The New NEPA Regulations Were a "Political Act." Is That Enough to Invalidate Them?

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law

Last week, Judge James Jones declined to issue a preliminary injunction that would have prevented implementation of the Trump Administration’s NEPA revisions.  Judge Jones’s explanation was fairly sparse.  He merely noted that the plaintiffs had not made the required “clear showing” that they are likely to succeed on the merits, though he did indicate that testimony, including expert opinion, is likely to be necessary.

I can’t say I’m shocked, though I also wouldn’t be shocked if one of the other pending challenges went the other way.  There are three issues that are going to determine the ultimate merits decision.

First, the Administration is leaning hard on Chevron deference.  (I’m now officially getting bored noting the repeated ironies in the Administration’s position on its environmental roll-backs.)  Regardless, the Chevron argument has merit here.  I may disagree with the new rule, but most of changes seem to me to be reasonable interpretations of the statute and the Administration has enunciated a plausible – will wonders never cease! – explanation for the changes.

Which brings me to the second issue.  If I were the plaintiffs, I’d be focusing on the cumulative impacts issue.  This is one place where it’s not obvious to me that the Administration’s position will carry the day, even given Chevron.

Which brings me to the third issue, the real crux of this case.  As I noted when the regulations were finalized, this case is not so much about the changes; it’s about how they will be implemented.  Under the Obama administration, or a hypothetical Biden administration, these rules could be implemented in a spirit that would be completely consistent with the intent of NEPA.  The problem is the “wink, wink, nudge, nudge,” approach the administration is taking with respect to how it will handle issues such as climate change in implementing the new regulations.

According to Bloomberg (subscription required), Judge Jones apparently made the same point, though with perhaps more judicial restraint, during oral argument.  Judge Jones “described the NEPA regulation as a ‘political act,’ but questioned whether the judiciary should step in to halt it.”

That’s the ultimate question for the courts deciding these cases.  If it’s clear that the intent of the NEPA changes is to facilitate NEPA implementation that would indeed be inconsistent with the statute, but the regulations need not be interpreted that way, how certain must the court be of its prediction in order to enjoin the regulations?  Even if the court is certain, it wouldn’t be crazy for a judge to conclude that he or she can’t enjoin the regulation unless and until such an illegal interpretation has occurred in a specific case.

Law and politics are an awkward mix.  Elections have consequences.

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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