President Donald Trump’s move to cut environmental reviews down to a month or less could push his administration into murky legal ground and even hand environmental groups more ammunition to challenge federal approvals of mines and fossil fuel projects in court.
The Interior Department unveiled a plan Wednesday to reduce the length of reviews for some coal and hardrock mines, oil and gas drilling, geothermal development and biofuel projects on public land — while excluding wind and solar energy — from a year or more to a maximum of 28 days.
The department premised the shift on Trump’s invocation of an energy emergency in January.
But truncating reviews to such an extent under the National Environmental Policy Act, frequently called the Magna Carta of environmental laws, could actually offer up more fodder for environmental groups and tribes mounting legal challenges, experts said.
The Trump administration’s decision to apply emergency procedures nationwide is unprecedented in scope, said James Coleman, a law professor at the University of Minnesota. And while Interior’s strategy appears to be aimed at flooding the zone to push projects through, plenty of judges interpreting the law signed by President Richard Nixon in 1970 aren’t going to have an appetite for curbing NEPA so drastically, he said.
“It’s going to be tested in the courts, and I expect that lots of courts are going to strike down actions just given the unprecedented scope,” said Coleman. “It’s [already] a little bit of a crap shoot, of Russian roulette with the courts, it’s uncertain whether your project will get through.”
Trump in January declared an energy emergency — a move that’s faced skepticism and scorn from his political opponents — and called for urgent action to improve energy affordability and reliability. That move included empowering agencies to move forward with cutting down what some have argued are lengthy and onerous environmental reviews. The Council on Environmental Quality on Wednesday signed off on Interior’s strategy to limit environmental assessments to 14 days and environmental impact statements to 28 days for some projects.
“CEQ has reviewed Interior’s proposed alternative arrangements and authorizes them as an appropriate means of complying with NEPA as a response to the emergency declared in Executive Order 14156,” wrote Katherine Scarlett, CEQ’s chief of staff.
Under the department’s plan, emergency permitting procedures wouldn’t apply automatically. Instead, developers would need to ask for a fast-tracked review in writing and approval could be granted by a handful of top Interior officials.
Yet Trump’s move to limit reviews is raising myriad questions, from its overall legality to what role states and tribes will play, and whether the federal government — significantly reduced by recent firings, voluntary buyouts and early retirements — has the capacity to shepherd projects through the truncated process.
It’s also unclear why Interior excluded solar and wind. The department didn’t immediately respond when asked for comment.
Some in the energy sector are keenly aware of the potential legal vulnerabilities that fast-tracking environmental reviews could usher in as the government juggles the need to boost domestic energy production and national security with environmental protection.
“You can speed up all the permitting, you can reduce NEPA all you want, but if you’re leaving … the potential for liabilities because corners have been cut, there are still challenges for the industry,” said Joshua Ballard, CEO of USA Rare Earth, a rare earth company. “There’s still massive risk there.”
‘No get-out-of-jail-free card here’
Interior’s push to truncate reviews is likely to draw challenges from tribes, environmental groups, states and local communities — with potential plaintiffs likely to take aim at Trump’s declaration of an energy emergency in January.
Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law, said those challenges will likely zero in on federal agencies’ reliance on Trump’s declaration to invoke their own emergency authority.
“The president doesn’t have the authority to just call anything an emergency and then skip all of the provisions and the legal requirements that Congress has put in place,” he said. “Congress has given agencies the authority to respond to emergencies, but that authority applies to real emergencies that are constrained in time and that have immediate impacts.”
Burger added that the fact that Interior is excluding wind and solar shows the arbitrary nature of the declaration and the policy the department is pursuing. “If there was an energy emergency, we would need to produce energy, including wind and solar,” he said.
Ted Boling, a longtime CEQ official who is now partner at the firm Perkins Coie, noted that any challenges focusing on Trump’s executive order could face questions about plaintiffs’ standing and ripeness.
But Boling said a more pressing question is the risk such a process poses for companies that choose to participate.
Boling said that there are provisions to accelerate environmental reviews in emergencies and CEQ in the past has offered up arrangements for actions that fit a “commonsense” definition of an emergency. In one case that involved moving a military training facility and fighter jets due to impacts of a hurricane, he noted.
“Those are the kinds of real world, practical issues that the NEPA process is designed to address, so there’s no get-out-of-jail-free card here,” he said. “The idea that the public comment period ought to be proportional to the issues involved makes sense, but to completely eliminate it … is probably not in the long-term best interest of responsible developers.”
Endangered species evaluations
Interior is also using the national energy emergency designation as the basis for softening requirements for Endangered Species Act consultations.
Amy Atwood, senior counsel with the Center for Biological Diversity, challenged the “emergency” rationale as one that’s vulnerable to litigation.
“There has to be an actual bona fide emergency, so we’re talking about acts of God,” Atwood said in an interview, “and the other factor is, it has to be a time-sensitive issue.”
Neither factor applies in this case, Atwood said, noting that the Fish and Wildlife Service’s rules cite the “severe time constraints” inherent in a legitimate emergency.
Under Section 7 of the landmark environmental law, federal agencies must consult with FWS or NOAA Fisheries when actions could affect listed species or their critical habitat. Formal consultations can lead to preparation of full-blown biological opinions, which are thorough assessments of proposed actions and how they could affect protected species and habitat.
Informal consultations, by contrast, are described in the Fish and Wildlife Service’s Endangered Species Consultation Handbook as including phone calls, meetings and correspondence that are designed to “explore ways to modify the action” to reduce adverse effects to species.
“Informal consultations are extremely common,” said Timothy Male, the executive director of the Environmental Policy Innovation Center.
The Congressional Research Service cited a 2015 study that found 81,461 informal consultations were completed between 2008 and 2015, compared with 6,829 formal consultations. Informal consultations took an average of 13 days and formal consultations took an average of 62 days.
“There are plenty of energy projects for which you can avoid adverse impacts,” Male said. “It’s just that what they’re clearly trying to do is cover all projects, and you just can’t do that. Like, if there’s salmon in the stream, you’re going to have ‘take’ from any kind of power plant.”
“Take” under the ESA means anything that can harm or kill a protected species.
In such cases, Male predicted, “somebody’s going to sue you and say, the law says you have to do a formal consultation. I don’t think you can get away with avoiding them all the time.”
Interior’s plan will allow projects that “seek to identify, lease, develop, produce, transport, refine, or generate (specified) energy resources” to request the informal consultation process. To qualify, the projects must have submitted operation plans and drilling permit applications.
Under Interior’s plan, a full-bore consultation and biological opinion could be undertaken “following termination or expiration of the national energy emergency.”
Thomas Jensen, a partner in the Perkins Coie law firm, cautioned that a “fast process is wonderful and welcome, but it also needs to be a smart process if the results are going to survive scrutiny, especially in litigation.”
Jensen, who represents electric transmission and pipeline companies, pointedly noted the “current context” of shrinking federal agencies as potentially undermining the Trump administration’s stated goal of streamlining permits.
“There has to be someone at FWS or NOAA to answer the phone and for that person to have timely access to accurate, well-supported information,” Jensen said. “Absent those elements, the process bogs down in delay and any response by FWS or NOAA that ultimately emerges may prove to be unreliable.”
What about Congress, states and tribes?
The administration’s push to limit NEPA reviews calls into question the role of Congress, states and tribes.
Analysts at Clearview in a note to clients highlighted that Interior’s new voluntary procedures do not appear to account for the pace of permitting at the state level, nor do they make clear how federal officials will work with coordinating agencies when a project is chosen.
“Put simply, Interior’s efforts to fast-track federal permits do not appear to require states to move any faster,” the analysis said. “In this context, we can also envision scenarios where states and/or localities slow or even halt permitting proceedings for projects that Interior approved without input of states or municipalities as coordinating agencies.”
Coleman said that while the Trump administration is offering up a quick fix for some projects, permitting reform on Capitol Hill is still critical for finding a more permanent solution with more buy-in.
In one extreme case, Coleman noted that lawmakers through legislation called for regulators to grant all permits for the Mountain Valley pipeline. Ultimately, he said, the pipeline did get approved and built.
“The main benefit of [legislative permitting reform] is, it takes it out of this battle where the administration is always trying to see what it could do given existing law and the courts are pushing back, and instead gives you some clear rules,” said Coleman.
