This post was originally published on Legal Planet. Reprinted with permission.
Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.
More specifically, the Trump revision cut references to indirect or cumulative environmental impacts and discouraged consideration of effects that are remote in time, geographically remote, or the product of a lengthy causal chain. These restrictions flew in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious — think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited to the immediate neighborhood — think of the fertilizer runoff in the Midwest that causes dead zones in the Gulf of Mexico. In ecology, causal chains are often complex, and the same is true for atmospheric physics and other parts of environmental science. And we also know that much damage to the environment is cumulative, such as the effect of deforestation on biodiversity.
When it passed NEPA, Congress was well-aware of those realities. Rather than focusing only on direct effects, the statute speaks of the "interrelationships of all components of the natural environment." (§ 101(a)) Rather than focusing only on the near-term, it speaks of "the responsibility of each generation as a trustee of the environment for succeeding generations" (§ 101(b)(1)), and of "the relationship of short-term uses of man's environment and the maintenance and enhancement of long-term productivity" (§ 101(2)(C)(iv)). Rather than considering only localized effects, Congress was concerned about the "worldwide and long-range character of environmental problems." (§ 101(2)(F)) In short, Congress knew then what scientists know today about the complex, long-term, and far-flung nature of environmental problems.
The Trump administration relied on two justifications for restricting what counts as an environmental effect. The first is based on the concept of proximate cause in tort law. To begin with, the Trump administration distorted what tort law really has to say about causation, emphasizing ideas that went out of favor by the 1950s. In addition, as the Biden EPA pointed out, tort law has different purposes than environmental impact assessment, so there's no reason to expect the rules to be exactly the same.
The Trump administration's other justification was a single U.S. Supreme Court case, Department of Transportation v. Public Citizen. The facts of the case were peculiar. There was a moratorium on allowing Mexican trucks in the U.S. The president couldn't lift the moratorium until DOT came up with safety rules for the trucks. DOT did an environmental impact statement on the safety rules. It didn't consider the follow-on effect that the president would lift the moratorium, which might increase air pollution. From this offbeat case, the Trump administration tried to find a basis for transforming the interpretation of NEPA.
That's a drastic over-reading of the Court's very brief opinion. When you get down to it, the Court's reasoning was very simple: Congress deliberately limited the agency to considering truck safety issues and relegated everything else to the president. Therefore, the agency could not consider the effects of a decision that was the president's alone.
In short, the Trump administration was trying to build an entire brick fortress out of a handful of straw. Rescinding the Trump rule was the right thing to do.
Interestingly, the Biden administration did retain one of the Trump changes, which requires environmental effects to be foreseeable. There's a risk that doing so might encourage too much reliance on tort law, since foreseeability is a key factor there. On the other hand, it's hard to see how an agency could consider an effect that it can't even foresee. Hopefully, this language will just serve as a reminder that there needs to be a reasonable basis for anticipating a possible effect.
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Daniel Farber | April 25, 2022
Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.
Jake Moore | April 22, 2022
In October 2022, the Clean Water Act will turn 50. Though heralded as a crowning environmental achievement, some argue it's a costly and ineffective law. Half a century later, what has it achieved, and what can policymakers improve?
Michael C. Duff | April 21, 2022
It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.
Minor Sinclair | April 21, 2022
I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality. Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean Water Act, a landmark amendment to existing anti-pollution law that requires our government to restore and maintain clean and healthy waterways across the land. That was some era -- the last great upsurge of government protections.
Brian Gumm, Minor Sinclair, Robert L. Glicksman, Sidney A. Shapiro | April 18, 2022
We're sad to share the news that long-time Center for Progressive Reform Member Scholar Dale Goble passed away at his home on April 14. Scholars and staff alike appreciated his warm presence at our scholars' meetings, and he brought a wealth of knowledge to the fields of wildlife and conservation law. When the founders of CPR were reaching out to the nation's leading progressive scholars, we were so pleased that Dale agreed to join. His humanity, his dedication to protecting public lands and wildlife, and his participation in CPR will be sorely missed.
Michael C. Duff | April 15, 2022
Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.
Caitlin Kelly | April 14, 2022
In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study. This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples. Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes and Native Hawaiian Organizations to reclaim ancestral remains and associated objects from entities that receive federal funding.
Daniel Farber | April 12, 2022
The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.
John Knox | April 11, 2022
Introduced last month, the Advancing Human Rights-Centered International Conservation Act comes in the wake of a 2019 news investigation that described many instances of alleged murder, rape, and torture by park rangers against Indigenous people and local communities. The alleged abuses were perpetrated at parks supported by the World Wildlife Fund (WWF), which received millions of dollars in funding from the U.S. government.