Bloomberg Law
Feb. 25, 2020, 8:25 PM

Climate Could Be Legal Hook to Fight Environment Permit Changes

Stephen Lee
Stephen Lee

Some comments at a Tuesday public hearing on the Trump administration’s planned rewrite of its environmental permitting rule hinted at possible legal strategies against the proposal.

The White House Council on Environmental Quality’s Jan. 9 proposed rule would speed up reviews under the National Environmental Policy Act for pipelines, mines, highways, and other infrastructure projects.

Christy Goldfuss, senior vice president of energy and environment policy at the Center for American Progress and CEQ director under President Barack Obama, told CEQ officials that the rule’s de-emphasis on the way climate change is considered in speeding environmental permitting wouldn’t withstand judicial scrutiny.

Over the past decade, courts have increasingly called on federal agencies to do robust climate analyses. But the council’s proposal removes a requirement for agencies to analyze cumulative effects.

CEQ chairman Mary Neumayr has said the proposal wouldn’t exclude consideration of greenhouse gases.

Environmental Statements

Other speakers took aim at the proposal’s provision that would let project applicants draft their own environmental impact statements, under the supervision of an agency.

Litigants could argue that that provision is inconsistent with the statute’s requirement that the federal government take a “hard look” at a project’s environmental impacts.

“To the extent that that requirement fails to meet what agencies are responsible for doing under NEPA, as the courts have established over the past several decades, they are vulnerable in court,” said Sharon Buccino, senior director of the land program at the Natural Resources Defense Council.

In January, a CEQ spokesman said agencies will still independently evaluate environmental impact statements and assessments. Moreover, the lead agency must provide guidance, take part in the preparation of the documents, and take responsibility for their content, the spokesman said.

Bonding Changes

Separately, an industry group told the Council on Environmental Quality that small businesses would be stung by bonding provisions in the proposed rule.

Sandra Purohit, director of federal advocacy for E2 (Environmental Entrepreneurs), a coalition of environmental business leaders, said her group objects to a little-known provision in the rule that requires businesses and others to post a bond before they can access the courts to try to pause a government decision that violates the law.

That provision “will effectively bar businesses operating on thin margins from protecting their interests,” Purohit said.

Dan Schneider, a CEQ spokesman, said the proposed rule “recognizes that federal agencies may structure their administrative appeals processes to allow affected parties to seek a stay from an agency.”

The proposed rule “also recognizes that bond or security requirements must be consistent with the agency’s statutory authorities,” Schneider said.

He further noted that the proposed rule doesn’t establish bonding requirements for public comments.

Industry Groups Approve

CEQ’s planned changes have been almost universally applauded by industry groups. On Monday, a panel of business representatives spoke at the U.S. Chamber of Commerce about how the proposed rule will eliminate lawsuits and speed up the construction of roads, bridges, and renewable energy projects.

Also during the three-hour session, Rep. Raul Grijalva (D-Ariz.), chairman of the House Natural Resources Committee, said he asked CEQ to produce documents showing communications with Exxon Mobil Corp., BP Plc, Phillips 66, Royal Dutch Shell Plc, Chevron Corp., the American Petroleum Institute, and the CGCN Group, a lobbying firm.

After his remarks, Grijalva told reporters he believes the oil and gas industry is driving CEQ’s permitting changes.

Earlier this month, the Southern Environmental Law Center asked the U.S. District Court for the Western District of Virginia to issue a preliminary injunction that would bar CEQ from finalizing the proposal.

—With assistance from Ellen M. Gilmer.

To contact the reporter on this story: Stephen Lee in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Renee Schoof at