American Oil and Gas Reporter - August 2020 - 29

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to businesses and their employees who
are trying to plan for the long term and
assure labor, equipment and materials
can be available when needed."
American Petroleum Institute President
and CEO Mike Sommers calls CEQ's
action "essential to U.S. energy leadership
and environmental progress, providing
more certainty to jumpstart not only the
modernized pipeline infrastructure we
need to deliver cleaner fuels, but highways,
bridges and renewable energy."
And American Exploration & Production
Council CEO Anne Bradbury offers, "CEQ's
modernization returns NEPA to its initial
purpose and the American people."
Other industry organizations praising
the new rules include the American Gas
Association, the National Ocean Industries
Association, the National Cattlemen's
Beef Association, National Mining Association, National Stone, Sand and Gravel
Association, Public Lands Council and
the Off-Road Business Association.
A press release put out by the Department of Interior includes kudos from the
governors of Arkansas, Georgia, Iowa,
Mississippi, Nebraska, Oklahoma, South
Dakota, Tennessee, Texas, Utah and
Wyoming as well as North Dakota Governor Doug Burgum, who says the "common-sense rules . . . will return the process
to the original spirit of NEPA by ensuring
timely reviews, retaining the focus on
environmental stewardship and expanding
public participation."
Litigation Barriers
Environmental organizations were
quick to challenge the new regulations in
court. The Southern Environmental Law
Center (SELC) filed a lawsuit on behalf
of 17 groups in the U.S. District Court
for the Western District of Virginia, while
Earthjustice and the Western Environmental Law Center filed on behalf of 20
more in the U.S. District Court for the
Northern District of California. Both lawsuits were filed July 29.
Noting that SEQ held only two public
hearings on the rule changes and released
the final rule only four months after receiving more than 1.1 million comments,
SELC contends the rapid pace violates
the Administrative Procedure Act. "While
the federal government has the ability to
change policies, rules and regulations, it

must follow the law, not cut corners,
when it does," its filing argues.
The lawsuit also claims the rewrite
damages NEPA by removing cumulative
impacts and indirect effects from consideration when assessing large projects,
SELC adds.
However, Dorsey & Whitney attorney
Lightfoot says those challenges may face
some unusual hurdles. He comments that
under NEPA, federal agencies must report
the environmental impacts of their actions
that significantly affect the quality of the
human environment, but observes,
"NEPA's statutory language commands

virtually nothing else."
Lightfoot cites a 1971 book, The Politics of Disorder, by J. Lowi, a professor
of government at Cornell University,
which opined, "NEPA states a whole lot
of lofty sentiments . . . but there is no
law to be found anywhere in the act."
"To prevail in a challenge of the new
CEQ rules," Lightfoot reasons, "litigants
will have to establish the changes are inconsistent with a law forcing federal
agencies to alter environmental review
such that it no longer meets the statute
that professor Lowi describes as having
'no law to be found anywhere.'"
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AUGUST 2020 29

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American Oil and Gas Reporter - August 2020

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