How about just getting rid of the private right of action in connection with environmental reviews? Once the agencies give their approvals, maybe only governments at the appropriate should bring cases against it.
Perhaps the solution is to have a time limit on injunctions, but also some kind of mechanism to encourage a judge to simply say NO rather than endlessly vacillate for more review. Like, if construction is going to be blocked for environmental reasons then make the decision fast (by the standards of government) so everybody can know the project is not going to happen and go on investing their money somewhere else. Don't send it back for more review, make a firm decision it's not going to happen.
Why doesn’t this article so much as summarize the basis for the objection? The legal standard under which that objection is being considered/upheld? All this says is “the process is broken.” Maybe the process is working, it’s just not producing the one outcome you are seeking. I can’t say because you don’t engage with the substance.
Why bother lol. If Congress passed a time limit, the judiciary would simply find that uNcOnStItUtIoNaL via a novel reading of the Constitution. They would magically discover that any attempt by Congress to limit their powers has been forbidden by the Constitution this entire time, it's just that no one had ever noticed this restriction in the last couple hundred years.
Getting pretty cynical about the amount of power the judiciary has in modern-day America, and what it's going to take to change that
Every comment here, as usual, will insist that the people behind this litigation are motivated by personal evil rather than do to sincere, if misguided, desire to protect undeveloped space. That fact is not remotely considered in this piece. Just like everyone who opposes the giant solar farm in southeastern California says "NIMBY NIMBY NIMBY," despite the fact that that project is going to desctroy vast acreage of unspoiled woodlands and push multiple species into literal extinction. You might say that's worth the benefits. But nobody ever makes an actual argument and LEGITIMATE DISAGREEMENTS, because this whole "just built" thing has become a self righteous crusade where you elevate yourself socially by pretending there are no costs to what you want to do.
Which is, incidentally, completely in conflict with Yglesias's usual approach to politics, when it isn't one of his pet issues.
What I've learned in life is that when interminable litigation stalls a project you're in favor of, that's bad, and that when it stalls a project you're against, that's good.
I would find this essay more compelling if the example they used was not Cardinal-Hickory but some landfill needed because current ones were overflowing.
But we should also be exempting clean energy projects and housing projects from environmental. Basically, projects that address a crisis in this country need to be fast tracked.
A time limit on injunctions doesn't seem to answer the mail? In my experience, it's almost never the case that folks wait long after the ROD to sue, because the Court is really unlikely (see DAPL) to order removal or shutdown of infrastructure once its constructed. They want to stop construction from beginning. Even if it did accelerate litigation filing, litigation itself takes a LONG time.
This may have some effect on legal challenges which lose, but the exemplar case is a legal challenge which succeeded. A court looked at it and decided there was something arbitrary and capricious, or contrary to law in the (I'm guessing 1000+ pages?) EIS. Because once you're doing an EIS, there are so many factors and so much analysis that finding something where you can get a judge to agree that the agencies got it wrong is pretty likely.
My dream solution would be to remove this from courts at all. Strip courts of jurisdiction and move the whole thing into an internal EPA process. Create internal processes for review and appeal, with all of it handled by subject matter experts with a big picture view of the nations whole environmental policy. Judges aren’t experts on the subject and are too focused on the hyper specifics on one case
If the proposal here is to pass a law to generally limit environmental review process, the lawmakers can simply carve out this project (and others like it in the future) to undergo a separate environmental review in a process set forth by the legislature in their proposed statute.
It also sounds to me that putting a time limit on injunctions will enable public agencies to run out the clock. Not necessarily a bad thing, but also not consistent with the spirit of environmental review, nor the judge's injunction. It's gonna piss people off.
Why does this piece not even try to address the substance of the claim against the project, i.e. that it's to be built across the Upper Mississippi River National Wildlife and Fish Refuge? Is it just assumed that we're not supposed to give a crap about this concern, and to treat the plaintiffs in the suit as moron hippies? This reads like a Robert Moses press release, not a good faith attempt to persuade anyone who isn't already (ideologically) decided. Maybe I could understand, if it's patiently explained to me that we can't have everything, and that hard decisions need to be made with longer term priorities in mind, and that this is one case in which the benefits are substantially greater than the losses. Maybe then I could consider it...but there's no acknowledgement that there might be good reasons not to hang the entirety of current federal clean energy policy on a fulcrum like "Fundamentally, the energy transition depends on convincing investors." Perhaps convincing other people who don't share your opinions on a case by case basis may just prove more important to the strategic goals of clean energy supporters than urging (even more) Congressional action meant to assuage the animal spirits of investors, and perhaps that's as it should be.
I think the whole injunction process needs reforming - I don’t think some arbitrary deadline is workable or would achieve that. It just creates other incentives for other parties to try to run out the clock to hit the deadline.
Probably stupid question on my part, but why do the lawsuits have to halt the project? Why couldn't it just be that if somebody can prove damages, they're entitled to compensation. Why does the project have to stop?
How about just getting rid of the private right of action in connection with environmental reviews? Once the agencies give their approvals, maybe only governments at the appropriate should bring cases against it.
Perhaps the solution is to have a time limit on injunctions, but also some kind of mechanism to encourage a judge to simply say NO rather than endlessly vacillate for more review. Like, if construction is going to be blocked for environmental reasons then make the decision fast (by the standards of government) so everybody can know the project is not going to happen and go on investing their money somewhere else. Don't send it back for more review, make a firm decision it's not going to happen.
We must eliminate the overuse of the word "must" in mildly opinionated headlines where the writer really means "should".
Why doesn’t this article so much as summarize the basis for the objection? The legal standard under which that objection is being considered/upheld? All this says is “the process is broken.” Maybe the process is working, it’s just not producing the one outcome you are seeking. I can’t say because you don’t engage with the substance.
Why bother lol. If Congress passed a time limit, the judiciary would simply find that uNcOnStItUtIoNaL via a novel reading of the Constitution. They would magically discover that any attempt by Congress to limit their powers has been forbidden by the Constitution this entire time, it's just that no one had ever noticed this restriction in the last couple hundred years.
Getting pretty cynical about the amount of power the judiciary has in modern-day America, and what it's going to take to change that
Every comment here, as usual, will insist that the people behind this litigation are motivated by personal evil rather than do to sincere, if misguided, desire to protect undeveloped space. That fact is not remotely considered in this piece. Just like everyone who opposes the giant solar farm in southeastern California says "NIMBY NIMBY NIMBY," despite the fact that that project is going to desctroy vast acreage of unspoiled woodlands and push multiple species into literal extinction. You might say that's worth the benefits. But nobody ever makes an actual argument and LEGITIMATE DISAGREEMENTS, because this whole "just built" thing has become a self righteous crusade where you elevate yourself socially by pretending there are no costs to what you want to do.
Which is, incidentally, completely in conflict with Yglesias's usual approach to politics, when it isn't one of his pet issues.
What I've learned in life is that when interminable litigation stalls a project you're in favor of, that's bad, and that when it stalls a project you're against, that's good.
I would find this essay more compelling if the example they used was not Cardinal-Hickory but some landfill needed because current ones were overflowing.
Time limits sound like a good idea.
But we should also be exempting clean energy projects and housing projects from environmental. Basically, projects that address a crisis in this country need to be fast tracked.
A time limit on injunctions doesn't seem to answer the mail? In my experience, it's almost never the case that folks wait long after the ROD to sue, because the Court is really unlikely (see DAPL) to order removal or shutdown of infrastructure once its constructed. They want to stop construction from beginning. Even if it did accelerate litigation filing, litigation itself takes a LONG time.
This may have some effect on legal challenges which lose, but the exemplar case is a legal challenge which succeeded. A court looked at it and decided there was something arbitrary and capricious, or contrary to law in the (I'm guessing 1000+ pages?) EIS. Because once you're doing an EIS, there are so many factors and so much analysis that finding something where you can get a judge to agree that the agencies got it wrong is pretty likely.
My dream solution would be to remove this from courts at all. Strip courts of jurisdiction and move the whole thing into an internal EPA process. Create internal processes for review and appeal, with all of it handled by subject matter experts with a big picture view of the nations whole environmental policy. Judges aren’t experts on the subject and are too focused on the hyper specifics on one case
A silver lining to the Supreme Court's corruption is maybe it will break liberals' addiction to endless judicial review of everything.
If the proposal here is to pass a law to generally limit environmental review process, the lawmakers can simply carve out this project (and others like it in the future) to undergo a separate environmental review in a process set forth by the legislature in their proposed statute.
It also sounds to me that putting a time limit on injunctions will enable public agencies to run out the clock. Not necessarily a bad thing, but also not consistent with the spirit of environmental review, nor the judge's injunction. It's gonna piss people off.
Why does this piece not even try to address the substance of the claim against the project, i.e. that it's to be built across the Upper Mississippi River National Wildlife and Fish Refuge? Is it just assumed that we're not supposed to give a crap about this concern, and to treat the plaintiffs in the suit as moron hippies? This reads like a Robert Moses press release, not a good faith attempt to persuade anyone who isn't already (ideologically) decided. Maybe I could understand, if it's patiently explained to me that we can't have everything, and that hard decisions need to be made with longer term priorities in mind, and that this is one case in which the benefits are substantially greater than the losses. Maybe then I could consider it...but there's no acknowledgement that there might be good reasons not to hang the entirety of current federal clean energy policy on a fulcrum like "Fundamentally, the energy transition depends on convincing investors." Perhaps convincing other people who don't share your opinions on a case by case basis may just prove more important to the strategic goals of clean energy supporters than urging (even more) Congressional action meant to assuage the animal spirits of investors, and perhaps that's as it should be.
Liked before reading! VERY happy to see this on SB!!!
I think the whole injunction process needs reforming - I don’t think some arbitrary deadline is workable or would achieve that. It just creates other incentives for other parties to try to run out the clock to hit the deadline.
Probably stupid question on my part, but why do the lawsuits have to halt the project? Why couldn't it just be that if somebody can prove damages, they're entitled to compensation. Why does the project have to stop?