The weak link in Trump’s anti-EJ push: State permits

By Adam Aton | 01/28/2025 06:30 AM EST

State environmental justice standards remain out of the president’s reach, complicating his rush to expand fossil fuels.

President Donald Trump spoke to reporters aboard Air Force One on Saturday as he traveled from Las Vegas to Miami.

President Donald Trump spoke to reporters aboard Air Force One on Saturday as he traveled from Las Vegas to Miami. Mark Schiefelbein/AP

President Donald Trump wants to get environmental justice out of the federal government. In state capitals, those ideas are more firmly entrenched than ever.

Democratic governors and lawmakers have spent years — especially after the 2020 police murder of George Floyd — trying to embed concepts of environmental justice into permitting reviews. And while they remain a shadow of what advocates have demanded, several states now scrutinize energy projects for their cumulative impacts on poor and non-white communities that typically experience disproportionate pollution.

That will limit the impact of Trump’s opening salvo of executive orders, experts and advocates say. Even if the sweeping federal rollback survives legal challenges, state permitting will provide an environmental justice backstop beyond Trump’s reach — at least in some places.

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About one-third of states have their own version of the National Environmental Policy Act. The measures incorporate some long-standing elements of federal permitting into state policy, such as the consideration of social or historical impacts into project reviews.

Some have gone even further, such as Washington, New Jersey and, most recently, New York, which at the beginning of the year began requiring agencies to consider the cumulative impacts of their actions on marginalized communities.

“We need those states and localities to stay strong,” said Peggy Shepard, executive director of WE ACT for Environmental Justice. “Because that’s really the only defense we have.”

Environmental justice has been a major target of Trump’s first days in office, as the new Republican administration dismantles civil rights and diversity programs across the federal government.

Last week, Trump revoked a 1994 directive for federal agencies to consider the disparate health and environmental impacts on low-income communities and people of color — a cornerstone of federal environmental justice policy that Trump rejected as “discrimination.”

The president also directed federal agencies to use emergency powers to speed up fossil fuel permitting — even as his administration signaled bigger changes ahead for NEPA permitting.

Rather than have the White House’s Council on Environmental Quality set NEPA standards for the entire federal government, as it has done since the Carter administration, Trump’s executive orders envision each agency setting its own rules, with an emphasis on “efficiency and certainty over any other objectives, including those of activist groups.”

“What I’d like to see are rapid approvals,” Trump said Thursday in remarks to the World Economic Forum, in which the former real estate developer complained about environmental reviews ensnaring his past construction projects.

Trump said he wants to speed up power plant construction — especially coal-fired ones — to power artificial intelligence data centers.

“I’m going to get them the approval. Under emergency declaration, I can get the approvals done myself without having to go through years of waiting,” he said. “They can fuel it with anything they want, and they may have coal as a backup. Good, clean coal.”

Regardless of those efforts, observers say state permitting policies remain an obstacle that Trump has little control over.

“If you speed up the process at one level, it doesn’t ensure that projects aren’t going to get caught in some other layer of review,” said James Broughel, a senior fellow at the conservative Competitive Enterprise Institute. “There’s still a lot out there that can get in the way of more energy projects coming online.”

Trump’s drastic moves might even backfire in the short term, he added, if courts and businesses find it difficult to navigate federal permitting without the long-standing regulations and precedents they’re used to.

“This could be a case of careful what you wish for, because you might just get it,” Broughel said.

“While a lot of people viewed those regulations as fairly burdensome in a lot of ways — without them, that uncertainty returns,” he said. “And I do think there’s probably an opportunity for people who want to challenge permits.”

Brett Hartl, government affairs director for the Center for Biological Diversity, said his group has used California’s permitting laws to counter oil projects.

In 2020, New Jersey became the first state to weave a comprehensive environmental justice framework into its permitting process. The state’s Environmental Justice Law requires regulators to identify communities overburdened by pollution, then only approve or renew permits that don’t disproportionately impact those communities.

Washington state, Maryland, Massachusetts, Oregon, Vermont and New York have followed with their own legal changes to elevate environmental justice in permitting decisions.

In Minnesota, a 2023 law overhauled the state’s transportation planning to consider the climate impacts of highways, mass transit and other projects. Colorado also has made some moves to tighten permitting for disproportionately polluted areas.

Most states either have strong permitting laws or a big fossil fuel sector, Hartl said, not both.

In states such as Texas or North Dakota, he said, “there’s far fewer options to stop the juggernaut of terrible drilling at the state level.”

That’s bad news for the frontline communities clustered in highly industrialized regions, like Louisiana, Shepard said.

“In a state like New York, where we have a strong environmental justice advisory board at the city and state level, I think that we’ll be OK,” said Shepard, who chairs the city board. “[In states] where the tax base is coming from oil and gas, they’re going to be in for a big setback.”

And just like the federal level, advocates said, state environmental justice programs are only as good as the administration that implements them.

Virginia, for instance, passed tighter permitting rules in 2020 under the Environmental Justice Act. But Republican Gov. Glenn Youngkin, elected in 2021, has nevertheless permitted fossil fuel projects in a way that advocates say ignores vulnerable communities.

On the other hand, some state environmental justice policies can trickle up to the federal level.

States have considerable authority over energy projects within their borders, even if they’re on federal lands, said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center.

For example, New Mexico has adopted regulations requiring oil and gas operators to capture 98 percent of their methane emissions by 2026, as well as rules against emitting ground-level ozone precursors. Operators on federal public lands have to follow those rules too, he said, or else the state can deny their permits.

Western states also have the leverage to push farther, he added, because much of the region is a checkerboard of federal, state and private lands.

“Oil and gas depends on access to immense, landscape-scale areas of land covering thousands upon thousands of acres of public lands,” Schlenker-Goodrich said. A single jurisdiction adopting stronger environmental rules, he said, can cause a positive spillover into the rest of the checkerboard.

“States hold independent constitutional authority to go above and beyond federal requirements,” he said. “The question is whether they use that authority or are compelled to use that authority.”