From Law to Loopholes: The President’s Latest Attempt to Deregulate Oil and Gas Industries (Among Others)

By Kati Massey, Senior Editor

The National Environmental Policy Act (“NEPA”)—which recently celebrated its 50th birthday—is facing a substantial overhaul (or gutting, whichever you prefer). The Trump administration released a proposal to amend the law that serves as a buffer to government-sponsored projects and proposals.[1] Currently, NEPA requires an environmental analysis for certain projects the government proposes (e.g., leasing public land for oil and gas drilling), and requires the agency to conduct a more in-depth analysis if the initial overview finds that the project will have a significant environmental impact.[2] The Nixon administration enacted NEPA to ensure that federal agencies overseeing the projects, as well as the public who could be affected by such projects, are able to adequately weigh-in on the proposal before the final plan is established.[3] After all, it is difficult to plan for or mitigate problems you have no idea exist.

When there is a major federal action, NEPA requires federal agencies to conduct analyses to determine the impacts such actions will have on the environment.[4] Major federal actions include, but are not limited to,  proposals for legislation, permits, leases, funding, etc.[5] When such an action is proposed, the presiding federal agency (e.g., Bureau of Land Management or U.S. Forest Service) conducts an Environmental Assessment (“EA”).[6] This assessment is a concise public document that determines whether a more thorough, potentially years-long analysis, an Environmental Impact Statement (“EIS”), is required.[7] If the EA determines that the proposed permit or project will result in a significant impact on the environment, an EIS is triggered to better determine the extent to which the project or proposal will alter the environment.[8]

An EIS is a lengthier analysis because establishing the ways in which an area will be impacted before initiating the project is fact-intensive but altogether essential for proper planning. For example, the current NEPA provisions require such details as statements of purpose and need for the action, a full description and analysis of the proposed action and reasonable alternative actions, a description of the affected environment, etc.[9] It is necessary for the federal agency to understand the impacts of the proposal in order to relay that information to the public during the required comment and response period.[10]

Because of the in-depth analysis undertaken and the substantial resources required to perform the analysis, NEPA also lists categorical exclusions for certain actions previously determined by rule to have a significant impact on the environment.[11] Therefore, when the federal government proposes or funds those categories of actions, a full EIS is unnecessary.

If a proposed action does not fall under a listed categorical exclusion and the EA finds it has a significant impact on the environment, a full EIS is required. As you might imagine, an oil company (or any corporation that wants to build or develop land largely unhindered) does not want to wait the recommended time for a thorough EIS to take place. If a full analysis is conducted, the odds of determining a truly harmful impact on the environment goes up, ultimately requiring alternative plans to mitigate that damage. A case this past year, in particular, shot down a corporation’s attempt to avoid the EIS by altering the information analyzed during the EA.  In WildEarth v. Zinke, the EA did not take into account greenhouse gas emissions as a contributor to climate change and a federal judge stayed the projects until the overseeing federal agency conducted a proper analysis that incorporated the project’s contribution to climate change.[12] 

WildEarth made it clear that oil and gas companies were not going to be able to omit greenhouse gas analyses and climate change discussions to avoid an EIS.  So, it appears these companies, and the Trump administration, found a workaround: just overhaul the Act holding them up. There are now proposed changes to NEPA that directly address many of the hang-ups the corporation in WildEarth experienced. For example, the proposal focuses on creating new categorical exclusions, decreasing the timeframe for environmental reviews, and the discontinuation of cumulative-effect analyses.[13] The proposed changes will also let “project applicants prepare their own impact statements under the supervision of an agency.”[14] If that does not scream conflict of interest, I am not sure what does.

Although the proposed changes are still in the 60-day comment period, there has already been executive guidance to federal agencies to disregard climate change analyses when completing an EIS.[15] I guess if you do not like the language of an act because it limits your ability to contribute to climate change unchecked, you amend that language so no one knows the exact level or effects of your contribution.

Because the proposal is still in the comment period with two open hearings before the final regulation is delivered, it is difficult to predict the impact the new rule will have on the environment and climate change efforts. Once finalized, however, any changes need to be thoroughly analyzed and acknowledged for what they are: Trump’s last attempt to keep his promise to deregulate the oil and gas industries.

Footnotes

[1] Lisa Friedman, Trump Rule Would Exclude Climate Change in Infrastructure Planning, N.Y. Times (January 6, 2020), https://www.nytimes.com/2020/01/03/climate/trump-nepa-climate-change.html?auth=login-email&login=email.

[2] James Rasband, et al., Nat. Res. L. & Pol’y (3d ed. 2016).

[3] Kelsey Brugger, NEPA climate overhaul could unleash energy projects, Envtl. & Energy Publ. (January 6, 2020), https://www.eenews.net/stories/1062004541.

[4] James Rasband, et al., Nat. Res. L. & Pol’y (3d ed. 2016).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Sharon Zhang, How Trump Plans to Gut NEPA, A 50-Year-Old Environmental Law, Pacific Standard (January 6, 2020), https://psmag.com/environment/how-trump-plans-to-gut-nepa-environment.

[11] James Rasband, et al., Nat. Res. L. & Pol’y (3d ed. 2016).

[12] Juliet Eilperin, Federal judge demands Trump administration reveal how its drilling plans will fuel climate change, Washington Post (January 6, 2020), https://www.washingtonpost.com/climate-environment/2019/03/20/federal-judge-casts-doubt-trumps-drilling-plans-across-us-because-they-ignore-climate-change/.

[13] Laura Bies, The U.S. Forest Service to update its NEPA Rules, The Wildlife Society (January 5, 2020), https://wildlife.org/the-u-s-forest-service-to-update-its-nepa-rules/.

[14] Steven Lee, White House Memo Shows Plans to Speed Environmental Permitting, Bloomberg Env’t (January 5, 2020), https://news.bloombergenvironment.com/environment-and-energy/white-house-memo-shows-plans-to-speed-environmental-permitting.

[15] Id.