On July 29, 2020, a coalition of environmental groups filed a complaint in the United States District Court for the Western District of Virginia to challenge the recent regulatory changes to the National Environmental Policy Act (“NEPA”). The plaintiffs in Wild Virginia v. Council on Envtl. Quality, No. 3:20-cv-00045 (W.D. Va. July 29, 2020), argue that the changes made to NEPA are an arbitrary reversal of how the statute has functioned since it was first passed in 1970. Specifically, the plaintiffs argued that the new NEPA regulations had been passed without a reasonable explanation for the change. However, the defendants argue that the plaintiffs’ case should be dismissed because the plaintiffs have yet to suffer any real injury as a result of the new rules.

Background

Originally adopted fifty years ago, NEPA is a federal statute that requires federal agencies to consider the environmental impacts of their projects, inform the public of those impacts, and seek to mitigate the impacts where possible. NEPA accomplishes its purpose by requiring federal agencies to prepare reports known as Environmental Impact Statements (“EIS”) which examine the expected impacts of federal projects and propose mitigation measures or project alternatives. NEPA’s regulatory framework lays out EIS requirements, including the types of environmental impacts that agencies must consider.

The Council on Environmental Quality (“CEQ”) is responsible for implementing NEPA. CEQ passed regulations for NEPA shortly after the statute was first enacted, and left those regulations largely unchanged until 2018. In June of that year, CEQ published an Advanced Notice of Proposed Rulemaking (“ANPRM”) announcing that the agency was considering making changes to the NEPA regulations. After a period of public comment on the ANPRM, CEQ published its proposed regulations in January, 2020. Following a period of public comment for the proposed rules, CEQ published the final NEPA regulations on July 16, 2020, and they will take legal effect on September 14, 2020. The new regulations made significant changes to NEPA’s regulatory framework. Along with setting page limits for NEPA reports, the new regulations changed the types of environmental impacts that agencies had to consider when making a NEPA analysis. A more in-depth look at the new regulations can be found here.

The current lawsuit was filed shortly after the final rules were published in the Federal Register.

Plaintiffs’ Complaint

In their complaint, the plaintiffs allege that CEQ made multiple violations of the Administrative Procedure Act (“APA”) when passing the NEPA regulations. The APA is the federal statute governing the process by which federal agencies develop and issue regulations. Among other things, the APA requires agencies to allow time for public comment during the rulemaking process, and provide reasonable explanations for regulations. The plaintiffs argue that CEQ violated the APA by failing to provide any reasonable explanation for the new rules, failed to respond to “relevant and significant” public comments, and failed to show that the new regulations were consistent with NEPA.

First, the plaintiffs argued that at no point during the rulemaking process did CEQ provide a reasonable explanation for why it was changing its existing policy. According to the plaintiffs, a reasonable explanation must be supported by substantial evidence based on a consideration of the existing factors, an “rational connections between the facts found and the choices made.” The plaintiffs assert that CEQ failed to meet this threshold by citing “facilitating efficiency” and “reducing delays” as the only reasons for the new NEPA regulations. This was not a reasonable explanation because, according to the plaintiffs, there was no evidence suggesting that NEPA caused significant project delays. Without stronger evidence that the new regulations were needed to reduce major project delays caused by the NEPA process, the plaintiffs argued that CEQ has violated the APA.

Next, the plaintiffs allege that CEQ violated the APA by failing to respond to relevant comments from the public during the public comment period of the rulemaking process. While the APA does not require federal agencies to respond to every comment they receive, agencies are required to respond “to those comments which, if true, would require a change in the agency’s proposed rule.” Am. Min. Cong. v. EPA, 907 F.2d 1179, 1188 (D.C. Cir. 1990). The plaintiffs argue that CEQ failed to engage with any comments that opposed the proposed regulations, including comments that would require CEQ to change its proposed rule if they proved true. Therefore, the plaintiffs argue that CEQ’s rulemaking process violated the APA.

Finally, the plaintiffs allege that the new regulations are inconsistent with the text of NEPA. The APA requires that federal regulations administering a federal statute must be consistent with the text of that statue. Here, the plaintiffs argue that the new regulations violate the text of NEPA in numerous ways. For example, the plaintiffs allege that the new regulations violate NEPA limiting the types of project alternatives that agencies will consider during the NEPA project despite the text of NEPA requiring federal agencies to consider alternatives to proposed projects “to the fullest extent possible.” The plaintiffs point to that and several other provisions of the new regulations to argue that CEQ has violated the APA.

Defendants’ Response

The defendants in this case have already filed a motion to have the case dismissed. In its motion, CEQ argues that the litigation must be dismissed because the court does not have jurisdiction to hear the matter. According to CEQ, the court does not have jurisdiction because the plaintiffs have failed to raise a “case or controversy” in their complaint. Article III of the United States Constitution limits the jurisdiction of federal courts to cases and controversies, which has been interpreted to mean that federal courts can only hear cases where the plaintiff has suffered an injury, the injury can be traced to actions of the defendant, and the court has the power to redress the plaintiff’s injury. Cases and controversies must also be “ripe” for judicial review, meaning that the case is not based on some hypothetical future event.

Here, the CEQ argues that the plaintiffs have failed to state a case or controversy because their complaint is not ripe. In other words, CEQ argues that the plaintiffs have not actually been injured, but are instead describing some hypothetical future injury in their complaint. To backup this claim, CEQ makes several arguments. First, CEQ states that the plaintiffs cannot have suffered an actual injury because the new NEPA regulations have yet to take legal effective. The rules will not become effective until September 14, 2020, therefore CEQ argues that the plaintiffs were not injured by the rules on July 29, 2020 when they filed their complaint. Next, CEQ argues that even after the new rules become effective, the plaintiffs will not be able to state an injury until the rules are concretely applied by a federal agency. According to CEQ, the plaintiffs will not be able to challenge the new NEPA rules until the rules become effective, and a federal agency completes the NEPA process according to the new rules. Only then will the plaintiffs be able to raise a case or controversy. Because that has not happened here, CEQ is asking the court to dismiss the case.

Going Forward

The court has yet to respond to CEQ’s motion to dismiss the case, but until it responds to the motion there is no way of knowing whether the case will proceed. Several business associations, including agricultural groups like the American Farm Bureau Federation, have moved to intervene as defendants in the case. The groups argued that they have interests at stake in the litigation which CEQ will be unable to address. Although the court has yet to grant the request, the groups have already filed briefs supporting CEQ’s motion to dismiss.

While the business groups support CEQ’s argument that the case is not ripe for review, it is not uncommon for plaintiffs to file cases challenging federal regulations before they go into effect. In 2015, North Dakota v. U.S. Envtl. Prot. Agency, 127 F.Supp.3d 1047 (2015) was filed challenging a new regulation from the Environmental Protection Agency (“EPA”). The complaint in that case was filed after the final rule had been published in the Federal Register, but before it took effect. In that case, the court granted the plaintiff’s request to keep the challenged rule from going into effect while the underlying challenge was litigated. More recently, the plaintiffs in State of California v. Bernhardt, No. 4:19-cv-06013-JST (N.D. Cal. May 18, 2020) filed a lawsuit challenging new Endangered Species Act regulations a day before the regulations were to take effect. While the defendants in that case argued that the plaintiffs did not have standing when they filed suit, the court disagreed and declined to dismiss the case. In its motion to dismiss, CEQ relies on Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), a lawsuit challenging new regulations that had been recently issued by the Immigration and Naturalization Service. There, the court dismissed the case as unripe because the plaintiffs could only have raised a case or controversy if the new regulations had forced them to choose between “complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation.” While CEQ relies on Reno v. Catholic Social Services, Inc., it is not apparent whether the court will find the argument applies to the current case.

Along with reducing the amount of time it takes to go through the NEPA process, the new regulations have also exempted certain federal actions related to agriculture from NEPA review. This means that federal agencies can proceed with those projects without first taking the time to go through the NEPA process. For a closer look at that portion of the NEPA regulations, see here. If the plaintiffs in this case are successful, that could mean that those exempted federal actions will once again need to undergo NEPA review. On the other hand, if this case is dismissed, then not only will the new regulations remain in place, it is possible that they (or other similar regulations) may not be challenged in court until they become effective and have been applied.

This litigation is still in its early stages, and it is not yet clear how it will unfold.

To read the complaint in Wild Virginia v. Council on Envtl. Quality, click here.

To read CEQ’s motion to dismiss, click here.

To read the text of NEPA, click here.

To read the new NEPA regulations, click here.

For more National Agricultural Law Center resources on NEPA, click here.