Wild Virginia v. Council On Envtl. Quality

• Decision Date: 22 December 2022
• Docket Number: 21-1839
• Citation: 56 F.4th 281
• Parties: WILD VIRGINIA; Virginia Wilderness Committee; Upstate Forever; South Carolina Wildlife Federation; North Carolina Wildlife Federation; National Trust for Historic Preservation; MountainTrue; Haw River Assembly; Highlanders for Responsible Development ; Defenders of Wildlife; Cowpasture River Preservation Association; Congaree Riverkeeper ; the Clinch Coalition ; CleanAIRE NC, f/k/a Clean Air Carolina; Cape Fear River Watch; Alliance for the Shenandoah Valley; Alabama Rivers Alliance, Plaintiffs – Appellants, v. COUNCIL ON ENVIRONMENTAL QUALITY; Brenda Mallory, in her official capacity as Chair of the Council on Environmental Quality, Defendants – Appellees, and American Farm Bureau Federation ; American Petroleum Institute ; American Road and Transportation Builders Association; Chamber of Commerce of the United States of America, Intervenors/Defendants – Appellees, and American Fuel and Petrochemical Manufacturers; Federal Forest Resource Council; American Forest Resource Council; Interstate Natural Gas Association of America; National Cattlemen's Beef Association, Intervenors/Defendants. AMMD Pine Grove Project; Iowa Citizens for Community Improvement; Animal Legal Defense Fund; Institute for Agriculture and Trade Policy ; Waterkeepers Alliance, Inc.; Waterkeepers Chesapeake, Inc.; Humane Society of the United States, Amici Supporting Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

56 F.4th 281

WILD VIRGINIA; Virginia Wilderness Committee; Upstate Forever; South Carolina Wildlife Federation; North Carolina Wildlife Federation; National Trust for Historic Preservation; MountainTrue; Haw River Assembly; Highlanders for Responsible Development ; Defenders of Wildlife; Cowpasture River Preservation Association; Congaree Riverkeeper ; the Clinch Coalition ; CleanAIRE NC, f/k/a Clean Air Carolina; Cape Fear River Watch; Alliance for the Shenandoah Valley; Alabama Rivers Alliance, Plaintiffs – Appellants,

v. COUNCIL ON ENVIRONMENTAL QUALITY; Brenda Mallory, in her official capacity as Chair of the Council on Environmental Quality, Defendants – Appellees,andAmerican Farm Bureau Federation ; American Petroleum Institute ; American Road and Transportation Builders Association; Chamber of Commerce of the United States of America, Intervenors/Defendants – Appellees,andAmerican Fuel and Petrochemical Manufacturers; Federal Forest Resource Council; American Forest Resource Council; Interstate Natural Gas Association of America; National Cattlemen's Beef Association, Intervenors/Defendants.AMMD Pine Grove Project; Iowa Citizens for Community Improvement; Animal Legal Defense Fund; Institute for Agriculture and Trade Policy ; Waterkeepers Alliance, Inc.; Waterkeepers Chesapeake, Inc.; Humane Society of the United States, Amici Supporting Appellants.

No. 21-1839

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2022

Decided: December 22, 2022

ARGUED: Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellants. Allen M. Brabender, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Michael B. Kimberly, MCDERMOTT, WILL & EMERY, LLP, Washington, D.C., for Intervenor. ON BRIEF: Sam Evans, Nicholas S. Torrey, Megan Kimball, Alex Hardee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellants. Jean Williams, Deputy Assistant Attorney General, Clare Boronow, Gregory M. Cumming, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Justin Pidot, General Counsel, Amy Beth Coyle, Deputy General Counsel, COUNCIL ON ENVIRONMENTAL QUALITY, Washington, D.C., for Appellees Council on Environmental Quality and Brenda Mallory. Tara S. Morrissey, Tyler S. Badgley, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C., for Appellee Chamber of Commerce of the United States of America. Charles Seidell, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Intervenors-Defendants-Appellees. Nick Goldstein, AMERICAN ROAD & TRANSPORTATION BUILDERS ASSOCIATION, Washington, D.C., for Appellee American Road & Transportation Builders Association. Ellen Steen, Travis Cushman, AMERICAN FARM BUREAU FEDERATION, Washington, D.C., for Appellee American Farm Bureau Federation. Wyatt G. Sassman, UNIVERSITY OF DENVER ENVIRONMENTAL LAW CLINIC, Denver, Colorado, for Amici Iowa Citizens for Community Improvement, et al. Cale Jaffe, Environmental Law and Community Engagement Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Amicus The AMMD Pine Grove Project.

Before AGEE and WYNN, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Senior Judge Motz joined.

WYNN, Circuit Judge:

Plaintiffs, a group of seventeen environmental organizations, sued the Council on Environmental Quality in July 2020 related to the Trump Administration's promulgation of a final rule that affected how federal agencies would conduct reviews under the National Environmental Policy Act.

The wisdom of those policy changes is not before us. As a matter of fact, we have no license to consider the merits of the challenge to the rulemaking. The only question before us is whether the district court had jurisdiction to consider this particular challenge, as Plaintiffs have chosen to frame it, at this stage. We agree with the district court that it did not.

I.

A.

In 1969, Congress passed the National Environmental Policy Act ("NEPA") in recognition of "the profound impact of man's activity on the interrelations of all components of the natural environment" and with the goals of "declar[ing] a national policy which will encourage productive and enjoyable harmony between man and his environment," "promot[ing] efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man," and "enrich[ing] the understanding of the ecological systems and natural resources important to the Nation." 42 U.S.C. §§ 4321, 4331(a). Considering those principles, Congress asserted that "it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may" properly balance environmental, health, historic, economic, and other concerns. Id. § 4331(b).

Unlike other environmental statutes of the era, however, NEPA does not contain substantive environmental requirements or direct particular outcomes. Rather, the heart of NEPA is a procedural requirement that "all agencies of the Federal Government" must include a "detailed" environmental impact statement "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." Id. § 4332(2)(C). These environmental impact statements serve as "democratic decisionmaking tool[s]" that provide information to both the agencies undertaking them and the general public. N.C. Wildlife Fed'n v. N.C. Dep't of Transp. , 677 F.3d 596, 603 (4th Cir. 2012) (quoting Or. Nat. Desert Ass'n v. Bureau of Land Mgmt. , 625 F.3d 1092, 1121 n.24 (9th Cir. 2010) ). "The informational role of an [environmental impact statement] is to give the public the assurance that the agency has indeed considered environmental concerns in its decisionmaking process, and, perhaps more significantly, provide a springboard for public comment in the agency decisionmaking process itself." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 768, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (internal quotation marks, alterations, and citation omitted).

To further these goals, NEPA established the Council on Environmental Quality ("CEQ") within the Executive Office of the President. 42 U.S.C. § 4342. CEQ has the authority to promulgate regulations implementing NEPA. See 40 C.F.R. § 1500.1(b) (citing 42 U.S.C. § 4332(2) ). Other agencies—those that will actually be undertaking NEPA reviews related to proposed federal actions—then promulgate their own regulations, consistent with CEQ's. See 40 C.F.R. § 1507.1, .3.

Before 2020, CEQ's NEPA regulations had remained virtually unchanged since 1978. Wild Va. v. Council on Env't Quality , No. 3:20CV00045, 2020 WL 5494519, at *2 (W.D. Va. Sept. 11, 2020) (noting two "relatively minor" amendments); see National Environmental Policy Act—Regulations, 43 Fed. Reg. 55978 (Nov. 29, 1978) ; Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43304, 43304 (July 16, 2020) ("CEQ has not comprehensively updated its regulations since their promulgation in 1978, more than four decades ago.").

In August 2017, President Trump issued Executive Order 13807, instructing CEQ to provide ways "to enhance and modernize the Federal environmental review and authorization process." Exec. Order No. 13807, 82 Fed. Reg. 40463, 40467 (Aug. 15, 2017). The following year, CEQ published an advance notice of proposed rulemaking, seeking public input on potential changes to the NEPA rules. Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 83 Fed. Reg. 28591 (June 20, 2018). CEQ received more than 12,500 comments related to this notice. See Rulemaking Docket: Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act , Council on Env't Quality, https://www.regulations.gov/docket/CEQ-2018-0001/comments (last visited Dec. 14, 2022) (saved as ECF opinion attachment).

In January 2020, CEQ published a notice of proposed rulemaking laying out significant proposed changes to the NEPA regulations. Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (Jan. 10, 2020). For example, CEQ proposed to eliminate the requirement that cumulative effects be considered in NEPA analyses, id. at 1729 ; to set new time and page limits on environmental impact statements, id. at 1699–1700 ; to remove loans and loan guarantees from the definition of "major Federal action," thus excluding them from NEPA review, id. at 1709 ; to set stricter requirements for public comments on environmental impact statements, id. at 1703–04; and to establish that the CEQ regulations set a ceiling for NEPA reviews, such that other agencies were not to "impose additional procedures or requirements" for such reviews, id. at 1706. CEQ received more than 1.1 million comments on the proposed rulemaking. See Proposed Rule: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act , Council on Env't Quality, https://www.regulations.gov/document/CEQ-2019-0003-0001 (last visited Dec. 14, 2022) (saved as ECF opinion attachment). "Many commenters were opposed to CEQ's rulemaking for a variety of reasons[.]" Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act: Final Rule Response to Comments , Council on Env't Quality (June 30, 2020) (available at J.A. 1210).¹

On July 16, 2020, CEQ promulgated the final rule updating the NEPA regulations, which closely mirrored the proposed rule ("2020 Rule"). 85 Fed. Reg. 43304. It adopted each of the proposals noted...