Another ’emergency,’ another rollback of environment protections

We seem to live in an era of pretend emergencies. Republicans claimed that ObamaCare was a dire emergency for the country. But many Americans only started seeing an emergency when legislation started moving that would eliminate coverage for 20 million people. President Trump is now at work creating a more credible emergency with his administration of the Affordable Care Act.

Republicans are rushing a tax bill through Congress at breakneck speed to capitalize on the “emergency” of 4.1 percent unemployment. We will soon learn how many voters see an urgent need to lose their deductions and personal exemptions to fund tax cuts for corporations and wealthy individuals.

Another purported emergency that has received considerably less attention involves domestic energy production. With fuel prices having sharply declined, Americans can be forgiven for seeing little crisis here. Last spring, however, President Trump issued an executive order directing several agencies to identify ways in which they can facilitate an increase in domestic energy production.

The agencies’ reports are now in, and a dismal lot they are. Two themes that permeate the reports are a disinterest in informed and transparent decision-making and the replacement of policies that attempt to balance competing needs with a single-minded focus on putting public resources to work for extractive industries, including several of the world’s most profitable corporations.

{mosads}For example, the Bureau of Land Management states that it is abandoning reliance on Master Leasing Plans to determine when, where, how, and in what order to make public land available for oil and gas leasing. The Bureau prepares Master Leasing Plans through a process that includes public input and environmental reviews, which helps ensure that the agency does not unknowingly lease parcels with special environmental sensitivity or approve so much drilling in any particular area that it overwhelms what local communities and the natural environment can withstand. Championing heedlessness, the Bureau proudly declares that environmental reviews will be dropped.

Similarly, rather than pursuing its statutory mandate to balance energy production with community, recreational, and environmental concerns, the Bureau announces that “market forces” will drive the pace of permitting and development. In some cases, that could mean a quick, destructive boom followed by a prolonged bust after the companies have extracted all the oil or gas in the area. The unrestrained flurry of development may chase off the recreational visitors that previously sustained a small community’s economy, leaving a virtual ghost-town behind when the oil and gas jobs disappear. A more deliberate pace of development could preserve the long-term viability of towns and wildlife alike.

The Fish and Wildlife Service promises faster approvals for oil and gas pipelines as well as electrical transmission lines across national wildlife refuges. The national wildlife refuges are our only public lands dedicated to protecting wildlife. They often provide an essential last redoubt for species forced out of most of their historic habitat by human activities, including drilling. Many are quite small and vulnerable. Fragmenting them further with criss-crossing pipelines and high-voltage cables will further reduce some species’ range. Inevitable electrocutions and leaks, like the massive recent spill on the Keystone Pipeline in South Dakota, will kill other animals.

The Service acknowledges that federal law requires it to act in the “manner that is best designed to accomplish the mission of the System, to contribute to the conservation of the ecosystems of the United States”, but effectively disregards that mandate.  

The Service also signals its interest in scaling back or eliminating rules under the Marine Mammal Protection Act that limit the impact of offshore drilling and seismic exploration on vulnerable populations of polar bears, walruses, whales, and other animals. Other than broadly calling these rules “excessive,” it offers no evidence that they are failing to balance wildlife interests with those of the petrochemical industry.

In light of this general disinterest in honoring the protective purposes of environmental legislation, we can only tremble at what the Service means when it says it will “modernize” the inter-agency consultations that the Endangered Species Act requires to ensure that one agency does not accidentally undertake an activity that another agency knows to be highly destructive.

The Department of Energy’s report demonstrates just how disconnected this effort is from any real emergency affecting the American people: Its first recommendation is to streamline the export of natural gas. Any gas or oil we extract and export now is that much less that will be available to us should a genuine emergency befall us in the future.  

If the Trump administration believes current environmental statutes strike the wrong balance in this area or that, it can and should make specific legislative proposals. Certainly it can expect a receptive hearing from a Congress that just smuggled into the tax bill authority for destructive oil exploration in the Arctic National Wildlife Refuge. But this systematic campaign to disregard existing statutes under the guise of a phony emergency has no place in a functioning democracy.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.