After much contention from critics and environmental groups, the revisions to the National Environmental Policy Act (NEPA) have gone into effect, resulting in a more streamlined process for ranchers.
The revisions will set two-year limits for agencies to issue environmental impact statements (EISs), require joint paperwork when multiple agencies are involved, require senior officials to oversee compliance, and give applicants a greater role in preparing EISs.
The U.S. District Court for the Western District of Virginia denied a preliminary injunction Sept. 11 from a coalition of environmental groups, in an attempt to block the rule from going into effect on Sept. 14.
“The decision of the judge today in Virginia effectively denies the activists’ attempt to block implementation of the new Trump revisions to NEPA,” said National Cattlemen’s Beef Association (NCBA) Chief Environmental Counsel Scott Yager in a recent Beltway Beef podcast episode. “In doing so, it means that the revisions to NEPA will go into effect Monday, Sept. 14.”
Yager said when the rule became effective, it allowed ranchers who are using federal grazing allotments to go through the NEPA process a lot quicker and more effectively.
“In a time where millions of acres are already burning due to delayed or cancelled treatments bogged down as a result of inefficient NEPA processes, there is no time left to waste,” said NCBA Executive Director of Natural Resources and Public Lands Council (PLC) Executive Director Kaitlynn Glover. “Ranchers will now be able to move faster in making range improvements that can prevent and reduce the impacts of wildfires.”
Yager said NEPA affects just about every facet of the federal government. In addition to federal grazing, when producers try to apply for USDA loan programs through the Farm Service Agency, all of those USDA programs have to go through the NEPA process.
“So now with the new revisions in effect, it should be a lot quicker and streamlined for producers to take advantage of those programs,” Yager said. He noted that historically, the NEPA reviews have been very laborious, resulting in producers walking away from even utilizing USDA’s programs.
Regarding the denied preliminary injunction, Glover said, “Let me be clear to anyone looking to bring any further lawsuits to delay this critical NEPA rulemaking; NCBA and PLC will continue to fight for ranchers whose grazing practices mitigate wildfire and ensure the health and safety of thousands of communities across the West.”
The lawsuit
The suit attempting to block the NEPA revisions argued the new rule was invalid for a number of reasons. The plaintiffs allege the Council on Environmental Quality (CEQ) improperly removes the requirement to consider cumulative and indirect impacts on the environment; removes the requirement that agencies evaluate all reasonable alternatives; requires actions to be deemed “major” before any environmental effects are to be considered; allows projects to proceed during the NEPA process; and diminishes the input from those with qualitive, rather than technical, knowledge.
U.S. District Judge James P. Jones ruled in his opinion and order, “While the movants need not show a certainty of success, they must make a ‘clear showing’ that they are likely to succeed on the merits as a prerequisite to a preliminary injunction. The plaintiffs here may ultimately succeed in this case, but at this point they have not made that clear showing.”
Jones then blocked the preliminary injunction and the rule was able to go into effect three days later.
Battle to continue
Defendant CEQ and the defendant-intervenors, including American Farm Bureau Federation and NCBA, filed a motion for status conference to “obtain guidance from the Court on the discovery issues raised in the Court’s recent order, as well as any anticipated timeline for a ruling on the Motions to Dismiss, as they relate to a potential interlocutory appeal of the Preliminary Injunction, and/or expedited briefing on Summary Judgment.”
The defendants and intervenors opposed a status conference, opposed any discovery, and proposed a briefing schedule for resolution of cross motions for summary judgement.
“While I suggested in my opinion denying a preliminary injunction that evidence might be required to flesh out the parties’ arguments, I did not mention discovery,” Jones wrote. “My meaning was that summary judgment motions may be supported by declarations of experts or other sworn interpretive opinion. The parties may dispute that, but I leave resolution of that issue for another day.”
As such, on Sept. 21, Jones denied the motion for status conference and the motion to dismiss the suit. — Anna Miller, WLJ editor
