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Environment & Energy Report

Legal Scholars, White House Spar Over Environmental Permitting Bid

Jan. 16, 2020, 10:01 AM

The Trump administration’s plan to change the way environmental permits are issued for major infrastructure projects includes lesser-known provisions that would short-circuit environmental protections, some law scholars and public interest advocates say.

The proposal from the White House Council on Environmental Quality, released last week, garnered attention for deemphasizing the way climate change would be considered in speeding environmental permitting for big projects like roads, bridges, and pipelines under the National Environmental Policy Act.

But a deeper look at the proposed NEPA rewrite finds that another critical change would let companies take a greater role in contributing information for the preparation of environmental analyses, subject to the federal government’s supervision, said Christy Goldfuss, who headed CEQ under President Barack Obama.

“That puts the company in the driver’s seat in choosing what will be reviewed and what type of information they will provide,” said Goldfuss, now senior vice president of energy and environment policy at the Center for American Progress.

“We will be in uncharted territory in terms of conflicts of interest,” Stephen Schima, senior legislative counsel at Earthjustice. “It’s the fox guarding the hen house to be sure.”

White House Responds

A CEQ spokesman said agencies will still independently evaluate environmental impact statements and assessments. Moreover, the lead agency must provide guidance, take part in the preparation of the documents, and take responsibility for their content, the spokesman said.

“You want specialized expertise conducting the environmental assessments. Using contractors is one way to ease regulatory bottlenecks and expedite permits without compromising environmental quality,” Nicolas Loris, an economist who analyzes energy, environmental and regulatory issues at the Heritage Foundation, said.

Companies will still have a strong incentive to do thorough analyses to avoid litigation or fines for environmental damages that may result, Loris said.

Moreover, any findings submitted by a company can be challenged by outside experts during the process, said Myron Ebell, who helped guide the presidential transition at EPA after the election of President Donald Trump, and now directs an energy center at the free-market Competitive Enterprise Institute.

Schima said there are no examples of a company doing its own EIS because it’s prohibited under the current regulations.

Financial Conflicts of Interest

Goldfuss said another part of the proposal that hasn’t been widely discussed is a provision that removes language in the current rules requiring any contractors hired to prepare an environmental impact statement to disclose any financial conflicts of interest.

That change leaves the public “totally in the dark as to the motivation and the financial self-interest of the company,” Goldfuss said.

Michael Gerrard, a professor of environmental, climate change and energy law at Columbia University, said the proposal also creates several potential loopholes for projects to slip through so that they don’t require National Environmental Policy Act analysis.

One example is a change in the rules on the amount of federal funding a project must receive in order to be subject to NEPA, said Caitlin McCoy, the climate, clean air, and energy fellow at Harvard Law School’s Environmental and Energy Law Program.

Under the old rules, projects that are at least partially funded by the federal government can be subject to an environmental impact analysis under the environmental law. The new proposal states that a private project is exempt if it receives “minimal federal funding,” and the proposed rule change doesn’t define what that amount is.

Defining ‘Significant’

The CEQ spokesman said the current definition of which projects count as “significant,” and thus subject to NEPA, is “long, complex and difficult to implement consistently across agencies.”

The proposed rule would require agencies to consider the affected environment and the degree of the potential effects when evaluating how significant a project is, the spokesman said. Agencies also would have to request input from the public early in the process.

The new definition will bring clarity to the definition of what counts under NEPA “so agencies are not drawn into a black hole of perpetual analysis, which has been the main source of stalled or canceled projects,” Mandy Gunasekara, a former EPA official in the Trump administration, said.

Gunasekara is now founder and president of the Energy 45 Fund, a nonprofit group that defends and promotes President Donald Trump’s energy policies.

Climate Change Impacts

The CEQ spokesman said the administration’s proposal doesn’t cut out consideration of greenhouse gas emissions.

“Rather, it codifies Supreme Court case law to define effects as those that are reasonably foreseeable, and have a reasonably close causal relationship to the proposed action,” the spokesman said.

But Harvard Law’s McCoy said the proposal also lets agencies “effectively eliminate” any consideration of climate change by stating that environmental effects shouldn’t be considered if they are “remote in time, geographically remote, or the product of a lengthy causal chain.”

“That’s code, to me, for climate change,” McCoy said.

The proposal’s language stating that a project’s cumulative environmental impacts don’t have to be considered also severs climate change from NEPA analysis, Goldfuss said.

“By its very nature, climate is a cumulative effect,” Goldfuss said. “The whole reason we have NEPA, the Clean Water Act, and the Clean Air Act was about cumulative exposure to toxic pollution.”

Chad Whiteman, vice president of environment and regulatory affairs at the U.S. Chamber of Commerce’s Global Energy Institute, said NEPA is a procedural statute and “was never designed to be a mechanism for solving environmental problems.”

A streamlined NEPA process would also help renewable energy companies get their wind farms and solar arrays built faster, which would help reduce carbon emissions, Whiteman said.

The public has until March 10 to submit comments on the proposal.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com

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