Trump’s Self-Defeating NEPA “Reforms”

Rather than streamlining the process, Trump is gumming up the works.

Trump has taken some dramatic steps in the name of improving use of NEPA, the statute governing environmental reviews of projects.  The goal is to speed up the permitting process and make it more efficient. The reality is that his efforts will create chaos and uncertainty, with the likely effect of slowing things down.

The first Trump action was an effort to completely restructure the way the government implements NEPA. Jimmy Carter empowered a White House office, the Council on Environmental Quality (CEQ) to issue binding regulations that tell agencies how to implement NEPA.  For decades, those regulations provided uniformity across the federal government in implementing NEPA. They also received deference from the courts. Trump overturned Carter’s order, making the CEQ rules into advisory guidelines, and directed each agency to create its own NEPA regulations. CEQ is supposed to oversee that process.

The upshot is that that we have gone from an orderly process that was respected by the courts to dozens of proceedings at individual agencies. The agencies are losing staff due to DOGE and have many other things on their plates, so this is likely to be a protracted process. In the meantime, there will be no binding rules, and there’s no guarantee that the agencies will end up with the same procedures. That will be a particular problem for the many projects that involve multiple agencies.

The second Trump action was to declare an energy emergency and direct agencies to speed up their permitting. The Army Corps of Engineers, which issues permits for projects involving navigable waterways, promptly said it was fast-tracking hundreds of projects under its own emergency regulation.  This is unlikely to work.

The reason is that the Corps’s emergency regulation is very limited — it involves genuine emergencies due to disasters or other situations involving urgent threats to people or property.  Trump’s emergency has nothing to do with that — it’s basically about what he says as a need to expand use of fossil fuels to improve the electricity grid.  So, courts are likely to reverse permits that the Corps tries to issue under Trump’s emergency declaration.

Even putting that procedural problem aside, the Corps’s regulation allows a speedier process but it doesn’t change the standards that NEPA requires for environmental impact statements. In other words, the agency will have to produce impact statements of equal quality but faster (and with less public input). That increases the odds that a court will later find flaws in the impact statement and tell the Corps to redo its work. Again, more delays.

It’s not surprising that the Trump crew liked these two initiatives. Both initiatives seemed to hold the prospect of fast-tracking environmental reviews, allowing a faster expansion of fossil fuel production.  If they had thought things through, however, they might have realized that these actions were as likely to slow as to accelerate the permitting process.  Much as they undoubtedly hate NEPA — after all, the middle two letters stand for “Environmental Policy” — putting some effort into making the process work would have been more productive than these efforts to short-circuit the process.

Army Corps of Engineers, CEQ, Council on Environmental Quality, Emergency powers, national energy emergency, NEPA, permit reform, Trump Administration