By Jennifer Allen, Coastal Review Online
While the proposed plans to “modernize” the National Environmental Policy Act, or NEPA, will fast track the permitting process for infrastructure, such as highway projects, it also opens the door for expedited approval of oil drilling off the North Carolina coast.
President Trump announced Thursday at the White House that his administration has from day one made “fixing this regulatory nightmare a top priority. And we want to build new roads, bridges, tunnels, highways bigger, better, faster, and we want to build them at less cost.
“That is why, for the first time in over 40 years, today we are issuing a proposed new rule under the National Environmental Policy Act to completely overhaul the dysfunctional bureaucratic system that has created these massive obstructions. Now, we’re going to have very strong regulation, but it’s going to go very quickly. And if it doesn’t pass, it’s going to not pass quickly. It doesn’t have to take 10 years or much longer than that.”
Signed into law Jan. 1, 1970, NEPA requires federal agencies to calculate the environmental and related social and economic effects of proposed actions before making decisions, according to the Environmental Protection Agency.
A fact sheet on the proposed regulations states that NEPA applies to road, bridge, highway and airport construction, conventional and renewable energy production and distribution, electricity transmission, water infrastructure, broadband deployment and public land management.
Trump signed in 2017 an executive order for the Council On Environmental Quality, or CEQ, to review the current NEPA regulations “and modernize and accelerate the Federal environmental review and decision-making process,” per the White House.
CEQ issued last week the notice of proposed rulemaking, NPRM, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” made available Friday on the Federal Register for public comments, which will be accepted through March 10.
The proposed changes will give industry executives and lobbyists more control while stripping away the voices of the communities and the citizens who have the most at stake, according to the Southern Environmental Law Center.
“For three years, the Trump administration has launched misguided crusades against this critical environmental protection on the baseless belief that NEPA holds up progress. The opposite is true. NEPA makes big projects better, and saves taxpayers money when it exposes wasteful and reckless political boondoggles,” ” Senior Attorney Kym Hunter, who leads the law center’s team of attorneys defending NEPA, said in a statement.
Hunter explained to Coastal Review Online in an interview Friday that these rules affect any federal action such as the permitting process to build on wetlands on the coast, any time a new plant that would pollute the air or water is proposed, and not just big bridges and highways, but any changes to infrastructure, building and industry. These proposed changes would allow governments and industry to come in with no notice and affect communities without any accountability.
“Your average person takes for granted that when something is going to happen in their community, they know about it before it happens and they’ll have an opportunity to go to a public hearing or submit comments, but that will no longer be the case in some circumstances,” Hunter added.
Trump said Thursday that it can take more than 10 years to get a permit to build a road, if they get a permit at all, and the delays are because of big government.
“For example, in North Carolina, it took 25 years to begin construction of the Marc Basnight Bridge,” he said as he listed projects across the country.
Hunter said that there’s nothing in the more than 100-page document that would have made the Bonner Bridge replacement project move any faster.
The Outer Banks is a complicated place to build infrastructure. Working the through complexities and compromising differing opinions is what took so long, she explained. “There’s nothing here in the proposed changes that would have sped that up.”
According to the state Department of Transportation, discussions to replace the Bonner Bridge began in 1989. The draft environmental impact statement, or EIS, which looks at the effect of construction on both the natural and human surroundings, was approved in 1993-94, followed by the release of the preferred alternative that would have the least environmental impact: a parallel bridge. From then until 2010, NCDOT continued studying the preferred alternative.
The department in December 2010 completed the final EIS, which was then submitted to and approved by the Federal Highway Administration, and then issued a Record of Decision, the final stage of the approval process. Then, environmental permits to allow the NCDOT begin the project were issued, according to the NCDOT timeline.
In July 2011, the same month a contract was awarded for the project, the Southern Environmental Law Center filed the first of two lawsuits, the second was in August 2013, on behalf of the Defenders of Wildlife and the National Wildlife Refuge Association. In summer 2015, the parties to the case reached a settlement. Construction began on the replacement bridge in March 2016 and was completed in late 2019.
Bob Woodard, board of commissioners chairman for Dare County, where the bridge is located, attended the NEPA rollback announcement Thursday at the White House.
“It was an honor to be invited to the White House for the President’s infrastructure announcement. It is my hope that the proposed new rule will allow more timely construction of much-needed projects, which not only will improve our economy by creating jobs but will also ensure the safety of our residents and visitors,” Woodard said in a statement.
Hunter told Coastal Review Online that it was surprising to see the Dare County chairman with Trump during the announcement, considering the county’s stated opposition to offshore drilling and what this proposal would mean for offshore drilling and fast-tracking the permitting process.
“It would fast-track the process and take the public and transparency out of the process,” she explained.
Hunter cited numerous ways that the proposed changes could affect offshore drilling, including limiting the types of projects subject to review, and perhaps most importantly, the effect on climate change.
“One area that doesn’t have to be studied anymore is cumulative impact,” she said about the proposed changes. She noted that climate change is a cumulative impact, which is where multiple projects interact with one problem to cause another problem.
“This rule says you don’t have to look at that, so basically you don’t have to look at climate change,” she said.
The proposal would require examination of only direct impacts. With offshore drilling, that could exclude considering the impact of an oil spill, Hunter continued.
“Industry might argue that under the proposed rule, oil spills would also no longer need to be disclosed or considered because the proposal would limit consideration of indirect impacts,” Hunter said, adding that none of that information would be made available to the public or decision makers.
Hunter said that the proposed changes would allow a project proponent to do the environmental studies themselves without having to disclose any conflict of interest.
A spokesperson with the state Department of Environmental Quality told Coastal Review Online Friday that DEQ staff were reviewing the proposed rule and would need to determine the full impact before commenting.
According to the NEPA fact sheet, environmental impact statements for federal highway projects take an average of seven years to complete and are typically more than 600 pages. The proposed changes include putting a time limit of two years in place to complete an EIS and one year for less-rigorous environmental assessments. The changes also set a page limit and incorporate new standards for information sharing and public outreach.
“These proposed changes must undergo the established public review process for federal rulemaking before they are finalized. NCDOT will need to review all the proposed changes to better understand how these could impact transportation projects moving forward,” said Jamie Kritzer, assistant director of communications for NCDOT.
Hunter also expressed concern regarding the limitations on legal challenges of environmental reviews and the “arbitrary” page and time limits proposed.
“They’re essentially saying you have to do these documents in two years but we’re not going to give you any additional resources, we’re not going to do much to assist you in that,” she said. “These agencies are massively understaffed. The reason these documents take a while is because (agencies) are stripped of staff and resources.”
Other proposed changes include requiring earlier public input solicitation and “comments to be specific and timely to ensure appropriate consideration.” Also, agencies would be required to summarize alternatives, analyses and information submitted by commenters.
Hunter said she thinks all of the proposed changes to NEPA will lead to a lot of confusion.
“While overall, this would allow projects to be fast-tracked, but in the interim, it would create more confusion and slow things down,” she said.
Hunter said that the good news is that all submitted comments must be considered.
“I think there’s going to be a big public outcry and hopefully that will make the rule better or cause them to take a new look at it,” she said.
Comment on the proposed changes
Comments can be submitted by March 10 online, by fax to 202-456-6546, or by mail to Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503. Attn: Docket No. CEQ-2019-0003.
CEQ will host two public hearings in Denver, Colorado, and Washington, D.C.
Learn more about the NEPA changes and additional public engagement on the White House website.