544 F.Supp.3d 620
W.D. Va.2021Background:
- Plaintiffs (conservation organizations) sued under the Administrative Procedure Act challenging CEQ’s July 2020 "2020 Rule" revising NEPA implementing regulations, alleging defective notice-and-comment and substantive unlawful changes.
- CEQ’s rulemaking: ANPRM (June 2018) with >12,500 comments; NPRM with 60-day comment period, limited hearings, and >1.1 million comments; final rule signed July 9, 2020, effective Sept 14, 2020.
- Plaintiffs say the 2020 Rule narrows scoping, exempts categories from NEPA review, limits analysis of alternatives and of cumulative/indirect effects, allows pre-decisional project investment, and imposes specificity/exhaustion requirements on public comments.
- Plaintiffs submitted numerous declarations asserting three categories of injury: procedural (harder to comment), informational (loss of NEPA-generated information), and environmental (future agency decisions causing harm).
- After briefing and argument, the court held the claims nonjusticiable — finding them unripe and that plaintiffs lacked Article III standing — and dismissed the case without prejudice (June 21, 2021).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness of facial challenge to the 2020 Rule | Rule is final and immediately harms plaintiffs; NEPA changes affect future NEPA reviews now | Claims are premature because agencies must adopt implementing procedures and discretion remains; further action and facts needed | Not ripe: generalized facial challenge inappropriate; court should await agency-specific applications or as-applied claims |
| Standing — Environmental injuries (recreational/aesthetic/ecological) | Declarations identify specific projects/locations where plaintiffs/members will be harmed if 2020 Rule applied | Harms are speculative and contingent on many intervening decisions by other agencies; not certainly impending | No standing: alleged environmental harms are too attenuated and speculative to constitute imminent injury |
| Standing — Procedural injury from rulemaking defects & future comment burdens | Procedural harms (denied meaningful notice/comment; future burdens making participation harder) suffice because procedural rights protect concrete interests | Procedural-in-vacuo claim insufficient absent imminent concrete injury; future application to particular NEPA processes uncertain | No standing: procedural claim unmoored from imminent concrete interest; as-applied procedural harms may be cognizable later |
| Standing — Informational injury (loss of NEPA information; costs to obtain info) | NEPA’s disclosure aims create a statutory informational entitlement; loss of NEPA information injures organizations and forces costly alternatives | Plaintiffs not yet deprived of any statutorily required information; anticipated costs to obtain info are speculative | No standing: informational injury not established because denial of information is not actual or imminent |
Key Cases Cited
- Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (ripeness limits for programmatic NEPA-type challenges)
- Summers v. Earth Island Inst., 555 U.S. 488 (limitations on standing for facial NEPA/regulatory challenges)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Article III injury-in-fact and remittance of ripeness/standing analyses)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (speculative future harms insufficient for standing)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (concreteness and particularity requirements for injury-in-fact)
- Federal Election Comm'n v. Akins, 524 U.S. 11 (informational injury doctrine)
- Department of Transportation v. Public Citizen, 541 U.S. 752 (NEPA’s purpose and procedural nature)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires a ‘‘hard look,’’ but not particular substantive results)
- South Carolina v. United States, 912 F.3d 720 (Fourth Circuit on attenuated chains of causation and standing)