By Jonathan Hahn, Sierra Club
In 2017, in the kind of ruling that may not happen in the future, the US Court of Appeals for the District of Columbia found that the Federal Energy Regulatory Commission (FERC) had improperly downplayed the enormous climate impacts of the $3.5 billion Southeast Market Pipelines Project, which included the 515-mile Sabal Trail pipeline. The decision was a major victory for environmentalists at the time. The pipeline was to move fracked gas through Alabama and Georgia on its way to power plants in Florida, mainly cutting through communities of color. The Sierra Club sued FERC over its decision to approve the pipeline, successfully arguing that the agency violated the National Environmental Policy Act (NEPA) by failing to consider the downstream emissions of the project—what NEPA calls a “foreseeable outcome” of the pipeline’s construction.
The DC Circuit agreed. The court affirmed that when conducting a NEPA review, an agency must consider not only the direct effects of the project (such as digging a trench to lay the actual pipeline) but also the indirect effects (such as the “downstream” greenhouse gas emissions that would result when power plants in Florida burn all the gas the pipeline is transporting). When considering those indirect effects, the court found, it is “reasonably foreseeable” to think that those emissions will result from the pipeline. The court vacated FERC’s decision to approve the project and mandated that the agency conduct an environmental impact statement that would include greenhouse gas implications.
That DC Circuit decision might never have happened had the Trump administration’s newly proposed NEPA regulations been in effect.
In one of its most serious attacks on environmental law yet, the administration has proposed drastic narrowing of the criteria for which infrastructure projects have to undergo a NEPA review, and a narrowing of the “effects” and “alternatives” that need to be considered during that review process. If the changes are finalized, they could fast-track hundreds of polluting projects around the country that pose a significant risk to public health and the environment, and limit the ability of communities most impacted by those projects—often low-income communities or communities of color—to slow down or stop them.
NEPA has been on the books since 1970 and is one of the nation’s bedrock environmental laws. Considered the “look before you leap” law, it mandates that federal agencies consider the environmental impacts of major projects such as power plants, pipelines, dams, or highways. The law requires reasoned decision-making that is thoughtful of the environment and of the community where a given infrastructure project may take place, and requires that those environmental impacts be disclosed to the public. In that sense, it is an entirely democratic law.
“NEPA has a special place in the hearts of environmental attorneys and activists because it was this early attempt to require agencies to think carefully about the impact they are having on the environment when they permit or otherwise undertake these projects themselves,” Caitlin McCoy, a fellow for the Environmental & Energy Law Program at Harvard University, told Sierra. “By cutting back the amount of projects that go into this process and by tightening up the scope of the review, and by making it easier to exclude consideration of certain effects and reduce the amount of alternatives to be considered, you’re cutting back the whole purpose of NEPA.”
There are four fundamental ways in which the Trump administration’s proposed NEPA regulations would dramatically weaken implementation of the law, according to McCoy.
Under current regulations, NEPA applies when a project is entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies. Those broad criteria embrace a wide range of federal actions related to a project. The phrase “major federal actions significantly affecting the quality of the human environment” is key here. When a major federal action significantly affects the quality of the human environment, a NEPA review gets triggered.
Now, Trump’s White House Council on Environmental Quality (CEQ), the agency that oversees the implementation of NEPA, proposes modifying the definition of “major federal action” to exclude nonfederal projects with minimal federal funding or minimal federal involvement—which could lead to a significant narrowing down of what projects qualify for a NEPA review.
In addition, CEQ proposes that effects should not be considered “significant” if they are remote in time, geographically remote, or the result of a lengthy causal chain. While this proposed change doesn’t specifically mention global warming or climate change, the consequence is clear: If the climate impacts of a project can be deemed “geographically remote” or the result of a “lengthy causal chain”—such as an oil and gas project releasing methane into the atmosphere, thereby contributing to the greenhouse effect—then they can be deemed not significant and therefore disqualified from a NEPA review.
The third major proposed change involves cumulative effects. CEQ is proposing to remove the requirement to consider the cumulative effects of a project—one of the key parameters on which the Sabal pipeline decision hinged. The cumulative impact analysis is how an agency looks at a project in context and considers what will happen around that project in the near future. “By removing that, you basically move towards a situation where you are looking at that project within a vacuum,” McCoy says. CEQ is also proposing changing the definition of “effects,” which previously included both indirect and direct effects, to just be “effects.”
Finally, CEQ is proposing to constrain the range of reasonable alternatives that an agency needs to consider under NEPA. A reasonable alternative would only have to be technically and economically feasible, and meet the purpose and the need of the applicant. If the purpose and the need of a project is to deliver a certain amount of liquified gas to an export terminal, McCoy points out, a proposal to put in an alternative of using a 24-inch pipeline instead of a 36-inch pipeline may no longer be reasonable depending on how the applicant frames the purpose of the proposed action under the new regulations.
“That’s emblematic of all these changes, which is narrowing the scope of this process so that it further restricts the amount of projects subject to NEPA review, and limits the scope of the reviews themselves,” McCoy says. “The heart of NEPA is to generate all this information for the community, the agency, and the project developer to really think through all the ways this project is going to impact the community and the environment.”
Thanks to NEPA, the Sabal Trail pipeline project was put on hold in 2017 with a mandate to conduct an additional environmental impact statement. It’s unclear what will happen should CEQ’s new regulations take effect, since the case entirely hinged on the indirect and cumulative effects of greenhouse gas emissions—criteria that the CEQ’s new regulations change. What is clear, however, is that the CEQ is attempting to rewrite its regulations in direct response to the success of litigation against projects like Sabal Trail or Keystone XL, according to Nathaniel Shoaff, a senior attorney for the Sierra Club’s Environmental Law Program.
“Part of the reason the federal court in Montana invalidated the Keystone XL project is because the State Department refused to look at the cumulative impacts of the Keystone XL pipeline and another pipeline project that was pending at the exact same time,” Shoaff told Sierra. “These changes to the NEPA regulations remove any obligation to, or even the ability of an agency to, consider cumulative or indirect impacts like the ones that were of issue in the Keystone project. They don’t want to have to own the climate impacts of building more pipelines or opening up public lands for fossil fuel extraction.”
In another example, last November, Sierra Club and several other conservation groups won an injunction from a federal district court in Colorado to stop the 2,000-acre expansion of a coal mine in a roadless area of Colorado’s Gunnison National Forest. The groups won the injunction because of the Interior Department’s refusal to consider reasonable alternatives. “CEQ is attempting to rewrite their regulations in direct response to successful NEPA litigation,” Shoaff says. “It’s a shameful giveaway to the fossil fuel industry.”
Opposition to other potentially polluting projects, like the destructive Pebble Mine in Alaska or drilling in the Arctic National Wildlife Refuge, would similarly have been hamstrung had the administration’s NEPA regulations been in effect.
“What we found in 50 years of implementing NEPA is that the result is better decisions: reduced environmental effects, consideration of appropriate alternatives, more mitigation, more protection of human health and the environment,” Jan Hasselman, a staff attorney with Earthjustice, told Sierra. Hasselman is the lead counsel representing the Standing Rock Sioux Tribe in their fight against the Dakota Access Pipeline. In that case, the federal government originally found and has repeatedly reaffirmed that the risks of the pipeline were so low and manageable that no environmental impact statement was warranted, a position the tribe is still actively challenging in court. “Of course, those values get in the way of people who seek to profit from developing fossil fuels or utilizing public lands, so it has long been a goal of the big oil companies to weaken the process so they can develop those resources more efficiently and profitably, at the expense of public health and the environment.”
On Monday, 320 organizations including Earthjustice, the National Resources Defense Council, the National Audubon Society, and the Sierra Club sent a letter to CEQ condemning the Trump administration’s attempt to rush through the new NEPA regulations with a short 60-day public comment period and only two public hearings—the first on February 11 in Denver, Colorado, and the second on February 25 in Washington, DC.
The new regulations are certain to face legal challenges if finalized.
“NEPA, like our other bedrock environmental laws, has stood the test of time for 50 years,” Hasselman says. “No one has ever been able to successfully gut these statutes, and the reason for that is that they are incredibly popular. People like clean air; they like clean water; they like wildlife. They care about transparency and accountability. The Trump administration’s sweeping efforts to gut these laws via regulation is fundamentally undemocratic in that it seeks to circumvent values that the majority of Americans hold dear.”