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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, Executive Director of EPIC, the Environmental Protection Information Center. And joining me is my friend and colleague, Melodie Meyer, Conservation Attorney at EPIC. All right. Mel, we are going to be talking about some litigation that you've worked on with a lawyer friend of ours of EPIC's, Jan Hasselman from Earthjustice. Jan, welcome to the show.

JAN HASSELMAN:

I'm so happy to be here. Thanks for the invitation.

WHEELER:

All right, so we're going to be talking about the collective attack by the conservative legal movement on one of the bedrock federal environmental laws, which is the National Environmental Policy Act, or NEPA. And so we'll probably call it NEPA most of the time in the show. That's how it's like, I think, pretty well collectively known as well, but it is the National Environmental Policy Act. So there you go. There's your acronym explainer.

Also, a disclaimer for us, this show is being recorded on February 12th. Given how fast and how reckless the Trump administration has been in dealing with executive orders and whatnot, things may change by the time you hear this show. Hopefully everything will remain current. And if it's not, I'll have an edit in the show notes on the Lost Coast Outpost. So Jan, NEPA is one of the bedrock environmental laws. EPIC has been using it since our founding in 1977. For those who may not be familiar with the law, tell us about it. What does it do? Sure.

HASSELMAN:

Let's just talk a little bit about this bedrock environmental law. We call it the the people's environmental law. It's built on a pretty simple premise. It does two things.

One is that it tries to infuse environmental values into every action that the government takes, so that whatever it is whether it's building a highway or permitting a pipeline or authorizing funding for something, they're at least thinking about the environmental implications of that, and with an eye towards being a trustee and a good steward of the environment for future generations. And that's pretty sweeping language to have in the law, the way that it implements that goal is by requiring federal government agencies to do some kind of environmental analysis before it takes action. In many cases it's called an Environmental Impact Statement, and the basic premise is that agencies should look before they leap -- that they should be informed by the environmental implications of their decisions before they make them.

Now, what's important about the law is that doesn't require them to make any particular decision. It just requires them to think about it and ultimately to be politically accountable for their decisions

WHEELER:

I teach environmental law at Cal Poly Humboldt. And one thing I often tell my students is it doesn't require us to make good decisions. It just requires the decision maker to know that the consequences of the decision. So you can have dumb, stupid, awful decisions being made, but at least there's going to be some degree of accountability. And it also offers an opportunity for us, the public to participate in projects, right?

You've probably received action alerts from EPIC or other organizations asking you to take action on, on some sort of a timber sale or whatever. That's likely going to be commenting on some sort of a NEPA document related to the project. So there is a role, there's a feedback mechanism that we, the people have in our government to tell them I like or dislike this thing that you are going to do. And sometimes that's the only time that we have an ability to tell decision makers in our government, our feelings, our thoughts about the direction of things.

Mel, I know you are in addition to being an attorney here at EPIC, you're also an enrolled member of a federally recognized tribe. There's also some degree to which NEPA interacts with, with tribes and tribal consultation. Can you talk a little bit about that?

MELODIE MEYER:

Yeah, so for the federal side, the government is, is required to have what's called government to government consultation with tribes. And this is under, I believe, Section 106 of the National Historic Preservation Act. And that kind of links up with NEPA, and forces the federal government to talk to tribes on the same level as federal agencies and think about what are the impacts to things like tribal cultural resources, how are tribes feeling about whatever federal action is happening. And it is usually triggered when an action or a project is occurring in tribal territory, which is defined through various regulations and informed by various federal statutes.

WHEELER:

So NEPA is one of these laws where Congress wasn't necessarily very clear. Congress will often write pretty broad laws that are to be interpreted by the executive branch, the president, and all of the administrative offices underneath the president. NEPA is like that. We have broad prescriptions within the law itself. But historically, we've relied on implementing regulations for NEPA to really give it substance and meaning. Jan, can you talk about some of the history of these implementing regulations? Because these are under attack right now.

HASSELMAN:

Absolutely. So you're quite right that language of the law enacted by Congress is pretty broad, pretty sweeping, and it's up to agencies to put pen to paper to help guide us through the exact specifics of what all that means. One of the things that NEPA did is it created a new entity, the Council on Environmental Equality, which is part of the White House, and gave it a role in overseeing and implementing this law among all the other agencies. And one of the things that arose out of that was in 1978, the council, we call it CEQ, sorry for all the acronyms, but CEQ issued a broad set of implementing regulations on how do you do this? How do you figure out what kinds of environmental effects should be included? What kind of actions are subject to NEPA? How do other agencies, how does the public participate and share their views? Because that's so crucial to getting good decisions.

And those regulations were sort of unique in the sense that they really stood the test of time. They were in place from 1978 to 2020 when the Trump administration in their first term rewrote them. And it won't surprise anyone to hear that they didn't amend them in a positive or helpful way. They did it in a way that would weaken NEPA by gutting judicial review, by weakening the requirements to think of effects, by cutting people out of the process.

WHEELER:

So, President Carter, who directed CEQ to create these regulations, of course, just passed. So, we had a show recently on Carter's environmental legacy. Go back and check that out on the Lost Coast Outpost. Carter had a pretty amazing environmental legacy that we should celebrate and remember after his passing. So we have these implementing regulations from the CEQ. The Trump administration gutted them with a new rulemaking in 2020. Of course, Biden became president after that. What happened to the Trump rules during the Biden administration?

HASSELMAN:

Sure. As soon as the Biden folks took over, they set out to undo some of that damage through a new rulemaking process. And these things, they take a fair amount of time. You have to involve the public, you have to provide notice and opportunity for comments. So this whole process took a long time. But the Biden administration did two things. First, they rolled back some of the worst harm that were imposed by the 2020 Trump rules. And then they refreshed and modernized the regulations to fit the times we're in. Back in 1978, climate change was not a topic that was fully understood or talked about commonly. And other concepts like environmental justice weren't in common parlance.

So the regulations updated them to ensure that agencies considered things like the impacts of their actions on climate change, the impacts on environmental justice and other vulnerable communities, things like ensuring that federal decisions incorporated indigenous knowledge, which is so crucial for many of our decisions. So in 2024, those regulations were adopted, displacing the Trump ones. And that was a really positive step forward for NEPA.

WHEELER:

So now in our story, we have good, good regulations back in place. Thanks to the Biden administration. Of course, given that this is America, someone had to take issue with this and file some sort of litigation, right? So this, this gets into the lawsuit that you and Melodie are a part of. Tell us what happened next.

HASSELMAN:

Sure. So not long after the Biden administration adopted these new updated rules, 20 states led by Republican attorneys general filed a lawsuit with a sweeping challenge to them. They they filed in front of a Trump appointed judge in Bismarck, North Dakota.

WHEELER:

I just want to point out that the lead plaintiff here is the state of Iowa. So one would think that the state of Iowa would file a lawsuit in the state of Iowa, right? No, North Dakota. I wonder why? Could they have been shopping for a more favorable judge? Sorry, continuing on.

HASSELMAN:

Yeah, right. So the primary focus of their challenge was that NEPA doesn't allow for consideration of things like environmental justice and climate change and indigenous knowledge and they called the regulations woke and all of this nonsense. Frankly, the case was dripping with racism and condescension towards these norms that we should involve people more in environmental problems or environmental concerns. So we intervened in the lawsuit on behalf of your organization and 20 others representing a really broad and diverse segment of the environmental community, environmental justice groups, climate groups, local groups and big national groups to defend these regulations. And so we went to court arguing that not only were these things lawful, they made a lot of sense. And in fact, the law already required agencies thinking about things like climate change and environmental justice when they do their analyses. But then that's not quite how it worked out. Things took a funny turn.

WHEELER:

Things did take a funny turn. Before we get there, Mel, maybe you can talk about some of the reasons why you wanted EPIC to be a part of this lawsuit. You have been deeply involved and have been my point person on this. So what's up with the new NIPA regs? What did you like about them? Why was it important for us to fight to protect them?

MEYER:

So like Jan said, the 2024 regs were not only restoring what the Trump administration had tried to take away from NEPA, but it was also making some strides to recognize these important areas of consideration like environmental justice and indigenous knowledge that can be really helpful when reviewing a project and trying to figure out what are the impacts and who should we be talking to?

And one of the things that really excited me about the regulations was the requirement for agencies to consider indigenous knowledge as one form of expertise that they're allowed to consider. And that would just give tribes and people with indigenous knowledge a big leg up in being able to get their voice on the same level as these decision makers and just kind of bring us into a modern vision of what environmental management and different projects should look like.

WHEELER:

Of course, if the Forest Service had been listening to the Karuk or the Hupa or Yurok decades ago, we wouldn't be in some of the mess that we're in now with fire exclusion and overly dense forests that are fire prone. So yeah, this is good for us to do. We should be listening to folks who have been living on this land since time immemorial. There's a unique perspective and wisdom that is inherent there. Okay, so back to the story. Jan, we are in the North Dakota District Court. They have a Republican attorneys general have brought a pretty racist lawsuit. We respond with brilliance, of course, but things don't always go our way. What what happens next?

HASSELMAN:

The colleagues and I were preparing to travel to Bismarck for the argument in this case and getting ready to make our best defense of NEPA when the D.C. Circuit came out, which is the appellate court covering Washington, D.C. It's sometimes likened to the second most important court in the land underneath the Supreme Court, came out with a very surprising opinion in a case where no one had raised the issue. But they said that CEQ never had authority to issue regulations in the first place. And that came as a big surprise because the whole United States government has been operating for 40 plus years under the assumption that these regulations were invalid. They've been cited by the Supreme Court a dozen times, in other courts literally thousands of times. And here is this opinion out of nowhere that says we don't think the CEQ ever had authority to issue those.

WHEELER:

You are listening to the Econews Report. We're talking about the National Environmental Policy Act, or NEPA, and the Trump administration's attempts to gut this bedrock federal environmental law. Can you explain the logic, if there is any, in that decision? Why would CEQ not have authority, according to this judge?

HASSELMAN:

Sure. Many times when Congress enacts a law, it is explicit about delegating authority to an agency to implement it in some way. So, for example, in the Clean Air Act, Congress says EPA is authorized to issue regulations setting healthy air quality standards or something like that. That kind of explicit language doesn't appear in NEPA. Rather, it creates CEQ and directs CEQ to perform a number of functions, which doesn't explicitly list issuing regulations. The regulations came from Carter's executive order back in 1977.

What's different, I think, is that after a while, when Congress acts as if the regulations are in effect for decades and decades, they're kind of acquiescing to the validity of the regulations. Stepping back, rules are a good thing. Nobody benefits when there's no rules because nobody knows what to do. Agencies don't know how to implement it. Courts don't know how to judge it. So there was kind of this shared understanding that let's all play by the same rule book. That worked just great until the D.C. Circuit rolled a hand grenade into the middle of things with this decision in a case where no one had challenged the rules.

WHEELER:

Yeah, a deeply weird decision. I remember this coming out and all of us kind of scratching our heads at what, what provoked this judge to go out here and do this thing. So, so a hand grenade has been rolled into the room. It's now exploded. What was the consequence of that case? The Marin Audubon case?

HASSELMAN:

Yeah, yeah. That case was the Marin Audubon Society versus the FAA, I think. So this, of course, was very interesting to our judge in North Dakota. Now, the plaintiffs in that case had never raised any questions about CEQ's authority. In fact, they didn't want to blow up the rules. They just want to go back to the set of rules that they like better, the ones that Trump issued in 2020. But the district court in North Dakota found the reasoning behind the D.C. Circuit's opinion compelling. And after an argument in which we went out to Bismarck in a blizzard and talked about all these issues, not just the environmental community intervened to defend the rules, but another 15 or so states, the blue states, intervened to defend Biden's rules as well. Our arguments didn't get us very far because a few weeks ago, the judge came out with a ruling basically agreeing that CEQ never had authority to issue the rules. And unlike the Marin Audubon court, he vacated them, meaning effectively he threw them in the trash. They're no longer in effect.

What's sort of ironic about it is that this doesn't mean there's no rules. It just means that the previous rules go back into force. Obviously, the logic, CEQ not having authority, extends to those rules too. But that's where we are today. We're back to the Trump-era rules.

WHEELER:

Well, so we have one case from the DC circuit that blew up the CEQ, and now we have this other case, which returns us to the 2020 rules. And now we have a third thing to contend with. So Trump recently issued an executive order, and the title of the executive order is something dumb like American energy crisis, blah, blah, blah, like expanding American energy resources. And within it, there was something that spoke to the ability of the CEQ to issue regulations or directed the CEQ to do something. Can you tell us about that?

HASSELMAN:

Sure, yeah, this was this was day one of the Trump White House frenzy of executive orders it was unleashing American energy and it spoke to a dominance and all these aggressive male kind of implications for for energy dominance So yeah, one of the things that it did as part of this sweeping ordered on energy was to revoke the 1977 Carter era executive order, which was the foundation for The CEQ rules and it it ordered CEQ to revoke the rules all of them not just favored versus disfavored It ordered seek you to revoke all the rules within 30 days. So by the time this show airs will know what they've done on that. Even though there there are no political appointments yet to the CEQ.

I think what it all means is that we're heading to chaos, which seems to be the signature strategy of this administration in this case. I don't think chaos helps anybody. It doesn't help industry or entities that want to get things permitted. It certainly doesn't help us and and communities and people that want to have their concerns heard. What it means is that there's no rules and no standards and it's just going to be a Wild West Because here's the thing: The law is still the law. Trump can't repeal the National Environmental Policy Act. It still requires agencies to consider the impacts of their actions through an environmental impact statement and the rules issued by CEQ have helped everybody figure out what that means. But if the rules are gone, who knows?

WHEELER:

Yeah. So, so we're in this weird place. We, we don't know what the rules are or will be that. That will leave judges in a strange place because invariably, let's say the forest service is going to come through and they're going to try to do a timber sale and there you will need to do some sort of environmental analysis as it's a major federal action subject to NEPA. And if I'm a judge in the Northern district court of California and I'm have a case before me, I don't know, I don't know what to apply. I'm not sure what will be meaningful. So, so as an environmental practitioner, what are your thoughts in this kind of like interregnum period? How, how are you approaching NEPA cases? What, what is the law as you understand it at this moment?

HASSELMAN:

Yeah, things are just going to be fluid for a little while. But I think that we, our communities, our partners, need to keep our eye on first principles. And the first principles are that informed decisions are good decisions. That the way you get to a good decision is by engaging communities, by talking to people who care, by thinking about their concerns, and making decisions in light of them. We should never stop standing up for that principle and participating in decisions and making our voices heard. Now, if the administration wants to blow us off, as they've indicated that they're likely to do, we'll stand up and fight for those principles and we'll fight in court. And like I've been indicating, I don't think a world in which there's no rules serves them any better than us. I think what they're promising is chaos and delay. If they really cared about getting projects done and implemented and put on the ground, they would have good rules, they would have good NEPA processes, they would come talk to people that are affected. So we're going to keep fighting for that.

WHEELER:

So we are in this terrible period where a lot of the things that we depend on like NEPA are being rolled back. And it's the beginning of at least two hard years of, of executive actions from the Trump administration or legislative actions. What's, what's your strategy? What's earth justices plan for what comes next? How do we get back to having good objective rules to implement NEPA and satisfy our needs for environmental information and democracy and public participation in decision-making? What's the next step?

HASSELMAN:

Well, one thing that I think is going to be important is that we need to build political support for this law. And you've rightly pointed at the Trump administration and Republicans, but listen, the Democrats don't have clean hands on this either. There are a number of Democrats that are more than willing to throw NEPA under the bus, use it as a bargaining chip for political gain. There's a narrative out there that NEPA slows down clean energy projects, and I haven't seen that to be true. And if it is, then we can find ways of dealing with that. But the fact remains that it's difficult to explain to lots of people about why environmental reviews are important. People get clean air and clean water and endangered species and things like that. Environmental reviews are a little more abstract.

So I think we need to help our folks in Congress understand that this law means a lot to people, that it results in better decisions. So we should be doing some of that work. I think that's going to be critical. And with respect to this administration, yeah, we're just fighting defense. There's nothing we can do to persuade these folks. It might be interesting to see what happens if the fossil fuel industry and the timber industry start coming in and saying, gosh, can you put those rules back? Everything is getting hung up. Everything's getting sued over. This is a chaotic mess. So I think we need to broaden support for these principles and hopefully get into a political place where we can make some of that real on the ground.

WHEELER:

Well, I think we're at this stage and because this is radio, I will rephrase it as the mess around and find out stage. I feel like we need to find out, right? The Trump administration has messed around and we need in part, maybe to feel some consequences of this destructive behavior. If we're taking swipes at the rule of law at having kind of a, an understandable uniform body of law, as you said, it might be nice for the timber and oil industries and other extractive industries to feel some sort of pain as a result of this. And perhaps that is the way that we end up solidifying back around restoring some kind of robust NEPA is that it, it had its problems perhaps, but it also had its benefits and the benefits probably outweighed the problems.

HASSELMAN:

I think that's absolutely right, and one of the other hallmarks of this administration, besides chaos, is their incompetence. And we saw that last time, and I expect we'll see it again. I'll give you an example. If an agency has an environmental impact statement that they've been working on, and they decide to rip out the pages on environmental justice and climate, for the lawyers, that's shooting fish in a barrel. That's an easy target for us. Because the law still requires that they think about those things, even if there isn't any rulebook.

WHEELER:

Unfortunately, we're running out of time, but I want to thank you and thank Earth Justice because you are some of our critical partners. I'm sure in the next four years, there will be a number of lawsuits that we filed together to try to preserve and protect our wild places and wildlife. So thank you for the work that you do and for the work that your organization does. It's really critical.

HASSELMAN:

Honored to be your lawyer on this, Tom and Melodie, and an honor to be on your show.

WHEELER:

Well, join us again next week on this time and channel for more environmental news from the North Coast of California.