Weighing the permitting reform bill

A summary of what I think the main changes to enviro law are, and the risks of uncertainty in how it is applied

Based on the manager’s amendment, and assessing the bill as it stands, here is my key summary of what I think the major components of Titles I through IV do overall:

• Eliminate supplemental NEPA based on new information (though it is retained for changes in projects).
• Narrow alternatives to be considered under NEPA where there is a project sponsor with specific goals
• Eliminate NEPA on tribal lands (unless the tribe opposes the project)
• Allow greater use of state or Tribal environmental review documents, and other federal agency decisionmaking processes
• Allows CEQ to override any and all interagency procedural requirements, without judicial review
• Excludes a greater range of projects from NEPA altogether, including projects with relatively small federal monetary contributions.
• Strict timeframes for completion of NEPA and other review processes
• Streamlined litigation relief processes for project applicants facing delays
• Limits remedies for NEPA lawsuits to remand, unless there is a violation of another law and irreparable harm (and even that is temporary).
• Strict timeframes for state review of Section 401 certification under the CWA
• Requires certification conditions to be narrowly tailored to protect water quality standards (but probably retains state power to use the process to maintain minimum stream flows)
• Requires maintenance of a range of existing general permits for Section 404 under the CWA, and makes it easier to expand or add new general permits.
• Eliminates the ability for EPA to retroactively veto granted Army Corps 404 permits
• Limits remedies for lawsuits enforcing Section 404 to where there is “imminent and substantial” harm
• Creates the first broad exemption from the ESA (for projects in rights-of-way)
• Allows states to take over Section 7 consultation under the ESA (but maintains existing standards for judicial review of that process)
• Allows permit holders to sue and gain damages and injunctive relief (including punitive damages for bad faith) if a permit is revoked or altered or agencies interferes with “operation at normal capacity” of a project, with agency able to defend based on enforcement or application of laws or regulations, or “immediate, specific, urgent, substantial, and proximate harm or damage to life, property, human health, the environment, national security, or defense”
• Allows permit applicants to sue and gain damages, injunctive relief, and punitive damages, where the project was denied or delayed improperly, and the applicant can show that project type saw a “substantial” increase in denial or delay compared to the past ten years, and those past denials or delays were not legal.

The tradeoff is that these changes open the door to the expanded federal role in transmission planning and permitting.

Is that deal worth it?  I’m still undecided.  Others will weigh those tradeoffs differently.  However, I’ll note the main concern I have is about the uncertainty in how this bill will be interpreted by the courts.  I just taught Sackett v. EPA (which dramatically shrank the scope of Section 404 regulatory authority), and it is a master class in how textualism can be used to creatively interpret a statutory provision in ways that one might not predict, helped along with the creative use of a range of interpretative canons.  That is what worries me – there are lots of undefined terms, lots of wiggle room, lots of provisions that might be seized on by a conservative district court, appeals court, or the Supreme Court, to fundamentally rewrite whole swaths of environmental law.  Some of the managers amendments do well to address some of the concerns.  But I keep finding new areas where issues might come up.  Are those risks worth the hope(?) or likelihood that the transmission provisions help produce significant emissions reductions?  (For reasons I’ve written earlier, I’m skeptical the permit certainty provisions would constrain this Administration, and the amendments probably make them weaker overall, so I don’t see those provisions as a game changer in terms of outcomes for renewable energy.)

Clean Water Act, ESA, NEPA, permitting reform