NEPA Litigation Update

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Following the Council on Environmental Quality’s (CEQ) July 2020 overhaul of regulations implementing the National Environmental Policy Act (NEPA), environmental plaintiffs filed a series of lawsuits challenging the rule in federal courts in California, Virginia, New York, and the District of Columbia. The plaintiffs argued that CEQ violated NEPA itself in promulgating the final rule by failing to prepare an environmental assessment (EA) or environmental impact statement (EIS). They also argued that CEQ ran afoul of the Administrative Procedure Act (APA) by failing to follow notice-and-comment requirements, by issuing a final rule that is “arbitrary and capricious,” and by improperly narrowing both the scope of projects under review and the types of impacts agencies should consider.

In light of President Biden’s regulatory freeze directing federal agencies to review rules promulgated under the Trump administration, most of the lawsuits have been stayed. However, in February 2021, after the parties had filed cross-motions for summary judgment, U.S. District Judge James Jones of the Western District of Virginia rejected the Department of Justice’s (DOJ) motion seeking a stay of the lawsuit. In declining to grant a stay, Judge Jones stated that “adding lengthy additional delay to my decision would not be appropriate.” Following Judge Jones’ denial of the request for a stay, DOJ filed a motion requesting that the court remand the NEPA rule to CEQ, arguing that “[r]emand is appropriate because CEQ has identified substantial and legitimate concerns with the 2020 Rule and is currently considering whether to initiate a process to amend or repeal the Rule.” Environmental groups opposed the motion, arguing instead that the court should find the rule unlawful and vacate it. Oral argument on the pending motions for summary judgment occurred in mid-April, and the court has yet to issue a decision on either the motion for remand or the motions for summary judgment.

Parallel to its efforts to pause litigation and remand the NEPA rule to CEQ, the Biden administration issued a notice repealing a 2019 draft guidance document on ways in which federal agencies should consider greenhouse gas (GHG) emissions under NEPA. The draft guidance had given federal agencies significant discretion to determine the degree to which they need to consider GHG emission impacts of major federal actions and was criticized by environmental groups arguing that the guidance would not fully account for GHG emissions of those actions.

The Biden administration’s notice reverses course and directs federal agencies to fully evaluate climate and GHG impacts of federal actions, noting that “[m]any projects and programs proposed, funded, or approved by Federal agencies have the potential to emit or sequester greenhouse gases…and may be affected by climate change. Federal courts consistently have held that NEPA requires agencies to disclose and consider climate impacts in their reviews.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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