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Efficient or Cutting Corners: Trump administration challenges significant environmental law

Efficient or Cutting Corners: Trump administration challenges significant environmental law
January 20, 2020 Gary Wilson
Photo by whitehouse.gov cc 1.0

The Trump administration on Jan. 9 proposed changes to federal environmental law that would “modernize” how big infrastructure projects like pipelines are reviewed for environmental impact.

The administration said the National Environmental Protection Act – NEPA – has become increasingly complex and time consuming over the years to the point where an environmental impact statement can be 600 pages and take over four years for a major project.

Photo by whitehouse.gov

Mary Neumayr, Chair White House Council on Environmental Quality, Photo by whitehouse.gov

“Council on Environmental Quality is proposing practical changes to modernize environmental reviews and make the process more predictable and efficient,” said CEQ Chair Mary Neumayr in a press release announcing the initiative.

“Americans deserve a government that is efficient, effective, and responsive,” said Neumayr.

There has not been a comprehensive update to NEPA in over 40 years, according to the CEQ, the White House office responsible for NEPA.

NEPA was signed into law in 1970 by President Nixon and has been supported by Republican and Democratic administrations since.

Calling the NEPA overhaul “another promise kept by President Trump,” acting Office of Management and Budget Director Russ Vought said in the release that “over the past 40 years, NEPA has been used as a tool to slow or completely kill important infrastructure projects across the country.”

“No American city should be waiting over 30 years for a better highway because NEPA has their infrastructure project held up in unnecessary paperwork,” Vought said, without citing a specific project that took that long.

U.S. Environmental Protection Agency Administrator Andrew Wheeler repeated familiar agency themes regarding NEPA’s update.

“The proposed update to NEPA would further EPA’s progress to provide regulatory certainty and efficiency for states, tribes, and the private sector while protecting human health and the environment,” Wheeler said.

Magna Carta of environmental law

But a prominent national environmental group said the modernization of NEPA by the Trump administration is an attempt “to cripple it.”

Enacting the new NEPA rules would “strike at the heart of the public’s right to know what our government is doing or failing to do on our behalf and to speak to the lasting impact those actions might have,” the Natural Resources Defense Council’s Sharon Buccino wrote in a New York Times column.

Photo by nrdc.org

Sharon Buccino, Senior Director, Natural Resources Defense Council, Photo by nrdc.org

NEPA is often referred to as the Magna Carta of environmental law, according to Buccino. The Magna Carta is the landmark centuries-old law that declared everyone is subject to the law and is generally seen as the model for the U.S. constitution.

In addition to guiding environmental law in the U.S., NEPA has served as the model for 160 countries, Buccino wrote.

A provision of the proposed changes to NEPA is a revision stating analysis of cumulative effects of a project would not be required.

“That’s a handout to the fossil fuel industry which doesn’t want long-term climate impacts to be considered in (NEPA) decisions,” said Buccino.

NRDC’s Chicago office echoed Buccino’s climate impact concerns.

“Projects that move forward without these (climate) considerations are akin to flushing money down the drain,” said NRDC National Media Director Josh Mogerman.

“Erratic fluctuations of Great Lakes water levels and inundation of Midwestern rivers are already wreaking havoc and are likely to get worse,” Mogerman added.

New NRDC CEO Gina McCarthy was characteristically direct.

“We live in a democracy not a dictatorship,” McCarthy said.

“While our world is burning, President Trump is adding fuel to the fire by taking away our right to be informed and to protect ourselves from irreparable harm.”

McCarthy was U.S. EPA Administrator in the Obama administration from 2013 to 2017.

Great Lakes impact

Changes to the NEPA law may have a direct impact on infrastructure projects in Michigan and the Great Lakes region with the Enbridge Line 5 Straits of Mackinac pipeline project being the most imminent example.

Michigan and Enbridge have agreed to replace the existing Line 5 with a pipeline in a tunnel, and Enbridge has started preliminary work. Permits for that work were granted by the Army Corps of Engineers Detroit office, according to Katie Otanez, the Army Corps of Engineers regulatory permit manager for Enbridge’s work.

“A tunnel constructed underneath the Straits of Mackinac would require a Corps permit,” Otanez said.

The determination of whether an environmental impact statement under NEPA is required also comes under the Corps’ responsibility, according to Otanez, who said there are various paths to a decision the Corps may take.

“An environmental assessment could potentially complete the permit review process if we find that the project would not significantly impact the quality of the human environment and would not be contrary to the public interest,” Otanez said.

That, plus making sure all legal requirements are met mean an environmental impact statement under NEPA would not be required, according to Otanez.

The Corps has not yet received a permit application from Enbridge for the tunnel project, Otanez said.

“We will need a number of environmental permits,” said Enbridge spokesperson Ryan Duffy, who did not comment on the necessity of an environmental impact statement under NEPA. “We will likely be applying for some of those in the first half of this year.”

The U.S. EPA’s Great Lakes office in Chicago declined to comment on proposed changes to NEPA and referred Great Lakes Now to the White House Council on Environmental Quality which oversees NEPA.

The CEQ did not respond to requests to comment on specific impacts of the NEPA update on the Great Lakes region.

The federal Great Lakes Restoration Initiative administered by the Chicago EPA office is exempt from NEPA based on provisions under the Clean Water Act, according to EPA spokesperson Allison Lippert.

New Soo Lock, Brandon Road and dams

The new Soo Lock to handle the Great Lakes’ largest freighters was authorized by Congress last year and initial funding has been provided.

The lock does not require an environmental impact statement under NEPA, according to Army Corps documents. The new lock is covered by a previous EIS completed in 1985 and updated in 2000.

The Brandon Road Lock and Dam project designed to stop Asian carp required an EIS and it was completed last year, according to Army Corps spokesperson Allen Marshall.

Michigan has 2,500 dams and the state has authority over removal permits with a few exceptions, according to Department of Environment, Great Lakes and Energy spokesperson Scott Dean.

Generally, federal permits are not required except when the dam is the lowest downstream barrier, according to Dean. Additionally, when a dam removal crosses certain thresholds for environmental impacts, the state must consult with federal agencies and cannot proceed if their objections are not resolved, Dean said.

Featured Image: President Trump signs an Executive Order, Photo by whitehouse.gov cc 1.0 

The White House Council on Environmental Quality is accepting public comments on the proposed changes to NEPA until March 10th. Public hearings will be scheduled in Denver and Washington, D.C. Details are here: www. whitehouse.gov

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