The Nickel Report

As we have previously reported, in July 2020, the Council on Environmental Quality (CEQ) published its highly anticipated final rule to improve its National Environmental Policy Act (NEPA) regulations, the first comprehensive revision of the NEPA implementing regulations in over forty years.  The final rule, which has generated much controversy and spurred numerous lawsuits, goes into effect today.  This post provides a brief update on the pending litigation and implementation of the new rule.

NEPA requires that federal agencies analyze the environmental effects of their proposed federal actions. This means that virtually any project that requires a federal permit or authorization could be required to undergo a NEPA review.  Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that could trigger NEPA.  A NEPA review can take significant agency and applicant resources, can substantially delay permits, and can provide a basis for a federal court challenge to the project.  Indeed, NEPA is the most litigated environmental statute in the United States.

While federal agencies—like the Bureau of Land Management, US Department of Energy, and US Army Corps of Engineers—have their own NEPA rules, CEQ’s regulations govern NEPA compliance by all federal agencies.

There are currently four pending challenges to CEQ’s new NEPA rule in three different district courts:

• Alaska Community Action on Toxics v. CEQ (Northern District of California No. 20-5199)
• California v. CEQ (Northern District of California No. 20-6057) – Filed on behalf of 21 states and several territories, counties, and cities, including: California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, Guam, District of Columbia, New York City, and Harris County, Texas
• Environmental Justice Health Alliance v. CEQ (Southern District of New York No. 20-6143)
• Wild Virginia v. CEQ (Western District of Virginia No. 20-45)

In each of the cases, the plaintiffs seek to invalidate the new NEPA rule.  Plaintiffs in the Wild Virginia case filed a motion for a preliminary injunction, seeking to have the rule blocked nationwide.  So far, this is the only preliminary injunction motion that has been filed in the NEPA cases.  On September 11, the Virginia district court issued an order declining to issue a preliminary injunction or stay, finding that plaintiffs had not made a clear showing that they are likely to succeed on the merits of their challenge to the rule.

Accordingly, while litigation on the rule is ongoing, the new NEPA rule goes into effect today across the country.  The new rule will apply to all new NEPA reviews started on or after September 14, 2020, and agencies will have discretion to apply the new rule to ongoing NEPA reviews initiated before September 14.

In addition, the new rule directs each federal agency to revise their NEPA procedures, as necessary, to implement the new CEQ regulations by September 14, 2021.  The new rule directs that agencies should not impose additional procedures or requirements beyond those set forth in the CEQ regulations.  During this transition period while agencies work to update their regulations, where existing agency NEPA procedures are inconsistent with the new CEQ regulations, the CEQ regulations apply.

For more information, please contact Kerry McGrath at kmcgrath@huntonAK.com.