental Quality would actually prohibit agencies from analyzing indirect or cumulative environmental impacts from projects. Climate change, of course, is the biggest cumulative impact of all, Steve Gold says.

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Fifty years ago, Richard Nixon signed into law the National Environmental Policy Act (NEPA), for the first time obliging the federal government to consider environmental damage when making decisions. Now the Trump Administration is proposing, by executive action, to deprive America of much of the benefit of this landmark law. The public can still weigh in on the proposed new rules, but only until March 10.

NEPA requires every federal agency to prepare an environmental impact statement for any proposed major federal action that would significantly affect the human environment. So when the Federal Highway Administration wants to fund the widening of Routes 1&9, or the Federal Aviation Administration wants to approve runway changes at Newark Airport, the agencies have to think about the environmental consequences of those actions. NEPA will not stop those projects from happening. But it will make sure that the federal agencies understand the environmental impacts and therefore have a chance to minimize the environmental damage.

For half a century, everybody has understood that a project’s “environmental impacts” go beyond its direct effects. If widening Routes 1&9 will attract new high-density development to the Meadowlands, NEPA says that the damage to the Meadowlands must be analyzed as part of the study of the road project. If runway changes at the airport are part of a larger expansion plan, NEPA says that the environmental impact of the runway changes must be analyzed in the context of the larger plan.

Recognizing this, federal regulations have long required agencies to consider, within reason, the “indirect” and “cumulative” environmental impacts of proposed major federal actions. These rules prevent federal agencies from dividing projects into small chunks to make the environmental impact seem insignificant. So, for example, when the Forest Service tried to say that a forest road would not have a significant environmental impact – by ignoring the effects of the logging that the road was built to accommodate – the courts refused to allow it.

The Trump Administration want to change that.

The new regulations proposed by Trump’s Council on Environmental Quality would do away with the concepts of indirect and cumulative impacts. The rules would actually prohibit agencies from analyzing those environmental impacts. Even if agencies know that the impacts exist in the real world, they would be forced to bury their heads in the sand.

Climate change, of course, is the biggest cumulative impact of all. Three years ago, Donald Trump issued an executive order that effectively told federal agencies not to think about climate change when analyzing the environmental impacts of agency actions. The proposed rules go even further, directing agencies in every case to ignore any type of indirect or cumulative environmental impact, not just climate change. Where the law requires analysis, the Trump Administration prefers ignorance.

There is no good reason for this radical emasculation of a law that has worked well for five decades. Critics complain that NEPA compliance and NEPA lawsuits slow down their favored projects. But of all the things federal agencies do, only a tiny fraction require an environmental impact statement. Even fewer generate NEPA litigation.

By and large, the actions that receive intense scrutiny under NEPA are the ones that most deserve it. They are the most controversial, most environmentally destructive, and least-well-justified pet projects that agencies hope to slip through before anybody notices how harmful they will be. Projects like the long-dead Westway interstate highway on Manhattan’s west side or an international airport in the Pine Barrens -- or the much more recently dead PennEast gas pipeline across New Jersey.

NEPA was supposed to shine a light on the environmental impacts of these federal projects. The Trump Administration wants a blindfold instead.

 

Steve C. Gold teaches Environmental Law at Rutgers Law School in Newark. Individuals can comment on proposed federal agency rules at regulations.gov.

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