CONTRIBUTOR
The Biden administration communicated about changes to a landmark environmental law with a major eco-group that is suing the federal government over the law in question, emails obtained by the Functional Government Initiative (FGI) and shared exclusively with the Daily Caller News Foundation show.
The emails, exchanged in May 2021, show that Kristen Boyles, a managing attorney for Earthjustice, contacted the Department of Justice (DOJ) to request information about the White House Council on Environmental Quality’s (CEQ) forthcoming rulemakings on the National Environmental Policy Act (NEPA), a decades-old environmental law. The communications occurred as Earthjustice was suing the Biden administration in an ongoing NEPA lawsuit and show that President Joe Biden’s CEQ was willing to provide at least some information.
At the time of these communications, the Biden administration had not yet made public its specific proposal for the NEPA rulemakings. The administration published the new rules in the Federal Register in October 2021.
“These emails certainly raise suspicions that there is some inappropriate conduct by the DOJ lawyer,” Steve Milloy, a senior legal fellow for the Energy and Environment Legal Institute, told the DCNF. “That the information being privately provided to Earthjustice is then redacted in the FOIA request makes the exchange doubly suspicious.”
NEPA has been one of the most important and contentious environmental laws on the books. Former President Richard Nixon signed it into law in 1970. The law dictates how federal agencies must assess potential ecological impacts of major projects, like new highways, according to the Environmental Protection Agency.
NEPA is also the most frequently-litigated federal environmental statute, according to the Congressional Research Service. Environmental groups often use NEPA lawsuits as a way to hold up energy projects they oppose.
The Trump CEQ modernized NEPA to make it easier to build infrastructure projects in July 2020, reducing the rule’s complexity and its vulnerability to excessive litigation. Earthjustice filed a lawsuit that same month, alleging that the Trump CEQ had illegally overhauled the statute. (RELATED: ‘Sue And Settle’: Biden Admin Agrees To Block Oil And Gas Drilling After Settling With Eco Activists)
Earthjustice Emails by Nick Pope
The emails show that Biden DOJ officials passed along Earthjustice’s questions to CEQ regarding specific aspects of its plans for NEPA rulemakings. The emails also show that CEQ officials were willing to provide at least some of the information that Earthjustice requested. Further, some of the DOJ officials included in the correspondence were also involved in Earthjustice’s NEPA lawsuit against CEQ.
Notably, the government redacted the relevant sections of the communications, citing (b)(5) exemptions. Therefore, it is not possible to decipher the specific information that CEQ was willing to provide to Earthjustice.
A (b)(5) exemption covers “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency,” according to the National Archives. Effectively, the (b)(5) redaction exempts the government from having to disclose its own internal “deliberations about application of law to specific factual scenarios,” according to the DOJ.
“Thank you for convening the conference call today and giving us the information about CEQ’s plans for 3 NEPA rulemakings,” Earthjustice’s Boyles wrote on May 25, 2021, to Clare Boronow, the DOC attorney serving as the government’s counsel in the NEPA lawsuit.
“I’m hoping you can convey our thanks to CEQ and also our request for details about the second and third rulemakings, as those are going to be very important for our clients to decide how to proceed in the litigation,” Boyles wrote to Boronow. “Particularly for the second rulemaking, the parts of the 2020 Regs that CEQ wants to address more quickly, details of what parts of the 2020 Regs will or will not be addressed, repealed or re-instated.”
Boyles copied Gregory Cumming, a DOJ counsel working on the concurrent NEPA case, according to court documents. The DOJ officials then relayed her request to bureaucrats working in the CEQ, who then responded with redacted information that they were “open to providing.”
The next day, Bonorow forwarded Boyles’ message to the CEQ’s Amy Coyle and Justin Pidot, asking if “CEQ is in a position to provide that information.” Coyle responded later that day, outlining what CEQ was willing to provide in response. However, the section of Coyle’s message that would reveal what information CEQ provided was redacted under a (b)(5) exemption.
“Earthjustice is getting inside information in so-called litigation against the government with DOJ’s assistance and apparently participating in CEQ’s rulemaking on matters of national significance, all outside of the public eye,” Pete McGinniss, a spokesman for FGI, said of his organization’s discovery.
The Biden administration had been working for months to effectively undo the Trump CEQ’s moves to streamline NEPA, and ultimately reversed many Trump administration reforms. The Biden CEQ finalized “phase one” of its NEPA rulemaking in April 2022.
Earthjustice applauded the announcement, and encouraged the Biden administration to go further in subsequent rulemakings.
In July 2023, the administration proposed a “phase two” NEPA rulemaking that would bolster the statute to more strongly consider “environmental justice” implications and greater community input, which Earthjustice also commended.
On May 27, 2021, Pidot forwarded more follow-up questions from DOJ to CEQ Chief of Staff Matt Lee-Ashley and Jayni Hein, who also worked for the Biden CEQ at the time. It is unclear what information was relayed in response, as the relevant sections were again redacted under a (b)(5) exemption.
While neither Pidot nor Hein appear to have been directly involved in the NEPA lawsuit, Lee-Ashley submitted an affidavit on June 3, 2021, several weeks after the emails had been exchanged.
“That’s a lot of cheek to claim deliberative process privilege to hide a thread which also happens to reveal a call about disclosing the administration’s deliberative process. With an extant litigant, about its litigation no less,” Chris Horner, a practicing attorney with an extensive background in environmental litigation, told the DCNF about the messages and the government’s justification for redacting crucial parts of the emails.
“Still, if I didn’t know better I would suspect there are two standards in applying the law. Shrug it off for friends—that’s what phone calls are for!— and, to the disfavored, indignantly declare the law to be a sacred shield,” Horner said.
The DOJ declined to comment, referring the DCNF to the CEQ regarding NEPA lawsuit questions. The CEQ and Earthjustice did not respond to requests for comment.
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