The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA).
The proposal would narrow the scope of NEPA’s protections, weaken federal agency duties when the law applies, and attempt to shield violations of NEPA from judicial oversight. More significantly, the proposal is wildly inconsistent with NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare.
NEPA relies on four key mechanisms.
First, it directs all federal agencies to accompany proposals for “major federal actions significantly affecting the quality of the human environment” with a detailed environmental impact statement (EIS) comparing the environmental impacts of the proposed action and its alternatives.
This requirement forces agencies that might be (and sometimes had been) inclined to subordinate environmental considerations to unbridled development to consider whether creative approaches might achieve programmatic goals without sacrificing the environment.
Second, NEPA directs agencies to share with the public the information they develop in assessing the environmental effects …
Originally published on The Regulatory Review. Reprinted with permission.
Ever since Ronald Reagan declared government to be the problem rather than the solution, the federal bureaucracy has been the target of criticism from right-leaning think tanks, regulatory skeptics in academia, and politicians of all political persuasions. Lately, members of the federal judiciary have visibly joined this chorus of criticism.
Among the charges leveled against regulation and the agencies responsible for issuing and enforcing rules is the claim that, even assuming the validity of regulatory goals, traditional regulatory approaches too often fail to achieve them or impose unjustified social costs. Others assert that regulatory "intrusions" on the operation of the free market are antithetical to the protection of individual liberty and the economic system on which our nation was built.
We take a different view.
Government regulation serves a critical role in promoting the public interest by, for …
For five decades California and the federal government have worked together in an innovative exercise in federalism aimed at achieving cleaner air. California has played an important role in controlling greenhouse gas emissions that contribute to climate change, particularly from motor vehicles.
But now, contrary to law and in a massive departure from past practice, President Donald Trump has announced that his administration is pulling the rug out from under California's feet by divesting it of its longstanding authority to adopt auto emission controls more stringent than the Environmental Protection Agency's.
The action, implemented jointly by the EPA and the National Highway Traffic Administration, couldn't come at a worse time. Less than a year ago, the Intergovernmental Panel on Climate Change called "ambitious mitigation actions" indispensable to limiting warming to 1.5 degrees …
Originally published in The Regulatory Review. Reprinted with permission.
At the outset of the Trump Administration, policymakers of all stripes hoped infrastructure might be an issue on which Congress and the President could reach bipartisan agreement. President Donald J. Trump stressed infrastructure needs during and after the 2016 election, and members of Congress from both parties asserted that repairing and upgrading infrastructure was a top priority. Recently, President Donald Trump and congressional Democrats claimed to make progress over the possibility of a $2 trillion infrastructure package. But more than two years into the Trump presidency, the nation has little to show for all that talk, aside from unworkable policies and elusive proposals.
The United States clearly needs a nationwide effort to repair existing roads and bridges, upgrade public transportation systems, build out green infrastructure, and retrofit private and public buildings for the energy future. The government has …
The Trump administration's push to boost fossil fuel extraction has received a major setback. On March 29, Judge Sharon Gleason of the U.S. District Court for Alaska ruled invalid Trump's order lifting a ban on oil and gas drilling in much of the the Arctic Ocean and along parts of the North Atlantic coast. Gleason held that the relevant law – the 1953 Outer Continental Shelf Lands Act – authorizes presidents to withdraw offshore lands from use for energy development, but not to reverse such decisions by past administrations.
If this ruling is upheld on appeal, it would bolster lawsuits contesting another controversial action by President Trump: Removing some 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments in Utah, which were created by Presidents Obama and Clinton respectively under the Antiquities Act of 1906.
As scholars of environmental and …
The bald eagle, sea otter, timber wolf — these iconic animals and more have been saved by the Endangered Species Act (ESA). But the Trump administration doesn't seem to care about our country's natural heritage. It's using questionable arguments about the popular law in an effort to gut protections and convert our public lands into private assets.
The administration's destructive intent is apparent in the proposed revisions to the ESA by the U.S. Fish and Wildlife Service and NOAA Fisheries. These changes appear to be aimed at providing more opportunities for business interests to influence conservation decisions. Indeed, the administration has proposed to turn the law on its head by allowing consideration of economic impacts in listing decisions, restricting …
Professor Michael Robinson-Dorn of the University of California, Irvine co-authored this article with Center for Progressive Reform Member Scholar and University of California, Irvine Professor Alejandro Camacho. It originally appeared in The Conversation on January 11, 2018.
Since the Endangered Species Act became law in 1973, the U.S. government has played a critical role in protecting endangered and threatened species. But while the law is overwhelmingly popular with the American public, critics in Congress are proposing to significantly reduce federal authority to manage endangered species and delegate much of this role to state governments.
States have substantial authority to manage flora and fauna in their boundaries. But species often cross state borders, or exist on federal lands. And many states either are uninterested in species protection or prefer to rely on the federal government to serve that role.
We recently analyzed state endangered species laws and …
On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states' capacity to protect and recover endangered species by looking at how these laws compare to the federal Endangered Species Act (ESA). It also looks at state and federal funding for implementing the ESA.
As we discussed during the briefing, the report found:
In spite of its documented success in conserving vulnerable species and ecosystems, as well as robust and enduring support among American voters, the federal Endangered Species Act has not been spared from calls to devolve funding and authority from the federal government. As this trend has gained increasing support within the 115th Congress and the Trump administration, Sen. John Barrasso (R-WY), Chairman of the Senate Environment and Public Works Committee, is widely expected to introduce legislation that seeks to erode federal support for species conservation. Under the banner of "modernization" and through the mechanisms of devolution, the bill is anticipated to transfer responsibility for the protection and recovery of imperiled species to the states. But as a new report shows, states are not ready to take on this crucial responsibility.
The report, released August 2 by the Center for Land, Environment, and Natural Resources at the University …
Whether it's raging wildfires in the West, catastrophic flooding in the East and Upper Midwest, or rising sea levels on the coasts, there is no question that climate change is affecting and will continue to significantly impact our public lands and the resources they both provide and protect. As a nation, we need to be prepared for these changes and find effective ways to adapt.
To develop a snapshot of the scope and efficacy of such efforts thus far, we assessed the extent to which each of the four principal federal land management agencies – the National Park Service, the U.S. Fish and Wildlife Service, the U.S. Forest Service, and the Bureau of Land Management – have (or have not) started preparing, whether through regulatory standards or otherwise, for the anticipated adverse impacts of climate change on the lands and resources under their jurisdictions.
After surveying …