The Fight to Preserve NEPA: Climate Protection and Environmental Justice

On July 16, the Trump administration’s Council on Environmental Quality (CEQ) finalized new regulations dismantling the procedural safeguards for our climate and our communities that for 40 years have provided the backbone of the National Environmental Policy Act (NEPA). This week, the Sierra Club, NRDC, and a coalition of organizations that focus on environmental justice—Communities for Environmental Justice, Environmental Justice Health Alliance, Center for Community Action and Environmental Justice, and Texas Environmental Justice Advocacy Services (TEJAS)—are pushing back by challenging those regulations in federal court. 

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CEQ’s new regulations codify divisive and ruinous climate and social policies that were created like so many other Trump platforms: on shaky legal ground and with the interests of the fossil fuel industry in mind. But the Sierra Club is built for fights that are won both in the courts and in ballot boxes. With less than 100 days until the November election, it is more critical than ever that our members mobilize for social and climate justice.   

NEPA is fundamentally about informed and transparent decision-making. The statute requires federal agencies to analyze environmental impacts—and disclose those to the public—for projects those agencies approve. For many projects, NEPA offers the public its only opportunity to learn about the climate impacts of those proposals. It’s also a critical tool in the fight for environmental justice—NEPA requires federal agencies to analyze and disclose a project’s foreseeable environmental, economic, social, and public health impacts, including its disproportionate impacts on communities harmed by systemic racism. Although the regulations gut NEPA by instituting a suite of changes that squash the scope of NEPA reviews, restrict public participation, and make enforcement far more difficult, here we’ll address one change and how it both affects climate analysis and disproportionately hurts communities that are already unfairly bear burdened by the harms of industrial development: The new regulations rewrite the definition of “effects” to prevent federal agencies from considering and disclosing “cumulative” and “indirect” effects.

First, spoiler alert: The way in which the Trump Administration made these changes violates the law. The new regulations run counter to the plain language of NEPA, conflict with case law interpreting the statute prior to the first NEPA regulations promulgated in 1978, and contradict decades of CEQ’s own positions without explanation. 

Now here’s why you should care. 

The obligation to consider cumulative impacts—expressly forbidden by the new regulations—is intended to guard against “the tyranny of small decisions,” to quote from Kern v. BLM, 284 F.3d 1062, 1078 (9th Cir. 2002). By eliminating “cumulative impacts”—such as the impact of multiple refineries on the air we breathe or the water we drink—the new regulations would  particularly harm the economically exploited communities that are too often already burdened by multiple sources of industrial pollution, which are usually communities of color. 

Cumulative impacts are also an intuitive way to understand our current climate crisis: Multiple sources of greenhouse gasses add up to one pressing, existential threat to humanity. But you don’t wish climate change away by pretending it doesn’t exist—just like you don’t solve a public health pandemic by not testing people. 

Further, in eliminating the disclosure of “indirect effects” by cutting out any impacts that are “remote in time, geographically remote, or the product of a lengthy causal chain," the Trump administration is “hiding the ball” (suppressing evidence) on essentially all climate analysis and thereby opening the door for more pollution in environmental justice communities. If, say, you live downstream of a facility that discharges mercury into the headwaters of a river, you should have the opportunity to know how that pollution will affect your community, even if those impacts are felt later in time or are “geographically remote” from the facility itself. 

On climate, the lowest bar we should ask of our federal government is to be honest and transparent about the climate impacts of the choices it makes. But if you want to know about the climate impacts of, for example, the Keystone XL pipeline slated to connect Alberta tar sands with refining hubs in Nebraska, the Sabal Trail gas pipeline in the East, or the Manhattan-sized coal mines on public lands in Montana and Wyoming, then NEPA is your best and usually only avenue to learn that information. In recent years, the Sierra Club has invalidated federal approvals for each of those projects based on inadequate climate analysis under NEPA. But the new regulations would take those opportunities away, which as you’ve probably guessed, is the real goal of these changes in the first place. 

It’s a microcosm of the Trump administration itself: damaging, shortsighted, and determined to prop up a dying fossil fuel industry to help a small handful of corporate executives while harming the rest of us. 

The Sierra Club is here to push back on these policies. Climate and environmental justice are fights we’ll gladly take to the courts this week.