Trump Administration rule undermining NEPA is unlawful in a multitude of ways

SEATTLE — Attorney General Bob Ferguson filed a federal lawsuit today against the Trump Administration for illegally gutting the nation’s bedrock environmental law. The changes to the rules key to the National Environmental Policy Act (NEPA) will eliminate or reduce environmental scrutiny for a wide range of major federal decisions and will harm Washington’s most susceptible communities.

NEPA is a federal statute that governs all federal agencies and applies to most of the activities they approve or carry out. NEPA mandates detailed environmental review for all major federal actions — like power plants, roads, pipelines and large logging projects — that the federal government plans to undertake.

Former Washington Senator Henry “Scoop” Jackson introduced NEPA in the Senate in 1968 when he chaired the Senate Interior & Insular Affairs Committee. It passed with overwhelming bipartisan support in Congress and President Richard Nixon signed it into law on Jan. 1, 1970. NEPA has been called “the Magna Carta of the nation’s environmental laws.”

NEPA requires that the federal government analyze and consider the environmental consequences of significant federal actions. It requires the federal government to “look before it leaps” by requiring decisions be informed by facts and science.

Senator Henry “Scoop” Jackson gave the following quote about NEPA: “The purpose of this legislation is to lay the framework for a continuing program of research and study which will insure that present and future generations of Americans will be able to live in and enjoy an environment free of hazards to mental and physical well-being.”

Ferguson’s successful legal challenge against the Trump Administration’s effort to open up public federal lands for coal leasing provides one of many examples of NEPA’s role in protecting the environment. In May 2017, Washington, California, New York and New Mexico challenged the Trump Administration’s decision to for open coal leasing on federal land without conducting environmental review of the impacts of that decision. Ferguson and the other states won their legal challenge and the court required the Trump Administration to conduct an environmental review, using NEPA.

“NEPA is an unsung hero of environmental protection that protects our shared environment,” Ferguson said. “NEPA allows our voices to inform public decisions, provides a tool for holding the government accountable and builds transparency into the federal decision-making process to build trust. This administration’s insidious attack on one of our most important environmental laws is an attack on the democratic process itself. I will fight to make sure the people are heard.”

“The Trump administration’s rule is an attack on one of the most important environmental laws of the last 50 years,” Gov. Jay Inslee said. “The air, water and lands are entrusted to the people of this country, and we must have a strong voice in their stewardship. President Trump’s attempt to ignore clear science, roll back climate considerations and bypass public scrutiny of federal environmental decisions will not stand. I thank Attorney General Ferguson and his staff for leading this effort to protect our environment and fully support this lawsuit.”

Ferguson is co-leading the lawsuit, which was filed in the U.S. District Court for the Northern District of California, with California Attorney General Xavier Becerra. Ferguson and Becerra filed the lawsuit as part of a coalition of 27 states, commonwealths, territories, counties and cities. Ferguson’s lawsuit names the Trump Administration’s Council on Environmental Quality (CEQ) as the defendant. CEQ created the first rules to execute NEPA in 1978. Those regulations have stood for half a century and allow federal agencies to make better decisions that involve the public and protect our clean air, clean water, public lands and public health.

In the complaint, the Attorney General’s Office points out that NEPA embodies our nation’s democratic values by involving states, local governments and the public in the federal decision-making process. Before NEPA became law, federal agencies could make decisions without considering an action’s environmental impacts or public concerns. NEPA now requires federal agencies to engage in a transparent, public and informed decision-making process. Further, NEPA’s public process also provides vulnerable communities and communities of color a critical voice in the decision-making process on actions that threaten adverse environmental and health impacts.

The Trump Administration’s changes to the NEPA regulations will severely limit the types of federal actions requiring agency review of environmental effects, restrict the scope of environmental reviews that do occur, diminish public participation in federal decisions and unlawfully seek to block judicial review of agency actions that violate NEPA. These changes continue the Trump Administration’s unprecedented efforts to undermine the nation’s fundamental environmental laws and limit the role of the states and the public in holding the federal government accountable.

Trump’s CEQ claims its changes will “reduce paperwork and delays and promote better decisions consistent with the national environmental policy.” Ferguson’s complaint counters that limiting meaningful public engagement in agency decision-making will harm the public, who bear the lifelong costs of environmental damage. Further, the vague and undefined changes will cause confusion for federal agencies and project applicants and lead to more delay and litigation, not less.

The legal claims

Ferguson asserts the Trump Administration’s new regulations unlawfully abandon the principles of informed decision-making, public accountability and environmental protection. Ferguson and other state attorneys general assert the Trump Administration violated the law in a multitude of ways. Specifically, the changes violate NEPA itself and the Administrative Procedure Act, which prevents federal agencies from adopting rules that are either against the law or made in an arbitrary or capricious manner – in other words, actions that are irrational and contrary to the facts.

Specifically, Ferguson claims that the changes are unlawful because they:

• Conflict with NEPA’s plain language and purpose of environmental protection, public participation and informed decision-making. Among other things, NEPA requires that its provisions apply “to the fullest extent possible” but the changes unlawfully restrict NEPA’s application and scope
• Lack a rational justification or evidentiary support and are arbitrary and capricious. In particular, CEQ fails to support its claim that its changes will reduce delay or eliminate confusion. CEQ also fails to demonstrate that its changes will further NEPA’s policies of environmental protection and well-informed decision-making and exceed CEQ’s authority. In particular, CEQ lacks authority to excuse federal agencies from the obligation to conduct environmental review for projects with significant environmental impacts
• Violate the APA’s notice and comment requirements. Specifically, CEQ failed to rationally respond to comments submitted on the proposed rule, including comments by Washington and other states expressing concerns about climate change impacts from federal projects and adverse impacts to susceptible communities by limiting NEPA’s application and scope
• Failed to conduct an environmental review of the environmental and public health impacts of the regulatory changes

Assistant Attorneys General Aurora Janke and Elizabeth Harris are leading the case for Washington.

The state of California co-leads the case with Washington. California and Washington are joined by a broad coalition that include: Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Nevada, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Wisconsin; the District of Columbia; the Territory of Guam; Harris County, Texas; the City of New York; the Connecticut Department of Energy and Environmental Protection and New York State Department of Environmental Conservation.

What is NEPA?

At the heart of the NEPA review process is the agencies’ obligation to consider alternatives to the proposed action, which can ask the government to consider new, locally-created options and results in better projects that save money and reduce negative effects on communities. It also gives members of the public a voice in shaping federal action by letting them suggest alternatives, which promotes collaboration in planning and buy-in on final decisions. Congress designed the NEPA process to ensure that agencies make well-informed decisions with public input and fully analyze the environmental consequences of any major federal action.

In 1978, with extensive public input, CEQ emphasized NEPA’s role as “our basic national charter for protection of the environment.” NEPA and CEQ’s 1978 regulations and subsequent guidance have promoted more environmentally protective and transparent agency decisions, while not imposing overly burdensome requirements. In 2014, the Government Accountability Office concluded that the NEPA process “ultimately saves time and reduces overall project costs by identifying and avoiding problems that may occur in later stages of project development.”  

At its most basic level, NEPA requires government agencies to engage in a review process intended to discover any significant environmental and public health impacts before a decision is made. NEPA simply and sensibly ensures the federal government informs and is responsive to the public it serves.

Washington’s State Environmental Policy Act models NEPA and requires detailed environmental review for certain state agency and local government actions. State agencies actively participate in the federal NEPA process to ensure that federal actions in our state do not harm Washington’s clean water, clean air, public lands, wildlife and public health. NEPA is an important tool for the state to ensure that federal agencies avoid harmful pollutants from reaching the air we breathe and the water we drink.

State agencies also use NEPA to ensure that federal agencies properly manage federal lands, like Olympic National Park or the Hanford Reach National Monument, and that federal actions do not contribute to climate change or harm our salmon and orcas. NEPA also provides the public an opportunity to give input on a proposed project and to suggest alternatives that would minimize adverse impacts to communities, public health and the environment. The challenged regulations threaten to diminish the role of Washington agencies and the public when federal agencies make decisions with environmental costs.

CEQ’s new rules would have a significant impact on opportunities like these to comment on and help shape federal actions that will have immediate and deep effects on their environments. The Supreme Court has recognized states have a specialized interest in seeking remedy for environmental harms to their state resources because states own and regulate natural resources within their borders.

Lawsuits against the Trump Administration

Ferguson has filed 76 lawsuits against the Trump Administration. Forty-five of these cases are awaiting a judicial ruling. Ferguson has 31 legal victories against the Trump Administration. There has been one adverse decision on the merits and Ferguson is appealing that decision. Twenty-one of these cases are finished and cannot be appealed.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

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