FOR IMMEDIATE RELEASE
August 28, 2020
Contact: Tom Lalley
Twenty-Three Attorneys General File Lawsuit to Halt Reckless and Unprecedented Weakening of NEPA Regulations
Coalition warns that CEQ’s rewrite of time-tested regulations “strikes at the heart of NEPA” and “will lead to more delay, confusion, and litigation."
Washington, D.C. — A coalition of 23 attorneys general led by California Attorney General Xavier Becerra and Washington Attorney General Bob Ferguson filed a lawsuit today challenging the Trump administration’s “unlawful, unjustified, and sweeping revisions” to the regulations that guide implementation of the National Environmental Policy Act (NEPA).
The lawsuit challenges a final rule published by the White House Council on Environmental Quality (CEQ) in July that narrows the range of projects, impacts and alternatives that must be considered by federal agencies, establishes arbitrary time constraints and page limits on NEPA reviews and jeopardizes their scientific and analytical integrity, and curtails meaningful public participation and input. The attorneys general emphasize in their complaint that CEQ’s final rule is composed of “provisions that, both individually and collectively, conflict with NEPA’s overriding purposes of environmental protection, public participation, and informed decision making and the statute’s mandate that agencies apply NEPA ‘to the fullest extent possible.’”
“The Trump Administration has spent the better part of four years trying to roll back critical protections and undo hard-fought progress, particularly when it comes to our environment, public lands, and natural resources,” said AG Becerra. “But we haven’t let this unlawful conduct go unchecked. We’ve fought back — and won. Today, we’re filing our 100th lawsuit against the Trump Administration. With today’s challenge, our goal is simple: preserve the public’s voice in government decision-making as federal projects threaten to harm the health of our families in our own backyards."
“NEPA is an unsung hero of environmental protection that protects our shared environment,” said AG Ferguson. “NEPA allows our voices to inform public decisions, provides a tool for holding the government accountable and builds transparency into the federal decision-making process to build trust. This administration’s insidious attack on one of our most important environmental laws is an attack on the democratic process itself. I will fight to make sure the people are heard”
The attorneys general warn that CEQ’s final rule:
Narrows NEPA’s Scope — The rule dramatically narrows the range of federal actions subject to NEPA review by establishing “NEPA thresholds” — a set of “six broad and ill-defined circumstances in which NEPA does not apply” — and by adopting “a new vague definition” of categorical exclusions that will improperly broaden their applicability, “even where extraordinary circumstances exist.”
Downplays Cumulative, Indirect and Climate Impacts — The rule “directs agencies to not consider cumulative and indirect effects” and “imposes strict causation requirements for determining which environmental effects should be considered,” which will allow federal agencies to downplay or dismiss individual projects’ contributions to complex and far-reaching harms such as climate change and environmental injustice. The complaint emphasizes that Congress “plainly intended NEPA to address” cumulative and indirect impacts, and by permitting federal agencies to “ignore those impacts entirely,” CEQ’s final rule leaves climate and environmental justice concerns vulnerable to “death by a thousand cuts.”
Reduces Scientific and Analytical Integrity — The rule “[r]educes agencies’ obligations to obtain additional information about environmental impacts when such information is not immediately available,” and allows agencies to dismiss scientific sources and data by asserting they are not “reliable,” an apparently arbitrary threshold for which CEQ provides no criteria. The complaint emphasizes that the final rule imposes “unreasonable and unworkable time and page limits” on environmental assessments (EA) and environmental impact statements (EIS), and allows project proponents to lead EIS preparation without disclosing potential conflicts of interest to the public.
Limits Consideration of Alternatives — The rule will “limit opportunities ... to develop alternatives or other solutions that avoid or mitigate adverse impacts” by limiting the number of alternatives considered in an EA or EIS, and by eliminating agencies’ obligation to “[r]igorously explore and objectively evaluate” all reasonable alternatives. The rule will also permit agencies to ignore potential alternatives that fall under a different agency’s jurisdiction, potentially precluding consideration of alternatives that would significantly reduce a project’s environmental impacts.
Restricts Public Participation — The rule allows federal agencies to dismiss public input that does not meet CEQ’s “vague standard of specificity and detail,” and to unjustifiably “claim a presumption that they have adequately considered all public comments.” The attorneys general warn that, overall, CEQ’s final rule “[r]educes agencies’ obligation to consider and respond to public comments” and “threatens to render NEPA’s public participation process a meaningless paperwork exercise.”
Increases Uncertainty and Delays — The rule "inject[s] new, undefined, and poorly explained language and requirements into the NEPA process and [sweeps] away decades of agency regulations, guidance, and case law that formerly provided extensive direction for federal agencies implementing NEPA.” The effect of these changes, the attorneys general warn, will be to “increase confusion, uncertainty, and litigation, causing the very delay CEQ claimed that it sought to avoid” by adopting the final rule.
In comments filed in March, a coalition of 20 attorneys general urged CEQ to withdraw its “unlawful, unreasonable, and unjustified” proposed changes, emphasizing that they conflict with congressional intent and the plain text of the statute and “would trade reasoned and informed decision making for unjustified expedience” at the expense of the environment, public health and community safety. The coalition warned that the changes would “fundamentally weaken NEPA’s clear direction that federal agencies consider the environmental impacts of their actions” and undermine the statute’s “core principles of informed decision making and government accountability.”
The attorneys general of Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin, Washington, D.C. and Guam, along with Harris County, Texas, the City of New York, the Connecticut Department of Energy and Environmental Protection and the New York State Department of Environmental Conservation, joined AG Becerra and AG Ferguson in filing the lawsuit.
About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. For more information, visit our website.