The Trump administration continued to erode the country’s environmental protections last week, releasing a decree that could lead to the approval of large infrastructure projects without giving too much consideration to their impacts.
In the order, President Trump wrote that the current historic levels of unemployment and economic downturn are an emergency. Due to this emergency, the Administration maintains that it is necessary to accelerate development in order to revive the economy. “Agencies, including executive departments, should take all appropriate measures to use their legitimate emergency authorities and other authorities to respond to the national emergency and facilitate the nation’s economic recovery,” the ordinance said. . The action is one of many steps the administration has taken to roll back environmental protections as the public grapples with the spread of the novel coronavirus.
The ordinance asks federal agencies to bypass the usual environmental review process established by the National Environmental Policy Act (NEPA) of 1970, in which officials must determine whether a project could have environmental impacts. If so, they are required to prepare a lengthy report on the ways in which the development could harm the environment and describe possible alternatives to the project. Importantly, before their approval, the public is allowed to review and comment on these environmental impact statements. “This is the epitome of the ‘look before you leap’ law in environmental policy,” said Cara Horowitz, professor of environmental law at the University of California, Los Angeles. “We need federal agencies , before taking any measures that could significantly affect the environment, understand what those effects will be and publish those effects so that the public can understand them. “
As part of these reviews, officials examine how a project will affect many issues, including air quality, endangered plants and animals, toxic materials, wetlands, and cultural and historical resources. This new decree effectively asks agencies to ignore the provisions of laws such as the Endangered Species Act, the Air Quality Act and the Water Quality Act. The order is also intended to bypass endangered species consultations between the agencies and the Fish and Wildlife Service. Agencies are now required to produce a list of projects to be accelerated within 30 days of the order’s publication on June 4. The Environmental Quality Board would then approve the projects without requiring the usual environmental reviews.
Possible examples of projects that could end up in this fast-track queue include timber sales, roads, and oil and gas development. Chris Field, an Earth scientist at Stanford University, says the findings of an environmental review were part of the reason the Obama administration decided not to proceed with the Keystone XL pipeline. “I believe NEPA is a real gem in the country’s environmental legislation, and it’s something that needs to be preserved and celebrated,” he said. “And [the executive order] has the potential to lead to projects that not only don’t work as expected, but that we will miss for decades into the future. Field says all kinds of impacts can occur if there isn’t a thorough review of large projects, such as loss of endangered species, chemical contamination of soil and water, damage to areas wetlands and Indigenous peoples’ loss of access to their historic lands.
Stopping environmental reviews can also silence the public. Normally, people can not only comment on environmental reports, but they can advocate for projects if they feel that the review has not adequately addressed potential environmental impacts. “This will undoubtedly reduce opportunities for community participation,” says Mark Lubell, environmental policy scientist at the University of California, Davis. “This will be especially true for disadvantaged communities such as Native American communities.”
NEPA is a tool that Indigenous peoples and communities of color can use to protect their neighborhoods from environmental damage, Horowitz adds. “And this tool is taken out of the toolbox by decree.”
In the case of the Dakota Access Pipeline, the Standing Rock Sioux tribe and environmental groups won in March, when a federal judge demanded that a more extensive environmental review be prepared for the project. In court proceedings, lawyers for the tribe had argued that a previous assessment failed to consider how the pipeline could contaminate drinking water. It’s not entirely clear what the recent executive decision might mean for the pipeline, but Lubell says officials may still be able to include it on their list of projects to be excluded for environmental considerations.
Horowitz says environmental attorneys can try to push back the order if they find cases of the overrun. Decrees cannot grant new powers to agencies, they can only direct them within existing regulatory limits. Lawyers might be able to argue that the declaration of emergency promulgated by the decree does not actually constitute an emergency as defined by environmental regulations. Under normal NEPA guidelines, it is possible to speed up a project if there is a clear threat to human life that needs to be addressed, which may include forest fires, floods or landslides. . But the so-called economic emergency does not really fit this definition. “Much of what the Trump administration is trying to do administratively is really not in accordance with the way the legislation is drafted,” Lubell said, adding that many proposed cuts have been rejected in the courts. because of this.
If the decree is indeed ineffective in its intention to flout environmental review, there is hope for the country’s first major environmental law. As Field notes, “NEPA is a very important cornerstone in the country’s environmental laws, and getting rid of it doesn’t make life easier, it makes life worse.”