Following the rapid industrialization and population boom of the early 1900s, the environment stood as a casualty of society’s capitalistic growth. Rivers caught fire, DDT crashed bird populations, and scientists feared devastating harms caused by the escalating concentration of CO2 in the atmosphere. These issues were exacerbated by the lack of federal regulation, as states led a “race-to-the-bottom” where environmental protections were slashed to ease the way for industry. Something had to be done to prevent the rapid destruction of natural resources and the planet.
After analyzing the vast web of issues leading to environmental damage, Congress passed the National Environmental Policy Act of 1969 (NEPA). In enacting NEPA, Congress recognized “the profound impact of man’s activity on the interrelations of all components of the natural environment… [and] the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man[.]”
Over the past 50 years of implementation and interpretation in the courts, NEPA has become the foundational cornerstone of U.S. environmental law, and nations worldwide have replicated its model.
NEPA Requires Federal Agencies To Understand Environmental Impacts
Within NEPA, Congress declared “that it is the continuing policy of the federal government… to use all practicable means and measures… to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” The entire premise of this law is to make sure that the federal government looks before it leaps – forcing it to understand the ramifications of its actions and how those decisions will ripple out over time.
To this end, NEPA requires federal agencies to consider the environmental impacts of their actions, including direct action by an agency or the permitting of private activity (like when an agency issues a permit for a private company to frack). The primary decision-making agency is tasked with doing an environmental assessment of the project. If it imposes a significant impact, then a more in-depth environmental impacts statement is required. That next step is a collaborative process where meaningful involvement from affected communities and stakeholders is absolutely vital because they typically have the most knowledge of the local conditions and history.
Legal interpretation of NEPA led to the White House Council for Environmental Quality (CEQ) being formed to craft regulations on how agencies implement NEPA. These rules have been consistent for more than 40 years, requiring consideration of all direct, indirect and cumulative impacts of any project under review.
But the Trump administration is looking to change this.
Trump Gutting NEPA Aids Polluters And Muzzles The Public
First, Trump’s CEQ is trying to remove requirements to review related and cumulative effects of agency action. This intentionally prevents agencies from considering issues like overall emissions from fossil fuel infrastructure networks or related projects under development within a region. These new amendments to the regulations are tailored to allow industry-favoring regulators to ignore climate change and the foreseeable consequences of their policies and permitting.
The proposed rules also expand “categorical exclusions” to allow far more projects to skirt the review stage, excusing polluting projects from even the most basic review of the environmental impacts they will cause. For example, these exemptions would allow the federal government to issue multi-million dollar loan guarantees to private factory farms — basically subsidizing the largest source of pollution in American waterways.
Even worse, the administration is attempting to restrict public engagement within the NEPA review process: shortening timelines, limiting the scope of comments, and providing bureaucrats great freedom in how they exclude the public from the review process.
To top it all off, in proposing these regulatory changes, CEQ refused to perform an environmental justice review (as required by law) that would look at how these sweeping regulatory changes impact the most vulnerable communities.
Support Us As We Explore Legal Avenues To Save NEPA
This demolition of American environmental law is a feature – not a bug – of the Trump administration’s efforts. It is a deadly purposeful re-envisioning of nearly 50 years of well-understood legal requirements, which will allow industry to steamroll community objection to polluters. These proposed NEPA regulations are blatantly illegal; they certainly rise to the level of being “arbitrary and capricious.” And we will be pursuing every legal avenue to ensure that the administration’s knowing attempts to destroy our planet are rightfully thrown out in court.
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