NEPA overhaul seeks to cut the public out of public lands decisions

The Trump administration is stampeding ahead with a rewrite of the regulations implementing the National Environmental Policy Act (NEPA). This landmark law requires federal agencies to study—and let the public weigh in on—the environmental impacts of federal actions. Ironically, given NEPA’s central purpose of including the public in environmental decision-making, the Trump administration is already cutting the public out of its regulatory overhaul. 

I know firsthand: As the director of the nation’s leading environmental group addressing public lands livestock grazing, I am blocked from giving testimony at the public hearing on new NEPA regulations that govern, among other things, livestock grazing on America’s public lands. The Council on Environmental Quality held a lottery to attend the Denver public hearing, and the tickets were gone in a matter of minutes. I got a ticket to sit in the audience and watch as the Trump administration unravels this critical environmental law, but I won’t be permitted to provide my organization’s expertise on NEPA and its nexus with public lands management. Many other conservationists got locked out entirely.

Congress enacted the National Environmental Policy Act (NEPA) in 1970, after more than a century of private industries running roughshod over public lands. The headlong rush to exploit public lands for economic gain, particularly in the West, led to genocide of native peoples, desertification by cattle and sheep, loss of trout and salmon populations, destruction of old-growth forests, decimation of native wildlife, and widespread air and water pollution.

NEPA has three basic – and commonsense – requirements. In conducting the legally required environmental reviews, federal agencies must look before they leap, examining the environmental consequences of proposed actions before they are approved. Science plays a central role. They must examine a range of alternatives, including alternatives more compatible with environmental protection than the original proposal. The public is entitled to an opportunity for meaningful input, and agencies must respond to public comments.

The federal government manages National Parks and Monuments, National Wildlife Refuges, National Forests, and Bureau of Land Management lands in trust, on behalf of the American public. NEPA is the sole means for the public to have a voice in how these public lands are managed. Will they be managed for public enjoyment or benefit? Or primarily to generate private profits for commercial and industrial interests? And to what degree, if any, will safeguards be required to protect the environment, and public use and enjoyment?

The proposed regulations erect roadblocks to prevent public oversight and participation, expanding the use of “categorical exclusions.” These loopholes that allow agencies to approve environmentally destructive actions with no public input and without a thorough environmental review. The proposed regulations also open the door for states – that may be actively hostile to federal protections, as in Utah and Wyoming – to dictate uses of public lands that they have no legal authority to manage. 

The new regulations only require public involvement at the “scoping” stage, before alternatives are explained and impacts are disclosed. This essentially blocks the public from providing information about the agency’s alternatives or about the level of impact projected for a proposed action. 

Draconian deadlines and page limits would reduce the thoroughness and quality of scientific analysis in NEPA documents, and Environmental Assessments would no longer have to have detailed explanations of alternatives. Without a detailed discussion of each alternative, of course, independent verification of an alternative’s impacts would be impossible. Fast-tracking project approvals and short-cutting scientific analysis of impacts inevitably results in hasty decisions and environmentally damaging mistakes – exactly the problem NEPA was drafted to solve. 

The new regulations eliminate the legal requirement to examine cumulative impacts, allowing agencies to consider impacts of individual projects in a vacuum. In Wyoming, state agencies consider each oil or gas well in a field an individual industrial site for air quality compliance, instead of considering the cumulative pollution generated by thousands of wells in a single wellfield. This is how Pinedale, Wyoming got worse air pollution than Los Angeles, and the attendant lung disease problems. Under the new NEPA regulations, the BLM could follow Wyoming’s example and approve thousands of individual wells — authorizing massive oil and gas fields piecemeal with devastating effects on sage grouse populations, big game herds, migration corridors, or air quality — while ignoring the magnitude of those impacts. 

The proposed new regulations also mount a major attack on NEPA by abandoning the long tradition of requiring a thorough Environmental Impact Statement to carefully consider environmental impacts of large-scale “programmatic” decisions, like land-use plans that govern millions of acres of public land. Forest Plans and other land-use plans govern where industrial destruction will be allowed, and where it won’t. They also identify the terms and conditions (notably mandatory environmental protections) that must be applied. Without a NEPA process, these zoning decisions occur in the dark, without consideration of public health or environmental protection, and indeed without any consideration of the consequences. 

The new regulations also seek to frustrate judicial oversight. They set up barriers for environmental groups even getting to challenge unlawful decisions in court, and once there, they eliminate the presumption that a federal agency violating NEPA is itself a harm that justifies halting the action being challenged. In this way, the NEPA regs go beyond violating NEPA itself and violate the separation of powers guaranteed in the Constitution.

These problems are only the tip of the iceberg, yet they show the severity of the Trump administration’s attack on our nation’s public lands by tampering with NEPA’s regulations. Since the Trump administration is shutting conservationists out of “public” meetings, they can now read about it in the press.

Erik Molvar is Executive Director for Western Watersheds Project, a nonprofit environmental conservation group working to protect and restore watersheds and wildlife throughout the American West.

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