Construction workers specializing in pipe-laying work on a section of pipeline on July 25, 2013, outside Watford City, North Dakota. (Andrew Burton | Getty Images)

A lawsuit before a North Dakota federal district court could upend nearly five decades of environmental regulations affecting infrastructure projects.

The Council on Environmental Quality was created by Congress in 1969 as part of the National Environmental Policy Act, which directs federal agencies to assess how projects under their jurisdiction will impact environmental factors like air and water quality. President Jimmy Carter gave the council the power to issue rules implementing the legislation in an executive order in 1977.

A coalition of 21 Republican-led states, including North Dakota, seeks to overturn a new regulation adopted by the council that took effect in July. The states argue that the rule introduces unreasonable requirements that will slow or even sink important infrastructure including new highways, airports, bridges and water systems, and unlawfully over-emphasizes climate change and environmental justice in the environmental review process.

In a lawsuit filed in May, the states asked the court to strike down the rule, direct the council to adopt regulations consistent with federal law and reinstate a weaker version the agency enacted during President Donald Trump’s administration in 2020.

A group of 13 other states, plus the District of Columbia, New York City and a handful of advocacy groups, have joined the case on the side of the Council on Environmental Quality. The defendants argue the agency’s work is vital to protect the environment and public health, and that the 2024 rule should be left in place.

It’s possible that neither side will get what it wants. In a November hearing, U.S. District Court Judge Daniel Traynor said the Council on Environmental Quality’s entire regulatory regime may be unlawful.

The U.S. Court of Appeals for the D.C. Circuit found in a November order that the agency does not have rulemaking authority because Congress never explicitly granted it the power to implement the National Environmental Policy Act. The appellate court did not strike down any of the council’s regulations, leaving it up to other courts to decide whether the rules should stand.

Traynor questioned how he could leave the regulations intact given the D.C. court’s findings. He said if he were to apply the court’s reasoning to the North Dakota case, he may conclude that all National Environmental Policy Act regulations passed by the council are void. The council issued its first rule implementing the act in 1978.

“If they have no authority, they have no authority,” Traynor said of the council. “It is a paper tiger.”

An attorney representing the Council on Environmental Quality, Gregory Cumming, rebuffed during the hearing the notion that the agency is operating without approval from Congress. The council keeps Congress apprised of its work with annual reports, he noted. If the assembly did not want the agency to pass rules, it could have passed legislation clarifying that stance, Cumming said.

Jan Hasselman — an attorney representing several advocacy groups that joined the case as defendants — said there’s a reason the council’s rulemaking authority has gone unquestioned for almost five decades.

“Nobody benefits when there’s no rules,” he told the judge. “It’s just sort of a mutually assured destruction.”

Traynor voiced skepticism that such a decision would create disarray. Even if the council’s rules disappear, other local and federal regulations would still be intact, he reasoned.

“It’s not like it becomes the wild west,” he said.

Traynor asked the plaintiffs and defense to prepare legal briefs explaining how they would be affected if he adopts the D.C. court’s reasoning.

The discussion came as part of a hearing on motions for summary judgment by the plaintiffs and defense. Both sides asked Traynor to decide the case in their favor without going to trial.

James Auslander, an attorney representing the plaintiff states, said the council is unlawfully and arbitrarily infringing on state sovereignty and the new rule will cause them significant economic harm.

“These are critical projects for plaintiff states and our citizens,” Auslander said.

Cumming argued the plaintiff states have not demonstrated that the new rule has actually harmed them, and that many of the components of the rule challenged as cumbersome are guidelines, not requirements.

Traynor took the motions under advisement and has yet to issue a ruling.

The 21 plaintiffs states are Iowa, North Dakota, South Dakota, Kentucky, Utah, Idaho, Wyoming, South Carolina, Kansas, Virginia, West Virginia, Tennessee, Arkansas, Florida, Georgia, Louisiana, Missouri, Montana, Nebraska, Texas and Alaska.

The 13 states that joined the defense as intervenors are California, Oregon, Washington, Massachusetts, Colorado, Michigan, Illinois, Maine, Maryland, New Jersey, New Mexico, New York and Wisconsin.

Update: This story was updated to correct that Congress established the Council on Environmental Quality and to clarify that President Jimmy Carter gave it rulemaking authority.

North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: info@northdakotamonitor.com. Follow North Dakota Monitor on Facebook and X.

Mandan, Hidatsa and Arikara Nation Chair Mark Fox, left, speaks with North Dakota Gov. Doug Burgum in Memorial Hall during a signing event for an alcohol tax revenue sharing agreement between the state and the MHA Nation on March 22, 2024. (Michael Achterling/North Dakota Monitor)

Mark Fox, chairman of the Mandan, Hidatsa and Arikara Nation, called Gov. Doug Burgum’s recent nomination for secretary of the Interior and National Energy Council chair a “match made in heaven” for North Dakota tribes.

President-elect Donald Trump announced his unique plans for Burgum on Friday. In the combined role, Burgum would not only lead the Department of the Interior — which includes the Bureau of Indian Affairs — but also wield power over all federal agencies that regulate energy.

Fox and other North Dakota and South Dakota tribal leaders welcomed the news.

Burgum, who first took office in 2016, is credited with improving North Dakota’s once-tenuous relationship with local tribes.

While in office, Burgum advocated for tax-sharing agreements with Native nations, added a permanent display of all five tribal flags outside the governor’s office and pushed for law enforcement partnerships to improve emergency response times on reservations.

“Governor Burgum understands Indian country and the challenges we face, such as the need for public safety, better tribal education, and economic development in Indian country, among other needs,” David Flute, former chair of the Sisseton Wahpeton Sioux Tribe, said Friday in a statement to the North Dakota Monitor. Flute is now secretary of the South Dakota Department of Tribal Relations.

Burgum will succeed Interior Secretary Deb Haaland of New Mexico, a member of the Pueblo of Laguna and the first Native American Cabinet secretary.

Tribal officials say Burgum could be a crucial ally in Washington.

“I would have been so disappointed had he not been appointed to a Cabinet position,” Fox said Friday.

Brad Hawk, executive director of North Dakota’s Indian Affairs Commission, said Burgum has a unique opportunity to reduce red tape for Native nations.

Hawk said he wasn’t familiar with every aspect of Haaland’s administration, but appreciated her department’s work investigating the history of federal Indian boarding schools and their impact on Native communities.

State Rep. Lisa Finley-DeVille, D-Mandaree, whose district includes Fort Berthold, recognized Burgum’s progress in establishing meaningful relationships with tribes, but said she worries about Trump administration policies.

“I hope that future Secretary Burgum remembers the trust and relationships that he’s built with North Dakota’s five Tribal Nations,” Finley-DeVille said in a statement. “My hope is that future Secretary Burgum will work collaboratively with tribes to ensure our voices are heard in decision-making processes. Together, we can address critical issues such as sustainable development, cultural preservation, and economic opportunity.”

Finley-DeVille added the Department of the Interior needs to protect tribal sovereignty, honor treaty rights, and ensure that development is conducted responsibly and with the full consultation of all impacted tribal nations.

Fox said Friday he’s hopeful Burgum will use his position in Washington to help create a friendlier regulatory environment for the MHA Nation and other oil-rich tribes. The MHA Nation is based on the Fort Berthold Reservation, home to nearly 3,000 active oil wells.

“We’re able to sit down and talk,” Fox, the MHA Nation chair, said of Burgum earlier this year. “That’s the key.”

Fox noted that in contrast, the MHA Nation has never gotten an audience with Haaland, despite several attempts to speak with her.

This past June, Burgum acknowledged at an event that relations between the state and tribes were at a low point when he took office in 2016. At the time, protests against the Dakota Access Pipeline in southern North Dakota were ongoing, involving thousands of demonstrators who flocked to the state to camp in solidarity with the Standing Rock Sioux Tribe in opposition to the pipeline.

Burgum said one of the first things he did as governor was reach out to Dave Archambault, chair of Standing Rock at the time, and offer to come meet with tribal leaders.

“That’s where we were starting from: with a commitment to each other to listen to each other,” Burgum said during this year’s Strengthening Government to Government conference, an annual event started under his leadership that brings together state and tribal leaders.

U.S. Sen. Kevin Cramer, R-N.D., said he thinks Burgum’s experience working with North Dakota tribal leaders makes him a good fit for leading Interior. He characterized the current BIA as unresponsive and bureaucratic.

“Doug has done more for Indian relations in North Dakota than any governor in my lifetime, for sure, and maybe ever,” Cramer said.

Michael Achterling contributed to this report.

North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: info@northdakotamonitor.com. Follow North Dakota Monitor on Facebook and X.