Judge Considers Freezing ‘Political’ Environmental Review Rule

Sept. 4, 2020, 4:51 PM

A federal judge took a no-nonsense approach Friday to a hearing on the White House’s rewrite of federal environmental review standards, grilling conservation groups on how they’ll be harmed and chiding the Justice Department for glossing over the political motivations behind the rules.

Judge James P. Jones of the U.S. District Court for the Western District of Virginia presided over more than two hours of arguments on whether he should freeze the government’s new National Environmental Policy Act rules. They take effect Sept. 14, replacing Nixon-era requirements.

Southern Environmental Law Center senior attorney Kym Hunter argued the Council on Environmental Quality’s regulation causes immediate harm to Wild Virginia, the Congaree Riverkeeper, and other groups by eliminating “longstanding procedural safeguards” that require agencies to study and disclose the environmental impacts of major federal actions.

The NEPA regulation aims to deliver on President Donald Trump’s repeated pledge to streamline permitting for energy production, pipelines, highways, and other major projects. The final rule shortens the federal review timeline, narrows the scope of analysis, and tightens the scope of federal actions that require review.

Jones said he viewed the NEPA regulatory change as an obvious political move, but wondered aloud about the role he should play.

“Elections have consequences, obviously. That is how our system works,” he said early in the hearing. “Where is the line drawn in order to bring the independent judiciary into this political situation to declare this political act invalid?”

Immediate Impacts?

But on-the-ground impacts won’t occur until agencies formally update their own procedures to fall in line with the new regulation, making the environmental groups’ challenge unripe for judicial review, argued Assistant Attorney General Jeffrey Bossert Clark, head of the Justice Department’s environment division.

The challengers can’t properly sue over the regulatory changes until the new NEPA rule is actually applied to a specific project, he said. McDermott Will & Emery LLP lawyer Michael B. Kimberly, representing industry intervenors, likewise argued it will take time for the regulation to “work through the system” and actually affect reviews.

Hunter, of SELC, countered that CEQ’s rulemaking process violated the Administrative Procedure Act by ignoring certain public comments, making the regulation unlawful on its face.

“There is no way that anything CEQ does in the future will go back in time and fix the decisionmaking in the rulemaking process, the deficiencies in the rulemaking process,” she said.

Jones, the federal judge, said the argument that the case is premature “weighs on me,” along with the question of whether he even has authority to issue a nationwide injunction of the rule.

Hunter replied that the court has power to issue a nationwide injunction because the plaintiffs include national groups, including Defenders of Wildlife. She added that if the court denies the preliminary injunction request, it should at least freeze the effective date of the rule—an outcome that would have roughly the same effect.

‘I Live in the Real World’

Clark, the government lawyer, also argued that CEQ is entitled to deference in its interpretation of the law. But Jones scolded the government for emphasizing the agency’s 50 years of experience in NEPA law as a reason for deference.

“I live in the real world just like you do,” the judge told Clark. “We know what happened here. A new administration came in with clear policy change to change the rules. There wasn’t white-haired, white-beard gentlemen sitting in the bowels of the Executive Office Building who suddenly decided, ‘Why, I’ve been wrong all these years with NEPA [rules], and I’m going to change them.’”

Jones added his job is to decide whether the rules comply with federal law, not to opine on the policy. But he urged the parties to avoid hyperbole and acknowledge the political nature of CEQ’s move.

Clark defended the CEQ’s expertise, noting that career staff has significant “institutional memory,” and that the NEPA process had grown unwieldy through “litigation creep"—adding requirements over time via various court cases.

Jones said he would issue a decision on “a timely basis.”

The Trump administration’s rewrite of the NEPA regulations is facing three other lawsuits, with two challenges pending in California and one in New York. The parties in those cases haven’t requested preliminary injunctions.

The case is Wild Virginia v. Council on Envtl. Quality, W.D. Va., No. 3:20-cv-00045, hearing 9/4/20.

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

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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