President Trump’s rewrite of a Nixon-era environmental law — if it withstands expected legal challenges and the November election — could have major implications for energy projects, including oil and gas pipelines nationwide.
Trump yesterday announced the completion of rules to overhaul the National Environmental Policy Act, vowing the move would lead to quicker turnarounds for buildings and "better roads, bridges, tunnels and highways."
He reserved his remarks on energy to bash his presumed Democratic presidential challenger, former Vice President Joe Biden, using the second official White House event in two days to accuse Biden of pitching an energy plan that "would kill" oil and gas development.
"Biden is happy to tie up projects and red tape, and we want to get things built," Trump said.
Yet under the Congressional Review Act, the new rule could potentially be quickly repealed by Democrats should they win the White House and both chambers of Congress in November. The regulatory law allows rules to be revoked within 60 legislative days. But the pandemic has upended the congressional calendar, so the deadline — once thought to be mid-May — is now uncertain.
Yesterday, Energy Secretary Dan Brouillette said on Twitter that the update to NEPA cuts down "overly burdensome regulations plaguing the energy industry" and modernizes "our regulatory environment to promote safety, environmental responsibility, national security, and economic growth."
The act requires federal agencies to determine the effects of major projects such as oil pipelines, highways and bridges that could inflict environmental harm. It gives communities a say, but critics say it has slowed projects to a crawl and is ripe for updating. Environmentalists say the law is critical for protecting the ecosystem, curbing emissions and, ultimately, leading to better projects. Trump called the NEPA changes "one of the biggest things" he could do for an economy hit by the pandemic, proclaiming he was "slashing the web of needless bureaucracy that is holding back our citizens."
The act also created the Council on Environmental Quality within the White House to make sure federal agencies are meeting their NEPA obligations. Separately, agencies must implement their own NEPA procedures, which several, including DOE, are currently working on.
Analysts say the NEPA changes could affect energy projects in several ways. Here’s a look at three of them:
While the final rule does not expressly use the words "climate change," it would downplay climate impacts in the thousands of environmental analyses overseen by federal agencies every year, analysts said.
As critics expected, the final rule excludes the word "cumulative" effects from the NEPA review process. The plan stated a project’s effects that are "remote in time, geographically remote, or the product of a lengthy causal chain" should generally not be considered. That means impacts like greenhouse gas emissions that contribute to larger problems over time are less likely to be weighed in consideration of projects.
The rule also stated effects under the purview of the law "do not include those effects that the agency has no ability to prevent due to its limited statutory authority."
Caitlin McCoy, an attorney at Harvard Law School’s Environmental and Energy Law Program, said the language in the final rule is "intentionally vague."
"It’ll be up to the agencies," she said.
She did, however, note that CEQ "softened" the language in the final text by "leaving the door open to considering indirect effects." For example, some impacts like air quality or particulate matter could still be included in project reviews.
Still, Earthjustice attorney Kristen Boyles expressed concerns, saying "the reality is those projects don’t exist in a vacuum.".
For its part, CEQ refuted the notion that the final rule will ax climate considerations.
"The analysis of the impacts on climate change will depend on the specific circumstances of the proposed action," CEQ wrote in its 600-page response to commenters. "[U]nder the final rule, agencies will consider predictable trends in the area in the baseline analysis of the affected environment."
Prior to the plan’s release, critics had warned the language would seek to limit the number of major projects that must undergo NEPA reviews to begin with — effectively a "get-out-of-jail-free card" for companies.
Yesterday, experts said questions remain about the extent to which the rule would let companies off the hook.
McCoy noted that the final rule states that projects using "minimal federal funding" would not trigger a NEPA review. The catch, she noted, is that the rule gives no dollar amount for what counts as "minimal."
CEQ had asked the public to weigh in on whether there should be a threshold for "minimal federal funding" but decided not to do so. Instead, CEQ simply said that minimal means if an agency does not have "sufficient control and responsibility" over the outcome of a project. But exactly what that means was not fully delineated yesterday, according to McCoy.
Boyles added that the final rule changes the definition of a "major federal action" to exclude "extraterritorial" projects — such as the embattled Keystone XL pipeline, which crosses the U.S.-Canadian border.
The administration also added language that critics say would impose considerable burdens on communities looking to oppose projects.
The Center for American Progress said the changes appear to require that interested parties essentially be experts — or have the means to hire experts — because any points not raised during the public comment period cannot be later challenged.
"For many low income communities and/or communities of color who are the ones most impacted by polluting projects, hiring scientists or lawyers isn’t possible, and this change will deny them proper recourse," the center said, adding that the rule also appears to make it harder to stop a project — even if NEPA is found to have been violated.
A requirement to post a bond "or other security requirement" could also make it more difficult for affected parties to challenge a final NEPA ruling, CAP said.
Historically, an environmental review, to a degree, defied partisan politics. But that has changed with Trump. In recent months, and particularly amid nationwide protests against police brutality toward Blacks in America, environmental justice activists have asserted that Trump’s changes would silence communities of color, often located near oil and gas operations.
Kerene Tayloe, government affairs director at WE ACT for Environmental Justice, said NEPA functions as the only environmental justice law on the books.
She said last week: "It’s one of the few tools that communities have had to really use to protect the public health of our communities."