Suits strongly argue NEPA final rule is ‘not in accordance with law’

The National Environmental Protection Act has been called the "Magna Carta of environmental laws" for good reason. Its twin aims are to force federal agencies to consider environmental impacts in making significant decisions that require federal permits or approvals and to inform the public about decision making by those agencies. Unless exempted or excluded from coverage, NEPA requires a federal agency to take a "hard look" at the environmental impacts and alternatives prior to approving major projects. In other words, decision makers are sensibly required to evaluate the environmental consequences of a major and significant project before approving it.

The administration of NEPA is the most litigated environmental statute in the U.S. The Supreme Court, for example, has addressed the implementation and interpretation of the law in 17 decisions in the last 50 years. An extensive body of appellate and district court decisions also exist.

President Donald Trump is adding cases to the tally. A plurality of his executive orders have demanded the rollback of environmental protections to advance economic development. Allies of the president have cheered. Others have been aghast. Among other complaints, they argue the claimed economic benefits ignore or minimize the other side of the balance sheet, namely the damage to human health and the environment.

In early 2020, Trump announced "we're taking another historic step in our campaign to slash job-killing regulations" by "issuing a new rule under the National Environmental Policy Act to completely overhaul the dysfunctional bureaucratic system" that has created massive obstructions and a "regulatory nightmare." The next day the Council on Environmental Quality, which was created to oversee the NEPA process and implementation, proposed revamping the regulations to align with Trump's directive. The proposal did not go unnoticed. It caught the attention of more than a million members of the public, who commented on the proposed changes.

Seven months later, the CEQ published its final rule on NEPA regulations in the Federal Register. 85 Fed. Reg. 43,304 (July 16, 2020). The stated purpose of the rule is to "facilitate more efficient, effective, and timely NEPA reviews by Federal agencies by simplifying regulatory requirements, codifying certain guidance and case law relevant to these regulations to reflect current technologies and agency practices, eliminating obsolete provisions, and improving readability of regulations." These are clearly laudable goals, but the devil is in the regulatory detail.

The rule makes sweeping changes to the administration of NEPA. One of the more important changes is the elimination of the "adverse environmental effects" analysis. The rule replaces the "direct, indirect, and cumulative" impact analysis with a "reasonably foreseeable" and close causal relation examination. Many are concerned that eliminating indirect and cumulative impacts will weaken, if not eliminate, the demand for climate change considerations and analysis at a time of unparalleled threat. Without the obligation to consider cumulative impacts, federal agencies will not engage in efforts to avoid or mitigate harms associated with climate change.

Other major changes include: (1) reducing the number of projects potentially subject to NEPA review, which directly reduces the opportunity for public participation in the process; (2) setting presumptive time limits for the completion of the environmental review with the goal of accelerating approval; (3) eliminating consideration of "highly controversial" in assessing whether a project is "significant"; and (4) narrowing the definition of "reasonable alternatives" to include only those alternatives that are technically and economically consistent with the goals of the project applicant.

The final rule, which took effect on Sept. 14, changes many important substantive and procedural aspects. It has been met by a storm of state and private federal lawsuits: Environmental Justice Health Alliance, et al. v. CEQ, et al., 1:20-cv-6142 (S.D.N.Y. Aug 06, 2020); Wild Virginia, et al. v. CEQ, et al., 3:20-cv-00045 (W.D. Va. Jul 29, 2020); California, et al. v. CEQ, et al., 3:20-cv-06057 (N.D. Cal. Aug 28, 2020); and Alaska Community Action on Toxics, et al. v. CEQ, et al., 3:20-cv-5199 (N.D. Cal. Jul 29, 2020).

The lawsuits generally allege that the CEQ final rule is arbitrary and capricious in failing to respond to public comments, reversing its long-standing prior rules without adequate explanation, and creating rules that are inconsistent with the statutory requirements of NEPA.

The New York suit highlights environmental justice. Among other complaints, the plaintiffs argue that the rule fails to consider "the impact on environmental justice communities." NEPA declares that the federal government has the responsibility to act as "a trustee of the environment for succeeding generations" and to use "all practical means" to assure a safe and healthful environment. The plaintiffs allege that the final rule eliminates "entire classes of projects that may have devastating cumulative and indirect impacts on people and the environment."

The Virginia case alleges that the final rule "disregarded clear evidence from over 40 years of past implementation; ignored reliance interests of the citizens, businesses, and industries; and turned the mandatory public engagement process into a paper exercise, rather than the meaningful inquiry the law requires." They argue that the APA requires that the government explain to the public the "good reasons" for the proposed changes that have been in place for decades, which they have failed to do.

The California cases make similar claims. The plaintiffs allege that the final rule "(i) severely limits which federal actions require NEPA compliance; (ii) greatly narrows the scope of federal agencies' obligation to consider environmental impacts; (iii) threatens to render NEPA's public participation process a meaningless paperwork exercise; and (iv) unlawfully seeks to restrict judicial review of agency actions that violate NEPA."

These lawsuits make a persuasive claim that the final rule is "not in accordance with law." It conflicts with the text, structure and purpose of NEPA, which requires it "to be applied to the fullest extent possible." In addition, the claim that it should be held arbitrary, capricious, and an abuse of discretion under the APA is sound. Like many of Trump's other environmental rollbacks, the final rule is likely to be deposited in the legal dustbin of failed Trump executive orders by the courts. 