SELC appeals NEPA ruling to preserve citizen access to courts

RICHMOND, Va. — A group of 17 conservation organizations is challenging a federal court decision that would effectively block the rights of citizens to challenge a damaging downgrade of the rules outlining how the National Environmental Policy Act, the oldest of our federal environmental laws, is carried out.

The appeal is the next stage in a lawsuit alleging the Trump administration violated the law in approving industry-friendly changes to NEPA, but it also touches on a larger issue of citizen access to the courts.

Citizen suits during the Trump presidency prevented scores of illegal and harmful regulations from taking effect. But the Biden administration’s tactic of shutting down citizen suits until after the damage occurs could allow destructive projects to move forward under illegal rules, causing irreversible harm to the environment and to vulnerable communities.

“When the Trump administration adopted these rules to shut out the public, we were up in arms,” said Kym Hunter, a senior Southern Environmental Law Center attorney who filed the original NEPA lawsuit and now the appeal. “We are just as distressed to see the Biden administration continuing down this path while promising to fix the problem at some indefinite time in the future.”

In a pair of legal challenges to major and damaging Trump administration rule changes – now being defended by the Biden administration’s Department of Justice – government attorneys have used a variety of tactics to shut citizens out of the courtroom.

In the NEPA case, government attorneys argued citizen groups like those represented by SELC do not have legal standing to challenge an illegal rulemaking. In a case involving the Clean Water Act, Biden administration attorneys sought a “remand without vacatur,” a legal maneuver that returned the contested regulation to the government agencies for further review, but left the damaging rule in place with no opportunity for further citizen challenge.

Both tactics leave the Trump-era rules on the books, and agencies are required to follow them.

“What is completely confusing is that the Biden administration attorneys say they agree with our position that the Trump rules are illegal and harmful,” said Kemp Burdette, the Cape Fear Riverkeeper. “But they are blocking us from going to court to get those rules thrown out.”

The Biden administration’s willingness to leave the Trump rules in place is also causing worry for state conservation groups.

Alabama Power is already trying to capitalize on the weaker Trump rules, leaving the door open for federal regulators to opt for a narrow review of the environmental consequences of a hydroelectric dam on the Tallapoosa River. But before the Trump rule changes, the Alabama Rivers Alliance won a court victory in a similar case that required the Federal Energy Regulatory Commission to take a broad look at how seven hydroelectric dams on the Coosa River combine to reduce the overall water quality. Now, under the Trump rule, that kind of broad review assessing the “cumulative impacts” of the dams is not required.

“If FERC uses the Trump rule and takes a narrow look at the consequences of these dams, instead of a full and fair examination of what is really happening, the health of the Tallapoosa River and everything in it is at grave risk,” said Cindy Lowry, executive director of the Alliance. “That’s why we joined this NEPA lawsuit, and it is frustrating that the Biden administration is arguing we’re not entitled to our day in court.”

The decision being challenged was made by a federal district judge in the Western District of Virginia. SELC’s appeal will be filed in the Fourth Circuit Court of Appeals.