Where multiple environmental organizations challenged a final rule that affected how federal agencies would conduct reviews under the National Environmental Policy Act, or NEPA, but each of their categories of alleged damages was unripe, the suit was dismissed.
A group of 17 environmental organizations sued the Council on Environmental Quality, or CEQ, in July 2020 related to the Trump Administration’s promulgation of a final rule that affected how federal agencies would conduct reviews under the NEPA.
After holding a hearing, the district court denied the motion for a preliminary injunction a few days before the 2020 rule took effect. CEQ and a number of industry groups that the district court permitted to intervene as defendants moved to dismiss the complaint for lack of jurisdiction, but the court denied the motions to dismiss with little explanation. The parties then cross-moved for summary judgment.
On the day he was sworn into office, President Biden issued an Executive Order ordering “all executive departments and agencies … to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years” that, in the Biden Administration’s view, conflicted with federal environmental-policy goals.
CEQ moved to stay the case for 60 days to allow the new administration time to review the action, or to remand the matter to the agency without vacating the rule. Plaintiffs opposed both motions, and both were unsuccessful. In April 2021, the district court held another hearing on the parties’ motions for summary judgment, after which it dismissed the case without prejudice for lack of jurisdiction. The court agreed with CEQ that plaintiffs lacked standing to challenge the 2020 rule and that any such challenge was not yet ripe anyway.
After the district court rendered its ruling, CEQ began new rulemaking. In April 2022, it promulgated a final revised rule that makes three primary changes to the 2020 rule.
The court conclude that plaintiffs’ challenges to the 2020 rule regarding direct, indirect and cumulative effects, and reasonable alternatives to the extent they were to prioritize the goals of the applicant, are moot in light of the 2022 rule. The court asked the parties whether it should hold the remainder of the case in abeyance pending CEQ’s phase 2 rulemaking, since phase 2 could moot additional aspects of this case. But plaintiffs urged no because they contend that they continue to be harmed by the 2020 rule while CEQ engages in a lengthy rulemaking process that may not give them all the relief they seek. Accordingly, the court proceeds to consider plaintiffs’ appeal.
Plaintiffs claim that the 2020 rule will (1) create problems with NEPA analyses, (2) pose obstacles for them to comment on NEPA analyses or otherwise participate in agency decisionmaking, (3) make it more difficult for them to obtain information about proposed federal actions, and (4) eliminate some categories of actions from NEPA review altogether. The court concludes that each of these categories of alleged damages is unripe.
To be clear, the court does not hold that plaintiffs may never challenge the 2020 rule — only that they may not do so based on the record and arguments they advanced in this case. CEQ readily concedes that plaintiffs will be able to challenge the 2020 rule “in the context of specific projects if and when a final decision that threatens actual imminent harm to plaintiffs or their members occurs.”
Nor does the court hold that plaintiffs going forward will have to wait until they have actually suffered an environmental injury before they may sue. That is not the law of ripeness. Ripeness may be satisfied by a future injury, as long as that future injury is “not dependent on future uncertainties.”
Wild Virginia v. Council on Environmental Quality, Case No. 21-1839, Dec. 22, 2022. 4th Cir. (Wynn), from WDVA at Charlottesville (Jones). Kimberley Hunter for Appellants. Allen M. Brabender for Appellees. Michael B. Kimberly for Intervenor. VLW 022-2-268. 35 pp.