Fourth Circuit Precludes NGO Challenge to Trump Administration NEPA Rules as Biden Administration Promulgates Replacements

The past few weeks have provided two examples of “modern” policymaking, with the Fourth Circuit striking down a challenge to Trump-era changes to National Environmental Policy Act (NEPA) procedures while — at the same time — the Biden Administration closes in on replacement NEPA procedures. Below, we break down highlights both from the Fourth Circuit’s decision upholding a district court’s dismissal of an NGO-filed challenge against Trump Administration changes to NEPA in Wild Virginia v. Council on Environmental Quality, available here, and recent Council on Environmental Quality (CEQ) regulations and guidance issued by the Biden Administration.

Big-picture takeaways for the regulated community from the Wild Virginia decision and related Biden Administration proposals:

• Specific grievances and “final” executive branch actions are required predicates to court challenges. Without these, doctrines of standing and ripeness will bar courts hearing claims based on how agencies might later interpret or apply federal guidance.
• While we frequently view all policy as debates between “red teams” and “blue teams,” in practice, policy changes are often more incremental. For example, CEQ has chipped away at the Trump Administration’s NEPA regulations by phasing changes and updating guidance to incorporate climate change and environmental justice issues. Strategic policy changes can functionally delay court challenges until dates sometimes far off in the future.  
• Finally, given the Biden Administration’s focus on environmental justice (EJ), NEPA will likely serve as a model for the type of analyses federal agencies can use to evaluate potentially broad impacts to their decision making. Accordingly, while NEPA may sometimes seem less sophisticated than the Clean Air Act, Clean Water Act, or Superfund, it may soon find its day in the sun.

NEPA’s Role

NEPA is a procedural environmental statute that forces federal agencies to evaluate the potential environmental impacts of their decisions before taking action, and also provides the public with information about the environmental impacts of potential agency actions. Under NEPA, federal agencies must complete environmental impact assessments for major federal actions significantly impacting the environment. NEPA also requires considerations of EJ, in particular how actions will impact minority and low-income communities.

In 2020, the Trump Administration overhauled the CEQ regulations implementing NEPA. The changes limited environmental impact assessment requirements in several ways. First, cumulative effects no longer needed to be considered in NEPA analyses. Second, they set time and page limits on environmental impact statements. Third, they removed loans and loan guarantees from the definition of “major Federal action,” excluding them from the requirement of completing an environmental impact statement. Fourth, they set stricter requirements for public comments on environmental impact statements. Finally, they established CEQ regulations as a ceiling for what can be required under NEPA, preventing other agencies from imposing additional requirements.

During the Biden Administration, CEQ made several changes to Trump-era regulations, in part restoring them to their prior form. For example, CEQ updated the definition of “effects” considered under NEPA to include cumulative, direct, and indirect effects. CEQ also removed the ceiling on what can be required under NEPA. These regulatory changes comprised Phase I of the Biden Administration’s planned updates to CEQ’s regulations. CEQ is currently working on Phase II updates.

The Biden Administration also recently restored and added to Obama-era guidance on greenhouse gas emissions. In particular, the new guidance requires agencies to evaluate the impact of proposed actions on greenhouse gas emissions and climate change and describes best practices for determining those impacts. The guidance also encourages agencies to engage with impacted communities and incorporate EJ considerations into climate-related analysis.

Case Background

In Wild Virginia, several environmental NGOs brought suit against CEQ substantively challenging the regulatory changes to NEPA enacted by the Trump Administration. The case was stayed after the Biden Administration took over and sought to further update the regulations. CEQ also argued that the court lacked jurisdiction to hear the case based on issues of standing and ripeness. After the case was dismissed by the district court, CEQ promulgated the Phase I revisions described above. The plaintiffs appealed to the Fourth Circuit.

Wild Virginia’s Lessons

The Fourth Circuit upheld the district court’s dismissal for the following reasons:

• First, the NGOs’ challenges to the Trump-era changes that were already rolled back under Phase I were moot.
• Second, the NGOs’ claims were not yet ripe because their alleged injuries were all speculative. They were based on interpretations that third party agencies might enact, rather than specific agency actions or projects at issue now. These injuries included that agencies would complete less robust NEPA analyses due to the regulations; that the regulations would interfere with the NGOs’ ability to comment on proposed federal actions; that the NGOs’ would have less access to information under the regulations; and certain projects would be excluded from NEPA review.
• Finally, the Fourth Circuit found that the NGOs’ lacked standing for two of their claimed injuries. Standing requires parties to allege “concrete” and “particularized” harm to bring court challenges. The NGOs needed to point to a specific project where their interests were impacted by the updated comment rules. Likewise, the NGOs were not permitted to use hypothetical injuries related to future limits on access to information to support standing.

The outcome in Wild Virginia is similar to the Fifth Circuit’s decision that states challenging social cost of carbon metrics lacked standing to sue, previously discussed here. There, the plaintiffs lacked standing because their injuries arose from potential regulations that could incorporate social cost of carbon metrics, rather than the metrics themselves.

Both stand for the proposition that doctrines like standing and ripeness can prevent litigation based on how an agency could potentially interpret or apply a regulation. Instead, parties mounting challenges need to wait for enacted regulations and tie their challenges to specific agency actions. In NEPA’s context, since the Biden Administration has indicated that it is planning to release Phase II updates to CEQ’s regulations and is updating climate change and environmental justice guidance, plaintiffs may need to hold off judicial challenges until CEQ settles on final guidance in favor of seeking to modify policies before CEQ itself.

The Firm’s Environmental, and Energy & Cleantech teams routinely monitor federal environmental and energy policy efforts. Stay tuned here for further developments.