Trump Administration’s NEPA Update Immediately Litigated Against

Fourteen days after the Trump Administration finalized (see nearby) modernizing updates to the National Environmental Policy Act (NEPA) – streamlining the permitting and approval process for federally-regulated infrastructure projects like pipelines, highways, renewable energy, broadband deployment, and dams – a coalition of groups have filed two lawsuits challenging the process the Administration took to update the regulation E&E News reported.

A short honeymoon, indeed. However, this should come as little surprise to those loosely aware of the changes the Trump Administration has made to the existing regulatory landscape. Environmentalists continue to turn to the courts to immediately contest.

An interesting aspect of this barrage of lawsuits is the central claim suggesting that the White House Council on Environmental Quality (CEQ) “cut every corner” in the rulemaking according to the complaint filed by 17 environmental groups. The reality is that the CEQ reviewed over a million comments submitted by the public on a rule that was in the public purview for months of assessment and contemplation.

What is so telling about the lawsuits is that these groups continue to take issue with procedure – already a weak contention – instead of the language in the rulemaking.

Commentary in an E&E News piece breaking news of the lawsuit suggests that the administration has disrupted “…one of our nation’s most significant environmental laws — a law that has been in place for over fifty years with regulations that have remained unchanged for decades — the government’s responsibility to follow procedure is at its highest,” yet the precise issue at hand was that NEPA had not been updated in five decades and had since become a burden to so many.

The White House CEQ studied infrastructure projects reviewed by NEPA over a decade in the 21st century. What the CEQ found was blatant evidence that the review process was flawed, costly, and often detrimental to the success of projects. Key findings include:

  • The average length of final EISs was 661 pages and the median document length was 447 pages (Figure 3). 7 One quarter of the final EISs were 286 pages or shorter (i.e., the 25th percentile) and one quarter were 748 pages or longer (i.e., the 75th percentile).
  • According to the most recent data,6 the average (i.e., mean) time to complete an EIS, from notice of intent (NOI) to record of decision (ROD), was 4.5 years and the median was 3.5 years (Figure 1). One quarter of the EISs took less than 2.2 years, and one quarter took more than 6 years.

Proposed rules put forth by the Administration would set presumptive time and page limits for most projects, with exceptions for projects of certain sizes and scope that may require further review.

NEPA’s growing inefficiencies as a regulation since being signed into law in 1970 by President Nixon has hurt American infrastructure. These extensive review timelines too often introduce uncertainty to projects that then disrupt planning and hiring, ultimately driving up costs and even cancelling projects (including government projects, supported by taxpayer dollars).

The NEPA update has garnered praise from both sides of the aisle, but it is typical of environmentalists to again turn to the courts to litigate any and every regulatory change the Administration makes. Similar to the downfalls of NEPA, environmentalists would love to draw out long legal battles to keep the rule from being implemented for as long as possible.