Environmental Groups Raise Climate Change Concerns in New Suit Challenging Trump Administration’s Attempted NEPA Overhaul

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Last week, a coalition of environmental groups filed suit in the Southern District of New York following the Trump Administration’s proposal to update the National Environmental Policy Act (NEPA)—the federal law that requires certain environmental reviews prior to the approval of major infrastructure projects. 

The lawsuit, Environmental Justice Health Alliance et al. v. Council on Environmental Quality et al., Civil Action No. 20-cv-6143, is the third challenge to the Administration’s NEPA overhaul following two other cases filed in Virginia and California federal courts in late July.

The suits were spurred by the promulgation of a new rule on July 16, 2020, by the Council on Environmental Quality (CEQ)—the agency responsible for overseeing NEPA through the issuance of regulations. The new rule attempts to speed up project approvals by restricting the definition of what environmental “effects” must be considered in project applications by excluding the terms “direct,” “indirect,” and “cumulative,” which the agency claimed were confusing and fodder for litigation. The proposed rule would define “effect” as only affecting the “human environment,” being “reasonably foreseeable” and having a “reasonably close causal relationship to the proposed action.”

The plaintiffs challenging the 2020 Rule argue that the changes will eliminate environmental reviews for entire classes of projects, which could have devastating impacts on people and the environment. The plaintiffs argue that the changes remove any obligation on the part of the federal government to consider climate change impacts when assessing the environmental impact of a project, and that there’s no evidence the new definition will actually reduce litigation or agency confusion. The plaintiffs also argue that the changes to NEPA improperly limit the range of projects subject to review and that the rule provides an opportunity for more industry involvement in reviewing the environmental effects of the projects. 

The New York suit also includes plaintiffs in environmental justice communities that are often overburdened by polluting projects impacting communities of color and located in low-income neighborhoods.

Since the NEPA Proce’s requires public input, under the old rule the government would be required to weigh alternatives prior to project approval. The environmental justice organizations challenge the rewrite of the rule because it enables project leaders to limit project alternatives that would otherwise need to be considered as part of the NEPA process.

The Administration’s stated goal of the NEPA regulatory reform is to modernize and simplify the rules to facilitate more efficient, effective, and timely NEPA reviews. In response to critiques about the proposed rule, the Administration argued that a new rule is needed to ease the bureaucratic process, which often stalls infrastructure projects—the final rule sets a two-year time limit to complete an environmental impact statement and a one-year time limit to complete an environmental assessment.

In addition, the CEQ indicated that analysis of climate change impacts would depend on the specific circumstances of a proposed action and that predictable environmental trends will be considered in baseline analyses of the environment affected by a proposed action. President Trump has made NEPA overhaul a focus of his Administration and the recent litigation is the latest attempt to forestall these efforts.