NEPA Rollback, EPA Science Rules Threaten Transparency; Plus, Pandemic Press Restrictions?

Above, demolition in May 2019 at Grand Canyon National Park's Maswik South Lodge. Environmental assessments now required for large construction projects may be no longer be mandated, if a Trump administration proposal to overhaul NEPA takes effect. Photo: National Park Service/M.Quinn, Flickr Creative Commons. Click to enlarge.

WatchDog: NEPA Rollback, EPA Science Rules Threaten Transparency; Plus, Pandemic Press Restrictions?

By Joseph A. Davis

 

1. NEPA Rollback Effort Threatens Environmental Transparency
2. EPA Science Rule: When Is Transparency Not Transparent?
3. Reporters Committee Compiles Press Protections in State Emergency Laws
4. NFOIC Launches Automated Tracker for State FOI Bills

 

1. NEPA Rollback Effort Threatens Environmental Transparency

One of the oldest environmental laws on the books in the United States gives people a right to information about how government impacts the environment. The Trump administration wants to gut it. The result will be less public information.

That means less information about pipelines, dams, highways, transmission lines, construction projects and permits that federal agencies are involved in.

The National Environmental Policy Act was passed in 1970 at the beginning of the modern environmental movement. In essence, it requires that when the federal government takes a major action that affects the environment, it needs to study those impacts and explain them in a formal public statement. It’s a bedrock of environmental transparency.

You’ve probably heard of the “environmental impact statement,” or EIS, that accompanies a particular project or projects. Journalists love it because it’s a compendia of factual information that can usually be relied on for accuracy. That’s because it is prepared by experts and gets lengthy review and comment by all interested parties. Of course, everything should be checked, but it can save reporters a lot of work when they come to a topic cold.

What’s more, the federal NEPA rules require “public participation” in the EIS process. Sometimes this involves meetings, which are great places for reporters to find the players and interview them.

NEPA is carried out by an extensive regulatory structure and interpreted by 50 years of case law. The overarching regulation is set by the White House Council on Environmental Quality, or CEQ (also mandated by NEPA). But most agencies have their own additional regulations for applying NEPA to their particular missions. Here’s the master regulation from the CEQ as it currently stands. 

On Jan. 9, 2020, the Trump White House proposed an overhaul of the CEQ reg on NEPA. Here’s the text of the proposal and White House fact sheet, with analyses on the regulatory rollbacks (may require subscription) and the effect on climate policy (may require subscription).

The Trump administration’s justification for the proposal is a claim that too many projects are delayed by environmental review. It proposes limiting the scope of what requires environmental review, including only larger projects. It also proposes a two-year time limit and a page limit on EISs. In many other ways, it proposes limiting the environmental impacts the feds must consider before acting.

 

The plan proposes tossing any requirement 

for analysis of “cumulative effects” of a 

federal action — widely understood to mean 

consideration of climate change.

 

Most importantly, however, it proposes tossing any requirement for analysis of “cumulative effects” of a federal action — widely understood to mean consideration of climate change.

As if to signal the administration’s feelings about public participation, CEQ scheduled only two public hearings on the proposal and left only a two-month comment period, not a lot for a proposed rulemaking of such sweeping national importance.

Environmental groups oppose the rollback, as do many blue states, and can be counted on to file court challenges as soon as the rule is made final. That’s why the White House is in such a rush. If Democrats take over both House and Senate in the 2020 elections, as well as the White House, they could overturn the NEPA rollback using the power of the Congressional Review Act. 

The CRA gives Congress a deadline of 60 “legislative” days (not calendar days) to overturn a regulation. So the Trump administration would have to finalize the proposal pretty quickly to be immune from reversal. Depending on how Congress schedules its sessions, the deadline could be as soon as this month.          

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2. EPA Science Rule: When Is Transparency Not Transparent?

It is close to crunchtime for the U.S. Environmental Protection Agency’s “secret science” rule. That’s the one that dictates what science the EPA isn’t allowed to look at when setting rules that protect people’s health.

The proposed rule may be nearing finalization as the Trump administration watches the calendar peel off what may (or may not) be its final months in office. A tweak EPA issued March 3 was a signal the agency plans (may require subscription) to issue the final rule this year.

EPA has been weighing the rule (may require subscription) for several years, since it was proposed by former Administrator Scott Pruitt. Environmental and science advocacy groups say it is an effort to suppress science that EPA finds politically inconvenient. The agency denies that. Even EPA’s own science advisers have questioned the proposal, saying most recently that it could reduce the agency’s scientific integrity.

The rule embodies a years-old conservative effort to discredit the science EPA has used for things like controlling air pollution. It prohibits EPA from using studies unless all the patient data going into them is disclosed. Scientific practice is to keep such data anonymous for patient privacy. While EPA has made “transparency” part of the rule’s title, critics say it serves to blind the agency.

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3. Reporters Committee Compiles Press Protections in State Emergency Laws

As the pandemic crisis deepens, various arms of government have declared various kinds of “emergency.” Watch out.

Yes, the virus is an emergency. But looking at world history, declaration of an emergency, real or otherwise, has sometimes led to authoritarian governments seizing power and abolishing the free press.

The Reporters Committee for Freedom of the Press has gone through public health emergency laws in all 50 states to see how they affect the news media. For example, do lockdown or shelter-in-place orders restrict reporters’ access to news events? Find the RCFP analysis here.

 

The good news is that many states 

do have explicit exemptions protecting 

news media from restrictions on 

their newsgathering ability.

 

The good news is that many states do have explicit exemptions protecting news media from restrictions on their newsgathering ability. RCFP breaks it down for each state.

“If misused,” RCFP says, “emergency public health powers could come into conflict with the newsgathering rights of journalists. Fortunately, many states, though far from all, have passed laws that explicitly protect the news media from the misuse of emergency powers to interfere with newsgathering or reporting.”

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4. NFOIC Launches Automated Tracker for State FOI Bills

Now you can more easily keep a weather eye out for threats to open information and press freedom in your state legislature. A robot tracker gets credit — and the National Freedom of Information Coalition, or NFOIC.

In fact, you might want to make a bookmark on your web browser just for keeping an eye on those mischievous legislators. There is a dashboard for every state, which watches state legislature websites for bills having to do with transparency. Find your state here. 

The NFOIC is an alliance of FOI and press freedom groups in many of the 50 states. It is nonprofit and nonpartisan, funded by foundations.

There are constant efforts by various industry lobby groups to restrict information by getting state legislation enacted. An example is the array of “ag-gag” bills outlawing undercover reporting on industrial agriculture operations. These have been promoted by conservative lobby groups like the American Legislative Exchange Council, or ALEC. Courts have found them unconstitutional, but ALEC keeps pushing them.

NFOIC has built a smarter robot. It “scrapes” the legislative websites of all the state legislatures in real time, looking for bills with certain FOI-related keywords. The search terms have been customized for each state.

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Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog column and WatchDog Alert.

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* From the weekly news magazine SEJournal Online, Vol. 5, No. 19. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.