​Trump poised to streamline Nixon-era environmental reviews

East Texas rig Image: BP Plc

The Trump administration is scaling back requirements that agencies consider environmental consequences when approving new oil wells, pipelines, highways and other projects.

The first-in-decades rewrite of the rules governing how agencies scrutinize projects under the National Environmental Policy Act comes as both Democrats and Republicans seek to bolster the economy with new infrastructure projects.

President Donald Trump is expected to announce the streamlined approach during an event in Atlanta Wednesday.

The changes will limit the scope of agency reviews as well as what projects warrant the scrutiny, according to two people briefed on the plan who asked for anonymity before a formal announcement. The White House Council on Environmental Quality had proposed the new procedures in January.

Trump, a former real estate developer who ordered the changes in 2017, has complained that some of the nation’s “most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process.”

Courts have rebuked some of Trump’s oil development plans and thrown doubt on energy projects after finding the government’s environmental analysis insufficient. Earlier this month, a Washington, D.C.-based federal judge ordered Energy Transfer LP to shut down its Dakota Access oil pipeline because of problems with the U.S. Army Corps of Engineers’ analysis.

Federal judges also have repeatedly rebuked the Trump administration for advancing oil development plans without sufficiently considering the consequences for climate change.

The National Environmental Policy Act “has become, unfortunately, in the last couple years, a potent weapon for industry opponents,” said American Petroleum Institute senior counsel Ben Norris. “The rule is going to bring some common sense back to the NEPA process.”

Environmental groups opposed the change. Sharon Buccino, senior director of the lands division at the Natural Resources Defense Council, said it strikes at the very premise of NEPA – that making smart, informed decisions now saves later.

“Ignoring the harm doesn’t make it go away, but that’s what these rule changes seem to want to do – instead of addressing the harm, just kind of ignoring it and waving it away,” Buccino said.

Signed into law by former President Richard Nixon on Jan. 1, 1970, NEPA requires a detailed statement of environmental impacts be developed for all major federal actions affecting the environment – from highways that receive federal funding to the construction of offshore wind farms that require U.S. permits.

While the NEPA law doesn’t require agencies to prioritize environmental concerns, the Supreme Court has said it does force them to take a “hard look” at those consequences.

The rule being finalized Wednesday doesn’t change the law itself – only Congress can do that – but alters the way the statute is implemented, including by putting deadlines on agency reviews and ruling out analysis for non-federal projects with minimal federal funding or involvement. That shift could put some potential oil pipelines that don’t cross over federal land out of reach.

Agencies also could disregard some potential project consequences. Under the rule as proposed, regulators wouldn’t be required to assess the “cumulative” impacts of potential decisions, instead focusing scrutiny on reasonably foreseeable effects with a “close causal relationship to the proposed action.”

The changes don’t guarantee a green light for projects but still offer more certainty that’s “critical to getting the economy back on track and also getting these important projects going,” said Marty Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute.

“We’ve got to be able to consider environmental impacts, and we have to maintain community input into these projects,” Durbin said. “We just feel very strongly you can do all of those things in a reasonable amount of time and with a more definitive process that doesn’t leave projects hanging in limbo for years and years.”

© 2020 Bloomberg L.P.

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