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Biden Works to Preserve Trump Environmental Rule Amid Review (1)

April 21, 2021, 7:08 PMUpdated: April 21, 2021, 9:03 PM

The Biden administration is reworking Trump-era environmental review standards but says it wants to keep them in place for now because they aren’t causing any imminent harm to opponents.

Justice Department lawyers faced off with environmentalists Wednesday in arguments before the U.S. District Court for the Western District of Virginia. The court is weighing the legality of a 2020 rule from the White House Council on Environmental Quality that narrows federal analyses under the National Environmental Policy Act.

The Biden administration is navigating tricky territory on NEPA policy—agreeing with environmentalists that the Trump rule may be problematic but disagreeing that it should be immediately sidelined. Government lawyers notified the district court last month that they were conducting a “comprehensive reconsideration” of the regulation but want to keep it in place in the meantime.

The CEQ regulation, the first change to NEPA rules in decades, aims to speed up and narrow the scope of federal environmental reviews, which agencies conduct whenever they take actions that could significantly affect the environment.

During oral arguments, the parties made broad arguments about the regulation’s legality, as well as whether the court should grant the government’s request for the court to remand the rule to the agency without vacating it.

The Council on Environmental Quality is still working on its reconsideration process but faced some delays while awaiting the recent confirmation of Brenda Mallory to lead the council, Justice Department lawyer Clare Boronow told the court. She argued that the Trump regulation should remain in place for now because environmental plaintiffs aren’t facing any imminent harm from it.

“It doesn’t require plaintiffs to do or refrain from doing anything,” Boronow said, noting that NEPA regulations apply to federal agencies. “It doesn’t threaten liability. It doesn’t impose any obligations.”

Eliminating the rule before a merits decision from the court would also circumvent the rulemaking process by having the court do what the agency lacks authority to do: scrapping the regulation without process, she said.

“I’d encourage the court to give CEQ the space to complete that reconsideration process,” Boronow said.

McDermott Will & Emery LLP attorney Michael B. Kimberly, representing energy, agriculture, and other business groups that support the Trump-era rule, agreed that simply vacating the rule now would shirk Administrative Procedure Act requirements for the rulemaking process.

Environmental Arguments

Southern Environmental Law Center attorney Kym Hunter, representing an environmental coalition, argued that the court has all the information it needs to find the Trump rule unlawful and scrap it immediately, especially given the Biden administration’s recent acknowledgment that it has “numerous concerns” about the standards.

“The only real question left for the court is what to do with the illegal rule going forward,” she said, adding that the Administrative Procedure Act directs the court to nix the regulation.

Judge James P. Jones pressed Hunter on whether it’s more practical to leave the 2020 rule in place while the Biden administration reviews the issue because it’s “likely to change” the provisions most opposed by environmentalists.

“Maybe there are some changes they want to make,” he said. “Maybe there’s something in the new rule they’d like to tinker with and keep. Who knows.”

Hunter responded that the Trump rule would be allowed to remain in place for months or longer during that process, contributing to confusion and environmental harm.

“The harm has only continued to escalate as agencies are forced to comply with the new rule,” Hunter said. “There is no Band-aid solution that CEQ can put on that will ameliorate that harm.”

States, environmentalists, public health groups, and tribes filed multiple lawsuits challenging CEQ’s new NEPA rule last year. Most courts agreed to freeze proceedings after President Joe Biden took office, but the Jones opted to keep the case in his district on track.

The case is Wild Virginia v. Council on Envtl. Quality, W.D. Va., No. 3:20-cv-00045, oral argument 4/21/21.

(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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