United States:
NEPA litigation update
June 07, 2021
Troutman Pepper Hamilton Sanders
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Following the Council on Environmental Quality (CEQ) revision of the National Environmental Policy Act (NEPA) regulations in July 2020, environmental complainants filed a number of lawsuits in federal courts in California, Virginia, New York and the District of Columbia. Plaintiffs argued that by promulgating the final rule, CEQ violated NEPA itself by not issuing an Environmental Assessment (EA) or Environmental Impact Statement (EIS). They also argued that CEQ violated the Administrative Procedures Act (APA) by not following the requirements for notices and comments, by making a definitive rule that was “arbitrary and capricious” and by improperly restricting the scope of projects under review and the types of impacts agencies should consider.
Most lawsuits have been put on hold, given President Biden’s regulatory freeze directing federal agencies to review the rules enacted under the Trump administration. However, after the parties cross-motions for a summary judgment in February 2021, U.S. District Judge James Jones of the Western District of Virginia denied the DOJ’s motion to stay the lawsuit. Judge Jones refused to grant a respite, stating that “it would not be appropriate to add a lengthy additional delay to my decision”. After Judge Jones denied the suspension motion, the DOJ filed a motion asking the court to refer the NEPA rule back to CEQ, arguing that “[r]The request is reasonable as CEQ has identified significant and legitimate concerns about the 2020 rule and is currently considering initiating proceedings to change or repeal the rule. “Environmental groups denied the request, instead arguing that the court approved the rule should declare illegally and vacate the hearing on the pending requests for interim injunction took place in mid-April, and the court did not rule on either the investigation request or the requests for interim injunction.
In parallel with its efforts to open litigation and refer the NEPA rule back to CEQ, the Biden government has issued a notice repealing a 2019 draft guidance document on the ways federal agencies reduce greenhouse gas (GHG) emissions Should take into account the framework of NEPA. The draft guidelines had given federal agencies considerable discretion in determining the degree to which they must consider the effects of greenhouse gas emissions from key federal measures, and was criticized by environmental groups who argued that the guidelines did not fully take into account the greenhouse gas emissions of these measures.
The Biden government notice reverses course, instructing federal agencies to fully assess the climate and GHG impacts of federal measures, noting that “[m]All projects and programs proposed, funded, or approved by federal agencies have the potential to emit or store greenhouse gases … and can be affected by climate change. Federal courts have repeatedly ruled that NEPA requires agencies to disclose and take into account climate impacts in their reviews. “
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