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...
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.
I’m don’t understand why the judge grant an injunction at all after initial review is done. Just change the law to eliminate these injunctions entirely. Once the initial review is passed you have to actually win in court to stop a project. The idea of granting an injunction in this type of situation reflects a completely incorrect understanding of the relative costs
So, they can't do that under NEPA as it's a procedural statute and they can only determine if the procedure was followed (and, if not, send it back to have that procedure be followed). Frankly, allowing them to just decide what projects they will allow to occur (openly) would be an actual step towards judicial supremacy, rather than judicial review.
So it sounds like courts are usually finding that the procedure was not followed? It seems unlikely that a normal person would agree, since a document was produced, and my guess is the agency normally tries very hard to follow the procedures. Should the law give courts more clear instructions on what counts as following the procedures, and make sure they're easy to follow?
This is doable, but the general way this goes wrong is either the court decides something wasn't looked at, but should have been (long term effects to the climate, or by climate change on the project used to be the classic one, but is sort of resolved at the moment), or that whatever look was done at something wasn't a sufficient 'hard look' at the effects, or didn't properly address the issues raised by the comments.
NOTE: The above is in regards to an EIS. If something is either categorically excluded, or the agency has produced an Environmental Assessment determining there were no significant effects, so it doesn't have to do an EIS, then the usual argument is that that was wrong, and they should have done an EIS.
NOTE-2: This is also assuming there's purely a procedural challenge under NEPA, frequently you'll tie this to a substantive challenge to any required Biological Opinion(s) for endangered species act coverage, or Clean Water Act mitigation, which are more substantive laws.
NEPA doesn't mandate any result, it's a 'stop, look, listen' provision, which is challenged under the Administrative Procedures Act, which authorizes court review of final agency decisions with the court supposed to uphold the decision if it is not arbitrary, capricious, or contrary to law.
You could certainly amend NEPA to limit court review in various ways, but I am...unoptimistic that any attempt to limit it in that fashion will be successful as courts are very good at expanding what's required. There are reasons the length of EISes has exploded and it's not because agencies desperately want to spend years and millions of dollars producing documents that no one will ever read in full.
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.
Well, take other process arguments, right? Like arguments against the filibuster or against amending state constitutions by majority popular vote? For any example I give about why those processes are bad, you could pull up a case where they had a good outcome. At a certain point we have to argue based on the *general* outcomes and incentives created by the systems we have in place, not just debating the merits of each example.
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
I think you're forgetting that NEPA is a creation of Congress, not of the judiciary. Judges are for the most part just doing their best interpret the law -- NEPA -- that Congress handed them. If you don't like the results, go the source of the problem and fix it there in Congress.
This fatalism about courts is misplaced and potentially a harmful distraction when the root problem, and solution, is that Congress needs to update and fix problems with a statute that Congress created.
This makes me so so frustrated and mad--the courts read and try to apply the law. If you don't like the law, fair enough, but make new law. That's where voters and their representatives come in.
Plaintiffs would simply find something else to sue about that isn't NEPA. In my hometown wealthy activists set themselves up against a small industrial factory and have spent the last decade filing an endless array of lawsuits. If they lose on one issue they simply find a new one. NEPA has not been invoked to my knowledge. There's always something new to sue about.
I do not think that judges are 'doing their best to interpret the law Congress handed them', I think that they effectively have quasi-dictatorial power in the current US system and enjoy using that. Absolute power corrupts, etc. etc. In a recent California case we discussed on Friday, 1 single judge blocked the legislature's new duplex zoning law because he declared that building more housing doesn't increase affordability. Regardless of the actual merits of the argument, it's completely absurd for a judge- or the entire judiciary- to have that kind of policy-making power. Similar to the Israeli Supreme Court that strikes down whatever law they please on the criteria of 'reasonableness', which they alone get to decide
Again, you're reaching far beyond where the actual problem and solution is here, which is the actual text of NEPA as passed by Congress and signed by the President. You may not like it, I may not like it, but a good faith interpretation and application of that text is what leads to these projects being mired in an endless litigation morass.
As to that California state law and court decision you mention, again without actually reading all the relevant statutory language it's simply impossible to have an informed opinion about whether what that judge did was just a down-the-middle, path-of-least-resistance effort to interpret the statutes the legislature passed according to the ordinary grammatical meaning of the words the legislature used, or some rogue power grab.
No denying there are cases where judges reach out for an idiosyncratic reading of statutory language to reach a result they personally prefer. But in general, I think you are wildly overestimating the degree to which judges, who are people that show up to work each day and try to do their job like everyone else, have such deeply held personal beliefs about everything that comes before them that it's worth their while to constantly try to twist legislative language out of i's ordinary meaning.
This is silly, even if you view courts as purely political animals (which is wrong), the current Supreme Court is not going to go out of its way to protect *NEPA* of all laws
2. Most cases do not reach the Supreme Court, so the issue would probably be handled by a lower level of the judiciary
3. The 4th Circuit refused to accept a law passed by Congress last year that stripped their jurisdiction to hear NEPA cases on an oil pipeline. As in, the law said that (per the Constitution's power of jurisdiction stripping) that the 4th Circuit wasn't allowed to adjudicate the case any more. Of course the 4th Circuit literally ignored the law and held hearing anyways. They obviously do not want a reduction in their relative power, whether it's about NEPA or anything else
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.
Do you ever talk about anything other than how everyone else is talking about everything in the wrong way? This time you couldn’t even wait for anyone to say the thing you hate! This is the FIRST COMMENT and it’s about how the other comments are GOING TO BE bad!
The piece you’re commenting on doesn’t say anything about people’s motivations. And I bet we could go through the comment archives and find far more comments acknowledging that people are blocking projects for sincere reasons than comments saying they’re motivated by anything like personal email. But the merits of what you’re saying aren’t even the problem; the problem is that whenever any topic comes up, whether it’s international relations or culture war or Letterboxd reviews, your first thought is “I bet everyone else is being a big idiot here.” You don’t find that approach limiting?
Are environmentalists open to pre-specifying developable lands to enable regulatory certainty for clean energy? If there are critical habitats that must be preserved then fine, but just suing every developer and blocking every project helps no one. What of the species that will perish due to climate change, does no one speak for them?
I don’t think anyone wants to go back to the days of Robert Moses evicting people at will to build a highway through a neighborhood. It’s just that we’ve gone to such a different extreme and it has become impossible to build. At a certain point, it has to be understood that someone is going to be disappointed and the tie can’t always go to the one saying ‘no.’ In that framework, I do think Yglesias has been consistent in arguing for more control by elected officials and less by judges or, worse, litigants who abuse process by drawing down the clock rather than winning.
Although, there's actually a version of "evicting people at will" that I would in fact support. It would probably be an improvement over what we have now. (1) Let people (or mortgage holders?) decide, for themselves, what a property is worth, and set property taxes based on that value. (Maybe you can only update every couple of years). (2) Define, in law, multiples or percentages of that chosen price at which you'd be willing, uncontested, to sell the property to the government, to an arbitrary private buyer, or to someone who wants to prevent you from making a certain kind of change to the property (the latter would need to be for some increment of time).
If I say my home is worth $300k, then sure, the government can evict me at will, in exchange for a $600k check. Someone who wants to build a stadium on land that includes my lot can force me to sell for $900k. A group of neighbors who want to prevent me from building a two car garage can pay me $12k a year, enough to rent two parking spots elsewhere and compensate me for the time and effort of getting to and from those spots. If I really don't want to move because of developers' or government actions, or be inconvenienced by NIMBYs, I can have that, if I'm willing to pay higher property taxes for the privilege. If I want to save money on taxes I can have that too, if I'm willing to take the risk.
In other words, you say, "At a certain point, it has to be understood that someone is going to be disappointed and the tie can’t always go to the one saying ‘no.’" I say, "Yes, so let's actually define the procedure to make it a *certain* point that everyone knows about well in advance."
Btw, it’s not a good view, even if all you cared about was economic growth. (I don’t.) In China, according to friends, real estate is an unsafe investment because the government can boot you out at anytime. Give the government unlimited ability to destroy the private value of most people’s largest source of wealth, and that risk gets priced in, destroying value unnecessarily across the board.
The chapter in the Power Broker where he describes the effects of one mile of destructive highway-building and evictions on the people who lived there.
Ken in MIA, while it's abundantly clear that we occupy different points on the political spectrum, I think you'd agree with me that--in a vacuum--it would be nice to preserve more species rather than fewer. On the maximalist end, probably ecosystems are healthier if they're more populated by the species that evolved in them. On the minimalist end, if nothing else, all those differently-plumaged parrots are attractive for humans to look at.
But it's *nice* to preserve species, it's not the be-all and end-all of humanity's goals. Tradeoffs exist. If I could extinguish an entire race of nematode in order to lift one million humans out of poverty, I would pull that trigger in an instant and never think twice about it.
That's the idea. I mean, can't a guy have a little fun around here? I was treating his comment with the seriousness that I think it deserved.
I was very skeptical about the claim of "literal extinction," so I looked into it. The worst I can find supported is that the project would intrude into habitats of endangered or threatened species. I have little doubt that's true - I mean, look at the scale of the project.
I guess it depends on *which* race of nematodes you're proposing to extinguish. Maybe those nematodes, I don't know, are the sole food source of a very pretty kind of peacock.
In any event, species go extinct all the time, due to changes in habitat, due to other species (which might eat them to extinction, or compete with them for food), due to climate change (natural or otherwise). So I guess, as you're saying, it requires a cost-benefit calculation. And I think we're very bad at that.
NYC just got permission to lower its speed limits to 20mph, largely motivated by the mom of a very unfortunate kid who was struck by a car. Now, I don't know whether that car would have gone any slower or would have been any less likely to kill the kid if the speed limit were 20 rather than 25 (which is what it is now). But it's become impossible to argue against the argument that "Lowering the speed limit will save lives." Lowering it to 0 I suppose would save even more.
Peafowl are a divisive topic in many of Miami's tonier neighborhoods. Some folks love to have them around as, essentially, exotic lawn ornaments; others abhor them for tearing up their expensive landscaping, scratching the paint on their BMWs, and for their godawful morning screeching. There is no doubt that they are an invasive species, however.
Interesting because I think this piece says that, whether motivated by sincere desires or not, the current law does not serve the public interest. As a result, the law should change so that federal courts cannot issue certain equitable relief after a specified time period.
I think you are missing the point. Any project is going to have advocates on one side or another. The legitimacy of any side is in the eye of the beholder.
The process needs to decisively adjudicate the project one way or another in a timely manner, not let projects languish in limbo. The current system allows those who are opposed to projects to maintain this legal limbo, hoping that the project promoters will run out of money or give up.
It’s a crappy system that needs reforming and that’s a completely separate issue from whether any particular project actually passes a cost-benefit analysis.
Ok, I’ll say it then: I’m fine with having vast acreages of heretofore unspoiled woodlands get destroyed if it means we have an energy source that won’t heat up the planet any more than it already has been.
I'll say it slightly differently: there are tradeoffs that have to be made. A warming planet due to delays is going to destroy a lot of species that otherwise might survive. For now, we get to choose, but at some point our choices will be limited.
I think you have to be willing to ask tough questions. Like whether it is actually necessary to destroy vast acreages of unspoiled woodlands to get clean energy, or if there are other places the clean energy could go that might cost a little bit more, but have much less environmental impact. Given the shear Amount of desert acreage in California, my intuition tends to align with the latter.
Then, there's also the who duck curve thing. California's grid is currently out of whack right now, with too much solar and not enough energy storage, with result being solar energy getting thrown away in the middle of the day, while fossil fueled power plants ramp up at night to keep the lights on when the sun goes down. If the real goal is to make California's grid cleaner as quickly as possible, what's needed is more energy storage to make better use of the solar panels already there, not even more solar panels, leading to even more discarded midday energy, while doing nothing to replace fossil fuels during the evening.
I don't think they've got bad motives, I think (though I haven't evaluated this besides this piece) that blocking a project like this over a land deal swapping ~20-30 acres (which is what is apparently the federal action here) is absurd.
But their motives basically aren't relevant, they're either right, or wrong on consequences and we either want, or don't want a government which can authorize (or carry out) this sort of activity in a timely fashion.
Are you really not aware that one of the main arguments of the ‘just build’ crowd is that by making infrastructure development like this more expensive we are doing more environmental harm than if we allowed the projects to proceed? How does that not address your main complaint here?
There are also legitimate disagreements about abortion and about the actual outcome of the 2020 election and all sorts of other more contentious and politicized issues. It’s good to be aware that many people legitimately disagree even when they seem crazy to us. But that still doesn’t mean their concern is a good one.
To be clear, at least according to the press story the dispute is over a land exchange. " The exchange approved last month would swap around 20 acres (8 hectares) of refuge land in the path of the transmission line to the developers in exchange for 35 acres of land that would be added elsewhere to the refuge."
They might well believe that. Many probably do. So what? The argument is so weak on the merits it isn't worth taking seriously. They're pointing to a specific harm, and claiming that's a reason to not build a specific project. They're not making a comparative assessment of net harms versus benefits, they're not making a principled case of what kinds of projects they wouldn't be able to make similar objections to that would actually still be viable to build, and they're not making a principled case in comparison to the harms of unchecked climate change if we ban all similarly-impactful projects.
That's the thing about veto points: if you have so many of them, it really doesn't matter why people use them. You just get a system that maintains the status quo regardless of how good or bad any particular proposed change would be on net.
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).
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.
"the Court is really unlikely (see DAPL) to order removal or shutdown of infrastructure once its constructed. They want to stop construction from beginning."
IMHO, this is a very strong argument in favor of the proposed injunction time limit.
Sure, you can do it, but the effect is minimal because people aren't waiting until the statute of limitations, they're rushing to court to stop construction.
And, on this "arbitrary and capricious" note, while they do rely on the briefs of petitioners, it is somewhat ironic that in the modern context a judge (and a clerk or two) have to sift through ~15,000 pages of an EIS to decide whether the (often millions of dollars and many years of) technical analysis by technical experts like resource specialists, biologists, engineers, preservation consultants, etc that took place was an insufficiently "hard look" as the case law now requires...
For context the original ~78 guidance/regs assumed that an EIS would be no more than 150 pages and 300 in the most extraordinary sense. It is somewhat (depressing and) hilarious to read the commentary on the original 1978 implementing regulations (Fed Reg - November 29, 1978):
The usefulness of the NEPA process to decisionmakers and the public has been jeopardized in recent years by the length and complexity of environmental impact statements. In accordance with the President’s directive, a primary objective of the regulations is to insure that these documents are clear, concise, and to the point. Numerous provisions in the regulations underscore the importance of focusing on the major issues and real choices facing federal decisionmakers and excluding less important matters from detailed study. Other sections in the regulations provide that certain technical and background materials developed during the environmental review process may be appended but need not be presented in the body of an EIS.
The Council recognizes the tension between the requirement of a thorough review of environmental issues and a limitation on the number of pages that may be devoted to the analysis. The Council believes that the limits set in the regulations are realistic and will help to achieve the goal of more succinct and useful environmental documents. The Council also determined that a limitation on the number of words in an EIS was not required for accomplishing the objective of this provision. The inclusion of the term “normally” in this provision accords Federal agencies latitude if abnormal circumstances exist.
Others suggested that page limits might result in conflict with judicial precedents on adequacy of EISs, that the proverbial kitchen sink may have to be included to insure an adequate document, whatever the length. The Council trusts and intends that this not be the case. Based on its day-to-day experience in overseeing the administration of NEPA throughout the Federal government, the Council is acutely aware that in many cases bulky EISs are not read and are not used by decisionmakers. An unread and unused document quite simply cannot achieve the purpose Congress set for it. The only way to give greater assurance that EISs will be used is to make them usable and that means making them shorter. By way of analogy, judicial opinions are themselves often models of compact treatment of complex subjects. Departmental option documents often provide brief coverage of complicated decisions. Without sacrifice of analytical rigor, we see no reason why the material to be covered in an EIS cannot normally be covered in 150 pages (or 300 pages in extraordinary circumstances).
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.
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.
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?
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.
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.
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.
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...
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.
I’m don’t understand why the judge grant an injunction at all after initial review is done. Just change the law to eliminate these injunctions entirely. Once the initial review is passed you have to actually win in court to stop a project. The idea of granting an injunction in this type of situation reflects a completely incorrect understanding of the relative costs
The argument for injunction would be that otherwise you could win and the damage would be done already.
So, they can't do that under NEPA as it's a procedural statute and they can only determine if the procedure was followed (and, if not, send it back to have that procedure be followed). Frankly, allowing them to just decide what projects they will allow to occur (openly) would be an actual step towards judicial supremacy, rather than judicial review.
So it sounds like courts are usually finding that the procedure was not followed? It seems unlikely that a normal person would agree, since a document was produced, and my guess is the agency normally tries very hard to follow the procedures. Should the law give courts more clear instructions on what counts as following the procedures, and make sure they're easy to follow?
This is doable, but the general way this goes wrong is either the court decides something wasn't looked at, but should have been (long term effects to the climate, or by climate change on the project used to be the classic one, but is sort of resolved at the moment), or that whatever look was done at something wasn't a sufficient 'hard look' at the effects, or didn't properly address the issues raised by the comments.
NOTE: The above is in regards to an EIS. If something is either categorically excluded, or the agency has produced an Environmental Assessment determining there were no significant effects, so it doesn't have to do an EIS, then the usual argument is that that was wrong, and they should have done an EIS.
NOTE-2: This is also assuming there's purely a procedural challenge under NEPA, frequently you'll tie this to a substantive challenge to any required Biological Opinion(s) for endangered species act coverage, or Clean Water Act mitigation, which are more substantive laws.
NEPA doesn't mandate any result, it's a 'stop, look, listen' provision, which is challenged under the Administrative Procedures Act, which authorizes court review of final agency decisions with the court supposed to uphold the decision if it is not arbitrary, capricious, or contrary to law.
You could certainly amend NEPA to limit court review in various ways, but I am...unoptimistic that any attempt to limit it in that fashion will be successful as courts are very good at expanding what's required. There are reasons the length of EISes has exploded and it's not because agencies desperately want to spend years and millions of dollars producing documents that no one will ever read in full.
We must eliminate the overuse of the word "must" in mildly opinionated headlines where the writer really means "should".
seconded with enthusiasm
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.
Well, take other process arguments, right? Like arguments against the filibuster or against amending state constitutions by majority popular vote? For any example I give about why those processes are bad, you could pull up a case where they had a good outcome. At a certain point we have to argue based on the *general* outcomes and incentives created by the systems we have in place, not just debating the merits of each example.
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
I think you're forgetting that NEPA is a creation of Congress, not of the judiciary. Judges are for the most part just doing their best interpret the law -- NEPA -- that Congress handed them. If you don't like the results, go the source of the problem and fix it there in Congress.
This fatalism about courts is misplaced and potentially a harmful distraction when the root problem, and solution, is that Congress needs to update and fix problems with a statute that Congress created.
This makes me so so frustrated and mad--the courts read and try to apply the law. If you don't like the law, fair enough, but make new law. That's where voters and their representatives come in.
Plaintiffs would simply find something else to sue about that isn't NEPA. In my hometown wealthy activists set themselves up against a small industrial factory and have spent the last decade filing an endless array of lawsuits. If they lose on one issue they simply find a new one. NEPA has not been invoked to my knowledge. There's always something new to sue about.
I do not think that judges are 'doing their best to interpret the law Congress handed them', I think that they effectively have quasi-dictatorial power in the current US system and enjoy using that. Absolute power corrupts, etc. etc. In a recent California case we discussed on Friday, 1 single judge blocked the legislature's new duplex zoning law because he declared that building more housing doesn't increase affordability. Regardless of the actual merits of the argument, it's completely absurd for a judge- or the entire judiciary- to have that kind of policy-making power. Similar to the Israeli Supreme Court that strikes down whatever law they please on the criteria of 'reasonableness', which they alone get to decide
https://www.dailynews.com/2024/04/25/duplex-law-allowing-4-homes-on-a-lot-struck-down-for-californias-charter-cities/
Again, you're reaching far beyond where the actual problem and solution is here, which is the actual text of NEPA as passed by Congress and signed by the President. You may not like it, I may not like it, but a good faith interpretation and application of that text is what leads to these projects being mired in an endless litigation morass.
As to that California state law and court decision you mention, again without actually reading all the relevant statutory language it's simply impossible to have an informed opinion about whether what that judge did was just a down-the-middle, path-of-least-resistance effort to interpret the statutes the legislature passed according to the ordinary grammatical meaning of the words the legislature used, or some rogue power grab.
No denying there are cases where judges reach out for an idiosyncratic reading of statutory language to reach a result they personally prefer. But in general, I think you are wildly overestimating the degree to which judges, who are people that show up to work each day and try to do their job like everyone else, have such deeply held personal beliefs about everything that comes before them that it's worth their while to constantly try to twist legislative language out of i's ordinary meaning.
I think the solution is to reform each law. As needed, when we understand the excesses that are occurring under it
We need pretty dramatic reform in this country over out of control Lawsuits and bureaucratic red tape
This is silly, even if you view courts as purely political animals (which is wrong), the current Supreme Court is not going to go out of its way to protect *NEPA* of all laws
1. Yes, courts are purely political animals
2. Most cases do not reach the Supreme Court, so the issue would probably be handled by a lower level of the judiciary
3. The 4th Circuit refused to accept a law passed by Congress last year that stripped their jurisdiction to hear NEPA cases on an oil pipeline. As in, the law said that (per the Constitution's power of jurisdiction stripping) that the 4th Circuit wasn't allowed to adjudicate the case any more. Of course the 4th Circuit literally ignored the law and held hearing anyways. They obviously do not want a reduction in their relative power, whether it's about NEPA or anything else
https://virginiamercury.com/2023/06/09/whats-next-for-the-court-cases-challenging-mountain-valley-pipeline/
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.
Do you ever talk about anything other than how everyone else is talking about everything in the wrong way? This time you couldn’t even wait for anyone to say the thing you hate! This is the FIRST COMMENT and it’s about how the other comments are GOING TO BE bad!
The piece you’re commenting on doesn’t say anything about people’s motivations. And I bet we could go through the comment archives and find far more comments acknowledging that people are blocking projects for sincere reasons than comments saying they’re motivated by anything like personal email. But the merits of what you’re saying aren’t even the problem; the problem is that whenever any topic comes up, whether it’s international relations or culture war or Letterboxd reviews, your first thought is “I bet everyone else is being a big idiot here.” You don’t find that approach limiting?
Are environmentalists open to pre-specifying developable lands to enable regulatory certainty for clean energy? If there are critical habitats that must be preserved then fine, but just suing every developer and blocking every project helps no one. What of the species that will perish due to climate change, does no one speak for them?
I don’t think anyone wants to go back to the days of Robert Moses evicting people at will to build a highway through a neighborhood. It’s just that we’ve gone to such a different extreme and it has become impossible to build. At a certain point, it has to be understood that someone is going to be disappointed and the tie can’t always go to the one saying ‘no.’ In that framework, I do think Yglesias has been consistent in arguing for more control by elected officials and less by judges or, worse, litigants who abuse process by drawing down the clock rather than winning.
True, 100% agreed.
Although, there's actually a version of "evicting people at will" that I would in fact support. It would probably be an improvement over what we have now. (1) Let people (or mortgage holders?) decide, for themselves, what a property is worth, and set property taxes based on that value. (Maybe you can only update every couple of years). (2) Define, in law, multiples or percentages of that chosen price at which you'd be willing, uncontested, to sell the property to the government, to an arbitrary private buyer, or to someone who wants to prevent you from making a certain kind of change to the property (the latter would need to be for some increment of time).
If I say my home is worth $300k, then sure, the government can evict me at will, in exchange for a $600k check. Someone who wants to build a stadium on land that includes my lot can force me to sell for $900k. A group of neighbors who want to prevent me from building a two car garage can pay me $12k a year, enough to rent two parking spots elsewhere and compensate me for the time and effort of getting to and from those spots. If I really don't want to move because of developers' or government actions, or be inconvenienced by NIMBYs, I can have that, if I'm willing to pay higher property taxes for the privilege. If I want to save money on taxes I can have that too, if I'm willing to take the risk.
In other words, you say, "At a certain point, it has to be understood that someone is going to be disappointed and the tie can’t always go to the one saying ‘no.’" I say, "Yes, so let's actually define the procedure to make it a *certain* point that everyone knows about well in advance."
Interesting idea.
Btw, it’s not a good view, even if all you cared about was economic growth. (I don’t.) In China, according to friends, real estate is an unsafe investment because the government can boot you out at anytime. Give the government unlimited ability to destroy the private value of most people’s largest source of wealth, and that risk gets priced in, destroying value unnecessarily across the board.
Then reread “one mile.” And have a good long think.
The chapter in the Power Broker where he describes the effects of one mile of destructive highway-building and evictions on the people who lived there.
https://www.scribd.com/document/399313663/Caro-One-Mile
"push multiple species into literal extinction"
Are any of those species tasty? If not, what do I care?
This one is particularly funny to me.
Ken in MIA, while it's abundantly clear that we occupy different points on the political spectrum, I think you'd agree with me that--in a vacuum--it would be nice to preserve more species rather than fewer. On the maximalist end, probably ecosystems are healthier if they're more populated by the species that evolved in them. On the minimalist end, if nothing else, all those differently-plumaged parrots are attractive for humans to look at.
But it's *nice* to preserve species, it's not the be-all and end-all of humanity's goals. Tradeoffs exist. If I could extinguish an entire race of nematode in order to lift one million humans out of poverty, I would pull that trigger in an instant and never think twice about it.
"This one is particularly funny to me"
That's the idea. I mean, can't a guy have a little fun around here? I was treating his comment with the seriousness that I think it deserved.
I was very skeptical about the claim of "literal extinction," so I looked into it. The worst I can find supported is that the project would intrude into habitats of endangered or threatened species. I have little doubt that's true - I mean, look at the scale of the project.
I 100% agree with you about how seriously we should treat the top-level comment, i.e., almost not seriously at all.
NIMBY NIMBY NIMBY.
Freddie deBoer is literally not allowed to post comments from my back yard. SCOTUS enjoined it and everything.
So there.
I guess it depends on *which* race of nematodes you're proposing to extinguish. Maybe those nematodes, I don't know, are the sole food source of a very pretty kind of peacock.
In any event, species go extinct all the time, due to changes in habitat, due to other species (which might eat them to extinction, or compete with them for food), due to climate change (natural or otherwise). So I guess, as you're saying, it requires a cost-benefit calculation. And I think we're very bad at that.
NYC just got permission to lower its speed limits to 20mph, largely motivated by the mom of a very unfortunate kid who was struck by a car. Now, I don't know whether that car would have gone any slower or would have been any less likely to kill the kid if the speed limit were 20 rather than 25 (which is what it is now). But it's become impossible to argue against the argument that "Lowering the speed limit will save lives." Lowering it to 0 I suppose would save even more.
"...a very pretty kind of peacock"
Peafowl are a divisive topic in many of Miami's tonier neighborhoods. Some folks love to have them around as, essentially, exotic lawn ornaments; others abhor them for tearing up their expensive landscaping, scratching the paint on their BMWs, and for their godawful morning screeching. There is no doubt that they are an invasive species, however.
Interesting because I think this piece says that, whether motivated by sincere desires or not, the current law does not serve the public interest. As a result, the law should change so that federal courts cannot issue certain equitable relief after a specified time period.
I think you are missing the point. Any project is going to have advocates on one side or another. The legitimacy of any side is in the eye of the beholder.
The process needs to decisively adjudicate the project one way or another in a timely manner, not let projects languish in limbo. The current system allows those who are opposed to projects to maintain this legal limbo, hoping that the project promoters will run out of money or give up.
It’s a crappy system that needs reforming and that’s a completely separate issue from whether any particular project actually passes a cost-benefit analysis.
Ok, I’ll say it then: I’m fine with having vast acreages of heretofore unspoiled woodlands get destroyed if it means we have an energy source that won’t heat up the planet any more than it already has been.
I'll say it slightly differently: there are tradeoffs that have to be made. A warming planet due to delays is going to destroy a lot of species that otherwise might survive. For now, we get to choose, but at some point our choices will be limited.
I think you have to be willing to ask tough questions. Like whether it is actually necessary to destroy vast acreages of unspoiled woodlands to get clean energy, or if there are other places the clean energy could go that might cost a little bit more, but have much less environmental impact. Given the shear Amount of desert acreage in California, my intuition tends to align with the latter.
Then, there's also the who duck curve thing. California's grid is currently out of whack right now, with too much solar and not enough energy storage, with result being solar energy getting thrown away in the middle of the day, while fossil fueled power plants ramp up at night to keep the lights on when the sun goes down. If the real goal is to make California's grid cleaner as quickly as possible, what's needed is more energy storage to make better use of the solar panels already there, not even more solar panels, leading to even more discarded midday energy, while doing nothing to replace fossil fuels during the evening.
I don't think they've got bad motives, I think (though I haven't evaluated this besides this piece) that blocking a project like this over a land deal swapping ~20-30 acres (which is what is apparently the federal action here) is absurd.
But their motives basically aren't relevant, they're either right, or wrong on consequences and we either want, or don't want a government which can authorize (or carry out) this sort of activity in a timely fashion.
Are you really not aware that one of the main arguments of the ‘just build’ crowd is that by making infrastructure development like this more expensive we are doing more environmental harm than if we allowed the projects to proceed? How does that not address your main complaint here?
There are also legitimate disagreements about abortion and about the actual outcome of the 2020 election and all sorts of other more contentious and politicized issues. It’s good to be aware that many people legitimately disagree even when they seem crazy to us. But that still doesn’t mean their concern is a good one.
To be clear, at least according to the press story the dispute is over a land exchange. " The exchange approved last month would swap around 20 acres (8 hectares) of refuge land in the path of the transmission line to the developers in exchange for 35 acres of land that would be added elsewhere to the refuge."
They might well believe that. Many probably do. So what? The argument is so weak on the merits it isn't worth taking seriously. They're pointing to a specific harm, and claiming that's a reason to not build a specific project. They're not making a comparative assessment of net harms versus benefits, they're not making a principled case of what kinds of projects they wouldn't be able to make similar objections to that would actually still be viable to build, and they're not making a principled case in comparison to the harms of unchecked climate change if we ban all similarly-impactful projects.
That's the thing about veto points: if you have so many of them, it really doesn't matter why people use them. You just get a system that maintains the status quo regardless of how good or bad any particular proposed change would be on net.
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).
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.
"the Court is really unlikely (see DAPL) to order removal or shutdown of infrastructure once its constructed. They want to stop construction from beginning."
IMHO, this is a very strong argument in favor of the proposed injunction time limit.
Sure, you can do it, but the effect is minimal because people aren't waiting until the statute of limitations, they're rushing to court to stop construction.
And, on this "arbitrary and capricious" note, while they do rely on the briefs of petitioners, it is somewhat ironic that in the modern context a judge (and a clerk or two) have to sift through ~15,000 pages of an EIS to decide whether the (often millions of dollars and many years of) technical analysis by technical experts like resource specialists, biologists, engineers, preservation consultants, etc that took place was an insufficiently "hard look" as the case law now requires...
For context the original ~78 guidance/regs assumed that an EIS would be no more than 150 pages and 300 in the most extraordinary sense. It is somewhat (depressing and) hilarious to read the commentary on the original 1978 implementing regulations (Fed Reg - November 29, 1978):
The usefulness of the NEPA process to decisionmakers and the public has been jeopardized in recent years by the length and complexity of environmental impact statements. In accordance with the President’s directive, a primary objective of the regulations is to insure that these documents are clear, concise, and to the point. Numerous provisions in the regulations underscore the importance of focusing on the major issues and real choices facing federal decisionmakers and excluding less important matters from detailed study. Other sections in the regulations provide that certain technical and background materials developed during the environmental review process may be appended but need not be presented in the body of an EIS.
The Council recognizes the tension between the requirement of a thorough review of environmental issues and a limitation on the number of pages that may be devoted to the analysis. The Council believes that the limits set in the regulations are realistic and will help to achieve the goal of more succinct and useful environmental documents. The Council also determined that a limitation on the number of words in an EIS was not required for accomplishing the objective of this provision. The inclusion of the term “normally” in this provision accords Federal agencies latitude if abnormal circumstances exist.
Others suggested that page limits might result in conflict with judicial precedents on adequacy of EISs, that the proverbial kitchen sink may have to be included to insure an adequate document, whatever the length. The Council trusts and intends that this not be the case. Based on its day-to-day experience in overseeing the administration of NEPA throughout the Federal government, the Council is acutely aware that in many cases bulky EISs are not read and are not used by decisionmakers. An unread and unused document quite simply cannot achieve the purpose Congress set for it. The only way to give greater assurance that EISs will be used is to make them usable and that means making them shorter. By way of analogy, judicial opinions are themselves often models of compact treatment of complex subjects. Departmental option documents often provide brief coverage of complicated decisions. Without sacrifice of analytical rigor, we see no reason why the material to be covered in an EIS cannot normally be covered in 150 pages (or 300 pages in extraordinary circumstances).
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!
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.
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?
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.
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.
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.