Analysis: U.S. infrastructure deal threatens to undercut key environmental law

REUTERS/Evelyn Hockstein
  • Language could pave way for fossil fuel projects, advocates warn
  • Backers want more streamlined review process
  • Democrats tolerate legislation, eyeing broader spending package

WASHINGTON, Sept 29 (Thomson Reuters Foundation) - A massive infrastructure bill moving through the U.S. Congress could make it easier to push through new fossil fuel projects, including controversial pipelines, with reduced public input, experts and advocates warned ahead of a make-or-break vote.

House Democrats were laboring toward potential passage of the $1.2 trillion bill this week as they try to send the legislation to U.S. President Joe Biden’s desk for signature.

But language in the bill meant to streamline the federal permitting process could short-circuit key tenets of the National Environmental Policy Act (NEPA), making it more difficult to file and win legal challenges to block projects, critics say.

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“(It) would perpetuate historic environmental injustices and the racism the Biden administration was purportedly tackling” in its climate policies, said Karen Sokol, a professor at Loyola University New Orleans College of Law.

Among other provisions, the bill paves the way to exclude certain natural gas and oil projects from the standard review process and imposes new time limits on federal environmental reviews of major projects.

Proponents say such measures cut down on red tape in an often unwieldly federal bureaucracy.

“We can do things in a more efficient amount of time – build more things and obviously protect the environment and put people to work at the same time," said Thomas Aiello with the National Taxpayers Union, a nonprofit lobbying group.

Under the legislation, lead agencies are supposed to target two years as a time frame to complete the environmental review process for some projects and limit some parts their assessments on anticipated environmental impact to 200 pages or fewer.

The administration of former President Donald Trump said in a 2020 report that the average length of an environmental impact statement conducted by the Federal Highway Administration was 742 pages and took an average of 7.37 years to complete.

But green groups said the effort to speed up decisions, which the Trump administration prioritized, undercuts environmental protections.

“We’re all for more effective and efficient environmental review, but not at the expense of just getting a pass,” said Sharon Buccino, a lawyer and environmental review expert with the Natural Resources Defense Council, a nonprofit advocacy group.

The bill restores elements of an order Trump enacted – and which Biden moved to rescind right after taking office - that sought to consolidate the federal environmental review process.

Trump’s executive order, for example, put a 90-day deadline on authorization decisions for major projects once an agency review was finished.

“The bill really allows speed to trump protection," Buccino said.


Critics said the changes would block a key remedy used by green groups to challenge fossil fuel and other environmentally destructive projects.

“That prevents or makes it very, very hard to get (an) injunction on projects before they begin, if they’re going to be harmful,” said Anthony Rogers-Wright, director of environmental justice with the group New York Lawyers for the Public Interest.

He pointed to the Dakota Access pipeline, the largest pipeline out of the North Dakota oil basin, which is being allowed to operate even after a federal court revoked the project's environmental permit last year and ordered another review.

The pipeline first entered service in 2017 over objections from Native American groups, who had argued that the U.S. Army Corps of Engineers violated NEPA by issuing permits for the project without adequate review.

The groundbreaking law, first signed by President Richard Nixon in 1970, requires federal agencies to consider the environment when making decisions – including on major infrastructure projects like the national highway system.

“A lot of what drove NEPA was the recognition that things like highways (and) other sorts of polluting infrastructure are not in white communities. They’re (largely in) communities of color – Black, brown, indigenous communities,” Sokol said.

But Aiello, the National Taxpayers Union's director of federal affairs, said people should still have ample opportunity for public input on projects that affect their communities, even under the changes.

“Just because you are reviewing things more doesn’t necessarily mean you’re going to get better outcomes,” he said.

U.S. Sen. Rob Portman of Ohio, one of Senate Republicans’ chief negotiators on the infrastructure bill, has touted the permitting changes as a crucial part of the package.

“Taking the average from currently six, seven, eight years down to two years for a project, why doesn’t that make sense? Everybody should be for that,” he said in a floor speech last month touting the broader bill.

But it can take significant time for communities to properly assess possible drawbacks, said Dana Johnson with WE ACT for Environmental Justice, an advocacy group.

She pointed to a planned toll bridge in the Mobile, Alabama, area that opponents warn could divert truck traffic through the city's historic Africatown.

The area, which has long dealt with pollution issues, was settled by Africans believed to be transported on the last known slave ship to travel from Africa to the United States around 1860.

“NEPA, with its imperfections, does give that community the opportunity to assess the impact of that bridge on their community in a public health scenario,” she said. “In this new scenario, that diminishes.”


Congressional Democrats say they'll stomach perceived shortcomings in the infrastructure bill if they can secure a more far-reaching spending package that includes priorities ranging from clean energy tax credits to paid family leave.

“There are things in there that are not how I would have crafted it,” U.S. Rep. Ro Khanna, a California Democrat, told the Thomson Reuters Foundation. “But I’m willing to embrace that compromise if we have the broader 'Build Back Better' agenda.”

The infrastructure bill includes $110 billion for fixing highways, roads and bridges, $65 billion for expanded broadband, and $55 billion for water infrastructure, including replacing lead pipes, among other provisions.

The framework for the House Democrats’ broader $3.5 trillion proposed spending package does include new funding to carry out swifter reviews under NEPA, something advocates say is long overdue.

Studies have consistently shown that a lack of funding and resources – and not the law itself – are the typical cause of project delays, said Stephen Schima, senior legislative counsel at Earthjustice, an environmental law group.

“Imposing arbitrary time limits or page limits doesn’t do anything to address the underlying problem," he said. “You cannot build back better without robust and meaningful NEPA review.”

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“Reporting by David Sherfinski. Editing by Laurie Goering. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly. Visit <a href="" target="_blank"></a>

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