Changing the narrative on environmental regulation


By now the narrative is set, and each new rule follows the same tired outline. The Trump administration releases an environmental rule that realigns the bureaucracy back with the Clean Air Act, the Clean Water Act, or other bedrock environmental laws, and the environmental press reports that the president is gutting environmental laws. Rules that correct the regulatory overreach of the Obama administration, or follow the law as passed by Congress, are reported as damaging the environment. Even rule adjustments that deal with process changes but still deliver the underlying environmental benefit are treated as catastrophic.

It’s an easy narrative to fall into. After all, regulatory issues are complex, and understanding the law and reading regulations seems boring. It’s much easier to take the talking points from environmental groups.

But environmental groups don’t care whether rules follow the law or kill jobs and economic opportunity, as long as their policy objectives are achieved. After all, they don’t have to deliver products and services at a reasonable price that clothe, shelter, transport and feed people while keeping the lights on. From their perspective, any red tape is good, no matter how small or even negligent the environmental benefit.

It’s easy to follow a simple narrative rather than inform people about the nature of the bureaucracy. With thousands of pages of regulations that implement the nation’s environmental laws, another narrative might be that there can be errors and unintended consequences. From such a perspective, trimming back red tape once in a while is reasonable. Such a perspective would help inform Americans why the Trump administration has made it a priority, and why markets have responded so positively.

A balanced assessment of the regulatory environment would also recognize the overreach of the Obama administration on a number of fronts. Many of the regulations pursued during the Obama years simply violated foundational environmental laws.

Take for example the Waters of the United States (WOTUS) rule. The Clean Water Act was written to protect “navigable” rivers. The Obama administration expanded that definition far beyond the plain English understanding of the word “navigable” to dry land that may have water runoff after a heavy rain or may not, and to wetlands far away from rivers.

The result was a huge expansion of EPA’s power and control over the economy, with only the slimmest of connections to waters of the U.S. The rule expanded federal power over state waters far beyond what was written into the Clean Water Act. But the reorientation back to the rule of law finalized recently was treated with alarm.

Another example is the proposed rule for the National Environmental Protection Act (NEPA). NEPA was designed to analyze the environmental impacts of federal projects to ensure more protective alternatives are considered. But over the years, it has become a way for obstructionist groups to tie up projects in more and more analysis. Projects languish for years waiting for NEPA analysis to be completed. Environmental groups raise money and earn prestige by challenging just about every project in court, claiming the environmental analysis wasn’t enough. Sometimes they get projects shut down in court, but sometimes a project just goes away because the company runs out of patience years later, no matter how environmentally protective the proposal was.

The proposed rule provides guidelines on completing NEPA analysis in a reasonable timeframe. It attempts to reduce NEPA documents from thousands of pages to a few hundred, and to focus on the actual impacts of projects. By delivering a document of a reasonable length and scope, the public will be better informed and decision making improved. After all, a concerned citizen can read and digest a document of a few hundred pages, whereas the several-thousand-page tomes churned out by government agencies under current NEPA regulations aren’t even read by the decision makers in the government. How can NEPA’s goal of informed, environmentally protective decision making be achieved if the decision makers themselves don’t read and understand the documents?

The environmental lobby is fully mobilized because they have an interest in misusing NEPA as a powerful weapon to shut down pipelines, roads, bridges, water projects, and just about any proposed infrastructure. They will engage activists who believe in the BANANA principle–build absolutely nothing anywhere near anybody.

But the vast majority of Americans are tired of the inconvenience of substandard infrastructure. Many citizens may not have heard of NEPA, but they understand that federal red tape causes huge cost overruns and delays to roads and bridges, leading to traffic jams and infrastructure in disrepair.

By modernizing how the law is practically applied, the proposed changes to NEPA will help fix our nation’s crumbling infrastructure while maintaining the environmental protections Americans demand.

Kathleen Sgamma is the President of Western Energy Alliance, which engages in federal legislative, public lands, environmental, and regulatory issues on behalf of companies involved in all aspects of environmentally responsible oil and natural gas exploration and production in the West.

Tags National Environmental Protection Act NEPA Waters of the United States
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