As we all remember, a core element of the Trump campaign was the promise to improve our nation’s infrastructure:
We are going to fix our inner cities and rebuild our highways, bridges, tunnels, airports, schools, hospitals. We are going to rebuild our infrastructure which will become, by the way, second to none. And we will put millions of our people to work as we rebuild it.
According to Gallup, 69% of all Americans believe that it is “very important” for Trump to keep his campaign promise to “enact a major spending program to strengthen infrastructure.” In fact, out of all of the campaign promises polled by Gallup, more respondents cared about infrastructure than any other topic.
Less popular but just as consistent was Trump’s interest in promoting extractive industries such as oil, gas, and logging (logging question at 33:50).
While much of the discussion so far has focused on regulation and funding, the federal government also plays the lead role in planning the projects that improve our infrastructure and allow for resource extraction.
Interestingly, preliminary data shows that the federal government is actually slowing down in its approval of projects relating to infrastructure and resource extraction. This type of slowdown was not seen in the first few weeks of the Obama or George W. Bush administrations—what is going on now is not a general feature of a transitioning administration.
Now, I do not claim to have tracked down every single project related to infrastructure or resource extraction. However, it is possible to get a general picture of how these activities are progressing by taking a look at one important step in the process required for major projects that need to be approved by the federal government. By looking at “Notices of Availability” of Environmental Impact Statements (which are published in the Federal Register) we have a snapshot of the progress that the government is making on some of their largest and most controversial projects.
Based on my review of the Federal Register since Trump took office, the rate at which such notices are being prepared has dropped by more than two-thirds when compared to the Obama and George W. Bush administrations.
To understand Notices of Availability and Environmental Impact Statements, we need a basic understanding of the law known as NEPA. Passed by a Democratic Congress and President Nixon, the National Environmental Policy Act (NEPA) requires the federal government to analyze the environmental effects of any federal action. Federal actions include building “highways, bridges, tunnels, airports, schools, hospitals, etc…” NEPA analysis is also required when private entities conduct activities on Federal land such as building powerlines, drilling for oil, logging, expanding ski resorts, or installing renewable energy projects. Since navigable waters of the United States are under the jurisdiction of the Federal Government, projects such as constructing pipelines across rivers (even when all of the adjacent landowners are private) requires NEPA analysis before the Army Corps of Engineers can issue a permit. Courts have interpreted NEPA broadly, which means that the federal government is required to conduct analysis under NEPA even when the only Federal action is providing funds to state or private entities. In fact, this was identified as a barrier for implementation of the stimulus package (ARRA) that was enacted in 2009. NEPA analysis also takes place when the government enacts new regulations that affect the environment, but that instance of NEPA analysis is actually much less common than the garden variety project that actually builds something or approves the construction of something else.
Under NEPA, the level of analysis that is required depends on the complexity of the project and the environmental impacts of the activities proposed. The highest level of analysis is contained in an Environmental Impact Statement, or EIS. An EIS takes the Federal Government several years to complete, and the public has multiple opportunities to provide comments on that EIS. One such period is triggered by the publication of a “Notice of Availability” (NOA) in the Federal Register. Additionally, once comments are addressed and the EIS is ready to be finalized, federal regulations require that another NOA be published in the Federal Register. Thus, for each EIS, there are two NOAs, one NOA for the Draft Environmental Impact Statement (DEIS) and one for the Final Environmental Impact Statement (FEIS).
As it so happens, NOAs only appear in the Federal Register on Fridays, and they are easy to find because they all come under one heading with the EPA as the authoring agency. The EPA serves as a clearinghouse for NOAs by assembling a list of every DEIS and FEIS that it receives during the previous week. For example, EISs submitted to the EPA during the last week of the Obama Administration (January 16-20, 2017) appeared in the NOA that was printed in the Federal Register on January 27, 2017.
The NOAs published in a given week serve as a snapshot of what the Federal Government is up to, especially as it relates to infrastructure projects. During the last three weeks of the Obama Administration (January 27, January 23, January 13), a total of 20 projects were sent to the EPA to post in the Federal Register (the NOA was published on January 23, a Monday, because the Federal Register was not published on Friday, January 20, Inauguration Day).
Taking an average, the Obama Administration published 6.66 NOAs per week during the last three weeks of its administration. In the first three weeks of the Trump Administration, 4 NOAs have been published. Not 4 per week, but a total of 4. Two notices each were published on February 3 and February 10, 2017. Zero notices were published this past week (February 17). This is more than a two-thirds decline in NOAs, which means that any project which was ready to be published during these weeks is currently on hold. Remember, the average project that is analyzed under an EIS takes over three years to complete. The projects that we would expect to be published during these weeks would have been designed years ago, so either we’ve gone through a serious dry spell for infrastructure projects, or they are actively being held back by the Trump administration.
It occurred to me that maybe all new administrations sit on projects for a while to make sure that they are consistent with the administration’s priorities. I asked myself if it was common for agencies to delay notice of EISs during the first few weeks of a new administration. It isn’t. During the last three weeks of the GWB administration (1/9/09, 1/16/09, 1/23/09) eighteen NOAs appeared in the Federal Register. Under the first three weeks of the Obama Administration (1/30/09, 2/6/09, 2/13/09), it was almost the same—nineteen NOAs. Going back even further, we see that the last three weeks of the Clinton administration witnessed a flurry of NOAs, twenty-eight in total (1/12/01, 1/19/01, and 2/2/01—the latter being a publication mistake). The first three weeks of the GWB administration did produce fewer NOAs, (2/2/01, 2/9/01, 2/16/01), but the nineteen NOAs produced during those weeks was consistent with the long-term average. And so, while Obama and Clinton produced more a few more NOAs per week than the GWB administration, the numbers are all in the same ballpark. On average, the Federal Government is noticing about 6-9 projects each week, until now.
Hyperlinks to all of the Federal Register documents are included above. Admittedly, some of these projects appeal to deal with promulgation or creation of new regulations. As expected, none of the four EISs released so far under the Trump Administration deal with promulgation of new regulations. However, only two of the EISs listed in the Federal Register during the last three weeks of the Obama administration appear to deal with regulations either. Even if we drop all of the projects that do not specifically authorize a project involving, say, heavy equipment, we’re much higher under Obama. By simply reading the titles we’ve got 11 projects that “build things” in the last three weeks of Obama compared to 2 or 3 of those projects in the first three weeks of Trump. Whether it’s 2 or 3 under Trump depends on whether you consider “Presidential Aircraft Recapitalization” to be building things and creating jobs.
Although I can’t point to a single, definitive cause for the drop off in NEPA projects, it may be the new memorandum freezing promulgation of new regulations. While CNN says that such action is a “fairly standard move for a new administration taking over from another party” the memorandum itself defines regulation as:
“any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking," and also covers any agency statement of general applicability and future effect "that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”
Could this be creating a “NEPA-freeze” within the Trump Administration? Could agencies be so worried about upsetting this administration that they are holding back everything until the dust settles? Indeed, it shouldn’t be hard to find out. A 2008 article found that 51% of all EISs were prepared by the US Forest Service, the Federal Highway Administration, and the US Army Corps of Engineers (not exactly anti-business agencies). Someone could call these agencies and ask why they haven’t published hardly any Notices of Availability of EISs since Trump got into office. I’d love to hear the answer.
Who knows, maybe the administration never intended for this to happen. Maybe they only wanted to freeze projects that deal with regulation of private business. But that’s not what they said in their memo. And maybe government employees have decided to play it safe. Maybe they want to double- and triple-check every project (even ones that rebuild our infrastructure) before letting the public see it. Given the attacks on so many government employees, it’s not hard to see why.
Clearly some projects are getting through. A pipeline is moving forward in Minnesota and a waste-to-energy project will happen in Puerto Rico. But it’s not enough, in this case, to say “of course this administration will approve energy projects.” That’s because the numbers suggest that there are probably over a dozen infrastructure and extraction projects waiting in the wings that are aren’t moving forward. At this point we can only ask, what are those projects that are being held up and how many jobs are being held up? Maybe if we ask our government, we can find out.