NEPA Reforms and Their Impact on Shale

The Shale Controversy – Understanding Both Sides
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NEPA Reforms and Their Impact on Shale

Environmental activists who have been critical of President Trump’s proposed regulatory reforms have engaged in abusive litigation practices that delay vital infrastructure projects making it necessary to revisit the federal rulemaking process, according to congressional figures and energy policy analysts.

In January, Trump detailed his proposed overhaul of the 50-year-old National Environmental Policy Act (NEPA), which has not been amended since 1986. The “endless delays” now associated with the environmental review process “waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers,” the President said during a press conference at the White House. He was joined by cabinet and industry leaders during the announcement.

“America is a nation of builders,” Trump continued. “It took four years to build the Golden Gate Bridge, five years to build the Hoover Dam, and less than one year—can you believe that?—to build the Empire State Building. Yet today, it can take more than 10 years just to get a permit to build a simple road—just a very simple road. And usually, you’re not even able to get the permit. It’s unusual when you get it. It’s big government at its absolute worst, and other countries look at us, and they can’t believe it.”

NEPA stipulates that federal agencies must consider the environmental impact of any federal actions that could significantly impact the quality of the environment. The law also says that federal agencies must consider potential alternatives to proposed actions. Current regulations call for federal agencies to produce documents called environmental impact statements (EISs) in anticipation of any significant federal actions and to prepare environmental assessments (EAs) to determine if the environmental statement is necessary or to explain why it is not.

The Trump administration’s reform package would set a time limit of two years for the completion of environmental impact statements and one year for the completion of environmental assessments. The proposed NEPA reforms would also specify page limits for NEPA reports and require “joint schedules” to be established across multiple agencies so workers and companies could have greater certainty in their planning. As part of its proposed NEPA overhaul, the Trump administration also seeks to “simplify” what is meant by environmental “effects” and to “clarify that effects must be reasonably foreseeable and have a reasonably close relationship to the proposed action” while also declaring an “analysis of cumulative effects” would no longer be required.

Green activists who view NEPA as a safeguard against the potential long-term effects of climate change have been particularly critical of the administration’s efforts to redefine was is meant by environmental effects and its efforts to limit the scope of what is included in NEPA reviews.

Prominent opponents of Trump’s regulatory rollback include the Center for Biological Diversity, a green legal advocacy group, based in Tucson, Arizona.

Brett Hartl, the Government Affairs Director for the Center for Biological Diversity, argues that litigation is needed under NEPA to keep the government accountable and to protect the public interest.

“Regarding NEPA, one of the two foundational goals of NEPA is to give every citizen a voice in how the federal government acts on its behalf,” he said in an email. “And most of the thousands of NEPA processes (environmental assessments and environmental impact statements) are completed on time. Litigation—which is brought by all sides of an issue, industry and NGO alike—is the process to hold the government accountable to follow the law.”

Hartl added:

“So, there are two ways of reducing litigation, follow the law or try to change the rules so the government doesn’t have to follow the rules. That latter tactic is what the Trump regulations attempt to do — make NEPA so boilerplate and meaningless that there are no checks upon the power of the federal government. Whether or not Trump’s changes — which are not in effect yet — will ultimately reduce litigation, or increase litigation is hard to predict. I don’t think there will be less litigation, it will probably be worse as agencies try to come to grips with these completely new rules.”

But it is precisely because nonprofit advocacy groups like the Center for Biological Diversity have continuously misused NEPA to the point where vital projects are needlessly delayed without any appreciable environmental benefit that the time has come to upgrade the law and improve its implementation, Rep. Rob Bishop (R-Utah) explained in an email statement. 

“When NEPA was signed into law, it was originally intended to ensure that each federal agency carefully considered the environment when making decisions,” the congressman said in the email. “However, NEPA has devolved into a tool for excessive litigation aimed at impeding necessary infrastructure projects. To boot, the myriad of lawsuits have left our military vulnerable as our judiciary system is exploited under the guise of environmental justice. For our foreign adversaries, such litigation serves as an inexpensive tool to reduce our military readiness and defense capabilities.”

When he served as Chairman of the House Natural Resources Committee in 2018, Bishop led an effort to probe into potential violations of the Foreign Agents Registration Act, which requires anyone who acts as an agent of foreign principals “in a political or quasi-political capacity,” to disclose that relationship periodically, as well as “activities, receipts, and disbursements in support of those activities,” according to the Justice Department. 

Although NEPA was initiated with good intentions, the time for reform is “long overdue,” since it puts the U.S. at a competitive disadvantage, David Kreutzer, a Senior Economist with the Institute for Energy Research based in Washington D.C., explained in an email.

“Anti-development groups weaponized NEPA long ago to unconscionably delay important infrastructure projects,” he said. “While countries like Canada, Germany, and Australia approve most projects within two years, NEPA approval in the U.S. averages more than six years for certain projects and in some cases, the NEPA approval takes well over a decade. It’s time to end regulatory abuse that squanders taxpayer dollars and delays needed projects, while adding little to environmental quality.”

The Institute for Energy Research, a nonprofit based in Washington D.C. that favors free-market policies in the energy sector, has created a database called Big Green Inc. that details the relationship between well-endowed, left-leaning foundations and green activist groups like the Center for Biological Diversity.

“Big Green Inc. has taken on the vast environmental network and provided key insights into these organizations’ political operations,” Tom Pyle, IER’s President said in a press release. “Big Green Inc., demonstrates the fact that the green left is mobilized by billionaire-funded foundations seeking to stop the development of America’s traditional energy sources without offering a viable alternative to sustaining the progress that can be attributed to the widespread use of our vast natural resources. Free market activists must work to ensure that America’s energy future is not stolen by green pressure groups working to disrupt our energy producers and send us back to the dark ages.”

Even if Trump succeeds in implementing his NEPA reforms, Bonner Cohen, a Senior Fellow with the National Center for Public Policy, anticipates that green activists will still find ways “to tie up energy and other natural resources and infrastructure projects in court” by invoking environmental laws. But if Trump is re-elected, his judicial appointments could help to end abusive litigation practices, Cohen suggested. 

“What has changed is the composition of the federal judiciary,” he said. “Trump’s judicial appointments are remaking the federal courts in a way not favorable to green groups. If Trump wins a second term, this trend will continue. Greens can still sue to stop this or that, but their prospects for ultimately prevailing will diminish.”


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