29 June 2021

Western District of Virginia Dismisses Challenge to Trump-Era NEPA Rule as Unripe

On June 21, 2021, the U.S. District Court for the Western District of Virginia dismissed a lawsuit by environmental groups challenging a Council on Environmental Quality (CEQ) July 2020 rule changing how agencies undertake National Environmental Policy Act (NEPA) reviews. Filed in June 2020, Wild Virginia et al. v. Council on Environmental Quality et al. alleged that CEQ’s rule violated NEPA and the Administrative Procedure Act (APA) and asked that the rule be vacated. Because other federal agencies have not yet drafted the procedures implementing the rule and might never do so under the Biden administration, the court concluded that the challenge was not ripe.

CEQ’s 2020 rule was the first major change to NEPA regulations since 1978. Among other things, the rule changed federal agencies’ duties and obligations under NEPA by expanding projects categorically excluded from NEPA review, limiting most Environmental Impact Statement reviews to two years, and removing an obligation for agencies 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.”

Several environmental groups challenged the rule in several different courts. In the Western District of Virginia suit, Wild Virginia (and others) alleged that CEQ violated NEPA by promulgating the rule without considering its significant environmental effects through issuance of an Environmental Impact Statement or Environmental Assessment. Additionally, the environmental groups alleged that CEQ violated the APA by failing to address adverse public comments and issuing a rule contrary to NEPA’s underlying statutory language.

The 2020 election called into question whether CEQ’s new rule would ever be implemented. In his opinion, Judge  Jones explained that other federal agencies have not even drafted the procedures implementing the rule and may never do so. Additionally, Judge Jones found that the environmental groups lacked standing as they have not suffered and may never suffer any concrete injury because the rule may never be implemented.

Although the Wild Virginia decision does not break new ground, it strongly suggests that CEQ’s rule has no future. Though the court left the rule in place, CEQ has signaled that it is likely to replace the rule in the near future. Industry participants should monitor developments in other cases challenging the rule as well as news out of CEQ itself.

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