Environmental Groups Lose Appeal Over Trump Era NEPA Review Rule

Wild Virginia and 16 other environmental preservation organizations lost their bid to revive their challenge to a 2020 rule governing how federal agencies conduct reviews under the National Environmental Policy Act.

The rule included changes such as eliminating a requirement that cumulative effects be considered in NEPA analyses and new time and page limits on environmental impact statements.

Whatever the “wisdom of those policy changes,” the court has “no license to consider the merits of the challenge to the rulemaking,” the US Court of Appeals for the Fourth Circuit said Thursday.

The challenged rule, which was promulgated under the Trump Administration, significantly altered and largely curbed NEPA reviews.

The environmental groups sued the Council on Environmental Quality, alleging 10 claims against CEQ, comprising nine claims challenging the rulemaking process under the Administrative Procedures Act, and one claim alleging that some of the changes made to the rule fell outside CEQ’s rulemaking authority.

The district court dismissed the claims on ripeness and standing, and the Fourth Circuit affirmed, primarily on ripeness grounds.

The plaintiffs claimed that the 2020 rule, which the agency has since revisited at the direction of the Biden Administration, would create problems with NEPA analysis, pose obstacles to public comment, make it more difficult to obtain information about federal actions, and eliminate entirely some actions from NEPA review.

But all of their alleged injuries are “contingent upon a decision to be made by a third party that has not yet acted,” so they aren’t ripe, the court said.

“CEQ’s regulations provide rules for other agencies, but it is those other agencies that will actually take actions subject to NEPA reviews,” the court said.

Insofar as the organizations are concerned about how other agencies will conduct NEPA reviews after the 2020 Rule, those concerns have not yet ripened into actionable injuries, the court said.

The court said that was particularly so in light of the changes that have been made since President Joe Biden issued an Executive Order revoking the Trump Administration order that led to the 2020 rule changes.

A new 2022 Rule has removed some of the 2020 Rule’s challenged provisions, and CEQ extended the deadline for other agencies to promulgate rules pursuant to the 2020 rule.

CEQ has also told other agencies that they “can and should continue to apply their existing NEPA procedures, consistent with the CEQ regulations in effect, while it engages in a second phase of rulemaking, which CEQ said will include “more comprehensive” proposed revisions.

Judge James A. Wynn Jr. authored the decision, joined by Judges G. Steven Agee and Diana G. Motz.

The environmental organizations are represented by Southern Environmental Law Center.

The case is Wild Virginia v. Council on Environmental Quality, 4th Cir., No. 21-1839, 12/22/22.