Federal Court Dismisses Challenge to Trump’s NEPA Regulations

If you hoped for clarity on CEQ’s National Environmental Policy Act’s (NEPA) implementing regulations (the 2020 Rule), you will have to keep waiting. On June 21, the US District Court for the Western District of Virginia dismissed a challenge by conservation groups to the Trump Administration’s 2020 Rule. The court found that the claims were not ripe and that plaintiffs lacked standing, leaving questions about the substance of the changes for another day. Meanwhile, the Biden Administration has announced that it will begin reconsideration of the Trump NEPA rule by July 2021. By deciding the case on procedural grounds, the court sidestepped the hot-button issues that will be front and center in the forthcoming rulemaking. The court’s decision also raises questions as to whether the Biden Administration’s NEPA rule will also evade judicial review.

Background

In July 2020, the Trump Administration finalized the overhaul of its NEPA implementing regulations. This rulemaking was significant because the regulations had not been comprehensively updated for more than four decades. Within two months, five complaints were filed in four courts challenging the NEPA rule. As explained in our February 2021 Advisory, unlike other federal courts reviewing challenges to Trump Administration rulemakings (including the three other courts also reviewing challenges to the NEPA rule), the Western District of Virginia denied the federal governments’ request to stay the case because briefing on motions for summary judgement were nearly complete. The court held hearings on the cross motions for summary judgement and the federal government’s motion for remand without vacatur in April 2020.

The Decision

The court dismissed the claims on grounds of ripeness and standing, and did not address the merits. On the issue of ripeness (i.e., whether the issues are fit for judicial resolution), the court found that “[t]he potential applications and outcomes of the regulatory changes adopted are simply too attenuated and speculative to allow for a full understanding and consideration of how they may impact the plaintiffs.” Interestingly, the court seemed to assume that the 2020 Rule could not be applied until each federal agency adopted its own NEPA procedures, and noted that “one cannot say with anything close to certainty exactly how each agency will interpret the 2020 Rule and apply it to future proposals.” The court also noted that the plaintiffs will be able to pursue legal challenges in the context of specific agency actions, and that “[d]elaying judicial review of the 2020 Rule until it can be considered in an as-applied challenge will not create a significant hardship for the plaintiffs.” On standing, despite plaintiffs’ best efforts—having submitted over 50 declarations in an attempt to demonstrate injury resulting from the 2020 Rule—the court found that the plaintiffs failed to establish that the NEPA rule “has caused or imminently will cause them any concrete injury.”

Impact of the Decision

The immediate impact of this decision is that the challenged rules continue in effect. This creates some uncertainty for federal agencies and project proponents, as the Biden Administration has signaled that it disagrees with and intends to reverse at least some of the substantive changes made in the 2020 Rule. For example, through Secretarial Order 3399, Secretary of the Interior Haaland announced that the 2020 Rule should not be applied “in a manner that would change the application or level of NEPA that would have been applied to a proposed action before the 2020 Rule went into effect.” In addition, the CEQ recently announced in the Spring 2021 Unified Regulatory Agenda that it will be undertaking a two-phased approach for revising the 2020 Rule. In phase 1, “narrow changes” will be proposed in July (next month), and in phase 2, “broader changes” will be proposed in November 2021.

 As a result of the Western District of Virginia’s decision, neither the Biden-Harris Administration nor stakeholders will have the benefit of a court ruling on the substantive arguments raised by the conservation groups. Of particular interest are the plaintiffs’ arguments regarding the Trump Administration’s changes to the way agencies (1) analyze the environmental “impacts” or “effects” of their decisions--particularly the deletion of all references to “cumulative impacts”; and (2) evaluate alternatives to the proposed action--particularly the deletion of the requirement to analyze alternatives “not within the jurisdiction of the lead agency.”

In the longer term, the decision also raises questions about the potential fate of the Biden-Harris Administration’s forthcoming rulemaking process on NEPA. Assuming this case is correct, the decision has the potential to foreclose facial challenges and require opponents to await application of the rule in particular cases.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.