Pipelines, roads and railways: This is why you should care about Trump’s rollback of NEPA, a key environmental law

By the time the new Interstate 885 opens in Durham later this year, some of the people who conceived of the original project will have been long dead.

In the works for 60 years, the East End Connector, as Durhamites call it, funnels traffic over four miles from NC 147 to US 70 and onto I-85, to reduce congestion on surface streets.

But environmental laws did not slow-walk the project. In fact, when the highway was first conceived in the early 1960s, there was no EPA. There was no Clean Water Act, no Clean Air Act. There was no NEPA — National Environmental Policy Act. All those laws were passed in the 1970s.

No, the delays occurred because of the usual shortage of highway funding and competing priorities: Durham and the state built NC 147 first, which while swiftly directing traffic around the city, also destroyed the Black neighborhood of Hayti.

By the time the East End Connector finally rose to the top of the priority list in the 2000s, its construction was subject to those federal laws. Since 1970, when President Richard Nixon signed NEPA, it has been a fundamental part of evaluating any major federal infrastructure project: highways, railways, airports, pipelines.

NEPA doesn’t dictate environmental decisions, but the process is designed to ensure that agencies follow a proper procedure, including robust public input, to reach its conclusions. In other words, as NEPA’s guiding principle states, the law is intended to  “… foster and promote the general welfare. Man and nature can exist in productive harmony and fulfill the social, economic and other requirements of present and future generations of Americans.”

But now the Trump administration is proposing to weaken, if not outright strike key aspects of NEPA, with potentially disastrous environmental and social justice effects. The NEPA rollbacks would disempower the public while bestowing more authority to the regulated industries. A public comment period runs through March 10. A public hearing is scheduled for Washington, DC, on Feb. 25. Details on how and where to comment are on the Council for Environmental Quality website.

“I’ve been working with NEPA my whole career,” said Michelle Nowlin, supervising attorney at the Duke University Law and Policy Center. Although the law has been tweaked and amended over time, “it’s never been anything like this,” Nowlin said. “It’s rewriting the entire statute and undermining democratic norms.”

For example, NEPA currently requires a full analysis and assessment of environmental impacts, including cumulative and indirect ones – such as climate change. But the Trump administration would would eliminate considerations for climate change impacts – a very real and existential threat – that accompany natural gas pipelines, fracking operations and offshore drilling. Meanwhile, economic considerations would be mandatory.

The proposal would also prohibit agencies from considering effects that are not “reasonably foreseeable” or that have “scientific uncertainty.” Depending on how those terms are interpreted, that means an agency could choose not to weigh whether a project will worsen sea level rise by 2100, if it deems that time frame is not “reasonably foreseeable.”

At a press conference last week, Trump cited a cumbersome, bureaucratic “dysfunctional” process that creates “endless delays” and “waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers…. And usually, you’re not even able to get the permit. It’s unusual when you get it. It’s big government at its absolute worst, and other countries look at us and they can’t believe it.”

It is true that NEPA is bureaucratic and could use simplifying. But Trump’s contentions that projects aren’t being permitted or completed are contradicted by federal data. According to a 2012 report by the U.S. Department of Transportation, 90 to 99 percent of all NEPA decisions in that sector fell under “categorical exclusions.”

Federal agencies grant categorical exclusions to projects that they determine would have no significant effect on the environment. The use of these exclusions can reduce paperwork and save time and resources because it negates the need for additional steps: an  an Environmental Assessment or a lengthier process, an Environmental Impact Statement.

Environmental Assessments are usually issued for “simpler” projects, such as the East End Connector. For more complex projects, such as the Atlantic Coast Pipeline or MVP Southgate pipeline, the analysis is detailed in lengthier Environmental Impact Statements. The effects of these projects can be dramatic and irreversible, meriting close and comprehensive scrutiny involved in an EIS.

The American Planning Association and the Association of State Floodplain Managers, hardly a radical group, immediately criticized the proposed changes. “Americans need not choose between effective infrastructure development and resiliency,” the groups wrote in a joint statement. ”

That is a false choice. Far from expediting projects, the proposed approach would only add cost, uncertainty and risk. We share the goal of making project reviews timelier and more efficient. This can be achieved while maintaining the ability to make thoughtful, informed decisions that don’t saddle taxpayers with repeated disaster and rebuilding costs and escalating climate impacts.”

Nor is there evidence that road projects aren’t being permitted. According to federal highway data, since 1980 an additional 183,000 miles of public roads have been constructed, an average of 6,500 miles of new roads each year. The miles of rural public roads, according to the Federal Highway Administration, have steadily decreased since 1980, not because these areas are being excluded, but because the roadways have been reclassified as urban due to increases in population.

And NEPA already has wiggle room: The law allows for emergency waivers in the case of natural disasters, such as hurricanes and floods.

Construction delays can occur because of litigation over the quality of agencies’ environmental reviews under NEPA. The Atlantic Coast Pipeline is behind schedule because groups have sued federal agencies, such as the U.S. Forest Service, over the permits; the courts have agreed those permits are insufficient.

The Bonner Bridge in Dare County, which Trump used as Exhibit A to justify the NEPA changes, took decades to begin construction because of litigation over the state transportation department’s environmental analysis. (A settlement agreement was reached in 2015.)

Kym Hunter, senior attorney at the Southern Environmental Law Center, the firm that sued over the Bonner Bridge, said instead of “speeding things up, the changes could cause complete chaos.”

NEPA also requires robust public input. But the proposed new rules would require community groups that are suing over a project to post a financial bond while the issue winds through the courts. The changes would also sharply curtail public involvement and government accountability.

“It cuts the public out of a ton of decision making,” Hunter said. “There is less transparency and disclosure.”

The energy and manufacturing industries, though, support the changes. Not surprisingly, they would receive new power under the rules.

Private companies with a financial interest in the outcome could prepare their own environmental review with minimal government oversight. While those private analyses already occur, the U.S. Army Corps of Engineers has conducted oversight of both the companies’ contractor and the review. That would no longer happen. Duke Energy and Dominion Power could prepare their own Environmental Impact Statements of the Atlantic Coast Pipeline, Nowlin said, “and hide that fact – as well as its financial interests – from the public.”

The Independent Petroleum Association of America (IPAA), which represents independent producers that develop 91 percent of U.S. gas and oil wells, applauded the changes.

“IPAA is pleased that the administration continues to tackle substantial projects, such as their effort to return the NEPA process to the original intent and scope of the law,” IPAA Senior Vice President Dan Naatz said in a press release. “Although IPAA and our members recognize the important role NEPA plays in public land policy, for many years we have seen the law being abused by environmentalists with extreme agendas to delay and halt various multiple-use activities on federal lands, including oil and gas production.”

There are other detrimental proposed changes:

• A private company could use eminent domain to take private land before the final decision is made to authorize the project. This is pertinent in North Carolina because several landowners along the Atlantic Coast Pipeline route successfully petitioned the federal district court to prevent such a taking. Those landowners would be stripped of that right under the new NEPA.
• At present, NEPA acknowledges the delicate interconnection of ecosystems. Destruction or damage, even temporary, in one place can inflict harm far from the original location. Deforestation can destroy wildlife habitats, disrupting migration patterns that start hundreds of miles away. Pipeline construction can harm waterways, not only at the point of work, but farther downstream. Those trickledown effects would no longer be considered.
• No longer would agencies have to weigh the multiple environmental justice effects to one area – often Black and low-income neighborhoods – which are often targeted, even wiped out by road and energy projects.

In Durham, the East End Connector underwent an Environmental Assessment in 2009, and a Finding of No Significant Impact was issued two years later. (Some residents in this predominantly Black neighborhood who had to move because of eminent domain would likely disagree with that finding.) But at least NEPA provided a formal, documented public process for the project.

In contrast, NC 147 was built in the 1960s before NEPA, and its required environmental justice analysis, was enacted. Hayti was flattened. It has never recovered.

“Had NEPA been in place, Hayti might have been preserved,” Nowlin said. “That’s one reason NEPA was adopted. And those are the voices these changes are designed to silence.”