[Editor's note: A version of this story appears in the February 2020 edition of Oil and Gas Investor. Subscribe to the magazine here.]

The year was 1970. Woodstock was barely in the rearview mirror, still generating buzz—everyone asked, “Were you there?” Meanwhile, we learned that the Cuyahoga River that flowed through Cleveland had caught fire and the eagle, a proud symbol of America, was endangered. Then as now, America was sharply divided as protests against the Vietnam War intensified, and a presidency was in peril.

The first Earth Day was celebrated that April, as the public became much more aware of the environmental degradation that was happening to our water and air. And then that president, Richard Nixon, signed into law NEPA—the National Environmental Policy Act, which required a new way of thinking about big infrastructure projects that receive federal funding. Environmentalists hailed it as a powerful new tool in their arsenal, one they could carry into court, but labor unions and the oil and gas and mining industries derided it as one more obstacle to fight in their effort to provide energy infrastructure and jobs to America.

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Still standing today, NEPA requires federal agencies to weigh in on the near-term and longer-term effects on the environment of proposed pipelines, mining operations, high- way and bridge construction and other such projects before they can begin. It requires the public to be given an opportunity to give its opinions during hearings as well. But over the years, NEPA became a monster of obstruction. “Nimby” landowners and environmentalists used it to delay, delay and delay.

They expanded its interpretation to include studying how a project might contribute to long-term climate changes.

But now, President Donald Trump may have turned this around. He announced his aim to deliver a glancing blow to NEPA, proposing the first significant revisions and clarifications to it in 50 years. That’s a long time for any law or regulation to stand without being amended, without a review of its original purpose and implementation, especially given changes in technology to mitigate threats of pollution, changes in public sentiment and changes in the environment itself.

The rollback of NEPA could give industry more hope to realistically move forward with its projects in a timelier manner. Said new Interior Secretary David Bernhardt, “This is a really, really big proposal.” But if Trump succeeds, this also gives enviros and anti-fossil fuel groups despair—which in turn gives them renewed motivation to fight harder.

Critics say the feds would gut the law and give infrastructure companies free rein to destroy the land, water and air. Note that the proposed changes are more about how NEPA should be implemented than what the law actually does.

For example, Trump wants to redefine what constitutes a major federal action in order to exclude from NEPA privately financed projects, which would make it easier on pipeline companies. He also wants to speed up the process: In most cases, federal agencies would be required to complete their environmental assessments in one year and the full-bodied environmental impact statements within a two-year limit—no more dragging it out indefinitely.

Trump rightly complained about how long it can take to get any construction done, sometimes as much as 10 years. It’s a serious waste of money and time that puts the U.S. infrastructure buildout behind where it needs to be.

Take the tortured case of the Constitution Pipeline that would bring enough natural gas from the Marcellus Shale to New York’s southern counties above Pennsylvania to power 3 million homes. It was first proposed in 2013 by The Williams Cos. et al, and after an environmental review, FERC approved it in December 2014, stipulating certain mitigation measures to be met during construction. The route was also approved. The effect on area water quality was the biggest hurdle.

But New York Gov. Andrew Cuomo listened to the opposition and blocked it in 2016. Many courtroom hours later, in August 2019, FERC overruled the state. Long story short, Williams now says the line will go into service in 2021—that’s seven years after it received federal watchdog approval.

Cuomo vows to keep fighting. He’s ignoring the energy needs of 3 million people!

It is not right to reduce or short-change scrutiny of these projects. It is practical to make sure that that scrutiny occurs in a reasonably timely manner that doesn’t waste money or imperil the environment.

One thing will not change, NEPA or not: Any project anywhere, of any size, can be blocked by a single person who chooses to file a suit. These proposed changes to NEPA will be fodder for arguments and briefs in courtrooms for months or years to come. Sad.

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