NEPA is a landmark law that is crucial for identifying and considering environmental impacts on people, communities, and our shared environment. Photo: Bill Hughes, FracTracker Alliance

Kathleen Hartnett White Nomination Spells Trouble for the Magna Carta of Environmental Law: NEPA

, executive director | November 6, 2017, 3:05 pm EST
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President Trump’s nomination of Kathleen Hartnett White to lead the nation’s Council on Environmental Quality (CEQ) comes as no big surprise. She will be just the latest addition to a Trump team determined to slow, stem, stymie, and roll back environmental and public health protections with reckless disregard for the well-being of all Americans. 

Despite the up to $180 billion in devastation caused by a climate change fueled-hurricane in Houston, Hartnett White, the former chair of the Texas Commission on Environmental Quality, does not believe that climate change is a danger to society. Ever a friend to the oil and gas industry, she sees efforts to address climate change as simply an attack on the fossil fuel industry.

I could go on (and on and on) to express my dismay and alarm about this impending appointment, and others have—see here, here, and here—but that’s not where I’m headed with this post.  Instead, I want to tell you why you should care about two acronyms most Americans have never heard of: CEQ and NEPA.

CEQ does what exactly?

The national Council on Environmental Quality (CEQ) is a small but important office within the Executive Office of the President. Established by a 1969 law (more on NEPA in a second), the council essentially functions as the president’s chief advisor on environmental quality within the White House.

CEQ was created to gather information on environmental quality; develop and recommend to the president national policies to foster and promote the improvement of environmental quality; set regulations that guide agency compliance with the National Environmental Policy Act or NEPA; and be a source of information for the public.

In other words, CEQ is meant to play a critical role in protecting and promoting the quality of our environment, and the head of CEQ will be a primary source of advice and information for President Trump on the issue of environmental quality. 

NEPA: The Magna Carta of environmental law  

First, a bit of history. While environmental protection is probably not the first thing that comes to mind when thinking about Richard Nixon, his administration ushered in some sweeping changes and had singular environmental achievements. NEPA is a case in point.

President Nixon signed the 1969 National Environmental Policy Act (NEPA) into law on January 1, 1970. This landmark law charges the federal government and its agencies with a responsibility to promote environmental protection, preservation, and restoration, and notes the responsibility each generation has to act as trustee of the environment for succeeding generations.

NEPA has inspired the adoption of similar requirements in 16 US states, and over 130 nations around the world have enacted national environmental policies modeled after it. NEPA has been called the Magna Carta of Environmental Law, a reflection of just how important and valuable it is considered around the world.

NEPA is important for three main reasons

1) Identifying and considering impacts on people, communities, and our shared environment

NEPA established the requirement, with certain exemptions, that all federal agencies undertake an environmental impact statement (EIS) when they propose legislation and any other major federal action that significantly affects the quality of the human environment.

Such actions include but are not limited to specific projects (such as road construction), plans or proposals to manage and develop federal land (such as national parks), and federal permitting or funding of private sector projects (such as granting an easement for a power lines or a permit for use of a waterway).

This is critical in order to ensure that federal agencies identify and consider environmental impacts on the people, communities, places, and environmental resources (i.e., air, water, land) that will be affected by their proposed actions.

2) Explaining the environmental impacts of different alternatives 

In formulating an environmental impact statement, agencies must explain the purpose and need for action, and importantly the different reasonable alternatives for addressing the need so that decision makers are fully aware of the environmental consequences of their choices. The document must explain the environmental impacts of these alternatives, and possible measures to reduce adverse impacts.

The EIS always includes as part of its analysis a “no action” alternative, that is, what would happen if the action was not taken at all. (For more, check out the Wiki page on EIS; it’s good. For a more detailed look at NEPA, check out chapter 5 in this book.)

Per Executive Order #12898, agencies are also required to consider issues of environmental justice in the NEPA process–including environmental effects on human health, and economic and social effects, specifically within communities of color and low-income communities, which are disproportionately impacted by environmental risks and harms.

3) Allowing the public to have a say in decisions (a.k.a. democracy)

NEPA also advances two essential features of our democracy—transparency and public participation. Federal projects and actions can have profound effects on our surrounding environments and thus on our daily lives—from the air we breathe and the food and water we consume to the roads we travel and the places we love.

We, the people who may be impacted by a project for years to come, should have the right to know what the agencies are planning; what alternatives they are considering; and have an opportunity to comment, question, and suggest different alternatives. Indeed, in 2007 the CEQ itself published A Citizen’s Guide to the NEPA: Having Your Voice Heard.  (I suggest you you read it now; it could easily disappear.)

So, for example, the public—not just business interests—would get to weigh in when the federal Department of Transportation proposes to build or extend the interstate highway system that might cut through communities or nearby farmlands. Or when the US Forest Services plans logging activity on federal lands, which could potentially impact tourism and local water quality. Or when the Army Corps of Engineers develops plans for flood control or river transportation on the nation’s waterways. Or when an oil and gas company needs a permit for a new drilling operation. Or for a pipeline. NEPA provides a critical opportunity for the public to comment on the proposed actions and alternatives.

Flexibility and recourse

While the process provides opportunity for public engagement and is meant to ensure that decision-makers consider different alternatives and their environmental impacts, agencies have flexibility to make the final decision they deem most appropriate.

Specifically, agencies are not bound to select the least burdensome alternative. However, agency decisions are appealable and open to judicial review. And the EIS, along with the record of public comment, provides information that can be used to fight an agency decision in court. Without getting into the legal weeds, the courts generally tend to review decisions if 1) the proper process was followed, 2) there was appropriate public participation, and 3) the alternatives considered and decisions made were not “arbitrary and capricious.”

In other words, the agency must have a logical basis for its decisions following public input. As a standard, that’s not bad!

Hartnett White: Here’s the rub

The White House Council of Environmental Quality (CEQ) oversees the implementation of NEPA. It issues and interprets NEPA rules and regulations and reviews and approves NEPA procedures in agencies. So it matters who is running the show. Is it someone who will put public health and environmental protection first, or someone who will sideline science in favor of industry? Is it someone who truly believes in the public process and the opportunity for different perspectives and interests to be at the table, or only the most deep-pocketed players?  Is it someone who will staff the office with people who understand and support the statutory missions of the agencies or people from regulated industries who have been vocal critics of NEPA, regulatory protections, and the agencies they will oversee?

Do we want the chief environmental quality advisor in the White House to be someone who views carbon dioxide as a harmless and beneficial gas rather than a proven climate pollutant? Who sees “global warming” as a “kind of paganism” for “secular elites.”  Who has tight and profitable connections with the fossil fuel industry? If yes, then Kathleen Hartnett White is the person for the job.  President Trump certainly thinks so.

With federal promises to address our aging infrastructure in the offing, you may find yourself with a newfound interest in this somewhat arcane, often lengthy, and sometimes contentious process. As well as exceedingly grateful for a functioning NEPA and a CEQ that puts public interest first.

My worry is that powerful private interests will persuade their friends in the administration to “streamline” (read: WEAKEN) NEPA protections and processes. And a willing CEQ with Hartnett White at the helm will be instrumental in the process.

If you’re worried too, call on your senator (you can reach him or her via the Capitol Switchboard at 202-224-3121) to oppose the confirmation of Kathleen Hartnett White!

Scientists, take action!

Join an open letter to the Senate, signed by scientists opposed to Kathleen Hartnett White.

Help call national attention to this dangerous nominee. Add your name to the letter today.

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