This is my second diary on how the Trump Administration is slowing down the approval of projects relating to infrastructure and resource extraction.
Recent reports suggest that Trump’s infrastructure plan may be on the back burner, but no one has suggested that Trump has moved away from promoting extractive uses of the land. However, it appears that the new administration may be holding back existing federal projects that authorize infrastructure spending, permits for private projects, and resource extraction on federal lands.
As I explained in my prior diary:
…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.
In other words the statistics I am reporting are an indicator of project planning at the federal level, which is, in turn, an indicator of projects that build things or extract things.
An Environmental Impact Statement (EIS) is prepared for every “major federal action.” These actions include infrastructure, resource extraction, and permits for projects that have a federal nexus. Notices of Availability (NOAs) are published in the Federal Register at least twice for every Environmental Impact Statement (EIS). First, an NOA is published at the beginning of the Draft EIS Comment period. Second, an NOA is published 30 days before a Final EIS is released. NOAs are also issued if an EIS is revised or supplemented. (Amended NOAs are something else: they provide notice of things like changes in comment periods. While amended NOAs are listed in the Federal Register I did not count them because I do not feel that they indicate progress toward completion of a project.)
In last week’s diary, I compared the first three weeks of the Trump Administration to the last three weeks of the Obama Administration. While the Obama Administration provided NOAs for 20 projects in its last three weeks, the Trump Administration provided NOAs for only 4 projects in its first three weeks. Now that we have four weeks of data from the Trump Administration, we can see if the trend has continued. It has.
Last Friday, the Trump Administration released an NOA for 3 additional projects, bringing the total number of projects noticed in the first four weeks of the Trump Administration to a total of 7. In comparison, during the last four weeks of the Obama Administration, 30 projects were noticed in the Federal Register. As I explained last week, a similar drop-off was not seen at the beginning of the Obama Administration or the beginning of the George W. Bush Administration.
Administration |
Date* |
Total |
Draft EISs
|
Final EISs |
Revisions &
Supplements
|
Environmental Impact Statement Notices of Availability under
Trump and Obama (by Document Type)
Trump |
2/24/2017 |
3 |
1 |
2 |
- |
Trump |
2/17/2017 |
0 |
- |
- |
- |
Trump |
2/10/2017 |
2 |
- |
- |
2 |
Trump |
2/3/2017 |
2 |
1 |
1 |
- |
Trump Totals |
|
7 |
2 |
3 |
2 |
Obama |
1/27/2017 |
4 |
2 |
2 |
- |
Obama |
1/23/2017** |
5 |
2 |
3 |
- |
Obama |
1/13/2017 |
11 |
5 |
4 |
2 |
Obama |
1/6/2017 |
10 |
4 |
3 |
3 |
Obama Totals |
|
30 |
13 |
12 |
5 |
* NOAs are published only on Fridays and include all of the project EISs to the EPA during the week prior. NOAs published on 1/27/17 (after Trump took office) were submitted during the week of January 16-20 (before Trump took office)
** This NOA was published on a Monday because the prior Friday was Inauguration Day. It includes all EISs submitted to the EPA during the week of January 9-13.
At the risk of upsetting anyone with a deep understanding of statistics, I ran a statistical test (t-test) comparing the number of NOAs per week during the first four weeks of the Trump Administration with the last four weeks of the Obama Administration. According to that test, the chance that the numbers are just random variation (the “p-value”) is less than 3%. Based on my limited Stats knowledge, this means that there is a 97% chance that some factor, other than chance, is the cause of this drop-off. Note that, on average, a project that is analyzed under an EIS takes over three years to complete. The projects that would be expected to be published during these weeks would have been started years ago, and all at different times. To me then, the only logical explanation is that projects are being held back.
What types of projects are being held back? An EIS is required for “major federal actions” and, while the bar for what is “major” is fairly high, courts have decided that a ton of things count as a “federal actions.” Federal actions include infrastructure projects funded and designed by the federal government. A federal action also occurs 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) is considered a federal action. Courts have construed a “federal action” to exist even when the only federal action is providing funds to state or private entities. Finally, federal actions also include rulemaking, creation of regulations, creation of plans or programs, and other policy or programmatic actions. For all of these “federal actions,” an EIS is required if the action is “major.”
The Trump Administration has not made a secret of its desire to roll back regulations, and promulgation (creation) of new regulations with a significant impact on the environment (positive or negative) requires that an EIS be prepared. Of course, if an EIS was prepared when a regulation was created, an EIS will generally be required to eliminate said regulation (and regulations have in fact been reinstated when the EIS repealing the regulation was found by the courts to be inadequate). An EIS may also be required for creating policies, programs, and plans. The Priebus Memorandum could be read to stop all of those types of projects.
But based on the titles of the projects listed in the NOAs, it’s not just regulations, policies, programs, and plans that aren’t appearing in the Federal Register, regular projects that break ground and build things are greatly reduced as well.
Of the 30 EISs noticed in the last four weeks of the Obama administration, 21 of them deal with projects or permits (Two of the 21 authorize land exchanges: not a project in the general sense of the word, but in practice it puts people to work. That is because these exchanges generally transfer land that can be logged, mined, or developed to private hands so that it can be developed while acquiring on behalf of the government other lands with a higher ecological or recreational value).
The 21 projects in the last month of Obama are already greater than the 7 EISs noticed during the Trump Administration. But, in fact, only 4 of the Trump Administration’s EISs were actually projects. In addition to these 4 projects, the Trump Administration has released a “Migratory Species Fishery Management Plan,” a Forest Plan for the Francis Marion National Forest, and a project to recapitalize the Presidential Aircraft. In other words, the Priebus memo may be responsible for a slowing down the release of regulations, policy, and plans, but something else is going on as well.
Administration |
Date |
Total |
Projects &
Permits
|
Rules,
Regulations,
Policies &
Programs
|
Environmental Impact Statement Notices of Availability
under Trump and Obama (by Document Type)
Trump |
2/24/2017 |
3 |
2 |
1 |
Trump |
2/17/2017 |
0 |
0 |
0 |
Trump |
2/10/2017 |
2 |
1 |
1 |
Trump |
2/3/2017 |
2 |
1 |
1 |
Trump Totals |
|
7 |
4 |
3 |
Obama |
1/27/2017 |
4 |
3 |
1 |
Obama |
1/23/2017 |
5 |
3 |
2 |
Obama |
1/13/2017 |
11 |
7 |
4 |
Obama |
1/6/2017 |
10 |
8 |
2 |
Obama Totals |
|
30 |
21 |
9 |
One alternate explanation for the drop off in EISs is that the administration hasn’t stopped approving projects but has instead switched them to documents that require a lower level of analysis, such as an EA (environmental assessment). EAs do not require that notice be provided in the Federal Register, and for many agencies very little notification is provided to the public when an EA is prepared. However, switching from an EIS to an EA requires its own notice in the Federal Register (and in fact is what happened to the Dakota Access pipeline). This notice made practical sense for the Dakota Access Pipeline because an EA had already been prepared, but rejected, by the Obama Administration. By withdrawing the EIS, the Army Corps of Engineers was able to issue the permit under the old EA.
Dakota Access is an unusual case, though. In general, there is no EA to fall back on, and switching an EIS to an EA would require a major rewrite of the document, which would slow down the final approval. Thus, I’m not ready to sound the alarm bell that Trump is getting projects to go through by using a different tool. The administration may be trying to simplify the analysis, but they are slowing down other projects in the process.
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). These statistics are a good starting point to find out what’s going on. Of the 30 EISs released during the last four weeks of Obama, 10 were from those three agencies. Of the 7 EISs released so far under Trump, only 2 were from those three agencies (both from the Forest Service). Last week, I suggested that someone call these agencies and ask why they haven’t produced hardly any NOAs since Trump got into office. I heard from someone who did that but he isn’t getting much in the way of a response. For this week, maybe we should be calling the project contacts for those 7 EISs that did get through (there is a contact listed on the NOA for each project) in order to ask how they were able to release their EIS when so few are being published.
For some of us, it may be heartening to see that the Trump Administration isn’t doing much. However, I’d recommend we consider this within context of Steve Bannon’s professed desire for the “deconstruction of the administrative state.” While we may not mind that a landfill is not being constructed or that a ski resort on federal land is not being expanded, we should all care about the government being able to fulfill its obligations under the law, both good and bad. Freezing or slowing down the release of environmental analysis documents may be another indication of this administration’s desire to make it all come crashing down.