In 2016, thousands of indigenous activists and allies set up a water protectors’ camp in Standing Rock, North Dakota, to defend sacred land from the Dakota Access Pipeline (DAPL) project. Law enforcement officers cleared the site in February 2017, following the Trump administration’s move to green-light the pipeline project, but the fight didn’t end there. In a federal courtroom in Washington, DC, in November, the Standing Rock Sioux Tribe objected to plans to double the pipeline’s capacity, arguing that it would worsen the threats to “the water the Tribe drinks, the sacred sites where Tribal members pray, and the hunting, fishing, and plant gathering practices that are integral to the Tribe’s way of life.” The tribe’s case hinges on a single federal law, the National Environmental Policy Act (NEPA), which determines how the government reviews and approves industrial or development projects that may harm the environment. Now the act itself is in danger.
Conservatives and business lobbyists have long attacked the 50-year-old NEPA as a costly obstacle to getting federal government approval for infrastructure, fossil-fuel ventures, and other commercial exploits. Yet NEPA doesn’t set environmental standards, restrict pollution, or regulate any industry. It demands just one thing: the truth. And the Trump administration is trying to block the public from learning about the environmental consequences of massive construction projects.
Ignoring Climate Change
NEPA lays out the evaluation process for proposed federal actions that may affect the environment. Federal agencies undertake environmental assessment, which can trigger an Environmental Impact Statement, in which the government publishes the anticipated environmental effects and lists less harmful alternatives.
In January, the White House’s Council on Environmental Quality (CEQ) proposed rules that would limit the scope and depth of these reviews.
The administration said it wants to stop assessing “non-Federal projects” that are not controlled by an agency and have “minimal Federal funding or minimal Federal involvement.” The CEQ also said it would no longer consider environmental effects that are “remote in time, geographically remote, or the product of a lengthy causal chain” as well any “indirect” and “cumulative” impacts. The CEQ implied that examining those factors might lead to “frequent litigation” by environmentalists. Meanwhile environmental groups fear that reviewing only the supposedly direct and immediate impacts would allow the government to ignore the climate-related consequences of fossil-fuel projects.
Gillian Giannetti, an attorney with the Natural Resources Defense Council, said, “The entire proposal smells of an attempt to eliminate climate change from serious consideration.”
Environmentalists point out that NEPA rarely prevents infrastructure from being built. Some 95 percent of federal infrastructure projects get exemptions from the full NEPA process after receiving a “categorical exclusion” based on the type of project. In other cases, a preliminary review determines that the project will have no significant environmental impact, and then it too can bypass the Environmental Impact Statement process. Less than 1 percent of cases undergo the most comprehensive evaluation, according to the Government Accountability Office.
For that 1 percent, NEPA requires that Environmental Impact Statements detail alternatives that are less environmentally damaging, though the law does not require that the government choose one of those options.
“Trying to curtail the scope of NEPA analysis,” said Nathan Matthews, an attorney with the Sierra Club, “is trying to bury heads in the sand about either keeping federal decision-makers from having to consider the impact of their actions, [or] avoiding disclosure to the public about those impacts.”
The administration also seeks to limit the discussion of alternatives by requiring them “be technically and economically feasible”—a vague standard that could be used to preempt some greener alternatives, like outright rejecting a proposal for oil and gas leases on federal land. In addition, communities would face more stringent standards for public comments, which would have to be “specific” and “timely.” Future claims from opponents would also be limited to issues raised during the public comment period.
The entire review process, in fact, would be fast-tracked, shrinking the time frame for Environmental Impact Statements to two years and restricting lower-level environmental reviews to just one year. (According to the White House, NEPA reviews for Department of Energy actions that require an Environmental Impact Statement took more than three years on average from 2010 to 2017.) Communities would in turn have less time to research and organize around federal actions like approving the Dakota Access Pipeline.
For Kandi White, a lead coordinator with the Indigenous Environmental Network who helped organize actions at Standing Rock, the latest effort to unravel NEPA will make it even harder for front-line communities to hold the government or corporations accountable for the downstream environmental costs of infrastructure and development projects. As an organizer with the advocacy group Indigenous Environmental Network, she said, “there is no legal way to fight back if we don’t have [NEPA] in place.… It’s such an outrage. It’s just a shock—the audacity of the government system, to use their laws in a way that is actually harmful.”
Foreclosing Due Process
NEPA is a major target in the White House’s war on regulations. Activists have used it to thwart federal approval of a few high-profile projects—usually by demanding additional environmental reviews, often in conjunction with laws like the Clean Water Act or Endangered Species Act. For example, a court blocked a planned expansion of Montana’s Spring Creek Mine in 2019, ruling that the project should not have been allowed to proceed without a proper NEPA-mandated environmental assessment. The Keystone XL Pipeline—a transborder oil pipeline that sparked massive opposition under the Obama administration—was derailed in large part because the NEPA process enabled environmental groups to turn the project into a central symbol for climate-change protests across North America.
The new NEPA rules, if enacted, would set back future legal challenges to pending projects. One potential casualty is an emerging standoff in San Francisco surrounding an Army Corps of Engineers plan to dredge the San Francisco Bay to expand a major oil shipping route. Advocates have warned that the project would exacerbate climate change and disproportionately harm low-income communities of color. Environmental groups could still sue to halt the project, but Shana Lazerow, legal director for the California-based Communities for a Better Environment, said, “Obviously, if NEPA is amended so that they don’t have to consider those impacts…it would weaken our case.”
Environmental groups emphasize that NEPA is not about regulation. “The National Environmental Policy Act does not require benign environmental decisions; it requires informed environmental decisions,” said Susan Jane Brown, an attorney with Western Environmental Law Center who specializes in NEPA cases involving the forestry service. Noting that many projects in the past have been subjected to an Environmental Impact Statement and have nonetheless been approved, Brown added, “We’re talking about a philosophical difference between the Trump administration and most NEPA practitioners, who understand that it’s a procedural law that enshrines democratic principles—like, you should ask the public before you do something with their property.”
Brett Hartl, government affairs director at the Center for Biological Diversity, said, “NEPA at its core is democratic. It’s a law designed to give people a voice and to hold our government accountable.” In contrast to the corporate lobbying that often drives federal decision-making, he said, the law is designed to “help empower people who can’t bring millions of dollars to bear to a particular issue.”
Environmentalists remain hopeful that the courts will block the NEPA proposal or that it will lapse if Trump is voted out of office. A future president could undo Trump’s executive orders and restore the Obama-era NEPA guidance on climate change; indeed, presidential candidates Elizabeth Warren and Bernie Sanders have already pledged to reverse some of Trump’s most extreme environmental-policy rollbacks on fossil-fuel development and pollution. At the same time, the overall effect of Trump’s regressive environmental measures could extend well beyond his tenure, said Michael Burger executive director of Columbia University’s Sabin Center for Climate Change Law, because of the “complete and total instability it has injected into the administrative state.”
For now, if Trump’s proposal is implemented (comments on the proposed rules end on March 10), the new NEPA regulations would accelerate the approval of projects with dangerous environmental ramifications.
The Standing Rock Sioux Tribe, which is due to make oral arguments on March 18 against the Dakota Access Pipeline, might claim in court that the NEPA review was inadequate. But if NEPA is gutted, they will be seeking relief under a far weaker legal framework.
“To make [NEPA] even less accessible—we have to fight back against that,” said White, the Standing Rock activist. The movement will continue “doing what we have to do with whatever we have” in the wake of Trump’s attacks, she added, but “this is a backwards step in the wrong direction.”
