Biden asks court for redo on Trump NEPA rule

Published: Thursday, March 18, 2021

An interesting piece from Maxine Joselow of E&E News on the Biden Administration's attempt to roll back President Trump's overhaul of the National Environmental Policy Act (NEPA) that went into effect last August. I gave a presentation to the Arizona Association of Environmental Professionals (AZAEP) last February (just before the country went into lockdown) on these changes and it's been interesting to see how the agencies have responded. There was a lot of precedence for these changes to NEPA given Secretary Zinke's Secretary Order 3055 from 2017 which affected the Department of the Interior. Some agencies (and individual offices) have embraced the changes whole heartedly while others agencies (and individual offices) dragged their feet. I also taught an online class on NEPA last fall and it was interesting trying to modify the previous class to reflect these new rules given there was not much actual precedent for how they would be implemented. As a NEPA practitioner this is something I follow closely. The article is reproduced in it's entirety below.

The Biden administration yesterday asked a federal court for a do-over on former President Trump's controversial overhaul of the National Environmental Policy Act implementing rules.

In a motion filed yesterday evening, lawyers for President Biden's Justice Department asked the U.S. District Court for the Western District of Virginia to remand the Trump rule to the Council on Environmental Quality.

"Remand 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," wrote attorneys in DOJ's environment division.

The government lawyers indicated that they were scrutinizing the Trump rule's impacts on environmental justice and climate change — two areas that Biden has pledged to prioritize.

The new administration is reviewing "whether the 2020 Rule may adversely affect environmental justice or impair participation by environmental justice communities in the NEPA process" as well as "whether the 2020 Rule may adversely affect climate change, climate resilience or environmental quality generally," they wrote.

"CEQ has commenced a comprehensive reconsideration of the 2020 Rule to evaluate its legal basis, policy orientation, and conformance with Administration priorities, including the Administration's commitment to addressing climate change and environmental justice," DOJ added.

The government lawyers refrained from asking the court to vacate the rule, arguing that the challengers wouldn't suffer immediate harm from the rule remaining in effect for now.

NEPA, enacted 50 years ago, requires agencies to examine how projects will affect communities and consider alternatives. The bedrock environmental law has been an important tool for low-income neighborhoods and communities of color seeking to push back on proposed projects including highways, power plants and pipelines.

Trump unveiled the NEPA overhaul in August. The rule set a two-year deadline for completing environmental impact statements, which proponents said would accelerate reviews of major infrastructure projects. The regulation also axed consideration of a project's "cumulative impacts," which critics said would diminish consideration of a project's potential contribution to climate change.

More than 20 states sued CEQ over the rule, as did a number of environmental groups. Yesterday's request concerns the lawsuit filed by local green groups including Wild Virginia, the Virginia Wilderness Committee and Cape Fear River Watch. The groups are represented by the Southern Environmental Law Center (SELC).

The Biden administration had previously asked the court to pause the litigation over the NEPA rule for 60 days while it considered its next steps (E&E News PM, Feb. 18).

But in an unusual move, Judge James Jones refused to put the litigation on ice. The Carter appointee found that a 60-day stay of the case would cause an inappropriate delay for the environmental groups (Climatewire, Feb. 22).

In a note to clients yesterday, analysts at the research firm ClearView Energy Partners LLC said they expect Jones to grant the Biden administration's remand request.

"Although the court denied CEQ's earlier motion for a 60-day stay to allow the new Administration to review the rule and the litigation, today's motion for remand states that CEQ plans to make substantive changes to address the issues alleged in the appeal and potentially retract the rule altogether," the analysts wrote. "We think that the court is more likely to grant the remand motion given the clearer articulation by CEQ of its planned actions."

The environmental groups have until March 24 to submit a response to the Biden administration's motion. In a statement yesterday, SELC senior attorney Kym Hunter indicated that the challengers would oppose remanding the rule while it remained in effect.

"We are glad the Biden administration is reconsidering this illegal Trump rule, but we believe action is needed now to prevent further harm. Communities that have faced an outsized share of pollution and problems from large infrastructure projects need the full protection NEPA provides, yet the Trump rule is being implemented across the country," Hunter said.

"We don't believe it is wise for the government to essentially delay this case further while the damaging rule remains in place," she said, "so we'll continue to press our case in court."