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White House Environmental Review Rule Survives Legal Test (1)

Sept. 11, 2020, 7:43 PMUpdated: Sept. 11, 2020, 8:32 PM

The White House’s rewrite of environmental review rules is set take effect as planned this month, after a federal judge on Friday declined to freeze the measure.

The decision is a victory for the Trump administration’s efforts to speed up approvals for pipelines, oil and gas wells, highways, and other projects.

The U.S. District Court for the Western District of Virginia ruled that conservation groups hadn’t met the legal bar for a preliminary injunction that would shelve the updated National Environmental Policy Act regulation while their legal challenge against it proceeds.

“While the movants need not show a certainty of success, they must make a ‘clear showing’ that they are likely to succeed on the merits as a prerequisite to a preliminary injunction,” Judge James P. Jones wrote. “The plaintiffs here may ultimately succeed in this case, but at this point they have not made that clear showing.”

The White House’s Council on Environmental Quality finalized the contested regulation in July, marking the first significant update of NEPA rules since the Nixon administration. The update shortens the federal review timeline, narrows the scope of analysis, and exempts some federal actions from review.

States and environmental groups responded with a multi-front legal attack, with four different lawsuits pending in three federal courts. In Virginia, a coalition represented by the Southern Environmental Law Center pressed Jones to issue a preliminary injunction blocking the NEPA regulation from taking effect while the litigation is ongoing.

During a Sept. 4 court hearing, Jones described the NEPA regulation as a “political act,” but questioned whether the judiciary should step in to halt it.

SELC attorney Kym Hunter called Friday’s ruling disappointing, but stressed that the case isn’t over.

“We are prepared to show in court that the Trump administration broke the law to change the law,” she said in an email. “We will continue to work hard for our clients and the communities they represent to minimize the harm that will come from the gutting of this bedrock environmental law.”

The case is Wild Virginia v. Council on Envtl. Quality, W.D. Va., No. 3:20-cv-00045, 9/11/20.

(Adds SELC comments in paragraphs eight and nine.)

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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