Environmentalists Push Reluctant Courts to Probe Permit Reviews

Environmentalists continue to bring National Environmental Policy Act challenges to federal permitting reviews despite a US Supreme Court decision reining in judicial scrutiny.

Litigators say there’s been a “chilling effect” on courts’ willingness to question the scope of those reviews since the justices decided Seven County Infrastructure Coalition v. Eagle County last May.

Lower courts largely have upheld environmental studies backing an assortment of permits—including logging projects, pipeline expansions, and even a makeshift migrant detention facility. Only three have vacated an agency action in the wake of the unanimous Supreme Court opinion chastising an “overly intrusive” interpretation of NEPA that required consideration of the downstream impacts of the planned project, such as greenhouse gas emissions and habitat destruction.

But that doesn’t appear to have slowed litigation, as environmental groups urge courts to examine whether environmental reviews contain glaring omissions or factual inaccuracies warranting blocking the permits, attorneys say.

“There really is significant leeway still for courts to make fact-based decisions based on the case before them,” said Melissa Hornbein, a senior attorney at the Western Environmental Law Center. Courts continue to defer to agencies due to “this lack of understanding and unwillingness, inability, lack of capacity, to dig into these very technical and scientific arguments.”

Plaintiffs are trying to put the Trump administration on its heels because agencies are relaxing permitting rules from what had been requirements formally adopted through notice-and-comment rulemaking to guidelines in handbooks.

The focus is shifting from questioning agencies’ methodologies to providing proof the government ignored concrete evidence of a project’s impacts before granting approval.

“The litigation risk presented by a NEPA claim is lowered now, but agencies still need to explain themselves in their NEPA process so they can make a call on the scope of their review,” said Tyler Welti, a partner at Venable LLP who represents companies seeking permits.

Threading the Needle

NEPA is considered the country’s bedrock environmental law, requiring federal agencies to analyze potential impacts of proposed projects and publicly disclose the findings before issuing an official decision.

Courts have long held agencies to the “hard look” standard for environmental impact reviews, but how they defined this level of investigation into downstream effects like greenhouse gas emissions or habitat displacement varied prior to Seven County.

The Supreme Court’s new deferential stance toward agency NEPA reviews came nearly a year after the justices upended administrative law with Loper Bright Enterprises v. Raimondo, overturning a 40-year-old doctrine of generally deferring to reasonable agency interpretations of ambiguous laws they administered.

While Loper Bright restricts agencies’ discretion, the opinion left a loophole for highly technical decisions such as NEPA reviews, according to Seth Jaffe, a partner at Foley Hoag LLP.

“The Administrative Procedure Act requires deference to agency scientific and technical decision-making, but it does not require deference to agency judgments about what the law means,” he said.

Appeals courts have so far threaded this needle in NEPA cases largely by favoring agency deference.

The US Court of Appeals for the Ninth Circuit, the most active venue for permitting disputes on public lands, said in upholding the Bureau of Land Management’s approval of a 2,500-acre logging project in Oregon that the judicial branch’s role in policing NEPA compliance “is a limited one.”

Similarly, the DC Circuit, upholding Federal Energy Regulatory Commission approval of a natural gas pipeline in Tennessee, ruled that “after Seven County, the era of searching NEPA Review is over—or at least it should be.”

The Fifth, Eighth, and Eleventh circuits reached the same conclusion.

Where environmental groups have scored victories at the district court level, the opinions were “less about the adequacy” of the reviews and instead scrutinized the quick approval of logging projects without identifying where they would occur, Welti said.

The cases involved the US Forest Service concluding that two separate logging projects wouldn’t significantly impact grizzly bear habitats without locating exactly where dozens of miles of roads would be constructed.

Judges draw the line when an agency leaves a “real gap” in project details, Jaffe said.

“Even if it’s not that important or even if we don’t yet know how important it is, if it’s demonstrably relevant and it’s completely omitted, that’s the kind of case that’s still going to survive,” he said.

Potential Roadblocks

Environmental groups challenging project approvals may have a window to show these types of gaps to the courts as both the executive and legislative branches move toward less stringent permitting requirements.

Federal agencies have added language mirroring Seven County‘s call to minimize NEPA reviews and limit the law’s ability to delay developments. The Interior Department’s rules, for example, now allow reviews written by permit applicants themselves and expand the use of categorical exclusions from otherwise required in-depth studies.

And Congress is moving toward limiting courts’ power to second-guess those decisions, making current legal efforts to overturn permits more urgent.

In December, the House passed the SPEED Act (H.R. 4776), which would codify Seven County’s “substantial deference to the agency” language, curtailing judges’ ability to order further NEPA analysis and enacting a 180-day deadline for judges to rule on environmental approvals.

Earlier this month, Senate Democrats reopened bipartisan discussions on moving the bill through the Environment and Public Works Committee, but the bill has yet to move in that chamber.

The Western Environmental Law Center’s Hornbein says the bill’s framing of NEPA as merely a “procedural” statute ignores its legislative history.

“The point is not to generate paperwork, but to actually support good decision making,” she said. “That’s the part that Seven County has really undermined, because now federal agencies are basically running with this idea that NEPA is, in fact, meaningless.”