President Donald Trump plans this week to overhaul a federal law that poor and minority communities around the country have used for generations to delay or stop projects that threaten to pollute their neighborhoods – a law he says needlessly blocks good jobs, industry and public works.
The president’s plan to streamline the National Environmental Policy Act (NEPA), a bedrock environmental law signed with much fanfare by President Richard Nixon in 1970, would make it easier to build highways, pipelines, chemical plants and other projects that pose environmental risks.
If the final version mirrors a proposal from January, it would force agencies to complete even the most exhaustive environmental reviews within two years and restrict the extent to which they could consider a project’s full impact on the climate.
Trump is scheduled to announce the changes on Wednesday in Atlanta, as part of his effort to revive the economy amid the coronavirus pandemic.
But the proposed changes also threaten to rob the public, in particular marginalized communities most affected by such projects, of their ability to impact decisions that could affect their health, according to many activists.
“This is the epitome of environmental racism,” said Angelo Logan, the 53-year-old campaign director for the Los Angeles-based Moving Forward Network, who grew up surrounded by highways, rail yards and industrial plants in nearby Commerce. “The working class, communities of color, will have to suffer the brunt so corporations can make money hand over fist.”
African Americans are 75% more likely than non-Hispanic whites to live in communities next to pollution sources – increasing their risks of diabetes, asthma, hypertension and other ailments, studies show.
Nixon signed NEPA on Jan. 1, 1970, saying it was fitting that the policy marked his first official act of a new decade.
“The 1970s absolutely must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment. It is literally now or never,” Nixon said that day.
Weeks later he devoted a significant portion of his State of the Union address to sweeping efforts to protect the environment, from conserving land to tackling pollution belching from the nation’s cars and trucks.
“We can no longer afford to consider air and water common property, free to be abused by anyone without regard to the consequences,” he said. “Instead, we should begin now to treat them as scarce resources, which we are no more free to contaminate than we are free to throw garbage into our neighbor’s yard. This requires comprehensive new regulations.”
Among the regulations was NEPA, which requires the federal government to not only consider the ways in which a major project might affect the environment but to seek public input before issuing any permits.
Environmental advocates and community activists have consistently used that ability to weigh in, coupled with the extensive analysis required by the law, to challenge projects around the country and sometimes stop or delay them for years, driving up costs.
The White House declined to release details about the final revisions in advance of Wednesday’s event, but spokesman Judd Deere said in an email, “The President will continue to take action to facilitate the great American comeback and to improve the quality of life all Americans.”
A slew of industries, along with some building trades unions, have lobbied to speed up the federal permitting, which they argue has become unnecessarily burdensome. Though it still provides for public comment, Trump’s revisions will restrict how agencies can apply the law with the goal of accelerating approvals.
“We want to make sure we get things right. But it shouldn’t have to take seven years to get a yes or no on a highway project,” said Marty Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute. “We do have a process that’s broken, and we need to bring some more reason to the process.”
But activists say NEPA has been instrumental in allowing communities to have some control over what gets built in their backyard.
For 15 years, Logan’s group and others have been fighting a plan to expand Interstate 710, a major north-south freeway designed in the 1950s that connects Long Beach to central Los Angeles. Population and job growth, combined with increased volume at the ports of Long Beach and Los Angeles, have clogged the highway and led state and local officials to try to add lanes in both directions.
An initial proposal would have added six additional lanes to the southern part of the freeway, destroying 660 homes, encroaching on the Los Angeles River and dramatically increasing truck traffic alongside neighborhoods that are majority African American and Latino communities that already have elevated levels of soot in the air.
The highway plan now on the table in Southern California calls for no more than two additional lanes but also includes bike trails and dedicated green space, and it identifies improving air quality and public health as among the multibillion-dollar project’s goals. Activists devised and submitted their alternative plan during comment periods allowed under the law, hiring technical consultants to analyze the government’s 8,000-page draft proposal.
“There was a shift in focus,” Logan said. “Without community engagement and involvement, it would just be a 14-lane freeway right now.”
In Kansas, activists are using the federal law to try to influence the Flint Hill Expansion Project, which will add a major railway track, seven rail bridges, shift the paths of the local streams and tear up native tallgrass prairie. Beto Lugo Martinez, a community organizer and co-director of CleanAirNow, said he and others fear the ensuing pollution from increased rail traffic and habitat loss could hurt residents in neighboring Belle Plaine.
One of the biggest changes the administration is proposing is eliminating the law’s requirement to examine a project’s cumulative impact, when taken in the context of other sources of pollution in the area.
The revisions would also require that the most complex analyses be completed within two years. And the initial proposal would limit consideration of climate change, saying that the “effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain.”
Under that reasoning, experts have said, officials weighing a proposed coal mine or oil drilling operation would not have to consider whether burning those fossil fuels will contribute to climate change.
These revisions would make it easier for developers to get a definitive answer on whether a project will receive federal approval, and could narrow the basis for legal challenges.
In the past few months alone, NEPA-related lawsuits have temporarily halted the Keystone XL and Dakota Access pipeline, and helped prompt the sponsors of the Atlantic Coast pipeline to abandon their plans altogether. Groups have also used it to suspend a massive timber sale in Alaska’s Tongass National Forest and to challenge the construction of a new airport terminal at California’s San Bernardino Airport.
The Trump administration has insisted that it plans to maintain the core objectives of NEPA, while eliminating endless delays on worthwhile projects.
“The consequences of the government being stuck in place are far-ranging,” Interior Secretary David Bernhardt told reporters earlier this year, citing the lengthy process to approve new schools on Native American reservations, upgrade visitor centers at national parks and approve requests from ranchers to graze on public lands. “The list goes on and on and on. The reality is that the needless red tape has, over time, lowered the expectations of American exceptionalism and excellence. And that is backwards.”
Ann Navaro, a partner at the law firm Bracewell who spent more than 25 years as a top litigator and policy adviser and the Interior and Justice Departments and U.S. Army Corps of Engineers, said in an interview that the law was intended to help policymakers make informed decisions but that it has become unwieldy.
“There was no intention for NEPA to require endless reams of paperwork and a kitchen sink approach to environmental reviews,” she said, adding that reports can sometimes now run to 500 or even 1,000 pages. “It’s paralyzing, and it’s not useful to the decision-maker.”
Based on her review of the proposed revisions, she added, it’s not accurate to say communities won’t be able to weigh in on future projects. “The public is going to have the same kind of opportunities that they do now to be involved in the process and provide comments,” she said.
Examples of projects tied up by the law abound. Durbin pointed to projects like the $2 billion Purple Line light rail between Montgomery and Prince George’s counties in Maryland, which has been hobbled by litigation and other issues. It took five years to complete the environmental impact analysis required by NEPA, and then opponents convinced a judge to suspend the project for 10 months on the grounds that the government’s cost-benefit analysis overstated ridership for the 16-mile stretch.
Now the private firm building the Purple Line along with the state of Maryland has suspended work, citing construction delays and cost overruns. The project is projected to take 17,000 vehicles off local roads when fully operational.
Durbin defended the project as a way for transit-dependent riders to travel in a way that emits less carbon, rather than having to take a trip “that takes three buses and several hours.”
Environmentalists are planning to challenge Trump’s NEPA revisions in court once they are finalized.
Kristen Boyles, a staff attorney with the nonprofit law firm Earthjustice, said in an interview that the revisions could be vulnerable in court because the administration is seeking profound changes to a law without congressional action.
“It’s such an extensive rewrite, you’re fundamentally changing the way the whole environmental review process works,” she said. “It’s that sort of reach that makes it amenable to a court challenge.”