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Court finds environmentalists' challenge to Trump NEPA rule too early in process

Highlights

Sees path for challenges after agencies make project decisions

Other cases stayed as Biden CEQ revises regulation

Streamlining rule was backed by gas pipelines

A US district court judge June 21 tossed one of multiple environmental challenges to the Trump-era changes to the National Environmental Policy Act that have implications for energy infrastructure including natural gas pipelines.

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But the ruling's practical implication for projects is muted because the Biden administration already is backing away from implementation of the Trump-era regulation. Interstate natural gas pipeline projects often face challenges from environmental groups under NEPA, leading to assertions from developers of a need to rein in procedural delays.

Judge James Jones of the US District Court for the Western District Court of Virginia, Charlottesville Division, found that the challenge filed by a coalition of environmental groups including Wild Virginia was not justiciable, and the court therefore lacked jurisdiction.

"Delaying judicial review of the 2020 rule until it can be considered in an as-applied challenge will not create a significant hardship for the plaintiffs," Jones wrote. "When a particular agency renders a decision on a particular project following a procedure that, in the plaintiffs' view, does not meet the requirements of NEPA, the plaintiffs will then be able to pursue a legal challenge."

The judge also pointed to the government's assertions that following the change in administrations, CEQ has directed agencies not to devote resources to establishing their own NEPA procedures implementing the rule, and its statements that CEQ is actively reconsidering the regulation.

Concern about interference

"I am therefore concerned that judicial review of the plaintiffs' claims at this juncture could interfere with further administrative action," Jones wrote (Wild Virginia, et al., v. Council on Environmental Quality, et al., 3:20CV00045).

Even if he were to conclude the claims were ripe, he added, the environmental groups lacked standing because they did not establish the rule has caused or would imminently cause them concrete injury, and he found claims of such harms were too speculative.

"Here, the plaintiffs may have valid concerns about how the 2020 rule will impact projects in their areas, but they simply do not know how each agency will interpret the 2020 rule, taking into account any applicable CEQ guidance, or whether the 2020 rule will be applied to pending NEPA reviews," the judge wrote.

The court also dismissed CEQ's motion to have the case remanded without vacating the regulation. The decision to dismiss the case was without prejudice.

Hurdles for environmental groups

ClearView Energy Partners in a research note said the case illustrates the challenges environmental groups face in successfully appealing the NEPA rules themselves in order to effect changes.

The case is not end of the road for battles over the regulation. The rulemaking is being challenged in four other district courts, where it has been stayed as the Biden administration has stated it was reviewing the regulation.

The Trump administration regulation issued in July 2020 codified steps to streamline NEPA reviews, rein in their scope and limit the public comment process, as well as narrowing climate change considerations and allowing for more categorical exclusions.

Environmental groups contended CEQ cut corners and rushed through the rulemaking process in violation of the Administrative Procedure Act.

Business trade groups, including the Interstate Natural Gas Association of America argued the rule would allow NEPA to live up to Congress' original purpose. "If plaintiffs here obtain a vacatur of the rule, CEQ's reform of the NEPA review system would be undone, and the business associations' members would once again be subject to an uncertain and overly burdensome regulatory scheme that invites obstructive litigation and needlessly delays important projects and operations," they argued in an intervenor brief filed in Aug. 21, 2020.