The Southern Environmental Law Center has filed a motion to prevent the U.S. Council of Environmental Quality from moving forward with proposed environmental policy changes until the organization provides requested public documents.
The request for a preliminary injunction, filed Thursday by SELC attorneys, is the latest development in a federal lawsuit from the Charlottesville-based organization against the agency.
Spurred by a notice of proposed changes to the regulations of the National Environmental Policy Act, the lawsuit argues that requests made by the SELC under the Freedom of Information Act have not been met.
This led the SELC to file the request for the injunction, which would prevent the agency from closing a 60-day comment period and effectively stall the proposed changes.
The SELC claims that the proposed changes to NEPA are “sweeping and industry-friendly,” and could cause long-term environmental damage. Officials have claimed NEPA holds up infrastructure projects and that change is needed.
Currently, before major infrastructure projects such as bridges, highways and pipelines can begin, an environmental impact review is required, outlining potential harm.
The proposed rules would change the regulations, narrowing which projects require an assessment and creating a deadline of one year to complete studies for small projects and two years for bigger projects.
Through FOIA requests, the SELC has attempted to obtain public documents that could shed light on the decision making behind the proposed changes.
In the time since the SELC filed the lawsuit in the U.S. District Court in Charlottesville in November 2018, the organization has only received a few responsive documents.
But, according to a January motion from the Council of Environmental Quality, officials have been trying to respond “reasonably promptly” and expect to produce all responsive documents by November.
“This case is about an agency with less than two dozen employees and a budget of under $3 million per year that is responding in good faith and reasonably promptly to FOIA requests while also performing its core mission under a number of federal laws, including overseeing all federal agency implementation of the requirements of the National Environmental Policy Act (NEPA) through promulgation and interpretation of government-wide regulations, the subject matter of which SELC’s instant FOIA request centers,” the filing reads.
However, the SELC has taken issue with officials’ proposed deadline, which falls in the same month as a presidential election and far after the end of the 60-day comment period.
“The irony of all this is that the comment process puts a high value on informed input from the public, but at the same time, the Trump administration is keeping information away from the public,” Kym Hunter, a senior SELC attorney who filed the request for the preliminary injunction, said in a news release. “The rules call for openness and transparency, but instead the administration has shut the door and boarded the windows.”
NEPA’s public input requirements have resulted in improved outcomes that better served communities, the SELC argued in the release.
“The Trump administration is breaking the law by not providing information to the public and, unbelievably, is doubling down on that duplicity to gain an advantage,” Hunter said. “Our communities deserve to know who or what drove this decision, and we’re committed to getting those answers.”
Cale Jaffe, director of the Environmental and Regulatory Law Clinic at the University of Virginia and a former SELC attorney, echoed similar sentiments as Hunter.
NEPA has remained largely untouched for 50 years, and Jaffe said the speed at which the agency is looking to make changes is “unprecedented.”
“[In order to] do something as mammoth as this, there is a need for meetings and there are public comment requirements,” he said. “It’s a deliberative process; a rollback like this is not designed to move quickly.”
NEPA was intended to create an environmental mandate, Jaffe said, forcing developers and the government to consider the environmental impact of potential development and determine less harmful methods.
Further complicating matters, Jaffe said, is an argument made by New York University professor Richard Revesz, who said he does not believe the proposed changes would hold up in court.
“[Revesz] has predicted that rollbacks would violate core statute of NEPA, which instead of speeding up the process, it would slow it down because it would result in more litigation,” Jaffe said.
No hearing dates are currently set in the lawsuit, and the Council of Environmental Quality has yet to respond to the motion filed last week.