Is SCOTUS' Environmental Permitting Decision Historic? 'Maybe, Maybe Not'
The implications of a recent U.S. Supreme Court decision requiring judicial deference to agency environmental reviews of infrastructure projects remain unclear, experts said Wednesday, weeks after the ruling in Seven County Infrastructure Coalition v. Eagle County, Colorado. While the decision was unanimous, it had many twists and turns that make it difficult to know what its effect will be, panelists said during a Washington Legal Foundation webinar.
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The opinion came as the FCC examines a petition by CTIA (see 2505010019) asking the agency to launch a rulemaking to update its rules implementing the National Environmental Policy Act (NEPA). FCC Chairman Brendan Carr hailed the SCOTUS decision as the agency seeks to cut infrastructure red tape (see 2505290075).
Holland & Hart’s Christopher Thomas said the decision by Justice Brett Kavanaugh was unusually strong. “It was kind of an enjoyable read for those of us who have been frustrated with NEPA delays,” Thomas said. The opinion provided quotes similar to the cult classic The Big Lebowski, he said. “There are all sorts of parts in there that are fun to quote, depending on your perspective.” At the same time, the concurring opinion by Justice Sonia Sotomayor downplayed the implications, he said.
Mario Loyola, a research assistant professor at Florida International University, said the question companies ask is whether the decision is a “sea change” in how NEPA is interpreted. “I think the answer is maybe, and the maybe is that it depends on how lower courts are going to apply this case.” The concurrence “boils down to ‘nothing to see here,’” so “there is a possibility that lower courts will just say, ‘Yeah, there’s nothing to see here. This is how we have always understood NEPA,’” Loyola said: “Is it a historic decision? Maybe not, if the courts take Justice Sotomayor’s approach.”
Chad Whiteman, vice president of environment and regulatory affairs at the U.S. Chamber of Commerce, said the decision will “hopefully help right-size” the permitting process. NEPA has grown “to become something it wasn’t originally intended to be.” The time it takes to get through a NEPA process and the amount of analysis needed to “litigation-proof” a review have “really just ballooned with the thousands of cases that have been brought,” he said.
When NEPA is “overbroad,” it “impairs economic progress,” Whiteman added. “It increases the costs and our ability to build quality infrastructure.” The SCOTUS case also raised issues about the “major questions” doctrine, as federal agencies “claim all this authority to look at effects that are outside their statutory authority,” he said: NEPA can lead to agency “power grabs.” The Supreme Court has restricted the ability of federal agencies to issue rules that go beyond clear direction from Congress (see 2406280043) in areas that present “major questions.”