Can Donald Trump move fifty years of environmental regulation to get movement on his infrastructure agenda? The White House plans to cut red tape to expedite the projects it sees as critical by exempting them from the complicated approval processes required by a 1970 law signed by Richard Nixon. The plan is to differentiate privately financed projects from pure government-funded ones, but expect courts to get a say in this interpretation:
The White House is moving to exempt projects without significant federal funding from environmental reviews that have been required for 50 years, a major shift that would make it easier to build mines, expand airports and lay pipelines, among other things, according to three people familiar with the proposal.
The individuals spoke on the condition of anonymity because President Trump is expected to unveil the plan Thursday morning.
The proposed changes would narrow the scope of the National Environmental Policy Act (NEPA), which requires federal agencies to assess the impact of a major project before a spade of dirt is turned and to include the public in the process.
Environmental groups, tribal activists and others have used the law to delay or block a slew of infrastructure, mining, logging and drilling projects since it was signed by President Richard Nixon in 1970.
Courts have already used NEPA to slow down infrastructure and energy projects, which means the White House will have a tough sell going in. Of late, NBC notes, courts have used NEPA to enforce climate-change goals, which is one of the main obstacles the Trump administration wants to avoid:
“The proposed rule seeks to reduce unnecessary paperwork and delays, and to promote better decision-making consistent with NEPA’s statutory requirements,” said a CEQ fact sheet about the proposed change seen by Reuters.
The rule says federal agencies would not need to factor in the climate impact of a project, making it easier for major fossil fuel projects to sail through the approval process and avoid legal challenges.
Over the last few years, federal courts have ruled that NEPA requires the federal government to consider a project’s carbon footprint in decisions related to leasing public lands for drilling or building pipelines.
The proposed change also would widen the categories of projects that can be excluded from NEPA altogether. If a type of project got a “categorical exclusion” from one agency in the past, for example, it would automatically be excluded from review by other agencies, according to the plan.
Call this the return of Infrastructure Week. During Trump’s first year in office the idea became a joke of sorts, trotted out when the White House wanted to shift focus away from the scandal du jour and back onto policy. This time around, though, there’s not much distraction factor to an infrastructure move. Impeachment is going to dominate, and in this case it might actually screen off some attention — media and legislative — from what has always been a high domestic-policy agenda item for Trump.
In fact, it’s perhaps the only agenda item on which he and Democrats ostensibly agree, but there are good reasons why it hasn’t budged in three years. For one thing, Democrats have focused more on Russia-collusion and now Ukraine-gate than attempting to craft policy with Republicans. (The House has passed a bunch of go-nowhere bills that had zero coordination with the Senate GOP, strictly a set of progressive make-work.) The two sides can barely budget together these days, let alone craft a massive non-emergency spending plan. On top of that, a significant number of Republicans will oppose such spending without pay-fors in cuts to other programs, which makes getting a bipartisan agreement even trickier.
However, one major reason infrastructure investment has gone nowhere is that it will take a significant regulatory reform to make the investment efficient enough to conduct it on a large scale. That means cutting a significant amount of red tape so that money goes directly to rebuilding rather than getting lost in byzantine approval processes. Democrats facing progressive activists in 2020 races won’t be eager to roll back regulations, not even for public-works projects intended to shore up declining national infrastructure. It’s an issue everyone purports to care about, but for which few are willing to sacrifice or compromise their other issues to resolve. Until a bridge collapses with people on it, nothing much will happen.
This is Trump’s attempt to cut through the noise and deal with the situation through rule changes rather than legislative action. That will touch off court challenges, likely in every federal district at first until courts consolidate the cases. Environmental activists have been very successful at using courts to enforce these regulations, and they will not sit quietly by while the White House empties their toolboxes, especially on the grounds that private investment will take the place of government investment. Trump’s won those battles on the border wall and probably would prevail here too, but it will take some time — and it raises the question as to why they’re getting such a late start on this. They might have been better advised to start this process during their first Infrastructure Week.