The following article also appears at Streetsblog.
The Trump administration is quickly moving to radically transform the implementation of America’s bedrock environmental rule to ignore “environmental justice” and prioritize “efficiency and certainty over any other policy objectives” — a move that advocates fear could be a handout to Big Highway.
After President Trump issued his Jan. 20 executive order on “Unleashing American Energy,” the White House Council on Environmental Quality moved to rescind the rules governing how federal agencies implement the National Environmental Protection Act, giving opponents of the shift an unusually tight deadline of March 27 to comment.
Colloquially known as the “Magna Carta” of environmental laws, NEPA has required federal agencies to assess the environmental impacts of projects it funds and policies it institutes since 1970. While that bedrock requirement will remain in effect after CEQ’s rollback, rules governing exactly how to do those assessments will be rolled back, and each of the 85 federal agencies will now have just one year to write their own, non-binding guidelines.
Advocates fear that mayhem could ensue, especially as Elon Musk’s Department of Government Efficiency slashes the staff that would write those new rulebooks.
“These regulations ensured informed, science-based decisions that protect communities and the environment,” Kabir Green, director of federal affairs at the National Resources Defense Council said in a statement. “Stripping them away, while hollowing out federal agencies, will leave agencies directionless, chaotic, and without accountability for upholding the public trust. This isn’t streamlining — it’s reckless deregulation at its worst. This move is just the latest gift from the Trump administration to Big Oil and other special interests.”
NEPA has shaped U.S. transportation
When it comes to transportation, of course, NEPA hasn’t always done a great job at curbing the most environmentally harmful projects anyway — in part because NEPA only requires DOTs to assess the potential harms of their projects and attempt to mitigate them, not to actually cancel those projects outright or pick less-harmful alternatives.
For instance, highway-widening efforts across the country routinely pass their NEPA reviews with flying colors, even if they accelerate climate change, poison the air, or decimate neighborhoods. Transportation for America has even compared NEPA to “a standardized test for state DOTs, except instead of being graded on their answers, they’re graded on how well they’ve filled in the bubbles.”
The group also points out that while “agencies have experience, comfort and guaranteed funding to build a new highway, they have none of these for taking a highway down. Therefore, NEPA can be used to more easily disrupt a highway tear down.”
Who’s doing the grading on those “standardized” tests matters, too. Because NEPA reviews are usually conducted by a regional or divisional office of a larger federal agency, like the Federal Highway Administration – which is itself a division of the larger USDOT – the assessment process can look wildly different from region to region and mode to mode, with some reviewers cracking down on projects they don’t approve of and others letting major impacts slide.
The Federal Transit Administration, for instance, is known for requiring higher levels of review than the Federal Highway Administration, which also grants some states like Texas a special privilege known as NEPA “assignment” that allows them to grade much of their own highway homework — resulting in destructive projects like the expansion of I-45 in Houston, which some advocates say would never have been built in a state with more rigorous processes.
Even without that assignment authority, some field offices are famously more lenient than others, granting projects “categorial exclusions” or subjecting them to less-thorough “environmental assessments,” rather than requiring them to produce a full-fledged “environmental impact statement” that’s intended to show the public exactly what the proposed project would do for — or to — their community.
For transportation reformers, that leniency can be an asset, speeding along projects that promote shared and active modes — but if it rubber-stamps too many highway projects, it can be a disaster.
“For example, a pedestrian or a bike project might have a different level of scrutiny not depending necessarily on project context, but based on the approving official, said Andrew Wishnia, senior vice president at Boundary Stone Partners and former Deputy Assistant Secretary for Climate Policy in President Biden’s DOT. “That’s of course not helpful from a NEPA implementation perspective,”
NEPA under Duffy
Wishnia argues that if done right, rethinking how America does NEPA could create more consistency in how transportation projects are evaluated, which would be a welcome change — especially if an administration that supports sustainable options is holding the reins.
“My understanding is that the administration is either considering or actively moving a lot of NEPA decisions to [DOT] headquarters,” he added. “And I think on its face, that’s reasonable to consider. … Whether an active transportation project is done in Kentucky, or it’s done in Arizona, that project should have even handed administration, regardless of where the project is located.”
Under President Trump and U.S. DOT Secretary Sean Duffy, though, some fear that “standardizing” the NEPA process could mean blanket approvals for projects that benefit Big Oil — and blanket rejections of those the secretary deems “woke,” to use a favorite expletive of the administration.
In a guidance memo issued alongside the interim final rule, White House Council on Environmental Quality Chief of Staff Katherine Scarlett directed agencies to put “the goal of prioritizing efficiency and certainty over any other policy objectives” in their newly rewritten NEPA review processes — and explicitly forbade DOT and all other agencies from performing “environmental justice” analyses, consistent with Trump’s executive orders.
U.S. DOT’s ability to conduct any kind of review could come down to department resources that are being slashed. The Inflation Reduction Act included sorely needed new funding to support NEPA Implementation, but Trump attempted to pause the dispersal of all IRA funding as one of his first acts in office.
“We need folks to be implementing these laws — otherwise it is going to take too much time, which nobody wants,” said Wishnia. “This is going to come down to capacity or the lack thereof. That’s why we included funding in the Inflation Reduction Act to boost implementation capacity, because that is a data-driven solution to an identified need. And I don’t know quite how to reconcile both the hemorrhaging of staff and the headquartering of a lot responsibilities to implement NEPA.”
