DENVER (CN) - A federal judge on Tuesday blocked the U.S. Forest Service from using the president's energy emergency order to shortcut the process for evaluating the environmental and cultural impact of a 226-mile transmission line through Nebraska.
"An agency failing to consider an important aspect of the problem and articulate a satisfactory explanation for its action, as Fish and Wildlife Service did here, is arbitrary or capricious, and a violation of the Administrative Procedure Act," wrote U.S. District Judge Nina Wang in a 30-page opinion.
Originally planned in 2012, the R-Project includes construction of an $835 million transmission line that stretches 226 miles across the Nebraska Sandhills, updating power infrastructure for the northern region of the state.
To facilitate construction, the Nebraska Public Power District obtained an incidental take permit from the U.S. Forest Service covering the impact of an endangered burying beetle.
In 2019, several environmental groups challenged the take permit under the Endangered Species Act, the National Environmental Policy Act, and the National Historic Preservation Act, obtaining an order from Senior U.S. District Judge William Martinez in 2020 vacating the permit and remanding the case to the federal agency.
On Jan. 20, 2025, President Donald Trump issued an executive order directing the federal government to "identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess, to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources."
While the nonprofits were engaged with the federal government in the administrative review process, Fish and Wildlife Service approved a request in January from Nebraska Public Power District to use Trump's executive order to fast-track the transmission line project in response to a "national energy emergency."
The Oregon-California Trails Association joined the Rosebud Sioux Tribe as well as local farmers and environmental groups in suing the U.S. Forest Service on March 3 opposing the transmission line project.
Together, the nonprofit plaintiffs seek to preserve the Emigrant Trails, including the Oregon, California and Mormon Trails, which settlers used to traverse the western U.S. in the 19th century.
Construction of the R-Project, the environmental groups argued in the complaint, "will slice through the fragile Nebraska Sandhills and irreversibly destroy many iconic tribal, historic and cultural landscapes, artifacts and resources."
Although the environmental groups attacked Trump's emergency order as "politically motivated" and "dubious," Wang found it self-sufficient, requiring no further evidence.
"The court thus finds that the president's declaration of a national energy emergency in the EO - and direction to all agencies to exercise any lawful emergency authorities available to them to facilitate the production, transportation, and generation of domestic energy resources - is sufficient on its own to trigger 800.12(b)," the Joe Biden appointee wrote, referring to an emergency review process.
Moreover, Wang wrote, the power to terminate a president's executive order lies with Congress, not the courts. In a similar vein, Wang found the Forest Service has the ability to determine whether the National Historic Preservation Act review process is more appropriate than the expedited emergency process. Even so, the federal government failed to show it work, the judge wrote.
"Nebraska Public Power District cites its own submissions and declarations to prove that the R-Project meets this requirement, but it does not point to any language in FWS's approval letter that even discusses whether the R-Project is an essential and immediate response to the declared emergency," Wang wrote.
"A review of the approval letter reveals that there was no such discussion at all. This means that FWS applied a regulation to the R-Project without analyzing whether the R-Project met the relevant regulatory requirements," Wang continued.
While the environmental groups asked the court to block the entire project from moving forward, Wang instead granted a narrowed injunction barring Fish and Wildlife Service from using the executive order to shortcut the National Historic Preservation Act's review process already underway.
The Nebraska Public Power District, which provides power to 530,000 people in 84 of the state's 93 counties also intervened in opposition of the injunction, estimating the delay would cost the utility more than $100 million.
Wang ordered the environmental groups to post $5,000 bond - far below the $100 million Nebraska requested - to cover part of the utility's damages.
"It would frustrate the purpose of the NHPA to require a large bond in this case, where petitioners have shown a likelihood of success on the merits, and a bond requirement effectively could preclude petitioners' request for review of administrative action," Wang wrote.
U.S. Attorney Garbiel Lopez represented the federal government and did not immediately respond to an inquiry for comment.
Attorney Riley Varner of Eubanks & Associates in D.C. represents the environment groups and declined to comment on the development.
Source: Courthouse News Service
