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Americas+1 212 318 2000
EMEA+44 20 7330 7500
Asia Pacific+65 6212 1000
By Stephen Lee
A coalition of mostly red states launched the first legal challenge against the Biden administration’s recent environmental permitting rule on Tuesday.
Chief among the plaintiffs’ arguments is that the Council on Environmental Quality’s rule illegally changes the National Environmental Policy Act’s procedures for reviews “into a substantive set of requirements to achieve broad and vague policy goals.”
The rule wrongly gives preferential treatment to “politically motivated” projects, the 20 plaintiff states said in their filing before the U.S. District Court for the District of North Dakota.
Although CEQ has claimed that the rule is meant to streamline permitting across the board, it also inserts arbitrary mandates into the process “with the foreseeable effect of delaying and foreclosing disfavored types of projects,” the lawsuit alleges.
The agency has made no secret of its desire to speed the build out of clean energy. CEQ Chair Brenda Mallory made that point explicitly at a House hearing last week, saying the agency is “helping accelerate the deployment of clean energy and other vital infrastructure by working to modernize federal permitting and environmental review processes.”
Nevertheless, many opponents of President Joe Biden’s administration have argued that CEQ’s approach clashes with the Supreme Court’s 2022 finding that agencies can’t resolve questions of “vast economic and political significance” without direct authority from Congress.
The litigants also claim that the final rule prioritizes “atextual” environmental justice and climate change considerations.
By including those requirements, CEQ has created an “open-ended obligation and impossible-to-meet standard,” which “guarantee regulatory and schedule uncertainty and predictable litigation surrounding any controversial or disfavored project,” according to the filing.
Another part of the complaint asserts that the rule creates confusion by requiring that indigenous knowledge be given equal weight to other sources of scientific expertise.
The rule, finalized in April, creates a way for federal agencies to borrow decisions made by other agencies for projects deemed not to have a significant effect on the environment—known as categorical exclusions—and therefore don’t need to undergo a more extensive review under NEPA. It also clarifies that agencies should consider the effects of climate change when permitting.
“Iowans are paying the price for Biden’s radical green scheme, again,” said Brenna Bird, attorney general for Iowa, which is leading the litigation. “His latest mandate punishes developers for using traditional energy sources and raises bills for families at a time when they could really use the money. Whether Iowans can build a bridge or a home should be based on environmental science, not politics or social justice.”
The 19 other plaintiffs are North Dakota, Alaska, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
The case is Iowa v. Council on Envtl. Quality, D.N.D., No. 1:24-cv-00089, complaint filed 5/21/24.
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