Trump’s White House quietly undercut environmental harm mitigation rules

Some years back, a couple of armed men approached me on a dark street and demanded my wallet. I handed it over, but then realized that a difficult-to-replace photo of a loved one was inside. Spontaneously, I demanded that they give it back. The muggers looked at me like I was crazy, but then they pulled the money out and threw the wallet back at me before running off. Of course I did not approve of the robbery, but I did appreciate their willingness to mitigate the harm they did.

The first year of the Trump administration saw numerous fights over what would happen on public lands: How much logging, how much drilling, how many miles of leak-prone pipelines, and so forth. With a rigid consistency that would have alarmed even Ralph Waldo Emerson, the administration has favored extractive industries over recreational users, nearby communities, and threatened wildlife.

{mosads}Now, however, the Department of the Interior is taking environmental recklessness to a new level by abandoning efforts to limit how public lands would be exploited. In a departmental order quietly signed while the nation’s capital was emptied out for Christmas, Deputy Secretary David Bernhardt rescinded four sets of policies designed to mitigate the damage that destructive activities cause on federal lands.

Mitigation is precisely the kind of policy we should be seeking, in environmental matters and many others. It is a compromise. Many statutes require mitigation of adverse environmental effects as a middle ground between banning hazardous project outright and giving them a blank check.

For example, when rapid development is causing run-off that is silting in rivers and lakes, one possibility would be to freeze that development. If the rivers and lakes are environmentally important enough, that is entirely defensible and consistent with our laws. The mitigation approach, by contrast, allows development to proceed but imposes limits on particularly destructive forms of development and requires the developers to divert a fraction of their profits to efforts to restore the watershed.

When the toxic tailings that a mine produces would damage sensitive wetlands, prohibiting the mine altogether would be an entirely legitimate result. So would requiring the mine to undertake expensive procedures to render the tailings safe. The mitigation approach allows the mine to operate and reduces costs by allowing the mine operators to fund restoration of a comparable area of wetlands elsewhere. Again, not as environmentally protective as a flat-out ban, but still a plausible accommodation of environmental, recreational, and extractive interests.

It is precisely this sort of pragmatism that the order eliminates. The order includes some vague platitudes about developing new mitigation policies some time in the future, we should not hold our breath. Last summer, Interior Secretary Zinke called mitigation “un-American”.

Although the administration likes to frame its actions as reversing the supposed excesses of the Obama administration, the policies ordered scrapped include some from the Bush administration, certainly a loyal friend of the petroleum industry. This is unabashed anti-environmental extremism.

The statutory requirements for mitigation will remain on the books. The repealed policies were efforts to ensure reasonable and even-handed implementation of those requirements. Their elimination will create precisely the kind of regulatory uncertainty that the administration criticizes in other contexts as developers will lack guidance as to what they need to do to obtain permits.  

This also will hurt industry in the short run by generating more litigation and in the long run by leading to more outright bans on environmentally hazardous activities as environmentalists conclude that compromise is folly. But in the short-term, projects without adequate mitigation will do a great deal of lasting harm.

Among the casualties of this purge are the Department’s policies for planning for climate change. Thus, projects that will increase our vulnerability to the effects of climate change in the future will not be asked to mitigate their impact in the planning stage, when change is comparatively cheap. The deleted guidance also seeks to guard against “maladaptive” approaches in projects on federal lands: those that push the effects of climate change off onto other lands.

This is truly an area where an ounce of prevention is worth a pound of cure. The longer we postpone addressing these problems, the more radical and expensive the solutions will have to be. Even if the world rallies to sharply reduce emission of greenhouse gases — far less likely after President Trump renounced the Paris accords — substantial future climate change is already effectively guaranteed by the releases of carbon that have already occurred.

By condemning and abandoning efforts to mitigate environmental harms, efforts that still allow industry to reap handsome profits, the Interior Department is showing a heedless absolutism that even my muggers likely could not have comprehended.

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.