Environmental groups are hauling the Trump administration to court for what they argue was a failure to follow the correct process for updating regulations on how to comply with the National Environmental Policy Act.
Coalitions of groups from across the country filed two lawsuits today challenging the White House Council on Environmental Quality’s newly finalized implementing regulations for NEPA, which govern analysis of projects ranging from highways and bridges to oil and gas leases.
The lawsuits are the first of what will likely be a series of challenges against regulations that CEQ has argued would speed up and simplify the federal project permitting process (Energywire, July 16).
The revisions overturn decades-old standards outlining how to comply with the bedrock environmental statute, in violation of the Administrative Procedure Act, or APA, one coalition of challengers said.
"Rather than make this drastic change deliberately and with the careful process the APA requires, CEQ cut every corner," 17 environmental groups wrote in a complaint filed this morning in the U.S. District Court for the Western District of Virginia.
They noted that the agency had worked quickly to finalize the rule in just four months after receiving 1.1 million public comments on the impacts of the changes.
"We went through all their responses to comments," said Kym Hunter, a senior attorney at the Southern Environmental Law Center (SELC), which is representing the coalition in the Virginia district court. "They really failed to grapple with any of the concerns that were raised during the public comment process."
Those concerns include the costs of upending long-standing regulatory practice, the environmental impacts of removing categories for action and the disproportionate harm the changes could have on communities of color.
"Here, where the government has completely rewritten the regulations implementing one of our nation’s most significant environmental laws — a law that has been in place for over fifty years with regulations that have remained unchanged for decades — the government’s responsibility to follow procedure is at its highest," wrote the groups involved in the SELC lawsuit.
Among the new regulatory changes, CEQ removed language about consideration of cumulative and indirect effects of projects. It also eliminated consideration of project impacts that are geographically remote or remote in time.
The new rules could markedly shift how project developers evaluate climate and other project risks.
Highways, for example, carry indirect effects like increases in traffic and subsequent development near thoroughfares that have a greater effect on the environment than construction of the project itself, said Hunter.
"In the past, it was pretty clear you had to consider these things," she said. "It’s going to create a lot of confusion."
The regulations also put greater emphasis on considering public comments that are specific and technical, which could place members of the public directly harmed by projects at a disadvantage, environmental challengers warned. Similarly, a proposal to eliminate all guidance documents, including environmental justice guidance, would harm efforts to encourage greater consideration of communities facing disproportionate risks from projects.
Environmental groups involved in the SELC lawsuit said they would work to defend wildlife and people harmed by the new NEPA rules.
"The current administration’s attempt to topple 50 years of fundamental environmental law is an illegal and transparent gift to industry; another assault on the environment to meet and defeat," Jack West, policy director at the Alabama Rivers Alliance, said in a statement. "We are proud to be joining in this important legal challenge to stop these reckless rollbacks."
This afternoon, a separate coalition of 20 environmental justice, outdoor recreation and conservation groups — led by the Western Environmental Law Center (WELC) and Earthjustice — filed their own lawsuit over CEQ’s regulations in the U.S. District Court for the District of Northern California.
The groups argued that the changes in CEQ’s regulations go against "Congress’s manifest intent" in enacting the federal environmental law in the 1970s.
"We have consistently defeated this administration’s relentless, vicious dismantling of safeguards for people and the environment, and we will do so again for this critically important law," Susan Jane Brown, WELC co-counsel on the case, said in a statement.
CEQ does not comment on litigation.