Trump Set to Narrow Environmental Law That Helped Thwart Keystone XL Pipeline

Photo Credit: CHINE NOUVELLE/SIPA/Shutterstock
January 9, 2020

The law that became a key roadblock to the controversial Keystone XL pipeline extension may be getting an overhaul, to the benefit of the oil and gas industry.

President Donald Trump on Thursday morning is expected to announce a rollback of the National Environmental Policy Act, or NEPA, a 50-year-old law that has required major infrastructure projects like pipelines, highways, dams, and bridges to submit to federal environmental review.

The anticipated changes are expected to effectively allow federal agencies to ignore whether a proposed project will affect climate change – a move cheered not only by fossil fuel groups but also a major renewable energy trade association, both of which have long decried increasingly glacial environmental review processes under NEPA.

However, the expected changes have been roundly denounced by green advocates, and the shifts are almost certain to face legal challenges.

"We will use every tool in our toolbox to stop this dangerous move and safeguard our children's future," former Environmental Protection Agency Administrator Gina McCarthy, who recently became president and CEO of the Natural Resources Defense Council, said in a statement.

NEPA has become a bedrock part of federal environmental regulation since it was signed in January 1970 by President Richard Nixon. While the law's text does not explicitly require federal agencies to examine potential climate impacts, federal courts in recent years have concluded that a project's cumulative contribution to climate change is among the environmental concerns that regulators must consider, alongside impacts on endangered species, water pollution, and other factors.

Such climate considerations played a central role in the Obama administration's decision to reject a permit application for the Keystone XL pipeline extension. While the 1,179-mile pipeline itself would have little impact on climate change – and, in fact, would emit far less pollution than shipping oil by truck or train – regulators concluded that the roughly $8 billion project, by offering a cheaper method to transport oil, would likely enable a particularly carbon-intensive type of oil and gas extraction that would otherwise be too costly to pursue.

More recently, a federal judge in March temporarily blocked new oil and gas drilling on federal lands in Wyoming after concluding that the Interior Department, which oversees energy development on federal land, failed to adequately consider the climate impacts of the projects.

Trump has sharply criticized such decisions and vowed to narrow NEPA's scope. In a statement marking the 50th anniversary of the law's signing Jan. 1, the president described how "project sponsors and ordinary Americans seeking decisions on permits from the Federal Government can face significant uncertainty and delays that can increase costs, derail important projects, and threaten jobs for American workers and labor union members."

The president has found strong support from the fossil fuel industry as well as the Chamber of Commerce. The two groups have long expressed intense frustration with what's become a years-long review process as courts have expanded NEPA's scope.

While "NEPA provides important safeguards to ensure major federal actions and approvals carefully consider environmental impacts," the Chamber of Commerce's Global Energy Institute wrote in an August letter, "it often imposes unnecessary burden and delay, particularly when NEPA analyses are allowed to grow overly expansive and consider information that is not particularly related or consequential to the federal action at hand."

The American Petroleum Institute, in a June statement, contended that NEPA "increasingly has been misused to delay and prevent development, which negatively affects jobs, tax revenue and investments in communities across the country."

Such groups, however, which have regularly opposed tougher environmental regulations, are not the only organizations that applauded a NEPA overhaul. The American Wind Energy Association also voiced its support, pointing out that the law has not been updated in about 40 years.

"Infrastructure projects, including land-based and offshore wind energy and transmission development, have encountered unreasonable and unnecessary costs and long project delays," Amy Farrell, AWEA's senior vice president of government and public affairs, said in a statement. "It is time to update and modernize the permitting process, which would both strengthen our economy and enhance environmental stewardship."

Environmental groups, however, have sounded the alarm about the changes. The Center for Biological Diversity accused the Trump administration of gutting a foundational environmental law.

"It's shameful that the Trump administration is ripping apart America's cornerstone environmental law on its 50th anniversary," Brett Hartl, the center's government affairs director, said in a statement. "Trump's gift to the fossil fuel industry and special interests will silence ordinary Americans while giving polluters a free pass to trash the environment, destroy public lands and kill wildlife."

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