President Trump is trying to overhaul a bedrock environmental law to end a "regulatory nightmare." Even as he announced the proposed changes to the National Environmental Policy Act last week, his aides promised that the law would remain just as protective of the environment as it always was.
"If it required NEPA yesterday, it will require NEPA under the new proposal," a Trump aide said.
But the level of attention that NEPA gives to projects could change.
The proposal promises to narrow environmental requirements, opening the door for more cursory reviews of planned projects like power plants, pipelines and visitor centers at national parks.
Trump’s pursued changes, which could be final later this year, wouldn’t require agencies to demand a true greenhouse gas accounting of projects seeking federal approval. And it would change thresholds to allow some projects that carry significant environmental consequences to avoid oversight altogether.
Nick Yost, who helped write NEPA’s regulations when he served as general counsel for the White House Council on Environmental Quality under President Carter, said the Trump administration’s bid to reduce the scope of environmental reviews wouldn’t succeed. Courts won’t buy the administration’s argument that downstream environmental impacts related to climate change and other problems are too difficult to assess.
"The purpose of coal is to burn the stuff, and it’s no stretch of the imagination to say if it’s mined, it will be burned," he said. "And if it’s burned, what are the consequences of it? Those consequences include climate change."
Climate change has figured heavily in these projects, all of which were reviewed under NEPA regulations. Here’s a look at how they might have been treated under Trump’s proposed changes.
Southeast Market Pipelines Project
This natural gas project includes the Sabal Trail pipeline and will run through Alabama, Georgia and Florida. It has an estimated greenhouse gas footprint of 8.36 million tons per year from the combustion of gas at power plants supplied by the pipeline, according to the Federal Energy Regulatory Commission.
The Southeast Market Pipelines Project comprises two other pipelines that are scheduled for completion next year. But the Sabal Trail is the cornerstone of the project. It will run more than 500 miles from Alabama to Florida and carry an estimated 1 billion cubic feet of gas a day to power plants in Florida.
FERC took only a limited look at the project’s greenhouse gas implications in its original environmental impact statement in 2015. The agency determined that Sabal Trail’s emissions would be "insignificant" because it would enable Florida power plants to shift from coal to gas.
But the U.S. Court of Appeals for the District of Columbia Circuit sent FERC back to the drawing board in 2017, leading to a supplemental EIS the following year. The ruling led to a new precedent: Agencies should consider downstream greenhouse gas emissions in NEPA environmental reviews — in this case, from burning the gas transported by the pipelines.
But if Trump’s proposal becomes final — and holds up in court — it would let FERC take a very limited view of a project’s climate implications — or ignore it altogether.
That’s because it bars agencies from considering cumulative impacts of projects. For the Southeast Market Pipelines Project, that would mean FERC couldn’t consider the climate impacts of adding pipeline capacity and its potential result: the burning of more gas as power plants take advantage of new supplies.
The administration’s proposal doesn’t instruct agencies to consider indirect impacts — in this case, gas production in the field and the combustion of natural gas at power plants supplied by the new pipeline. Instead, it asks the public to comment on whether NEPA should bar agencies from considering them.
FERC has been slow to account fully for the greenhouse gas emissions when reviewing pipelines, liquefied natural gas terminals and other infrastructure. That was true, observers say, even under a now-defunct Obama-era guidance that instructed it do so. This would remove that obligation.
Trump’s proposal tells agencies not to consider effects significant "if they are remote in time, geographically remote, or the product of a lengthy causal chain." Jessica Wentz, a senior fellow at the Sabin Center for Climate Change Law at Columbia University, said the language seems calculated to ensure that climate change is never a consideration that demands a full EIS for a project. It would instead trigger lighter requirements used for projects with lesser environmental consequences.
"Contribution to sea-level rise or increases in extreme events are ultimately going to be somewhat remote in time and geography, and there will be a lengthy causal chain between the release of the emissions and the actual on-the-ground effects," Wentz said.
NEPA requires environmental review for "major federal actions." The administration’s proposal tinkers with that definition, potentially excluding some projects from the law altogether. Some pipelines that cross state lines or require approval from the Army Corps of Engineers currently trigger NEPA requirements but might not under the proposal, restricting the public’s opportunity to comment.
Millennium Bulk Terminals
The proposed coal export terminal along the Columbia River in Longview, Wash., would connect 44 million tons of coal a year from Wyoming’s Powder River Basin to Asian markets. But the Army Corps in its 2016 draft environmental review looked only at greenhouse gas emissions on-site at the proposed terminal, and not at the project’s potential to bolster U.S. coal mining or global coal consumption. It also didn’t look at emissions from the transport of coal from mines or across the ocean.
According to an environmental analysis by Washington state, the project could release 90 million metric tons of CO2 equivalent annually.
EPA, which reviews all NEPA reviews prepared by other agencies, rebuked the Army Corps for missing "the biggest impacts" of the project.
"Climate change is a serious concern that falls squarely within the requirement of NEPA to consider environmental impacts," stated EPA Region 10 Administrator Dennis McLerran in a letter to the Army Corps in November 2016. He pointed to the Obama-era NEPA climate guidance finalized earlier that year but then added: "NEPA’s obligations exist independent of the guidance."
Litigation and resistance from Washington state have stymied plans to build the terminals, and the Army Corps’ NEPA review was never finished. But last week’s proposal could vindicate the Army Corps’ decision to omit indirect climate impacts from its review. And it might allow the project to be approved without a full environmental impact statement.
When indirect impacts are ignored, like Millennium’s role in global coal exports, the project might qualify as having a nonsignificant environmental impact, allowing for a lighter review process.
BLM oil and gas leases in Wyo., Utah and Colo.
WildEarth Guardians and Physicians for Social Responsibility sued the Bureau of Land Management in 2018 for issuing 473 oil and gas leases, covering 463,000 acres in Wyoming, Utah and Colorado. The court remanded BLM’s approval and issuance of the leases in March 2019, ruling that the agency had erred in judging that the leases didn’t require a full environmental review because their impact wasn’t big enough.
Federal oil and gas leasing contributes an estimated 1,279 million metric tons of CO2 equivalent each year, according to the U.S. Geological Survey.
BLM has since released a new EIS, but the plaintiffs and the Western Environmental Law Center, which represents WildEarth Guardians in the case, are challenging it, too.
The courts didn’t specify how BLM should fulfill its obligation under NEPA to take a "hard look" at the true climate consequences of the leases. But the plaintiffs say the only way to fully account for the consequences of greenhouse gases from oil and gas leasing is to measure lease sales against a "carbon budget." That’s akin to a personal budget, but in this case depleting one’s reserves results in higher temperatures of 2 degrees Celsius.
Their argument rests squarely on regulations designed during the Carter era that requires agencies to consider direct, indirect and cumulative impacts when implementing NEPA. Trump’s proposed rules would abolish that standard. Even so, carbon budgeting was not used under President Obama during NEPA reviews.
Federally managed fossil fuel resources result in almost a quarter of total U.S. greenhouse gas emissions. Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center, said that if BLM were to adopt carbon budgeting as its standard in environmental reviews, "the justification for any oil and gas development on public lands drops through the floor."
Instead, the agency hopes to limit consideration to "direct" consequences of the lease sale. And Trump’s regulatory proposal would help it do that.
"They’re trying to essentially stick their head in the sand when it comes to climate analysis," Schlenker-Goodrich said.
