On July 22, President Trump and the White House Council on Environmental Quality (CEQ) finalized a major rule to modernize regulations that implement the National Environmental Policy Act (NEPA). The rule focuses NEPA on its original intent – assessing environmental impacts of major projects and actions supported by the federal government – instead of being used as a mechanism for causing delays and uncertainty in planning and building projects, including those in the transportation sector.
Anti-growth opponents of NEPA modernization have initiated litigation in the federal courts to strike down the rule. ARTBA, as part of a coalition of industry trade associations, has intervened in the litigation to help defend the NEPA modernization rule against legal attack.
The Trump Administration’s actions represent a once-in-a-generation to modernization of NEPA. The law first took effect 50 years ago, when communications, technology and public participation were in the virtual Stone Age compared to 2020. While NEPA is an essential tool for protecting the environment and ensuring meaningful feedback about projects, it had not been fundamentally improved in over three decades. Adversaries have weaponized NEPA’s outdated review procedures to delay – often for years – or to derail transportation improvement projects. Needless delays and uncertainties can add significant costs to these important projects, at a time when funding is constrained nationwide.
The changes to NEPA will result in a more expeditious, while still thorough, review process, without impacting existing environmental standards. The new NEPA will not undermine environmental stewardship in planning transportation projects, which will still need to comply with the federal Clean Air Act, Clean Water Act, Endangered Species Act and other statutes.
09/11 – Order Denying Motion for Preliminary Injunction
09/09 – Reply in Support of Motion to Dismiss in Wild Virginia v. CEQ
09/02 – Opposition to Motion for Preliminary Injunction in Wild Virginia et. al. v. Council on Environmental Quality et. al.
In 2015, ARTBA and a group of allied associations sued the U.S. Environmental Protection Agency (EPA), alleging the agency disregarded important administrative law requirements and exceeded its jurisdiction when it released a rule defining “waters of the United States” (WOTUS) The rule have would have extended federal Clean Water Act (CWA) jurisdiction over roadside ditches, requiring additional burdensome permitting requirements with no environmental value. The rule also likely would be used as a litigation tool by project opponents, both of which would result in delays to key transportation improvements and ultimately cost taxpayers more money.
Since 2015, ARTBA and our allies achieved a number of victories in the litigation, including blocking the WOTUS rule in nearly 30 states, having two separate federal courts declare the rule invalid, and also ensuring CWA complaints are heard at the district (as opposed to the appellate) court level, closer to where the regulation impacts local projects and landowners. Also, proceedings that begin in district court have more possibilities for appeal.
On June 22, the Trump administration’s “Navigable Waters Protection Rule” (NWPS)took effect in all states except Colorado. The rule officially replaces WOTUS and exempts most highway ditches from federal jurisdiction. The same Anti-growth groups who were defending WOTUS immediately sought to have NWPS struck down in the courts. The rule has survived an attempt at a nationwide stay, but litigation is still ongoing.
05/28/19 – Southern District of Texas Ruling on WOTUS
11/01/16 – Opening Brief of ARTBA and Industry Allies
11/01/16 – Appendix for ARTBA and Industry Allies Opening Brief
07/02/15 – Complaint for Declaratory and Injunctive Relief
06/19/20 – Federal District Court Order Denying Preliminary Injunction of NWPR