NEPA Case Lawyer: SCOTUS Decision Will Likely Have Broad Impact
The U.S. Supreme Court’s decision limiting the scope of environmental reviews in Seven County Infrastructure Coalition v. Eagle County, Colorado is very broad in its impact, said Venable’s Jay Johnson, who represented the coalition in the case. The decision (see 2506180059) doesn’t apply only to National Environmental Policy Act (NEPA) enforcement in regard to new railroad projects, “this applies to NEPA as a whole,” Johnson said during an Incompas webinar Thursday. “The court made that exceptionally clear.”
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SCOTUS “recognized not just a problem with an 88-mile rail line in Utah,” but with how “NEPA has been operating for the last 25 years,” Johnson said. “It’s essentially the Supreme Court saying that because of NEPA, fewer projects make it to the finish line.” Companies “just get bogged down in NEPA forever, and either the project runs out of money or the agency runs out the clock.” Because of the money and time required to address NEPA, some projects are never launched, he said. SCOTUS “says that’s not how it should be."
The FCC and other federal agencies have moved quickly on new NEPA procedures, addressing the act in similar ways, Johnson said. FCC commissioners are scheduled to vote Thursday on a draft NPRM on the agency's NEPA rules (see 2507170048).
There’s more emphasis on “categorical exclusions” for projects that don’t require review, Johnson said, as well as stricter limits on the size of reports and time allowed for environmental assessments. There’s also more focus on the project itself and its specific effects on the environment, he said. “You don’t have to go downstream, upstream, down line.”
But Johnson also cautioned that it often takes years for SCOTUS decisions to affect how regulation works in the field. “What the Supreme Court says doesn’t automatically become reality on the ground,” he said. “You’re going to see people … saying ‘this isn’t exactly like Seven County, so Seven County doesn’t apply.’” SCOTUS can’t keep people from suing, “it can only change how those lawsuits are evaluated,” he added.