Environmental Groups Challenge Final NEPA Rule

August 7, 2020

Not even a month since the Council on Environmental Quality (“CEQ”) published its final rule modernizing and clarifying its procedural regulations implementing the National Environmental Policy Act (“NEPA”), plaintiffs’ groups have already filed three lawsuits challenging the rule.  An overview of the final rule and context for the development of these lawsuits is provided in our previous alert.  The Southern Environmental Law Center, Earthjustice, and the Natural Resources Defense Council filed in the Western District of Virginia, Northern District of California, and Southern District of New York.  These suits challenge the final rule as arbitrary, capricious, and not in compliance with the law.  The Northern District of California suit alleges that issuance of the final rule violated the very statute it sought to implement, by failing to consider and disclose the significant environmental impacts from the final rule in either an EA or EIS.  The Southern District of New York suit alleges that the final rule’s removal of cumulative impacts from the required NEPA analysis will make it “extremely difficult, if not impossible” for federal agencies to consider the effects of a project on environmental justice communities.  The Western District of Virginia suit alleges that CEQ relied on factors not provided in the statute, but instead focused on the “burden” caused by the current NEPA process.  All three suits allege the CEQ was arbitrary and capricious in failing to respond to public comments, reversing agency position without adequate explanation, and creating a rule inconsistent with NEPA.  All of these lawsuits seek an order finding the final rule unlawful and vacating the final rule.  While the final rule is set to become effective September 14, 2020, whether these lawsuits may impact that timing remains to be seen.

Related Knowledge