We recently reported how ranchers in the Sand Hills of northern Nebraska had lost their fight against a 226-mile electric transmission line across their region.
Now a federal judge ruled against how the project was fast-tracked by the U.S. Forest Service when it used President Trump’s energy emergency order to shortcut the process for evaluating the environmental and cultural impact of the line.
“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, reported Courthouse News Service.
The approval of the project had been legally challenged in a federal lawsuit: Civil Action No. 26-cv-00862-NYW-SBP
OREGON-CALIFORNIA TRAILS ASSOCIATION,
ROSEBUD SIOUX TRIBE,
WESTERN NEBRASKA RESOURCES COUNCIL,
PRESERVE THE SANDHILLS, LLC,
WHITETAIL FARMS EAST, LLC, and
HORSESHOE BAR RANCH, LLC,
The 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.”
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.
