AGs Challenge Trump Weakening of ‘Magna Carta’ of Environmental Law

President Donald speaks during an event on American infrastructure at UPS Hapeville Airport Hub, Wednesday, July 15, 2020, in Atlanta. (AP Photo/Evan Vucci)

SAN FRANCISCO (CN) — Challenging the Trump administration’s revamp of a bedrock environmental law, 23 attorneys general sued the White House on Friday to block changes that will make it easier to push through major projects with less extensive environmental reviews and public input.

“This is yet another effort by the Trump administration to undermine the foundation of our laws to protect our environment and public health,” California Attorney General Xavier Becerra said during a virtual press conference Friday.

The lawsuit led by California and Washington state claims the White House failed to follow the required process when it finalized changes to the National Environmental Policy Act (NEPA) in July. The 51-year-old environmental law forces government agencies to seek public input and carefully assess the ecological impacts of major road, industrial and building projects before they start.

Trump touted the economic benefits of the NEPA revamp during a July 15 press conference in Atlanta, saying it would eliminate “unnecessary regulatory delays” to help kickstart economic recovery from the Covid-19 pandemic.

The rule, finalized by the White House Council on Environmental Quality on July 16, is the first major overhaul of NEPA regulations since 1978.

The federal complaint filed Friday represents the 100th lawsuit California has brought against the Trump administration. Becerra said California has prevailed in most of the actions it has filed against President Donald Trump’s executive branch because the administration is “sloppy” and often fails to follow required procedures for altering federal rules and regulations.

“We’ve got the facts, the science and the law with us, but it also helps that these guys are plain sloppy and impatient,” Becerra said.

Washington state Attorney General Bob Ferguson said while most Americans have probably never heard of NEPA, it is a foundational federal law for ecological protection that some legal observers regard as the “Magna Carta” of environmental statutes.

Ferguson said NEPA requires the federal government to “look before it leaps” when it comes to analyzing the potential impacts of federal actions and major projects on ecosystems and public health.

“I don’t think it’s a coincidence that after losing over and over again and again to California and Washington and a coalition of other states that the Trump administration wants to gut one of the key environmental laws that we have,” Ferguson said during the press conference Friday.

The White House did not immediately respond to an email request for comment.

The Trump administration’s overhaul limits the types of projects subject to NEPA review, expands categorical exemptions for certain projects and allows agencies to waive NEPA reviews if projects are subject to other review processes. It requires agencies to only consider effects that have a “reasonably close causal relationship” to a project and rules out effects that are “remote in time or space.”

Trump’s revamp also eliminates a requirement that agencies consider both cumulative and indirect effects, which could allow projects to go forward without assessing their impact on climate change.

The rule empowers agencies not to seek information about a project’s impacts if the cost of doing so would be “unreasonable.” It changes the standard for sharing draft environmental reports with the public in a way that limits public participation, according to the lawsuit.

Additionally, the rule eliminates a process in which agencies seek input from the public on the scope of issues, limits public comment periods to 30 days, and removes a requirement that environmental impact reports be publicly available for 15 days before a public hearing.

For proposed changes to an agency action, the rule limits consideration of public comments to those that cite “data sources and methodologies” and addresses the “economic and employment impacts” of a proposed change.

By changing “shall” to “may,” the new rule also frees federal agencies from having to provide detailed explanations and supporting citations in responses to public comments. It also requires agencies to issue a statement certifying that they considered all comments and imposes a “conclusive presumption” that the agency did so, ostensibly undermining one avenue for legal challenges against a government decision.

The rule limits the review process to a two-year timeframe, even though most NEPA reviews take four years to complete on average.

In the 80-page lawsuit, the attorneys general claim the Trump administration’s final rule makes “substantial and unsupported revisions” to NEPA regulations that were last updated in 1978. They argue the final rule ignores states’ reliance on longstanding regulations, lacks a rational justification, and “undermines NEPA’s goals of environmental protection, public participation, and informed decision making.”

The complaint alleges multiple violations of NEPA and the Administrative Procedure Act. The attorneys general seek a court order nullifying the final rule and reinstating NEPA regulations that were put in place in 1978.

Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Wisconsin, Michigan, Massachusetts, Pennsylvania, the District of Columbia, Guam, New York City, the Connecticut Department of Energy and Environmental Protection, New York State Department of Environmental Conservation, and Harris County, Texas, joined California and Washington state as plaintiffs in the lawsuit.

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