On July 29, a number of environmental groups, including Earth Justice, Center for Biological Diversity, Environmental Defense Fund, and the National Wildlife Federation, filed suit in the U.S. District Court for the Northern District of California challenging the White House Council on Environmental Quality’s (CEQ) July 15 final rule revising its National Environmental Policy Act (NEPA) implementing regulations. A similar suit followed on June 30 by a different collection of environmental groups in the U.S. District Court for the Western District of Virginia. The CEQ’s final rule sets forth a significant shift in how the White House views the government’s duties and obligations under NEPA and is the first change its NEPA implementation regulations since 1978. Notably, the final rule expands projects categorically excluded from NEPA review, limits most Environmental Impact Statement reviews to two years, and removes an obligation for an agency to consider impacts that are not reasonably foreseeable or those that are “are remote in time, geographically remote, or the product of a lengthy causal chain.”
As expected, environmental groups moved to challenge the rule and are seeking complete vacatur and reinstatement of CEQ’s prior implementing regulations. The environmental groups assert that CEQ itself violated NEPA by promulgating the rule without considering its significant environmental effects through issuance of an Environmental Impact Statement or Environmental Assessment and that CEQ violated the Administrative Procedure Act by failing to address adverse public comments and issuing a rule contrary to NEPA’s underlying statutory language — claiming that the rule “upends virtually every aspect of NEPA and its longstanding practice, contradicts decades of court interpretations of NEPA’s mandates, and undercuts the reliance placed on NEPA by the public, decision-makers, and project proponents.” However, many industry groups view CEQ’s new rule as welcome relief to what they view as onerous requirements impeding the development of projects throughout the country, and some are expected to intervene in support of CEQ.