Pipes for Transcanada Corp’s planned Keystone XL oil pipeline at a depot in Gascoyne, N.D., in 2017. (Terray Sylvester/Reuters)

His administration's controversial new rule would make it easier to build infrastructure.

NRPLUS MEMBER ARTICLE T he typical American probably has never read an “environmental impact statement,” but these documents have nonetheless become a traditional example of bureaucratic red tape, the kind of thing that stops a big project over some animal you’ve never heard of. There’s a good reason for this: The things are ridiculous, and they’re one of the reasons it takes so long to build infrastructure in this country.


And the Trump administration has proposed a rule that could cut them down to size.

EISs are part of the process that the National Environmental Policy Act (NEPA), enacted in 1970, requires federal agencies to undergo when deciding whether to go through with a big project they’re involved with, such as a bridge or pipeline. (The substantive environmental rules come from other statutes, such as the Clean Air Act.) These reports were intended to be accurate and helpful summaries of how the projects would affect the environment, but things got out of hand. Today, on average, an impact statement runs over 600 pages and the process takes half a decade. And there are often lawsuits after the fact, which the statements’ drafters anticipate by padding the documents with legalese.

It’s not just some crazy right-wing talking point that this is unreasonable. As the administration’s proposal documents, past administrations stretching back decades have decried the situation and taken some steps to speed things up. Jimmy Carter issued an executive order requiring EISs to be “concise, clear, and to the point.” A study in the Clinton administration highlighted “the length of NEPA processes, the extensive detail of NEPA analyses, and the sometimes confusing overlay of other laws and regulations.” There has been a constant flow of guidance documents, handbooks, and the like urging officials to keep it brief. But the core regulations implementing NEPA haven’t been changed in about 40 years.


So the administration’s proposed rule attempts once again to impose some common sense. There will be a “presumptive” time limit of two years for the federal government to complete an impact statement (and one year for the more cursory “environmental assessment”), with a 300-page limit on the document itself (75 pages for assessments). More projects will be deemed small enough to escape review. And when multiple agencies are involved in a review, the rule will clarify who’s in charge and require closer cooperation.


On the more controversial side, the environmental “effects” that NEPA requires agencies to consider will be limited to those that are “reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives”; they will not include the “cumulative” effects of infrastructure on climate change, though a Trump official told the New York Times that the rule wouldn’t outright forbid consideration of greenhouse gases. This puts the NEPA process in its proper place: We certainly do need to take steps to fight climate change, but at the same time, it makes little sense to have federal agencies making wild guesses about the global harms of each individual transit and energy project. If you want to discourage carbon emissions in a systematic way, have Congress impose a carbon tax or regulate emission levels directly, rather than having the executive branch swat down infrastructure improvements on a case-by-case basis. And if Congress does want to take the latter approach for some reason, it should say that explicitly, rather than counting on the executive bureaucracy to read speculative climate-change concerns into a law passed half a century ago.


(And by the way, if Congress doesn’t like what the president is doing, it’s free to clarify, rewrite, or — as some conservatives have suggested — repeal NEPA. Remember, NEPA only spells out a review process; without it, all the other federal and state environmental laws would continue to apply.)


The most important question, of course, is whether the administration can actually pull this off. This is only a proposal; a final rule won’t come out for months, and if past is precedent, activists will try to take that down in court. Once the rule is in effect, for it to make any difference, agencies will have to respect those presumptive time limits without availing themselves of the rule’s exceptions too promiscuously. And as soon as next year, Trump could be replaced by a Democrat without the same zeal for hacking away red tape.


Ironically, but unsurprisingly for a “notice of proposed rulemaking,” the plan itself is an example of how tedious and unreadable a government document can be. The PDF runs 47 pages, spelling out in agonizing detail how the new rule will change existing regulations. Copy editors will be glad to hear the administration wants “replace the word ‘insure’ with ‘ensure,’ consistent with modern usage”; those who want to know about new “responsibilities for senior agency officials, such as approval to exceed page or time limits,” are told to check the proposed wordings of “§§ 1501.5(e), 1501.7(d), 1501.8(b)(6) and (c), 1501.10, 1502.7, and 1507.2.”

Is the government capable of running as smoothly and writing as clearly as the administration wants it to? I guess we’ll know soon enough.