Donald Trump signed an order last week to waive environmental safeguards on oil and gas pipeline projects that disproportionately harm minority communities already convulsed by the COVID-19 pandemic and racial injustice. But his administration may just be cruising for the latest in a string of court defeats in its effort to obliterate laws protecting air quality, drinking water, species, and habitats.
Citing the “economic emergency” triggered by an unprecedented global health emergency, the order asserts Trump’s authority “to sweep aside environmental restraints and speed up construction of oil and gas pipelines,” InsideClimate News reports. But Thursday night’s executive order, “the third of his presidency aimed at expediting pipelines,” is “destined to spur more of the type of litigation that has rendered his previous directives ineffective so far.”
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“This order will be a sitting duck for the sorts of legal challenges that have been so successfully brought against other Trump environmental rollbacks,” said Michael Gerrard, founder and faculty director of Columbia University’s Sabin Center for Climate Change Law. “Few developers or lenders will risk millions on starting construction in reliance on this order surviving in court.”
That’s partly because of Trump’s unprecedented attempt to use an economic downturn as a pretext to waive requirements under the U.S. National Environmental Policy Act (NEPA). “These emergency exemptions have traditionally been used for necessary fast responses to disasters, such as clearing away debris after a hurricane, or building field hospitals,” Gerrard told InsideClimate in an email. “They have not been used as a backdoor way of creating construction jobs.”
“In a strange way, this could create more uncertainty for project developers, as their approvals will be on shakier legal footing,” agreed Jayni Foley Hein, natural resources director at New York University Law School’s Institute for Policy Integrity. Which means the administration’s “novel legal theory” could have precisely the opposite of its intended effect.
InsideClimate recounts a decidedly low-key tone to the signing, with few details in advance, no copies of the executive order available for nearly two hours after the scheduled signing, and no remarks by Trump, in a White House where “workers spent the day erecting tall metal barricades around the perimeter of the complex.” The signing was scheduled for 4:30 PM; the paperwork finally showed up after 6:15.
“From the beginning of my Administration, I have focused on reforming and streamlining an outdated regulatory system that has held back our economy with needless paperwork and costly delays,” Trump said in the order. [Cue the next Trump lip sync contest—Ed.] “Antiquated regulations and bureaucratic practices have hindered American infrastructure investments, kept America’s building trades workers from working, and prevented our citizens from developing and enjoying the benefits of world-class infrastructure. The need for continued progress in this streamlining effort is all the more acute now, due to the ongoing economic crisis.”
The administration’s critics immediately pointed to the poor timing of an order that will have a disproportionate impact on minority communities across the U.S.
Trump “is dealing another blow to the Black community, during a worldwide pandemic and nearly a week into nation-wide Black Lives Matter protests against police brutality and structural racism,” said House Natural Resources Committee Chair Raúl Grijalva (D-AZ). “Gutting NEPA takes away one of the few tools communities of colour have to protect themselves and make their voices heard on federal decisions impacting them.”
Sen. Thomas Carper (D-DE), ranking Democrat on the Senate Environment and Public Works Committee, said the order was designed to cut communities out of the process. “By allowing projects to plough ahead without public engagement or input, this executive order will fast-track projects that could tear through communities, harm air quality, endanger drinking water sources, destroy critical habitats, and threaten endangered species,” he said. “Under the guise of immediate relief, this executive action will cause long-term damage that will not be easily undone.”
