President Donald Trump’s efforts to streamline, accelerate, and modernize the environmental review process could curtail abusive litigation practices that undermine economic development and jeopardize national security, according to congressional figures and energy policy analysts.
The 50-year-old National Environmental Policy Act (NEPA), which hasn’t been amended since 1986, has been weaponized by anti-development groups to delay vital federal infrastructure projects and exploited to serve as a tool for excessive litigation to the detriment of America’s military readiness, they argue.
But Trump’s proposed overhaul of NEPA, which he officially announced during a White House press conference in January, has also been the subject of intense criticism from environmental advocacy groups that have been among the most aggressive litigators targeting federal construction projects and military exercises.
Some of these same environmental groups have also come under scrutiny for potential violations of foreign agent registration requirements since their litigation practices appear to align with the geopolitical interests of foreign powers, according to congressional correspondence.
NEPA stipulates that federal agencies must consider the environmental impact of any federal actions that could significantly impact the quality of the environment. The law also states that federal agencies must consider potential alternatives to proposed actions.
Current regulations call for federal agencies to produce documents called environmental impact statements in anticipation of any significant federal actions and to prepare environmental assessments to determine if the environmental statement is necessary or to explain why it isn’t.
The Trump administration’s proposed rules would set a time limit of two years for the completion of environmental impact statements and one year for the completion of environmental assessments. The proposed reforms would also specify page limits for NEPA reports and require joint schedules to be established across multiple agencies so workers and companies could have greater certainty in their planning.
As part of its proposed NEPA overhaul, the Trump administration also seeks to “simplify” what is meant by environmental “effects” and to “clarify that effects must be reasonably foreseeable and have a reasonably close relationship to the proposed action,” while also declaring an “analysis of cumulative effects” would no longer be required, according to the administration’s proposal.
Green Activists Condemn
Green activists who view NEPA as a safeguard against the potential long-term effects of climate change have been particularly critical of the administration’s efforts to redefine what is meant by environmental effects and to limit the scope of what is included in NEPA reviews.
Gina McCarthy, president and CEO of the Natural Resources Defense Council (NRDC), a nonprofit group headquartered in New York, has released a statement describing Trump’s proposal as a “dangerous move.” McCarthy, who served as President Barack Obama’s EPA director, also said in her statement that “NEPA has been an essential part of the public process, providing critical oversight that the federal government relies on to fully understand the potential implications of projects that can harm people’s health and environment.”
In a blog for the NRDC, Sharon Buccino, a senior director for the nonprofit group, warned against excluding “cumulative effects” as a major consideration within NEPA.
“The current regulations recognize that individually minor actions may add up to a significant impact over time or space,” she wrote. “Agencies must consider how their actions will contribute to or be affected by these combined, incremental effects of human activity in their environmental review.”
Other prominent opponents of Trump’s regulatory rollback include the Center for Biological Diversity, a green legal advocacy group based in Tucson, Arizona.
If the administration’s proposals become law, federal agencies will be empowered with the ability to ignore the potential impact a project’s greenhouse gases would have on climate change, the group claims in a press release.
“The proposal would also eliminate consideration of cumulative impacts, such as damage to public lands and wildlife from fossil fuel extraction,” the release states.
NEPA a ‘Tool for Excessive Litigation’
But it is precisely because nonprofit advocacy groups such as the NRDC and the Center for Biological Diversity have continuously misused NEPA to the point in which vital projects are needlessly delayed without any appreciable environmental benefit that the time has come to upgrade the law and improve its implementation, Rep. Rob Bishop (R-Utah) told The Epoch Times in an emailed statement.
“When NEPA was signed into law, it was originally intended to ensure that each federal agency carefully considered the environment when making decisions,” the congressman said in the email. “However, NEPA has devolved into a tool for excessive litigation aimed at impeding necessary infrastructure projects. To boot, the myriad of lawsuits have left our military vulnerable as our judiciary system is exploited under the guise of environmental justice. For our foreign adversaries, such litigation serves as an inexpensive tool to reduce our military readiness and defense capabilities.”
When he served as chairman of the House Natural Resources Committee in 2018, Bishop led an effort to probe into potential violations of the Foreign Agents Registration Act, which requires anyone who acts as an agent of foreign principals “in a political or quasi-political capacity,” to disclose that relationship periodically, as well as “activities, receipts, and disbursements in support of those activities,” according to the Justice Department.
Bishop sent letters to the NRDC, the Center for Biological Diversity, the World Resources Institute, and Earthjustice in 2018 inquiring about any relationship between the nonprofit environmental advocacy groups and foreign governments, especially China. In his correspondence, Bishop also asked each group if they were in compliance with FARA requirements. Earthjustice, a nonprofit public interest law outfit based in San Francisco, California, registered under FARA in September 2019. But the other groups have repeatedly denied operating as foreign agents.
In his letter to the NRDC co-signed by Rep. Bruce Westerman (R-Ark.) who then chaired the Subcommittee on Oversight and Investigations, Bishop expressed concern about the NRDC’s “role in aiding China’s perception management efforts with respect to pollution control and its international standing on environmental issues in ways that may be detrimental to the United States.”
Bishop and Westerman also made the point that the green group’s “relationship with China has many of the criteria identified by U.S. intelligence agencies and law enforcement as putting an entity at risk of being influenced or coerced by foreign interests.” The letter also calls attention to the NRDC’s long history of litigation against the U.S. Navy under NEPA, and other environmental laws.
“Over the last two decades, your organization has also sued the U.S. Navy multiple times to stop or drastically limit naval training exercises in the Pacific arguing that naval sonar and anti-submarine warfare drills harm marine life,” Bishop says in the letter. “We are unaware of the NRDC having made similar efforts to curtail naval exercises by the Chinese People’s Liberation Army Navy.”
Bonner Cohen, a senior fellow with the National Center for Public Policy Research in Washington, concurs with Bishop’s assessment of NEPA’s defects and credits the Trump administration for pressing ahead with proposed changes.
“There is no doubt that NEPA has been a huge strategic asset to America’s geopolitical rivals,” he said in an interview. “Without having to raise a finger, China, Russia, and other adversaries have been able to let American environmental groups do their dirty work for them. Sometimes they have even been rewarded for the services they render, in the form of Russian money duly laundered through offshore and onshore entities, not to mention the remarkable partnership that has developed between the NRDC and the PRC. The cumbersome and time-consuming NEPA process has been a blessing to America’s rivals, who rightly fear the implication of American global energy dominance.
“Still saddled with a flawed law that only Congress can fix, the Trump administration has grasped the essence of the problem and is using administrative reforms to speed up the process. NEPA-related delays will still happen, but the amount of time lost should be reduced through the deadlines and page limits on environmental impact statements and other paperwork requirements.”
‘Every Citizen a Voice’
The Epoch Times contacted the NRDC and the Center for Biological Diversity and asked both organizations for further comment about the impact the proposed NEPA reforms might have on their litigation practices and if they had any further response to allegations that they might be in violation of FARA requirements. The NRDC didn’t respond by press time, but Brett Hartl, the government affairs director for the Center for Biological Diversity, did respond in an email.
“Regarding NEPA, one of the two foundational goals of NEPA is to give every citizen a voice in how the federal government acts on its behalf,” he wrote. “And most of the thousands of NEPA processes (environmental assessments and environmental impact statements) are completed on time. Litigation – which is brought by all sides of an issue, industry and NGO alike – is the process to hold the government accountable to follow the law.
“So, there are two ways of reducing litigation, follow the law or try to change the rules so the government doesn’t have to follow the rules. That latter tactic is what the Trump regulations attempt to do—make NEPA so boilerplate and meaningless that there are no checks upon the power of the federal government. Whether or not Trump’s changes—which are not in effect yet—will ultimately reduce litigation, or increase litigation is hard to predict. I don’t think there will be less litigation, it will probably be worse as agencies try to come to grips with these completely new rules.”
Despite what Trump’s critics have suggested, Bishop views the reform process Trump has started as an opportunity to strike a better balance between economic and environmental concerns.
“The administration’s goals of reducing redundancies, enhancing coordination with states and tribes, and establishing time frames for completing paperwork will yield a stronger economy and greater environmental protection,” he said. “It will focus resources on supporting our military, American infrastructure, and clean air and water, over red tape and litigation. These are all good things that should be universally embraced.”
In his 2018 letter to the Center for Biological Diversity, Bishop highlighted the advocacy group’s legal representation on behalf of coalition of Japanese and American environmental organizations that have been working to block a planned relocation of the Marine Corps Air Station Futenma located on the island of Okinawa. Bishop concluded the letter by asking the Center for Biological Diversity if it had registered under FARA, and to explain why it hadn’t.
Hartl, the group’s government affairs official, addressed the foreign agent allegations in his message.
“Regarding FARA, as our press release from October of last year notes, we offered to Mr. Bishop that we would come testify in open at a hearing about our work to save the Okinawa Dugong from extinction, even though the Foreign Agent Registration Act is outside the purview of the Natural Resources Committee (in fact we offered to testify in front of the House Judiciary Committee as well),” Hartl said. “Mr. Bishop’s harassing and onerous document were little more than a personal vendetta against our organization, and he declined to hold such a hearing even though as chairman he could have done so.”
While NEPA was initiated with good intentions, the time for reform is “long overdue,” since it puts the United States at a competitive disadvantage, David Kreutzer, a senior economist with the Institute for Energy Research based in Washington, explained in an email.
“Anti-development groups weaponized NEPA long ago to unconscionably delay important infrastructure projects,” he said. “While countries like Canada, Germany, and Australia approve most projects within two years, NEPA approval in the U.S. averages more than six years for certain projects and in some cases, the NEPA approval takes well over a decade. It’s time to end regulatory abuse that squanders taxpayer dollars and delays needed projects, while adding little to environmental quality.”
Even if Trump succeeds in implementing his NEPA reforms, Cohen anticipates that green activists will still find ways “to tie up energy and other natural resources and infrastructure projects in court” by invoking environmental laws. Even so, he suggests there is another reason for the proponents of responsible energy development to remain hopeful.
“What has changed is the composition of the federal judiciary,” he said. “Trump’s judicial appointments are remaking the federal courts in a way not favorable to green groups. If Trump wins a second term, this trend will continue. Greens can still sue to stop this or that, but their prospects for ultimately prevailing will diminish.”