Nearly two years after they were removed by the Trump administration, the Biden administration is restoring provisions of an environmental law that requires federal agencies to review how their actions will impact climate change and environmental justice.
The White House Council on Environmental Quality finalized a rule that makes three changes to the National Environmental Policy Act, essentially returning the interpretation of the law to what it was before the Trump administration.
Stepping back to the previous reading of the law should help provide environmental safeguards for future Indiana projects, such as proposed highway construction and housing development in areas that might be ecologically sensitive or dangerously toxic.
NEPA, which became U.S. law in 1970, is one of the country’s first environmental laws. It requires federal agencies to, among other things, perform an environmental assessment before most federal actions.
The Trump administration in 2020 restricted federal agencies from assessing how actions would impact climate change and other environmental considerations. It also limited public engagement during the planning process.
The Biden administration rule restores the requirement for federal agencies to consider the direct, indirect and cumulative impacts of a federal action, which includes the action’s climate change impacts and how the action will impact communities.
Agencies will also be allowed to work with communities to find alternatives to proposed actions that could minimize environmental and public health costs. Federal agencies will also once again be allowed to tailor NEPA procedures to individual agency needs, allowing them to establish procedures more stringent than the federal minimum requirements.
“Restoring these basic community safeguards will provide regulatory certainty, reduce conflict, and help ensure that projects get built right the first time,” said CEQ chair Brenda Mallory. “Patching these holes in the environmental review process will help projects get built faster, be more resilient, and provide greater benefits to people who live nearby.”
The restored requirements will only apply to projects proposed after the rule was finalized.
The administration said it would also work to strengthen the NEPA law with another rule that would “provide further improvements to the efficiency and effectiveness of environmental review processes.”
The move was widely supported by conservation groups and environmental groups like Earthjustice, Sierra Club and the Environmental Law & Policy Center, which called the move a good first step to meeting the environmental challenges the country faces now and in the future.
“We are encouraged to see the Biden administration take action to restore this bedrock environmental protection,” said Leslie Fields, Sierra Club National Director of Policy Advocacy and Legal. “NEPA plays a critical role in keeping our communities and our environment health and safe, and Donald Trump’s attempts to weaken NEPA were clearly nothing more than a handout to corporate polluters. We look forward to the coming Phase 2 rulemaking and encourage CEQ to finalize the strongest NEPA regulations possible, as soon as possible.”
The rule is opposed by trade organizations representing oil, mining and agriculture, industries that have large impacts on the nation’s air and water quality.
The American Farm Bureau Federation, which has a long history of opposing rules that would tighten environmental requirements, said it was “disappointed” with the Biden administration’s NEPA actions.
“Continued challenges from the pandemic, supply chain issues and the drought in the West are impacting farmers, ranchers and the American public in the form of increased food and fuel prices. The situation will now be made worst by the return to a slow and cumbersome NEPA review process that, in many cases, takes years to complete,” said American Farm Bureau Federation President Zippy Duvall.
The American Petroleum Institute and the National Mining Association said the changes to the NEPA law would provide “uncertainty” that could affect the U.S. energy supply.
Many federally-funded projects in Indiana, like the Interstate 69 improvements, West Lake Corridor Project and more than 180 other projects, have undergone NEPA environmental assessments.
Prior to NEPA, federal agencies did not have to perform environmental assessments before moving forward with projects, and Hoosiers in some parts of the state are still feeling the long-term effects of decisions made without those reviews.
A lack of NEPA-spurred environmental assessment may have cause thousands of East Chicago residents to be exposed to lead and arsenic contamination for decades.
The East Chicago Housing Authority in 1968 selected the property for what would become the West Calumet Housing Complex, and the U.S. Department of Housing and Urban Development signed off on the decision and funded construction of the public housing that same year.
The site was the former location of Anaconda Lead Products, a company that produced the highly toxic ingredient used in lead paint called white lead, and various other companies that dealt with lead for decades. The site was also across the street from the U.S. Smelter and Lead Refinery, a facility that prepared lead products.
In the decades that followed construction, state and federal authorities found evidence that the West Calumet Housing Complex and the area surrounding may have been contaminated with lead and arsenic.
The U.S. Environmental Protection Agency in 1980 found that lead dust was flying out of the USS Lead facility and into neighboring areas and waterways. A 1985 soil lead survey found areas north and northeast of the USS Lead site had lead contamination at levels hundreds of times beyond the state’s current lead action level.
Blood testing in the 1980s and 1990s detected moderately elevated blood lead levels in some children.
Despite these warning signs, no environmental assessment was attempted at the HUD-funded facility until 2003.
The EPA eventually added the West Calumet Housing Complex and other neighboring areas to the USS Lead Superfund site in 2012 after lead contamination was found in residential yards, an elementary school and at the housing complex in previous years.
HUD did not complete a full environmental assessment until 2018, when the West Calumet Housing Complex was scheduled for demolition and after thousands of Hoosiers were potentially exposed to lead and arsenic for decades.