Judge questions motivation behind NEPA overhaul

Source: By Jennifer Hijazi, E&E News reporter • Posted: Tuesday, September 8, 2020

A federal judge last week told government attorneys to stay in “political reality” during arguments over whether conservation groups will be irreparably harmed once new implementing rules for a bedrock environmental statute go into effect.

Judge James Jones of the U.S. District Court for the Western District of Virginia heard arguments Friday on a request by green groups to stall the Trump administration’s new National Environmental Policy Act regulations.

The changes to the bedrock environmental law by the White House Council on Environmental Quality, led by Mary Neumayr, are set to go into effect Sept. 14, but environmental groups like Wild Virginia and Defenders of Wildlife insist that setting the new rules into motion this month would cause irreversible and immediate harm to the lands their organizations protect.

Southern Environmental Law Center Senior Attorney Kym Hunter, arguing for the groups, acknowledged that freezing the rule seems like an “extraordinary” remedy, but said a delay is necessary to allow the courts to decide if the government had cut corners on the rulemaking.

“This case is as ripe as it will ever get,” she said.

NEPA governs the permitting process for federal projects ranging from highways to pipelines. CEQ’s revised implementing regulations set shorter deadlines for agency analyses and limit examination of factors like cumulative environmental and climate impacts of projects, among other changes.

Conservation groups say they will lose access to vital information while legal battles over the changes play out, and projects may start moving forward without adequate consideration of all possible alternatives, Hunter argued. CEQ also gave insufficient scrutiny of public comments on the rule, she said.

But Jones, who was appointed during the Clinton administration, asked Hunter where the tipping point is in cases that challenge the actions of new administrations that are bound to bring in new policies that interest groups oppose.

“Where is the line drawn in order to bring the independent judiciary into this situation to declare a political act — which is what this is — invalid?” he asked.

‘We know what happened here’

Conservation groups will have their day in court over the NEPA rule changes, but their motion to freeze the revisions came at the wrong time, said Justice Department environment chief Jeffrey Bossert Clark.

He argued that the groups can’t establish the regulations will have immediate consequences, since there’s a lot that needs to happen before the new rules will be meaningfully applied to future projects.

“It’s premature at multiple levels,” he told the judge, noting that CEQ ran a “model” process in crafting the new approach.

Jones urged counsel to “be in political reality” as he balked at DOJ’s claims that the NEPA rule changes have been in the works for years.

“Come on, remember my speech today about elections [having] consequences? I live in the real world just like you do,” Jones said. “We know what happened here.

“There wasn’t [a] white-haired, white-beard gentleman sitting in the bowels of the Executive Office Building who suddenly decided, ‘Why, I’ve been wrong all these years with NEPA, and I’m going to change [it],'” the judge continued.

The environmental groups’ case is part of a body of lawsuits launched by conservationists, environmental justice advocates and states targeting the Trump administration’s NEPA overhaul (Greenwire, Aug. 28).

Jones said he will issue an order on the preliminary injunction at issue during last week’s hearing on a “timely” basis.