March 10, 2020

Whitehouse, Merkley Call Out Trump Administration for Handing Over NEPA Rulemaking Process to Fossil Fuel Polluters

Senators: polluting industries cannot write the rules for regulators;CEQ proposal borrows arguments ripped directly from industry talking points, senators note

Washington, DC – Today, Senators Sheldon Whitehouse (D-RI) and Jeff Merkley (D-OR) submitted an official comment on a proposal by the White House Council on Environmental Quality (CEQ) that would block federal agencies from considering under the National Environmental Policy Act (NEPA) the effects of federal government actions that contribute to climate change and other major environmental problems.  The proposal is such a blatant giveaway to the fossil fuel industry, it constitutes an illegal delegation of an agency’s authority to an industry the agency is supposed to regulate, the senators write. 

The purpose and prize of the fossil fuel industry’s well-documented regulatory capture of the Trump administration was that the administration effectively delegated its authority to the industry that captured it,” Whitehouse and Merkley write.  “There is no substantive difference between an agency explicitly telling a company or industry to write a regulation, and an agency (indeed, an entire administration) signaling to a company or industry that it will write whatever regulation the company or industry wants.  The substance is all industry, and the public interest is ignored.  That is not lawful under well-established principles of administrative law.”

The senators point to a mountain of evidence for their argument: clear signals from financial experts of carbon pollution’s potential to upend the American economy that were ignored by the Trump administration; the administration’s capture by fossil fuel interests; the pattern of handouts to fossil fuel interests by the administration; and the clear, immediate benefits to the fossil fuel industry of blocking agencies from considering the cumulative effects of an action in environmental reviews – especially when the Trump administration has used expanded cumulative review processes to slow renewable energy development. 

Specifically, the senators point to disturbing instances of the Trump administration borrowing from industry talking points in drafting the new NEPA rule.  The senators note that the administration’s proposal cites concerns often proffered by the fossil fuel industry about “excessive documentation” and “frequent litigation,” which CEQ uses as justification for abandoning NEPA’s analysis of cumulative impact and indirect effects.  The CEQ also claims that evaluating the cumulative impact and indirect effects of a project “can divert agencies from focusing their time and resources on the most significant effects” and suggests that cumulative impact analysis does not “focus on the most meaningful issues” – sentiments belied by the increasingly serious warnings coming from financial experts about the effects of climate change.  

The senators note that the rationale for the proposal contradicts the Trump administration’s effort to expand its analysis of the cumulative impact of renewable energy projects – direct competitors to fossil fuel energy.

[W]hen oil and gas projects are not under NEPA review, the Trump administration sings a different tune about cumulative impact analysis,” the senators write.  “In the case of renewable energy, a direct competitor to the Trump administration’s fossil fuel benefactors, the administration is very much in favor of cumulative impact analysis, presumably as a way to delay or ultimately reject renewable energy projects that would reduce the market for fossil fuels.”

The senators note the range of fossil fuel interests that have infiltrated the Trump administration and those interests’ complete control over administration decision making.  Major fossil fuel companies, industry executives and lobbyists, and powerful trade groups have all been revealed as guiding Trump policymaking, with many sending personnel directly into federal agencies. 

A PDF copy of the senators’ comment is available here.



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