Air Date: Week of February 28, 2025

Activists worry that President Trump’s executive order regarding the National Environmental Policy Act will undermine environmental protections, including infrastructure projects that could increase the risk of climate disruption, such as export terminals that promote increased use of planet-warming natural gas. These concerns go back to his first presidency, as shown by this photo taken of a 2020 protest. (Photo: Moms Clean Air Force, Flickr, CC BY-NC-SA 2.0)

Major fossil fuel projects like LNG terminals could become harder to oppose on environmental grounds because of a Trump executive order that tries to weaken agency compliance with NEPA, the National Environmental Policy Act. Dan Farber is Faculty Director of the Center for Law, Energy and the Environment at UC Berkeley and joins Host Jenni Doering to explain the role of NEPA and how environmental concerns may take a backseat under the new project review process.

Transcript

DOERING: From PRX and the Jennifer and Ted Stanley Studios at the University of Massachusetts, Boston, this is Living on Earth. I’m Jenni Doering.

BELTRAN: And I’m Paloma Beltran. The US is already the world’s largest exporter of LNG, or liquified natural gas. And dozens more export terminals are proposed or in the works especially along the Gulf Coast. President Biden had paused new LNG terminal and pipeline permits until the end of 2024, but the Trump administration issued an executive order that lifts that pause and could make it harder for opponents to object on environmental grounds. And all of these natural gas projects could have a huge climate toll. If completed, the Sierra Club estimates that their greenhouse gas emissions would be the same as more than 800 coal-fired power plants.

DOERING: Yeah, that’s just enormous, and it could really make it hard to slow the climate crisis. But Paloma, there is a law that places some guardrails on federal projects like LNG export terminals. It’s called NEPA, or the National Environmental Policy Act, and it was signed into law back in 1970. It’s sometimes called the “magna carta” of environmental law, but it’s now a target of a Trump executive order. Since it was passed the law has required federal agencies to consider the potential environmental impacts of their actions before plowing ahead. And they must make these Environmental Impact Statements available to the public for comment and review.

BELTRAN: That’s right, Jenni. And if they’re not up to snuff, the courts can order agencies to amend or redo their analysis. For example, the Federal Energy Regulatory Commission or FERC prepared an EIS for the Rio Grande liquefied natural gas and Rio Bravo pipeline projects on the Texas coast back in 2019. But you know, court review stalled those projects for at least another 5 years over environmental justice concerns.

DOERING: And now this process of environmental review for major projects appears to be yet another casualty of President Trump’s executive order blitz. You know, until now, the review criteria have been standardized by the White House, but President Trump wants to let agencies like FERC write their own rules for complying with the law. And this might speed up the permitting for major fossil fuel projects, including LNG. Dan Farber is a law professor and Faculty Director for the Center for Law, Energy, and Environment at the University of California, Berkeley. He’s on the line now to walk us through what’s going on. Welcome to Living on Earth, Professor!

FARBER: Great to be here.

DOERING: Can you give us an example of a high-profile project in maybe recent years where NEPA played a significant role in making sure that that project was done in a reasonable way?

FARBER: Some of what NEPA does is invisible, right? Because agencies, even before they start to propose a project, will be thinking about, how can they minimize the environmental impacts and try to avoid having to do a big environmental impact statement? But I think, for example, all the cases that you see about natural gas pipelines, about oil drilling, all of those cases, they've at least had to take environmental issues into account, and tried to find ways, for example, to minimize the impact on habitat or minimize the impact on wildlife. So it really is kind of pervasive. It rarely kills the project outright, but it often results in kind of rejiggering a project to try to make it less environmentally harmful.

DOERING: Now we're talking to you Dan, because in one of his many day-one executive orders, President Trump took a stab at NEPA. What does this executive order say in regards to this environmental law?

FARBER: That was kind of a sleeper. It's part of a very long executive order about energy, and a lot of people didn't even notice it at the time. A little bit of background is necessary to understand what Trump was doing. Apart from creating environmental impact statements, NEPA also created an agency called the Council on Environmental Quality, which sits in the White House. And since the time of Jimmy Carter, the council, often called CEQ, has issued regulations telling agencies how they have to go about writing environmental impact statements and really filling in the very general language that's found in the statute. Those regulations were really well-accepted, and courts paid them a lot of attention as really representing the, I don't know, driver's manual for the Environmental Impact Statements for NEPA. Courts have really looked to those regulations to define what agencies can do legally and what they can't do legally. What Trump did, two things. One is he immediately revoked Jimmy Carter's executive order, to take away that binding effect, and as a result of that, agencies are no longer required to follow the CEQ regulations as they were in the past. And the other thing he did was assign the agencies to write their own regulations dealing with Environmental Impact Statements.

DOERING: I guess I'm a little confused about one aspect of this. The Council on Environmental Quality is within the White House. You know, that seems like a little bit closer to the President and perhaps more control over what CEQ is doing. Why would the President want to sort of transfer that regulation power to the agencies?

FARBER: I think that's really a puzzle to tell the truth. Now they haven't transferred quite as much control as it looks like, because the White House is going to be coordinating these agency rule making, and coordination probably means pretty strict orders about what to do and what not to do in this setting. But still, it seems like it would be much more efficient to just have CEQ issue binding regulations, as it has in the past. And I'm really perplexed. One possibility is they're doing it because they've decided on sort of ideological grounds that they don't like CEQ. Conservatives have kind of rebelled against CEQ regulations in the past. I think it's kind of counterproductive because of the confusion it will cause. They're maybe getting rid of part of the existing structure, and they like to deconstruct the administrative state, but in the course of doing that, it creates uncertainty that makes it harder for agencies to know what to do, and it also makes it harder for courts to know what the rules are in dealing with Environmental Impact Statements, which means that the permitting process for oil pipelines and coal mines and offshore drilling are all going to get more fraught, and I don't really see how this advances their agenda.

DOERING: So while the Trump administration isn't taking away NEPA entirely, because they can't, that would require an act of Congress, they are seeking, it appears, to weaken the influence of NEPA in federal agencies. What's at stake here for the environment and for communities across the country?

FARBER: I think the stakes are pretty significant. Many government decisions about public lands in particular and public waters like the coast and offshore operations are not governed by very strict environmental standards. And the thing that really keeps environmental considerations on the table is the need to comply with NEPA, and therefore the need to be able to say something plausible about exactly what you're doing to the environment and why it won't be that bad, and you don't really have any alternative. That's sort of your typical impact statement. But without NEPA, there wouldn't even be that. It would be much easier for them to run roughshod over environmental interests in the way that clearly, some people in the Trump camp would like to do. One other thing Trump did in the executive order that we haven't talked about, is he gave some marching orders to the agencies about writing their new regulations. And what he said was, except as required by law, the regulations should give absolute priority to efficiency and clarity. And absolute priority, I think, means and no consideration of environmental issues, except to the extent that they just can't avoid it. And I think getting rid of NEPA, or at least limiting it as much as possible without violating the law, is a step in that direction. It also fits in, I think, with the use of the energy emergency as an excuse to further speed up and streamline environmental reviews, again, with the aim of making it as light a touch as possible, so you can brush past any environmental issues and get what you want done.

DOERING: Dan, to what extent has there been a call to reform NEPA from across the political spectrum?

FARBER: I should say that the idea of streamlining permitting is not entirely a conservative or Republican idea at this point. It was historically, but there's also concern that some of the permitting and maybe some of the environmental reviews are slowing down renewable energy projects and electric transmission projects, which we need to use the renewables. So there's some support for the idea that we ought to do streamlining. I think the difference between the left and the right on this issue is that the people on the left want to retain a greater role for environmental considerations, and the people on the right would be happy to wash their hands of them entirely.

DOERING: Now, one of the key objectives of NEPA, as I understand it, was to give the public a chance to weigh in on projects that could significantly impact their communities. To what extent will public participation and commenting still be a part of the NEPA process?

FARBER: I think that's something we'll really need to see. I don't think they're going to get rid of it entirely, and there's some basis in the statute for thinking that would be difficult, but on the other hand, there's no real advantage to them to have a lot of public participation that's just going to gum up the works. So I wouldn't be surprised if the new regulations included some efforts to really curtail the amount of participation by the public. Along with these changes in the NEPA regulations, Trump has also abolished agency environmental justice offices, and has said that agencies should not consider environmental justice because it's a form of DEI. And so that also is going to really curtail the ability of communities to make a difference in the proceedings.

DOERING: Right, so they might be raising environmental justice concerns that almost fall on deaf ears.

FARBER: Yes, I think that quite likely will be true.

DOERING: Dan Farber is a Law Professor and Faculty Director for the Center for Law, Energy, and Environment at UC Berkeley. Thank you so much, Professor.

FARBER: Thank you for having me.

 

Links

The White House |“Unleashing American Energy Executive Order”

Environmental Protection Agency | “What is NEPA?”

US LNG Export Tracker (click on Toplines tab to see emissions estimates)