With Trump's NEPA Rollback, It's Conservatives Against Conservatives

by James Goodwin

January 23, 2020

When the Trump administration released its recent proposal to gut the National Environmental Policy Act (NEPA), it trumpeted the action as a long-overdue step to "modernize" the law's implementation by "simplifying" and "clarifying" its procedural and analytical requirements for federal agencies. If these words sound familiar, that's because they're the disingenuous claptrap that opponents of regulatory safeguards repeatedly trot out to camouflage their efforts to rig legislative and rulemaking processes in favor of corporate polluters. Put differently, those terms might as well be conservatives' code words to describe something that will cause more trips to the emergency room for urban children who suffer from asthma, more toxic contaminants in our drinking water, more irreversible degradation of fragile wetlands, and more runaway climate change.

To wit, it was not so not long ago when opponents of regulatory safeguards used these exact words – modernize, simplify, and clarify – to describe another policy measure they supported. That measure – the Regulatory Accountability Act (RAA) – also sought to overhaul a procedural statute, the Administrative Procedure Act (APA). Despite the identical terminology, though, the specific provisions of the Trump NEPA rollback and the Regulatory Accountability Act could not be more diametrically opposed. But, more importantly for regulatory opponents, both measures would produce the same effect: rigging government process to protect polluter profits at the expense of the public's interest in healthy communities and thriving ecosystems.

Like NEPA, the APA is fundamentally about regulating the conduct of federal agencies in the course of carrying out their respective statutory missions. Whereas NEPA seeks to ensure that agencies properly account for the negative environmental impacts of their actions, the APA seeks to ensure that those actions are carried out consistently with such good government principles as transparency, public input, and decision-making based on evidence and reason. As applied in the context of the environment, the two laws tend to push in opposite directions: The "burdens" of the APA's procedural and analytical requirements often favor polluting industries, while those of NEPA's rarely do. As a result, corporate interests, ever on the prowl to reshape public policy to boost their profit margins, pursue divergent approaches to reforming these statutes, even while deploying identical "streamlining" rhetoric.

Length of time. Defenders of Trump's NEPA overhaul frequently point out that the Environmental Impact Statements (EISs) – the most detailed of the analytical requirements mandated by the law that only applies in a small minority of cases – take an average of 4.5 years to complete. Consequently, the administration's NEPA proposal would seek to cap the maximum amount of time to complete EISs at just two years. It would also cap the length of the time to complete the less detailed analyses, called Environmental Assessments (EAs), at just one year.

In contrast, it is not uncommon for controversial rulemakings carried out under the APA's procedural requirements to take anywhere between four and eight years to complete. A study by the Government Accountability Office found that the Occupational Safety and Health Administration (OSHA) took an average of 10 years to issue complex rules. If the RAA were to become law, it would add at least two to three years to this already lengthy process. All that's just fine with corporate interests and their champions in the Trump administration because it means new rules take forever to take effect, after which their implementation is commonly delayed by seemingly endless litigation.

Page limits. The Trump administration complains that EISs average 600 pages in length. Its proposal would require future EISs to come in under 300 pages.

In contrast, despite the APA's requirement that agencies prepare "a concise general statement of their basis and purpose" (emphasis mine) for final rules, such final rule preambles can span hundreds of pages in the Federal Register. This was the case for the Obama-era Clean Power Plan, which clocked in at 281 pages (and at least twice that when presented in a standard word processor format). This doesn't even include the hundreds of additional pages in supporting documents that agencies must prepare for many rules. For example, the Obama-era Clean Water Rule included a 423-page Technical Support Document and an 87-page cost-benefit analysis in addition to the 52-page preamble in the Federal Register. Nevertheless, one version of the Regulatory Accountability Act would have added 74 new procedural and analytical requirements to the APA rulemaking process, translating into hundreds if not thousands more pages worth of analysis that agencies would have to incorporate into their final rule preambles and into separate supporting documents. Regulatory opponents are all for those kinds of telephone-directory page lengths because they slow down the process and advantage companies with big teams of in-house lawyers or K Street law firms on retainer, whereas the comparatively tiny nonprofits fighting for health and safety rules on shoestring budgets are lucky to have even a fraction of such resources available.

Indirect and cumulative effects. One of the most contentious provisions of the Trump administration's attack on NEPA seeks to prevent agencies from considering the "indirect" or "cumulative" environmental effects of their actions – even though NEPA directs agencies to account for "any adverse environmental effects which cannot be avoided" (emphasis mine) that those actions might cause or create. The apparent goal of the Trump provision is to relieve agencies of the responsibility to understand how their actions might contribute to or be affected by climate change.

In contrast, the RAA would amend the APA to require agencies to analyze – you guessed it – the indirect and cumulative effects of all of their rules, no matter how small or routine. They would also have to analyze all of the indirect and cumulative effects of any alternatives they considered. And, they would have to consider the indirect and cumulative effects of their "major guidance" documents, as well. The more they must consider, the slower the process, and the greater the delay in implementation of health and safety standards.

Consideration of alternatives. Speaking of alternatives, Trump's NEPA overhaul seeks to drastically reduce the number of less environmentally harmful alternatives that agencies would have to consider as part of their analysis for their pending actions. Specifically, agencies would only have to consider alternatives that are deemed to be "technically and economically feasible," which undercuts NEPA's goal of bringing the U.S. economy into greater harmony with our environment.

In contrast, the RAA spells out numerous alternatives that agencies would have to consider and analyze, including many that would appear to be beyond their statutory authority. Some of these include "no federal response," "amending or rescinding existing rules," "responses that specify performance objectives rather than conduct or manners of compliance," and any responses "identified by . . . interested persons."

Obsolete provisions. Among the less controversial aspects of the NEPA proposal, depending on how they are interpreted, are the parts that eliminate obsolete provisions in existing NEPA regulations. A quick review of the proposal reveals that those provisions explicitly described as performing this function are fairly routine.

These provisions still stand in stark contrast to one of the most controversial aspects of the RAA, which is its attempt to resurrect and broadly mandate the use of formal rulemaking hearings. These hearings have rarely been used in the 40 years since the Supreme Court effectively declared them to be obsolete, and mainstream administrative law experts have written them off as fundamentally misguided and unworkable. Here again, corporate interests are served by lawyer-laden complexity.

Judicial review. Trump's NEPA overhaul takes a turn toward the bizarre with its provision that purports to insulate agency NEPA compliance from judicial review. Specifically, the proposal seeks to accomplish this goal with a provision that would allow a relevant official to certify that the agency's analyses fully comply with all applicable NEPA requirements. It's thin gruel, legally speaking, but the administration hopes that the conservative judges they're appointing to the bench will make a meal of it.

In contrast, the RAA would invite more intrusive review by non-expert judges into the highly technical and complex policy decisions made by agency experts during the rulemaking process. The RAA would accomplish this by forcing more rulemakings to be conducted through formal hearings. Under the APA, judicial review of these rules are governed by the "substantial evidence" test, which most administrative law experts regard to be more stringent than the "arbitrary and capricious" test that applies to rules made through the much more common informal notice-and-comment process. The substantial evidence test would risk enabling activist anti-safeguard judges to interfere in pending rulemakings and substitute their own policy preferences for those of agency experts.

Yet, in the warped mind of anti-government conservatives, such vastly differing proposals for process reform can still, somehow, add up to "modernization," "simplification," and "clarification." How can this be? It would be easier for the rest of us – and probably for them as well – if they swept away this meaningless verbiage and these empty gestures to civilized political discourse and replaced them all with a more honest term that truly captures the object of their agenda. The term I would propose is "poison." Because if there's one thing that unites the Trump NEPA overhaul and the RAA, it's that both are calculated efforts to poison our policy development process, our democracy, and our health and environment. And that's the word.

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Also from James Goodwin

James Goodwin, J.D., M.P.P., is a Senior Policy Analyst with the Center for Progressive Reform. He joined CPR in May of 2008.

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