Twenty states ask a federal court to halt Biden administration changes to NEPA implementation

A collection of 20 states on May 21 asked a federal court to vacate the Biden administration's recent changes to how infrastructure projects are reviewed under the National Environmental Policy Act, with Republican attorneys general asserting that the changes unlawfully alter the requirements of the statute to favor policy goals of the White House.

The changes from the White House Council on Environmental Quality allegedly violate the Administrative Procedure Act by substantially altering agency review procedures that will result in higher costs for infrastructure development and delays in adding facilities, according to the states.

The lawsuit filed with the US District Court for the District of North Dakota was led by Republican Attorneys General Drew Wrigley of North Dakota and Brenna Bird of Iowa. It asks the court to vacate the May 1 final rule from the CEQ, halt enforcement of it and reinstate the 2020 regulations on NEPA that were adopted by the CEQ under former President Donald Trump.

The CEQ's final rule directs agencies to take into account project impacts on climate change and environmental justice communities. It has drawn fire from members of Congress and some in the energy sector, who claim that it will stifle infrastructure development, increase litigation and favor projects aligning with Biden administration clean energy policy preferences.

A bipartisan group of lawmakers that includes Representative Garrett Graves, Republican-Louisiana, and Senator Joe Manchin, Democrat-West Virginia, announced plans this month to introduce a resolution under the Congressional Review Act to block the rule from taking effect and force the Biden administration to adhere to NEPA reforms outlined in the Fiscal Responsibility Act of 2023.

The attorneys general assert that the CEQ is attempting to rewrite legislation through NEPA regulations to create roadblocks for projects that use fossil fuels. "Among other flaws, the final rule creates distinctions between favored and disfavored projects that are intended to reshape national policy (such as the nation's mix of electric generation sources) and are not based on NEPA's text," according to the court filing.

'Hard look'

Stating that NEPA is a procedural statute that requires agencies to take a "hard look" at environmental consequences of proposed major federal actions, the states say the new regulations from the CEQ illegally transform procedures into stringent and unworkable requirements that will stymie development of certain projects and resources within their borders and across the country.

During a May 16 hearing before the House Natural Resources Committee, CEQ Chair Brenda Mallory defended the rule, stating that it will improve infrastructure permitting at federal agencies, with provisions for agencies to identify impacts on climate change and environmental justice communities. The rule includes page limitations for environmental review documents, faster timelines for agency reviews and categorical exclusions for certain projects that can speed up the permitting process under NEPA, Mallory said.

But the CEQ rule frustrates efforts to improve infrastructure development through the Fiscal Responsibility Act, the Inflation Reduction Act and the bipartisan infrastructure law, the states told the court. They asserted that elevating the importance of voices in environmental justice communities without any statutory basis and forcing agencies to examine environmentally preferable alternatives that maximize environmental benefits will be unworkable for agency reviews.

"That open-ended obligation and impossible-to-meet standard guarantee regulatory and schedule uncertainty and predictable litigation surrounding any controversial or disfavored project," the states said.

"The final rule's injection of ambiguity, new requirements, and unbounded agency discretion will also needlessly foster more development-crippling litigation by opportunistic project opponents using NEPA as a convenient tool to challenge federal agency approvals," the states said.

Joining Iowa and North Dakota in the legal petition were attorneys general from Alaska, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.