The Trump administration has blown up 50 years of environmental permitting rules in his first days in office, throwing the future of infrastructure projects into uncertainty.
Donald Trump ordered the White House Council on Environmental Quality to begin erasing every regulation it has instituted since Jimmy Carter’s presidency for the National Environmental Policy Act — the law that requires infrastructure projects like highways, railroads and power lines to go through environmental reviews.
The order is likely to invite legal challenges. It has also put the clean energy industry on edge.
Over the last four years, clean energy groups, frustrated by the slow process for transmission lines and new power infrastructure, split with environmentalists and advocated for permitting reform alongside many conservatives and oil and gas companies.
But Trump’s order to slash all the permitting rules, paired with his actions favoring fossil fuels, nuclear and geothermal energy sources over wind and solar, has renewable energy groups questioning the president’s actual intent.
“Unfortunately, I think a lot of this is a further weaponization of the permitting process. We need to figure out a more straightforward, clearer way to do this,” Lindsey Baxter Griffith, the CEO of energy policy advocacy group Clean Tomorrow, said to NOTUS. “Increasing the uncertainty around permitting for projects is going to be detrimental.”
The United States has struggled to build big, ambitious infrastructure in recent decades, and environmental reviews get most of the political blame. The advocacy groups that oppose the country’s biggest projects, whether on environmental or community grounds, have used NEPA lawsuits to slow or stop many of them. In order to protect themselves from lawsuits, agencies rely on review processes — created by the CEQ — that often add years to any given project.
After NEPA became law in 1970, it caused so much confusion and disarray over how to implement it that Carter gave the CEQ the right to produce binding, clarifying rules. The CEQ has done so in every administration since then, adding or changing rule after rule over the decades that dictate how the rest of the government agencies conduct their environmental reviews. Today, there are so many rules that projects require hundreds or even thousands of pages of documentation, and then they almost always face lawsuits about those documents.
Because NEPA itself is such a vague law, removing CEQ’s long-standing rules will just bring that confusion right back, said James Broughel, a senior fellow at the Competitive Enterprise Institute, putting Trump in a situation similar to Carter’s. As a result, the reforms could end up significantly less sweeping than the administration would want, he cautioned.
“It could be that the president replaces the Carter executive order with a new executive order. It might direct CEQ to provide guidance to the different agencies and more or less copy some set of policies or practices,” he said. The agencies would then formally codify those rules, resulting in more of a technical change than an actual substantive reform.
Trump’s order directly built upon a D.C. Circuit Court of Appeals ruling late last year that unraveled the authority of the CEQ.
“I don’t know if they would have repealed the Carter executive order absent that case,” Broughel said. “That probably gave them some cover to get rid of that authority.”
The Natural Resources Defense Council, one of the groups that defends NEPA, did not have an answer to a question from NOTUS about the implications of Trump’s order and what comes next. “We need a little more time to really be able to give an answer to that question,” Manish Bapna, NRDC’s president, said.
The World Wildlife Fund, the Center for Biological Diversity and the National Audubon Society were among the many groups that immediately attacked the permitting-related orders.
Ultimately, Trump’s order to gut the CEQ’s rules could pose a serious problem for companies for the next several years.
If the Trump White House were to pursue a radical departure from how things work today, it would open up the government and companies to even more lawsuits over those changes, without any idea which ones would stand up in court.
Companies might even advocate that the administration avoid this option because that possibility would be such a huge problem. While the chaos would eventually settle after years of litigation, that period could be a death knell for many projects.
“This is a continued snowball of the problems we’re seeing across the clean energy space for building and siting,” Baxter Griffith said.
“I don’t think it’s ideal. It’s most likely that the result of that process, in a roundabout way, might bring us back where we are now,” all while creating a period of time where the companies and agencies aren’t sure what rules to follow, Broughel said. He does anticipate that the final outcome will provide some improvements on the status quo, just not massive substantive ones.
Other permitting reform advocates are more optimistic than Broughel. Thomas Hochman, the director of infrastructure policy at the Foundation for American Innovation, was enthused about the Trump order and said that he believes the period of uncertainty will lead somewhere significantly more efficient at an American Enterprise Institute event on Tuesday morning.
But Hochman said that congressional action to reform NEPA would be much better for companies and clear up the uncertainty. “This executive order becomes so much more powerful if you also get Congress to act,” he said.
The executive order gives the CEQ only 30 days to produce some kind of temporary guidance for the agencies while this all gets hashed out. The president has not yet announced who will lead that agency. And the details of these decisions are very much going to matter, determining whether the next several years lead to a disastrous litigation doom loop, both Broughel and Hochman warned.
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Anna Kramer is a reporter at NOTUS.