While shifting political winds don’t literally blow through the trees, their force and impact can cause environmental policy to lurch back and forth.
For instance, in 2020, during the final quarter of the first Trump administration, the White House Counsel on Environmental Quality (CEQ) took steps to change the National Environmental Policy Act (NEPA) by limiting federal oversight on newly begun projects, shortening the permissible length and depth of applications, and reducing the obligation to study the long-term impact of projects on the environment.
When President Biden came in, the CEQ reversed course and sought to update NEPA to require better stewardship by enforcing projects to undergo more thorough analysis of their environmental impact. A legal challenge was mounted by Iowa and North Dakota, joined by 19 sister ‘red’ states, seeking to invalidate the Biden-era NEPA regulations, claiming that the CEQ lacked the authority to make sweeping pronouncements ‘by fiat,’ and that the rules slowed infrastructure projects.
Early this year, a federal court in North Dakota invalidated the Biden NEPA regulations, arguing they represented a foundational overreach of the federal government, causing a host of ‘blue’ states to mount an appeal. Shortly thereafter, the second Trump administration, seeming to seek the initiative to close the issue off, withdrew the NEPA regulations entirely in a bid to ‘simplify’ the permit-seeking process.
In something of a roll-with-it, jiu-jitsu move, the blue states amended their pleadings to withdraw their appeal, because with the NEPA regulations withdrawn (by the White House), the issue is “moot.” But, the states argued, the North Dakota federal court’s ruling was substantial, important, and had broad implications for federal power. And now, through no actions of their own, those states have no ability to appeal or have the issue get a fair hearing. The only equitable result, they argue, was a vacatur of the ruling invalidating the Biden-era NEPA regulations.
On July 30, the Eighth Circuit Court of Appeals agreed, vacating the lower court’s decision and reinstating the NEPA regulations – a decision environmental groups herald, while critics claim will create more bureaucracy.
