Executive Director’s Report, July 2020

• July 31, 2020
• CalWild

By Chris Morrill, Executive Director

This month, CalWild joined 19 other plaintiffs in a lawsuit seeking to overturn the Trump administration’s dramatic rule changes to the National Environmental Policy Act (NEPA). Earthjustice and Western Environmental Law Center are leading the lawsuit on behalf of the plaintiffs and filed the complaint on July 29th. The complaint outlined how the administration’s changes are attempting to gut more than 40 years of settled environmental law and will end a crucial safeguard for communities’ clean air, clean water, and health, and wild lands and imperiled species.

NEPA began with bipartisan, joint House and Senate effort to tackle a growing environmental disaster in the country. This was a time of smog choked cities, rivers catching on fire, and uncontrolled extraction on the land. That effort, which laid the groundwork for NEPA, established the goals and why action was necessary:

“If America is to create a carefully designed, healthful, and balanced environment, we must (1) find equitable ways of charging for environmental abuses within the traditional free-market economy; (2) obtain adequate ecological guidance on the character and impact of environmental change; (3) where corporate resource development does not preserve environmental values, then consider the extension of governmental controls in the larger public interest; (4) coordinate the Government agency activities, which share with industry the dominant influence in shaping our environment; and (5) establish judicial procedures so that the individual rights to a productive and high quality environment can be assured.”

Passed almost unanimously by Congress and signed into law by President Nixon in 1970, NEPA was the product of years of determined activism from people who wanted a greater say in decisions affecting their health, environment, and public lands.

Ultimately, NEPA is not environmental regulation. Instead, it is an empowering of people that can lead to a healthy and prosperous society. Good public health and a clean environment were acknowledged to be worthy, despite sometimes competing goals to economic benefits. To ensure values of health and the environment were taken into account, NEPA instituted a national policy of “look before you leap” by requiring all federal agencies to analyze carefully and disclose to the public the potential environmental impacts of, and feasible alternatives to, federal agency actions. This made the federal government responsible for protecting the environment for generations to come and required them to listen and be responsive to the public at large in a way they never had before.

By requiring an environmental impact statement on major industrial projects the public would have access to (1) the environmental impact of the proposed action; (2) any adverse effects that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action.

This newly established standard has been key to understanding the environmental impacts of projects and given the public a clear and consistent way of weighing in with their opinions. It has also provided an avenue for environmental action for decades.

Since 1978, regulations promulgated by the White House Council on Environmental Quality (CEQ) have guided every federal agency’s implementation of NEPA. Over the decades, multiple administrations have looked at the requirements and processes mandated by NEPA and all have come to the same conclusion: NEPA was working as was intended. The law was requiring that agencies take a hard look at the potential environmental consequences of their actions.

One of the most important findings, and which weighs heavily on the changes proposed by the Trump administration, was the notion of cumulative and indirect effects. A 1997 report found that “[e]vidence is increasing that the most devastating environmental effects may result not from the direct effects of a particular action, but from the combination of individually minor effects of multiple actions over time.”

After examinations of NEPA’s efficacy by multiple Republican and Democratic administrations, the Trump administration disregarded all of those findings and underwent a wholesale revisioning of NEPA in nearly every aspect. The changes are designed to limit NEPA’s reach, reduce public involvement, and reduce the scope of the environmental consequences federal agencies are able to consider.

The revisions include:

1. Changing language to limit the number and scope of projects captured by the NEPA process including stating that any projects that receive federal funding assistance don’t necessarily qualify and require an unspecified level of control and responsibility by the federal government to require NEPA.
2. Eliminating the requirement to consider cumulative effects or any obligation to consider indirect effects which, as I mentioned above, have been noted as the most important environmental impact of many projects. This is particularly true of climate change.
3. Raising barriers to public participation, limiting requirements of agencies to respond to comments, eliminating protections against conflicts of interest including allowing project proponents to write their own environmental reviews, and limit the ability of courts to review agency decisions. It also allows agencies to dismiss commenters that don’t meet a subjective technical standard of precision which will eliminate the comments of many members of the public including many CalWild supporters.

CalWild, along with many environmental groups, cannot stand by while this administration devalues the role of a clean and sustainable environment. NEPA doesn’t prohibit any projects. It only requires greater analysis of the true impacts of federal agency projects that will have significant impacts on the environment and public lands. For years we have used these avenues to collect the voices of those who prior to 1970 would have been entirely left out. We repeatedly use the NEPA process to show how projects would create irreparable harm to our public lands and impact the people who love them.

As plaintiffs, we are seeking a court ruling that: 1) holds the new CEQ rule to be unlawful; 2) re-instates the rule that was in place prior to the enactment of the new rule; and 3) enjoins the CEQ from implementing, enforcing, or relying upon the new rule.

Actions like this run counter to the environmental and democratic processes build over decades which have resulted in a cleaner environment and more participatory democracy, and CalWild will not stand for it.

Please let me know your thoughts, comments, and questions by emailing me at cmorrill@calwild.org.