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Biden Officials Rethinking Trump Environmental Review Rule (1)

March 17, 2021, 9:30 PMUpdated: March 17, 2021, 10:12 PM

The Biden administration has identified “numerous concerns” with a Trump-era environmental review regulation and wants a federal court to remand the rule rather than carry on with litigation.

Government lawyers laid out their position Wednesday in a brief in the U.S. District Court for the Western District of Virginia, marking the Biden administration’s first public effort to backtrack from the divisive rule finalized last year by the White House’s Council on Environmental Quality.

“CEQ has identified numerous concerns with the 2020 Rule, many of which have been raised by Plaintiffs in this case, and has already begun reconsidering the Rule,” Justice Department lawyers told the court. “Where an agency has committed to reconsidering the challenged action, the proper course is remand to allow the agency to address its concerns through the administrative process.”

A newly installed political official in CEQ told the court the council has started a “comprehensive reconsideration” of the 2020 rule, looking at impacts on environmental justice and climate change, among other issues.

“CEQ expects to decide in the coming weeks how to address the questions and concerns” about the rule, Matthew Lee-Ashley, CEQ’s interim chief of staff and senior direct for lands, said in a declaration to the court, adding that the council would decide “whether to propose to amend or repeal the 2020 Rule, in whole or in part.”

The CEQ regulation aimed to speed up and narrow the scope of reviews under the National Environmental Policy Act. Agencies conduct NEPA analyses whenever they adopt rules, issue permits, or take other actions that could significantly affect the environment.

Government lawyers urged the court to remand the rule to the court without vacating it, meaning it would remain in effect until the council takes further action. They argued that leaving the regulation intact for now wouldn’t prejudice environmental challengers because “Plaintiffs continue to have the option to challenge individual NEPA processes taken under the 2020 Rule as they arise.”

The judge presiding over the case last month refused to freeze the lawsuit from Wild Virginia and other environmental groups opposed to the Trump regulation. Similar lawsuits in other courts are on hold.

The Southern Environmental Law Center, which represents opponents of the Trump-era NEPA rule in the case, didn’t immediately respond to a request for comment Wednesday.

ClearView Energy Partners, a research firm, warned that the rule’s uncertain status “is likely to pose challenges” for projects under review at the Federal Energy Regulatory Commission and other agencies, with potential delays associated with adjusting environmental analyses that are already underway. But delays could be minor “if the CEQ provides guidance relatively soon,” ClearView said in a note to clients.

The case is Wild Virginia v. Council on Envtl. Quality, W.D. Va., No. 3:20-cv-00045, motion filed 3/17/21.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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