Upcoming federal appeals court battles will reset the rules for environmental reviews of major projects such as power plants and highways, and the historic Virginia state built to educate black children during the Jim Crow era. It may decide the fate of the school.
The Army Corps of Engineers is considering a permit to build a “great landfill” within 1,000 feet of the former Pine Grove Elementary School in Cumberland County, Virginia, so it will have more data on the health and cultural impacts of this project. may depend on whether or not you consider Reviewing the requirements of a review of the National Environmental Policy Act that dates back to 1978, he said of his adherence to Trump-era rules (critics would say watered down) in 2020.
Trump NEPA The rule will be scrutinized Wednesday when Wild Virginia and other environmental groups will challenge the White House Council on Environmental Quality in the Fourth US Court of Appeals for the Circuit.
Kale Jaffe, a law professor at the University of Virginia, said, “The changing landscape of CEQ regulations and how the Army Corps of Engineers should or should not do what the Pine Grove project is doing. It has become difficult to monitor whether .
Former Pine Grove students and their descendants are working to preserve the two-room school as a cultural center. In a public comment, he asked the Army Corps to conduct a more thorough analysis of the landfill’s impact. We accept 5,000 tons of waste per day, 6 days a week.
“We are abiding by current NEPA regulations,” War Department spokesperson Breeana Harris said in an email. In lieu of a more robust and detailed environmental impact statement, we may decide to conduct an environmental assessment of the proposed landfill site near Pine Grove School.
The NEPA analysis is “kind of like a radar screen,” said Jaffe, who wrote a “Friends of the Court” brief from Pine Grove School supporters, adding that the environment to keep challenging Trump’s NEPA rules. He said he supports the lawsuits from conservation groups.
“It shows us what’s coming in and what’s going on,” he said. “And watering down the regulations under NEPA darkens the radar screen.”
The issue before the Fourth Circuit on Wednesday is narrow. Now that President Joe Biden’s White House is drafting new standards, are environmental groups eligible to sue Trump’s NEPA rules?
For Kim Mayer, an attorney at the Southern Environmental Law Center who speaks on behalf of environmental challengers, the answer to whether her clients are still harmed by the 2020 rules is overwhelming. It is “Jesus”.
Despite CEQ’s assurances that the Trump administration will change its approach, the Biden administration has only completed the first of two stages of new rulemaking, she said. The first phase failed to fully address environmentalist concerns, Meyer said, and a proposal for a second phase of rulemaking is now months behind schedule.
Without the proposed Phase 2 rules, she said, environmental groups weren’t sure if CEQ planned to undo the remaining changes issued under former President Donald Trump.
“Until we see a Phase 2 rule that resolves all issues with Trump’s regulation, we will have to continue to challenge this in court,” Meyer said.
The Biden administration has argued that the lawsuit over Trump rules should be dismissed now that the CEQ is working to finalize its own amendments.The agency completed phase 1 of rulemaking in April, The regulation came into force in May.
The first phase of the rulemaking would “defeat” environmental group lawsuits over Trump’s regulations, CEQ said in court documents. The agency said the group could still challenge individual projects approved under Trump’s rules.
If the Court of Appeals for the Fourth Circuit agrees with the environmentalists’ arguments, the case will move forward to a federal district judge who has already been fully briefed and heard oral argument. Lower courts may rule fairly quickly on the content of environmental groups’ claims, Meyer said.
She said their case is stronger now than it was when they argued before Judge James Jones of the U.S. District Court for the Western District of Virginia during the first few weeks of the Biden administration.
“I think he was expecting … that the administration would come in and they’d handle this and there’s really nothing for us to worry about,” Mayer said.
“But now, two years later, it’s clear that’s not happening,” she added. “At least, not yet.”
preservation of history
Pine Grove School was built as part of the Rosenwald School Initiative, which began in the early 20th century in partnership with Booker T. Washington. Tuskegee Institute. Julius Rosenwald, philanthropist and president of Sears, Roebuck.
Jaffe of the University of Virginia said, “The idea was to design and fund the construction of schools for black schoolchildren throughout the Southeast at a time when public schools were banned due to the Jim Crow crackdown. It was intended to provide.”
Rosenwald schools played an important role in educating black children in the South after the Civil War, but the National Trust, which in 2021 listed Pine Grove School as one of the nation’s Historic Preservations Only a few buildings remain today, according to the Four Historical Preservation. “11 Most Endangered Historic Sites”.
The Trust estimates that of the more than 5,000 schools, shops and teacher’s homes built between 1917 and 1932, only about 10-12% remain today.
Since the Pine Grove school closed in 1964, former students and their families have worked to preserve the building as a cultural center, but plans to build the Green Ridge Recycling and Disposal Landfill will end those efforts. is being hindered, said Jaffe.
Landfills across the Pine River from the school surround the building on both sides. The Pine Grove Road leading to the school will be demolished and relocated under the developer’s proposal, he said.
School supporters want the Army Corps to gather more information about the proposed landfill after discovering numerous health effects from the project in an analysis submitted to the agency by a University of Virginia student. I’m here.
The original 1978 NEPA rule allowed the Army to refuse to pursue further data only if it deemed the cost of collecting that information “prohibitive.”
But Trump’s rules imposed lower standards for excluding data, requiring agencies only to demonstrate that collecting additional information would incur an “unreasonable” cost.
“Whether they need to get together [the information] Whether it applies may depend on applicable regulations,” Jaffe said.
Other changes to the rules are also a concern for other groups that have filed lawsuits to undo Trump’s rules. Susan Jane Brown, a staff attorney at the Western Center for Environmental Law, is involved in another lawsuit against her NEPA rules that is currently pending in federal district court in Northern California.
Like the Pine Grove School supporters, the Western Center for Environmental Law has expressed concern about the Trump administration’s changes to requirements regarding when agencies must draft environmental impact statements.
The 2020 rule eliminated most of the 10 “key factors” that set out the specific conditions under which an agency should proceed with a more thorough NEPA review, Brown said.
Opponents of the Dakota Access Oil Pipeline, for example, rely on the condition that the project is “highly controversial,” argued in a federal appeals court that Army units should have completed a more detailed NEPA analysis. I succeeded. That factor could not be considered under Trump’s NEPA rules.
Brown noted that her colleague had successfully argued the case that a government agency should finalize an environmental impact statement based on one of these key factors. But once the decision was sent back to authorities, it was operating under a new set of Trump-era rules that no longer required deeper analysis.
One problem, Brown said, is that Trump’s regulations give government agencies the choice of which rules to follow.
“This is where things get confusing,” says Brown. “The authorities were not clear and did not specifically state under which regulation they were proceeding. So it is completely obscure for anyone.”
Another issue, she said, is that the 2020 rules have removed the definition of cumulative impact for projects. This has been a major cause of lawsuits aimed at curbing the climate and other environmental impacts of oil and gas infrastructure.
“We still need [the Trump] We need to do away with the rules somehow,” said Brown.
This could be accomplished by a Fourth Circuit ruling allowing the Southern Environmental Law Center case to proceed in federal district court in Virginia, or by reviving another lawsuit against Trump’s NEPA overhaul, she said. said.
Alternatively, it’s possible that “CEQ has issued rules that revert to a similar stance to the 1978 regulations, perhaps with some improvements,” Brown said.
Biden era
Meyer of the Southern Center for Environmental Law noted that the CEQ itself has stopped defending Trump’s NEPA overhaul now that the Biden administration has begun working on its own revisions to the rules.
Changes include returning to the 1978 definition of a project’s “purpose and need”. That section of the NEPA review outlines why the project is being built and addresses reasonable design alternatives.
Biden’s amendment also removed a provision in the 2020 rule, which stated that no agency could conduct a more stringent review than outlined in the CEQ rule. Finally, Phase 1 rules reverted to their previous definitions of direct and indirect impacts and cumulative impacts.
Trade groups representing the oil and gas industry, along with road builders, the Department of Agriculture and the U.S. Chamber of Commerce, back Trump’s rule, arguing that environmental groups have no right to challenge it. Despite submitting nearly 1,000 pages of court documents, critics “failed to prove a single actual or specific harm they would suffer as a result of the 2020 rule,” said an energy industry lawyer. is written in a short form.
Instead, the attorney said, the complainant “reflected unsubstantiated speculation and offered only vague concerns about possible future events.”
Oil and gas industry attorneys said the Trump rule clarified the appropriate scope for NEPA reviews, “facilitated the coordination of reviews involving multiple agencies,” and identified review pages and time limits.
However, they added: To say otherwise is to speculate that with unknown future federal actions, unknown agencies will make unknown choices about projects.Rules of 2020.
Industry lawyers described the environmentalist claims for Trump’s overhaul of NEPA as “just like the ‘weakened chain’ of possibilities that this court and the Supreme Court have held over and over again.” , I can’t support it.”
However, Meyer of the Southern Center for Environmental Law stressed the importance of returning to the existing NEPA implementation standards that had been in place for decades before Trump came to power.
“It is very important to have a clear legal ruling on the fact that the enactment of this rule was not legally made and the rule is not a legal rule,” Meyer said. .
“If CEQ wants to make changes on its own, it will have to make changes from the base points of the 1978 regulation,” Meyer added.
The Fourth Circuit will hear oral argument at 9:30 am Wednesday.
This story also appeared climate wire.
