Final hearing on NEPA changes headed to court this month

Senior Attorney Kym Hunter (pictured left in 2019), SELC's government accountability lead, will be in court April 21 to defend the National Environmental Policy Act from Trump administration assault one final time. (© Mike Mather)

SELC is preparing for a federal showdown on April 21 to determine the fate of the Trump administration’s gutting of the National Environmental Policy Act.

It is expected to be the final hearing on a case that has spanned two presidential administrations and included years of planning and preparation by SELC attorneys tasked with defending the Act, often called the “Magna Carta” of environmental laws. In the waning months of the Trump administration, officials made good on a campaign pledge to industry executives and lobbyists by slashing the Act’s protections and limiting a community’s ability to question large projects.

NEPA protects vulnerable communities from the environmental inequities and racism they have suffered too often and too long. The Trump rule makes it harder – or in some cases nearly impossible – for those communities to be meaningfully included in the process.”

—Kym Hunter, Senior Attorney

The Act has been a key tool for protecting Black and Brown communities from unwanted and damaging projects foisted upon them, like a high-pressure petroleum pipeline that risks drinking water in Memphis, and a highway expansion sited through a historic Black community outside of Charleston to ease traffic congestion caused by expanding suburbs.

“NEPA protects vulnerable communities from the environmental inequities and racism they have suffered too often and too long,” said Kym Hunter, an SELC senior attorney. “The Trump rule makes it harder – or in some cases nearly impossible – for those communities to be meaningfully included in the process.”

SELC filed a lawsuit in July claiming the NEPA changes were illegal because the Trump administration broke the law to change the law. The lawsuit seeks to throw out the Trump administration changes and to restore the Act’s safeguards.

With Trump’s defeat, the lawsuit now must be handled by the Biden administration. That could make the impending legal clash unusual because Biden lawyers don’t support the Trump changes, writing in a filing they have “substantial and legitimate concerns with the 2020 Rule.”

However, Biden lawyers asked the judge to send the rule back to CEQ for reconsideration while leaving the Trump rule in place for now, a process called a remand without vacatur. SELC has objected.

“Unfortunately, the Trump rule is the law of the land and it is harmful to our communities,” Hunter said. “That’s why we can’t sit around and hope for a fix. We must reverse these changes now.”

At the 4/21 virtual hearing, there are a range of possible outcomes. The court may:
  • Declare the Trump rule illegal and strike it
  • Decline to issue a ruling on the legality of the changes while directing CEQ to come into compliance with the law
  • Decide the Trump rule changes are legal

While Biden attorneys are not expected to defend the previous administration’s rule, several industry groups and fossil-fuel associations will argue to keep it, including American Fuel & Petrochemical Manufacturers, American Petroleum Institute, and American Road & Transportation Builders Association.

SELC represents 17 environmental organizations in this case. The lawsuit is filed in the United States District Court for the Western District of Virginia.

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