environmental impact statements
NEPA in the Supreme Court (Part IV)
Understanding how causation applies for NEPA reviews.
This functional approach is consistent with Supreme Court precedent, based on the text and purposes of NEPA, and provides workable guidelines for agencies to determine what kinds of effects to examine when conducting environmental reviews. It is the approach the Court should follow when deciding Seven Counties, and when giving guidance to lower courts and agencies about how to apply NEPA.
CONTINUE READINGThe 2023 NEPA Rewrite and the Supreme Court’s New Climate Case
NEPA isn’t a common law subject. What the statute says matters more than pre-2023 judicial opinions.
When it amended NEPA in 2023, Congress squarely rejected language that would have constricted the definition of environmental impacts. The Supreme Court needs to give that language full effect, not obsess about the meaning of pre-2023 judicial opinions.The Supreme Court shouldn’t give advocates of narrowing NEPA a victory that they were unable to get through the legislative process.
CONTINUE READINGWill the NEPA Amendments Speed Up Permitting?
Probably not much. If at all.
I’ve blogged quite a bit about the challenges of interpreting the NEPA amendments, which snuck through as part of last year’s debt ceiling bill. I haven’t said much about their impact. Given the amount of energy infrastructure we need to build in the near future, a streamlined permitting process would be great. Alas, I don’t …
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CONTINUE READINGThe Statutory EIS Process: A Primer
Last year, Congress tried to codify NEPA law. Here’s how the process is supposed to work.
Because NEPA’s discussion of environmental impact statements (EIS) was very brief, the requirements and procedures were elaborated by courts and guidance from a White House office. That changed in 2023, because much of the subject is now covered explicitly by new statutory language.. Thus, NEPA is a bit less of a “common law” subject than …
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CONTINUE READINGFinetuning the New NEPA Rules
CEQ’s proposal is good, but it could be made even better.
In Monday’s post, I praised the CEQ’s proposed new NEPA regulations. They should streamline the process without compromising protection of the environment or environmental justice. I do have some suggestions for improvement, however, which are detailed below. Beyond my specific suggestions, I also hope that CEQ would view the new NEPA regulations as the beginning …
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CONTINUE READINGThe NEPA Amendments in Nine Blog Posts
Surveying the legal problems of the biggest NEPA changes in the past fifty years.
On June 5, President Biden signed the debt ceiling bill, which provides the first significant rewrite of NEPA since it was passed over fifty years ago. In a series of blog posts, I’ve explored some of the legal issues raised by the amendments. My goal has been highlighting problem areas rather than providing anything like …
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CONTINUE READINGHaving the Fox Guard the Henhouse?
Delegating Environmental Reviews to Project Sponsors
One of the most important provisions, of the new NEPA law, § 107(f), allows the lead agency to delegate preparation of environmental reviews to project applicants. There are unsettled questions about when this provision applies and how it interfaces with other parts of NEPA. There are clear conflicts of interest in assigning this role to …
Continue reading “Having the Fox Guard the Henhouse?”
CONTINUE READINGCEQ and Permitting Reform
The enactment of NEPA 2.0 presents a golden opportunity for the agency.
In the recent debt ceiling law, Congress extensively revamped NEPA, the law governing environmental impact statements. An obscure White House agency, the Council on Environmental Quality (CEQ), will have the first opportunity to shape the interpretation of the new language. Much of the language in the new law is poorly drafted or vague, making CEQ’s …
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CONTINUE READINGThe New NEPA: A User’s Guide
The Debt Ceiling Law Rewrote NEPA. Here’s a map to the new statute.
The National Environmental Policy Act (NEPA) was passed over fifty years. It created a new tool for environmental protection, the environmental impact statements, It also created the White House Council on Environmental Quality (CEQ), which issued guidelines of implementing NEPA in 1978. Lawyers will need to retool quickly because of recent changes. Here’s a roadmap …
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CONTINUE READINGOn the Perils of Hasty Drafting
The Debt Ceiling Bill was written under intense time pressure. It shows!
Someone asked me how the new bill defines what kinds of projects have enough federal involvement to require an environmental assessment. I thought I knew the answer. But when I looked carefully at the bill’s language, I realized that it actually can’t mean what I thought it did. In fact, it’s so badly written that …
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