Twenty-one state attorneys general fight revamp of NEPA environmental regulations

The White House Council on Environmental Quality (CEQ) violated federal laws and overreached its legal authority in its revamp of guidelines for National Environmental Policy Act (NEPA) regulations, according to a lawsuit by 21 state attorneys general.

The attorneys general, led by California’s Xavier Becerra, asked a federal court to overturn the entire final rule because of violations of NEPA and the Administrative Procedure Act and reinstate the 1978 NEPA regulations as amended.

The lawsuit charges that the final rule excessively limits which federal actions are subject to NEPA, excessively narrows consideration of environmental impacts, undercuts public input, and unlawfully seeks to restrict judicial review.

CEQ unveiled its final rule to “modernize” NEPA regulations July 15 and formally published it July 16 (OGJ Online, July 15, 2020). CEQ, which guides federal agencies on implementing NEPA, said it was acting to update and clarify regulations “to facilitate more efficient, effective, and timely NEPA reviews.”

But according to the state litigants, CEQ “failed to provide a rational justification for its sweeping revisions.”

The lawsuit is California v. Council on Environmental Quality, filed Aug. 28 in the US District Court for the Northern District of California. It follows by 1 month a lawsuit by a coalition of 20 environmental activist organizations making similar and, in some cases, identical claims in the same court. The activist case is Alaska Community Action on Toxics v. Council on Environmental Quality.

NEPA applies to CEQ, states say

At a fundamental legal level, the state attorneys general say CEQ and its final rule are subject to NEPA and the Administrative Procedure Act, though that may prove to be a point of contention in court.

The attorneys general argue that CEQ failed to adhere to NEPA when it issued its final rule without an environmental assessment (EA) or an environmental impact statement (EIS), as required by NEPA for regulations that may have an impact on the environment. That argument could hinge on whether a court agrees that regulatory guidelines, like regulations, can be subject to EA or EIS obligations.

CEQ also failed to comply with the Administrative Procedure Act’s requirements for public notice and comment, the states’ lawsuit says.

The NEPA regulatory revamp “exceeded its authority by exempting certain actions from environmental review and attempting to place unlawful limits on courts’ authority,” the lawsuit says.

Major federal actions can be subject to NEPA reviews, but the states’ lawsuit objects to CEQ’s effort to exclude from the “major federal action” category actions that involve minimal federal funding or minimal federal involvement.

For agencies that must prepare an EA or EIS, the new guidelines impose unreasonable and unworkable time and page limits, according to the lawsuit.

Court remedies, climate issues

The lawsuit says the new guidelines exceed CEQ authority by attempting to restrict the remedies that plaintiffs may receive through a court order.

CEQ’s final rule suggested courts should not invalidate an agency action where agencies commit “minor, non-substantive errors having no effect on agency decision making.” The final rule said there should be “no presumption that violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.”

That troubled the attorneys general. Their lawsuit said, “CEQ has no authority, statutory or otherwise, to instruct courts on the remedies they can order.”

The revamped NEPA guidelines eliminate a requirement to consider cumulative impacts in addition to the specific impacts of a project, and they discourage analysis of potential impacts that are remote in time or otherwise have an attenuated or speculative character.

Those changes will eliminate consideration of climate change and could undercut efforts to fight global warming, the attorneys general argue.