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New NEPA Rules Take Effect This Week

Wednesday, September 16, 2020

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Changes to the National Environmental Policy Act went into effect this week after a district court judge dismissed the request for a preliminary injunction on the changes.

While several lawsuits are moving forward, the changes put forth by the Trump administration earlier apply to all new NEPA reviews started on or after Sept. 14.

NEPA Changes

President Donald J. Trump announced the finalization in mid-July of changes that aim to not only reduce the number of projects that require federal review, but also narrow the scope considered under those reviews and the time it takes to complete them.

“Today’s action is part of my administration’s fierce commitment to slashing the web of needless bureaucracy that is holding back our citizens,” Trump said in his announcement speech at the UPS Hapeville Airport Hub in Atlanta.

sabthai / Getty Images

Changes to the National Environmental Policy Act went into effect this week after a district court judge dismissed the request for a preliminary injunction on the changes.

The final rules don’t deviate much from the proposals in January, and note that federal agencies no longer have to factor in “cumulative impacts” of a project, such as impacts on the environment or climate.

It also keeps the proposals of a two-year deadline for environmental impact statements and a one-year deadline for other environmental assessments. The rule also changes standards for commenting on judicial review, adding that any comment must also give negative economic and employment impacts of a project alongside any environmental concerns.

Energy and gas sectors applaud the rules, with American Gas Association President and CEO Karen Harbert saying, "A reformed permitting process will enable natural gas utilities to continue to deliver affordable and clean natural gas, which will be essential for our nation's economic revival and achieving our shared environmental goals."

The wind sector supports the new review deadlines, according to American Wind Energy Association Senior Vice President of Government and Public Affairs Amy Farrell, but is overall opposed to limiting the review of environmental impacts.

Environmental Protection Agency Administrator Andrew Wheeler has defended the policy, saying, "It does not address any of the underlying regulations or policies, those are all still in place. The main factor is it puts a two-year timeframe. If we can't work through the issues around a project within two years, then that's a problem because the private sector does that all the time.”

Lawsuits

Several lawsuits have been fired according to the National Law Review, including:

  • Alaska Community Action on Toxics v. CEQ (Northern District of California No. 20-5199);
  • California v. CEQ (Northern District of California No. 20-6057);
  • Environmental Justice Health Alliance v. CEQ (Southern District of New York No. 20-6143); and
  • Wild Virginia v. CEQ (Western District of Virginia No. 20-45).

The Wild Virginia case is also being led by both the Southern Environmental Law Center and Earthjustice and challenges not only the rollbacks of the new rule, but also how the new rule was enacted.

Bigger complaints lodged in SELC’s lawsuit surround how the changes were developed. The Hill reports that the White House Council on Environmental Quality held two hearings on the changes (in Washington, D.C., and Denver) and issued its ruling four months after it was proposed.

This calls into question whether the council considered the more than 1.1 million public comments, according to critics.

Kym Hunter, an SELC senior attorney said that, “… the Trump administration isn’t allowed to change a law by breaking the law. And we won’t let this administration get away with it.”

That argument takes place under the Administrative Procedures Act, which is partially how the groups are challenging the ruling.

The lawsuit states: “In its most recent opinion on the strictures of the Administrative Procedure Act, the Supreme Court affirmed that 'the Government should turn square corners in dealing with the people' … In other words, while the federal government has the ability to change policies, rules and regulations, it must follow the law, not cut corners, when it does so.”

The other arguments challenge the changes made to the scope of the environmental reviews, particularly the removal of “cumulative impacts.”

What Now

The Wild Virginia case is the only one to have already filed a preliminary injunction motion, which U.S. District Court for the Western District of Virginia Judge James P. Jones dismissed late last week, saying that the conservation groups hadn’t met the legal bar for a preliminary injunction.

“While the movants need not show a certainty of success, they must make a ‘clear showing’ that they are likely to succeed on the merits as a prerequisite to a preliminary injunction,” Jones wrote. “The plaintiffs here may ultimately succeed in this case, but at this point they have not made that clear showing.”

In an earlier Sept. 4 hearing, Jones described the NEPA regulation as a “political act” but questioned whether the court should step in.

According to Bloomberg, Hunter called the ruling disappointing but noted that there’s a long way to go.

“We are prepared to show in court that the Trump administration broke the law to change the law,” she said. “We will continue to work hard for our clients and the communities they represent to minimize the harm that will come from the gutting of this bedrock environmental law.”

   

Tagged categories: Environmental Protection; Good Technical Practice; Government; Lawsuits; NA; North America; Regulations

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