Surely this is the wrong way to go about it. The problem here seems to be that we let people get injunctions for too many (and too vague) reasons not the fact that courts can stop things that are really really illegal for too long. Either we shouldn't be enjoining a project at all based on that consideration or the injunction should persist as long as necessary.
I mean, imagine some president decides to build a highway that literally goes around in silly loops to let him use emminent domain to seize all a rival's land or plans to build a pipe to dump untreated high level radioactive waste into a small lake. Surely that should be blocked.
But in your proposal any two term president can build whatever they want regardless of what laws it breaks because -- once the 4 year period is up -- they can just build it and nothing you can do to stop them (and likely sovereign immunity and various standing/injury doctrines will block any post construction reourcussions).
Why not just reduce the number of rules that one can get an injunction based on.
I'm not sure how this proposal works - what happens if, after the time limit on injunctions is up, the court still finds that the agency has not complied with NEPA? Do they just cancel the project permanently? Or alternatively, does the project now get to go forward in the absence of a properly completed EIS? (And in that case, couldn't an agency just produce a garbage EIS, and then 'wait out' the required injunction time?) One way or another the court needs to determine that NEPA has, or has not, been met.
I can think of a number of possible solutions to the problems caused by NEPA, but I don't think this solution fits the bill.
Interesting. I’ve been pondering what and who benefits from a system where seemingly endless litigation, appeal or legislative backlog are a feature and not a bug. I’ve been wondering whether we’ve long since lost—or indeed, ever had—any balance between deliberation and judgement. Legal engagement becomes a way of life, not a way to clarity. Trust in governance erodes in the face of fecklessness, and if you’ll excuse me a bit of populist pique, it’s frustrating knowing that its of course often only those ample means who can afford to hold down the doom-loop button.
But reformers such as these, righteous lo they may be toward my shared interest in advancing energy abundance, must think through how streamlining may lead to unintended and deleterious consequence should it be a tool used by their opposition. A broader framing, like “how do we make the legal system more efficient overall” might be a better starting point.
Still, it's kind of funny to see liberals worried about this now. When conservatives have been griping about bureaucracy and red tape, interfering with development for years
Many complain about the disproportionate influence of the wealthy. Isn’t this endless litigation by them and those they finance another aspect of it? Sincere narrow-minded people, however popular their blinkered vision, cause more problems than they think they solve.
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.
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.
Which, in essence, is a big problem. Leads to lots of abuse of litigation, where people look for pretexts they could care less about to block stuff, even though everybody knows the actual reason they want it blocked has nothing to do with the pretexts.
For example, fossil fuel companies have good financial incentives to suddenly start caring about endangered animals and their habitat, if it can be used to block renewable energy projects that compete with their businesses. (While, of course, not caring the slightest about those same animals if the project it would block is their own oil/gas extraction).
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.
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.
The piece isn't really about the merits of this one project, though—it's about whether it's good to allow such projects (which are theoretically legal once they pass permitting) to be indefinitely delayed and in effect killed even after they've checked all their boxes. I personally don't mind taking "we can't have everything" as read and getting into that question about process.
But that’s the thing, right? There is no convincing every single individual who might choose to file a lawsuit that the trade offs are appropriately balanced. Giving out so many vetos amounts to an affirmative position that projects should not happen in general.
But they HAVE convinced the regulatory agencies that the project has taken a lot of steps to limit its impact, and mitigated the impacts it cannot avoid (usually through additional land preservation).
The audience for this post wasn't meant to be the regulatory agencies though, it's meant to be us, folks who are supposed to be thoughtfully considering these issues. Maybe think tanks' press releases are persuasive to regulatory agencies, but this style of public relations will succeed only at convincing people that the "build it now" side would be smugly delighted to return to Moses-style bullying whomever is weakest, just as soon as they legally can. That's bad for building a popular movement for infrastructure progress, and it's ultimately bad for policy.
"The audience for this post wasn't meant to be the regulatory agencies though, it's meant to be us, folks who are supposed to be thoughtfully considering these issues."
No, we're supposed to outsource these decisions to the regulatory agencies. That's literally their job: to figure out if these projects will be damaging. If we don't trust the agencies to do that job, then either we should get rid of or fix them. But we shouldn't be attempting to interpose ourselves in the process as private citizens, simply because that's administratively impractical.
That doesn't make sense. The audience is people thinking about whether there ought to be legislation limiting the time an injunction can be placed on a project during the appeal of the granting of a permit. The current permitting process is already quite lengthy and consultative, allowing for many challenges along the way. But there has to be a limit. I think the question here is where should that limit be, and how would it be created/supported?
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
Except, there exists no mechanism to ensure that the people making the decisions are really subject-matter experts acting in good faith. Trump, for example, has openly promised that if he wins election, every single "subject matter expert" will be summarily fired and replaced with a Trump loyalists. Which, in practice, means every fossil-fueled project being quickly rubber-stamped, regardless of environmental impact, while renewable energy projects get slow-walked to death.
I mean, the president also appoints judges.Trump appointed a third of the SCOTUS already - you can’t avoid the problem of “the American people vote for something I don’t like.” I would like for people who win elections to be able to do things, instead of nobody ever being able to do anything ever. I’d take the bet that my preferred policies will win out eventually by being better and becoming more popular after they’re enacted.
My assumption is he's saying only an internal agency review process, with no subsequent court review authorized. This is legal (assuming limited to NEPA/APA, if someone can somehow claim a violation under some other law they can obviously go to court), but extremely unlikely.
I don't know why you'd authorize that? You could if you wished, but the right to sue for violations of NEPA is established by statute and can be modified by congress.
Right, but the 'go straight to the supreme court' is a step you added, not in the original proposal. Lots of stuff simply doesn't have judicial review, which seems to be Nick's proposal.
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.
The counter-argument is that this assumes that the agencies in question are acting in good faith. What happens if Trump gets elected and all of the environmental agencies are staffed with people that charged with rubber stamping all fossil fuel energy projects and denying all renewable energy projects? If private organizations can't sue to challenge some of the rubber stamps that blatantly violate the law, then who can?
> are staffed with people that charged with rubber stamping all fossil fuel energy projects and denying all renewable energy projects?
Funny you should say that. Oil and gas projects are categorically exempt from NEPA already [Section 390 (42 U.S.C. 15492) Energy Policy Act of 2005]. Which means that only renewable energy projects gets stuck in the litigation doom loop while fossil fuels projects are unimpeded. So the world you fear under Trump is already the status quo.
This is a broad over-reading of Section 390, and incorrect. Certain aspects of oil and gas "actions" (term of art under NEPA/APA) are categorically exempt, but this is not at all correct.
For an easy example - the Willow project that ignited much controversy was subject to many years of NEPA and multiple EIS's...
This is doable, but you'd need to amend the relevant statutes (or the APA) and you need to decide what you're exempting out. If you just say 'NEPA' I bet you'll find exactly the same number of suits under NHPA and ESA. Block those two and you'll get lawsuits under the Migratory Bird Treaty Act and Clean Water Act.
I mean, there's certainly a part of me that thinks the APA as a whole is just a bad idea, but I think even if you did get rid of it, you'd just see a shift to arguments that any such authorization was an unconstitutional taking of your property...
Depends what you mean? There are emergency procedures for most environmental/cultural compliance laws, which my agency uses with some frequence for flood fighting and other emergency actions, but I don't think you could use those to authorize construction like this unless it was the fastest way to end a blackout or something.
Surely this is the wrong way to go about it. The problem here seems to be that we let people get injunctions for too many (and too vague) reasons not the fact that courts can stop things that are really really illegal for too long. Either we shouldn't be enjoining a project at all based on that consideration or the injunction should persist as long as necessary.
I mean, imagine some president decides to build a highway that literally goes around in silly loops to let him use emminent domain to seize all a rival's land or plans to build a pipe to dump untreated high level radioactive waste into a small lake. Surely that should be blocked.
But in your proposal any two term president can build whatever they want regardless of what laws it breaks because -- once the 4 year period is up -- they can just build it and nothing you can do to stop them (and likely sovereign immunity and various standing/injury doctrines will block any post construction reourcussions).
Why not just reduce the number of rules that one can get an injunction based on.
I'm not sure how this proposal works - what happens if, after the time limit on injunctions is up, the court still finds that the agency has not complied with NEPA? Do they just cancel the project permanently? Or alternatively, does the project now get to go forward in the absence of a properly completed EIS? (And in that case, couldn't an agency just produce a garbage EIS, and then 'wait out' the required injunction time?) One way or another the court needs to determine that NEPA has, or has not, been met.
I can think of a number of possible solutions to the problems caused by NEPA, but I don't think this solution fits the bill.
Interesting. I’ve been pondering what and who benefits from a system where seemingly endless litigation, appeal or legislative backlog are a feature and not a bug. I’ve been wondering whether we’ve long since lost—or indeed, ever had—any balance between deliberation and judgement. Legal engagement becomes a way of life, not a way to clarity. Trust in governance erodes in the face of fecklessness, and if you’ll excuse me a bit of populist pique, it’s frustrating knowing that its of course often only those ample means who can afford to hold down the doom-loop button.
But reformers such as these, righteous lo they may be toward my shared interest in advancing energy abundance, must think through how streamlining may lead to unintended and deleterious consequence should it be a tool used by their opposition. A broader framing, like “how do we make the legal system more efficient overall” might be a better starting point.
Great set of observations.
I very much agree with all of this
Still, it's kind of funny to see liberals worried about this now. When conservatives have been griping about bureaucracy and red tape, interfering with development for years
Nice to see them coming around
Many complain about the disproportionate influence of the wealthy. Isn’t this endless litigation by them and those they finance another aspect of it? Sincere narrow-minded people, however popular their blinkered vision, cause more problems than they think they solve.
We must eliminate the overuse of the word "must" in mildly opinionated headlines where the writer really means "should".
seconded with enthusiasm
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.
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.
Which, in essence, is a big problem. Leads to lots of abuse of litigation, where people look for pretexts they could care less about to block stuff, even though everybody knows the actual reason they want it blocked has nothing to do with the pretexts.
For example, fossil fuel companies have good financial incentives to suddenly start caring about endangered animals and their habitat, if it can be used to block renewable energy projects that compete with their businesses. (While, of course, not caring the slightest about those same animals if the project it would block is their own oil/gas extraction).
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.
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.
The piece isn't really about the merits of this one project, though—it's about whether it's good to allow such projects (which are theoretically legal once they pass permitting) to be indefinitely delayed and in effect killed even after they've checked all their boxes. I personally don't mind taking "we can't have everything" as read and getting into that question about process.
But that’s the thing, right? There is no convincing every single individual who might choose to file a lawsuit that the trade offs are appropriately balanced. Giving out so many vetos amounts to an affirmative position that projects should not happen in general.
But they HAVE convinced the regulatory agencies that the project has taken a lot of steps to limit its impact, and mitigated the impacts it cannot avoid (usually through additional land preservation).
The audience for this post wasn't meant to be the regulatory agencies though, it's meant to be us, folks who are supposed to be thoughtfully considering these issues. Maybe think tanks' press releases are persuasive to regulatory agencies, but this style of public relations will succeed only at convincing people that the "build it now" side would be smugly delighted to return to Moses-style bullying whomever is weakest, just as soon as they legally can. That's bad for building a popular movement for infrastructure progress, and it's ultimately bad for policy.
"The audience for this post wasn't meant to be the regulatory agencies though, it's meant to be us, folks who are supposed to be thoughtfully considering these issues."
No, we're supposed to outsource these decisions to the regulatory agencies. That's literally their job: to figure out if these projects will be damaging. If we don't trust the agencies to do that job, then either we should get rid of or fix them. But we shouldn't be attempting to interpose ourselves in the process as private citizens, simply because that's administratively impractical.
That doesn't make sense. The audience is people thinking about whether there ought to be legislation limiting the time an injunction can be placed on a project during the appeal of the granting of a permit. The current permitting process is already quite lengthy and consultative, allowing for many challenges along the way. But there has to be a limit. I think the question here is where should that limit be, and how would it be created/supported?
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
Except, there exists no mechanism to ensure that the people making the decisions are really subject-matter experts acting in good faith. Trump, for example, has openly promised that if he wins election, every single "subject matter expert" will be summarily fired and replaced with a Trump loyalists. Which, in practice, means every fossil-fueled project being quickly rubber-stamped, regardless of environmental impact, while renewable energy projects get slow-walked to death.
I mean, the president also appoints judges.Trump appointed a third of the SCOTUS already - you can’t avoid the problem of “the American people vote for something I don’t like.” I would like for people who win elections to be able to do things, instead of nobody ever being able to do anything ever. I’d take the bet that my preferred policies will win out eventually by being better and becoming more popular after they’re enacted.
"Strip courts of jurisdiction and move the whole thing into an internal EPA process"
So, what, if you wanted to challenge the EPA's decision you'd have to go straight to the Supreme Court? That doesn't strike me as feasible.
My assumption is he's saying only an internal agency review process, with no subsequent court review authorized. This is legal (assuming limited to NEPA/APA, if someone can somehow claim a violation under some other law they can obviously go to court), but extremely unlikely.
"...no subsequent court review authorized"
Except for the Supreme Court?
I don't know why you'd authorize that? You could if you wished, but the right to sue for violations of NEPA is established by statute and can be modified by congress.
Well, my point was that it's a terrible idea.
Right, but the 'go straight to the supreme court' is a step you added, not in the original proposal. Lots of stuff simply doesn't have judicial review, which seems to be Nick's proposal.
A silver lining to the Supreme Court's corruption is maybe it will break liberals' addiction to endless judicial review of everything.
Begging two questions at once! Very efficient!
When people tell you who they are, listen.
Thanks!
Liked before reading! VERY happy to see this on SB!!!
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.
The counter-argument is that this assumes that the agencies in question are acting in good faith. What happens if Trump gets elected and all of the environmental agencies are staffed with people that charged with rubber stamping all fossil fuel energy projects and denying all renewable energy projects? If private organizations can't sue to challenge some of the rubber stamps that blatantly violate the law, then who can?
> are staffed with people that charged with rubber stamping all fossil fuel energy projects and denying all renewable energy projects?
Funny you should say that. Oil and gas projects are categorically exempt from NEPA already [Section 390 (42 U.S.C. 15492) Energy Policy Act of 2005]. Which means that only renewable energy projects gets stuck in the litigation doom loop while fossil fuels projects are unimpeded. So the world you fear under Trump is already the status quo.
This is a broad over-reading of Section 390, and incorrect. Certain aspects of oil and gas "actions" (term of art under NEPA/APA) are categorically exempt, but this is not at all correct.
For an easy example - the Willow project that ignited much controversy was subject to many years of NEPA and multiple EIS's...
This is doable, but you'd need to amend the relevant statutes (or the APA) and you need to decide what you're exempting out. If you just say 'NEPA' I bet you'll find exactly the same number of suits under NHPA and ESA. Block those two and you'll get lawsuits under the Migratory Bird Treaty Act and Clean Water Act.
I mean, there's certainly a part of me that thinks the APA as a whole is just a bad idea, but I think even if you did get rid of it, you'd just see a shift to arguments that any such authorization was an unconstitutional taking of your property...
Could declaring a state of emergency get around some of these restrictions?
Depends what you mean? There are emergency procedures for most environmental/cultural compliance laws, which my agency uses with some frequence for flood fighting and other emergency actions, but I don't think you could use those to authorize construction like this unless it was the fastest way to end a blackout or something.