Is Weakening a Landmark Environmental Law Trump’s Biggest Rollback Yet?

Reid Frazier: You wrote in The New York Times that these changes would leave the public in the dark when it comes to these projects. Can you explain that for me? What do you mean by that? 

Sharon Buccino: The public gets left in the dark for a couple of reasons. What NEPA provides is the right to know what decisions are being made.

So the Atlantic Coast pipeline goes through our national forests here. The George Washington National Forest and NEPA provided the opportunity for the public to know that this project was being considered to cross its forest lands and to have a say in that decision.

It’s because [the rule changes] limit the projects, dramatically truncates the number of projects that NEPA applies to, there are going to be a lot of decisions that are happening that the public doesn’t even know about. So that’s one way of leaving the public in the dark.

The second way goes to the kind of review that would now happen under these proposed changes. There’s no requirement to look at cumulative or indirect effects anymore. It’s like the government decides it’s sticking its head in the sand. Unfortunately, these problems aren’t going to go away just because we ignore them and the controversy around them isn’t going to go away either.

RF: It’s been called the Magna Carta of environmental law. But it was really part of that whole first big national push to rein in industrial pollution, right? 

SB: That’s correct. It embraces what was at the time, I wouldn’t say it was a new science, but the science of ecology. Holistic and integrated thinking was really emerging at the time in the late 60s, early 70s. This was the first statue that really made an attempt to bring that thinking and that science in to decisionmaking, policymaking.

“It’s a fundamental attack on our system of environmental protection, but also a fundamental attack on our democracy.”

One thing that’s so important about the law is that it really affects all different kinds of project — highways, bridges, transportation. It’s a whole range of types of activities that our government is involved in. But more importantly, they are activities that affect our lives every day. They affect our health, they affect our families, and they are affecting what our communities are going to look like going forward.

It recognized that the public not only had a right to information, but that the public had an indispensible and critical role in informing and shaping the decisions that our federal government was making for us.

RF: So let’s swing our attention to what the Trump administration recently unveiled. And that’s a proposal to do what exactly with this law?

SB: There are a number of things in the pages of the rules. I think it’s about 200 pages of the proposed rule changes.

Two things are very, very critical. One addresses the very first question — what kinds of activities does NEPA apply to, to begin with? What these rules attempt to do is dramatically shrink the kinds and numbers of projects that any kind of environmental review or public participation would apply to. The rule does that by changing the definition of what counts as a major federal action.

What Trump is trying to do in these regulations is to say right off the bat, ‘we know best.’ The agency gets to decide on its own without any kind of public input what NEPA should apply to and what counts is minimal on what counts as major.

“Nobody wants overregulation. Nobody wants paper or a process for its own sake. But we do want as taxpayers, as citizens, we want smart, informed decisions to be made.”

But the problem is that the administration or the agency involved, say the U.S. Army Corps of Engineers, is the one that gets to decide what is minimal without any kind of public say or even notice. So that is a huge difference compared to what happens now.

RF: One big aspect of this is potentially taking climate change off the board as something that agencies have to look at.

SB: That’s correct. That’s doing an incredible disservice to the American public. That’s why so many people are upset about the proposed changes.

Nobody wants overregulation. Nobody wants paper, or a process for its own sake. But we do want as taxpayers, as citizens, we want smart, informed decisions to be made.

“These are fundamental questions that our federal government owes it to us to address and give us the opportunity to have a say in those decisions.”

If we’re rebuilding after, say, Hurricane Katrina or Sandy in the Northeast, we want to do that in a way that’s informed and takes into account what’s going to happen next. Rather than just kind of building willy nilly and having it destroyed in a couple more years, that’s just not smart.

RF: So Trump has said that this law is responsible for keeping big projects on the back burner, not letting big projects go through. I think he’s fond of saying that there’s like a bridge that took 18 years to build because of this and other regulations.

Does does Trump have a point here that this is a way for “not in my backyard’ groups or environmental groups to hold up big projects?

SB: He’s missing the bigger picture and he’s missing some critical facts. Most of the decisions go through very, very quickly. It’s 95 percent go through without really a whole lot of documentation at all. But the few that do take some time do so for a reason. It’s because they’re projects like Dakota Access Pipeline. Those are critical decisions that the nation is making about our future in terms of, do we really want to lock in this carbon in the big picture?

These are fundamental questions that our federal government owes it to us to address and give us the opportunity to have a say in those decisions. And yes, we should do that process efficiently and effectively, but we shouldn’t just throw it out the door, get rid of it. That’s essentially what Trump is posting to do in these changes.

RF: A lot of those pipelines are being built so that gas that’s produced near where I live can get to where maybe where you live. Right. You know, the federal government has basically been very supportive of building pipelines for oil and gas, really since we started producing oil and gas.

But it sounds like courts have started to push back against these agencies that review these projects and saying,’you know, it’s not just how many rare and endangered species are you going to displace by cutting down this forest to build this pipeline. But what happens after this gas or oil gets shipped? Are there environmental impacts from burning this oil and gas later on and in other places?’

SB: That’s exactly right. You take the agency that’s responsible for a lot of these pipelines, any pipeline that goes across more than one state, it’s FERC, the Federal Energy Regulatory Commission, that has responsibility for reviewing those.

Even under the statute, the Natural Gas Act, there is a responsibility to determine the necessity, the public necessity of the pipeline. And unfortunately, to date, that determination has been made in very, very narrow terms. It’s not taken into account these larger and critical questions about where our nation needs to go in terms of avoiding climate chaos. So it’s an abdication of responsibility that NEPA plays a critical role in holding our government accountable to us and to make decisions that are unformed and shape our future in a way that allows us to thrive.

RF: The law has never been updated. It’s been 50 years now. Are there updates to it that should be made or a compromise?

SB: I’m not going to say it’s working perfectly, but in my mind, the most important step that could be taken is making the investment, making a greater investment upfront to get everybody to the table, to get the issues on the table at the beginning. Focus on the issues that really matter to people in a particular project and address those.

RF: What is the line of argument that you and other groups are likely to make if you end up taking this to court? 

SB: Well, there are a couple of basic principles in our legal system. One is that the regulation has to be consistent with the statute that it’s implementing.

It’s inspirational language that’s in NEPA. It talks about ensuring a productive harmony between man and nature. It talks about the responsibility and the commitment of the federal government as a trustee for future generations.

To the extent that the rule changes are inconsistent with the statute is unlawful. So that’s one basis for legal challenge. The second is, have they justified? Have they supported the agency decision that they’re making the rulechanges with sufficient facts and evidence? Have they made a reasonable decision? Or is it arbitrary and capricious?

RF: So they’d have to provide some sort of documentation that they’ve looked at X, Y, Z issues and found that, by doing this, it wouldn’t really hurt the intent of the law or something like that. 

SB: Right. That’s why, if they’re smart, they won’t rush through this process because they have to support what they’re doing and the changes they’ve made. And look, these laws have been on the books for as long as they have because they’ve worked well for the most part.

Again, I’m not going to stand here and argue that process is worth process for its own sake. We need an efficient and effective process. But the way we get there is by giving the agencies and the staff that’s there the resources to do their job of including the public and conducting an environmental review in an efficient, effective way in the first place.

RF: So David Bernhardt, the interior secretary for President Trump, said that this may be his most far reaching environmental rollback. Do you agree? Why might he say that? 

SB: I do agree. It’s a fundamental attack on our system of environmental protection, but also a fundamental attack on our democracy.

I’m inspired by the people who were behind the writing and passage of the National Environmental Policy Act. It was people like Congressman John Dingell, [Henry Martin] Scoop Jackson from Washington, and their staff did incredible service to the nation in getting this statute passed.

It was Republicans and Democrats working together. It’s a vision of a future that’s a sustainable future and a prosperous future. Not only did NEPA provide the vision, but it gave us the path to get to that vision. So we need to embrace that and follow that path. It’s up to us to get there and unfortunately, this action by the Trump administration is taking us the wrong direction.