At the heart of federal environmental permitting is an idea that every American should have a say about what happens on projects proposed for federal lands. And those who have private property, reserved rights, and deep connections to places should have open access to let their voices be heard.
Unfortunately, the efficacy and potency of public participation are eroding before our very eyes. A major Supreme Court decision last week — on top of major regulatory shake ups this year — are leaving many to wonder what weight an environmental review will carry in the future.
The tools we thought we had at the federal level no longer carry the degrees of certainty we relied on in the past. In fact, there are a lot of known unknowns and a few cornerstone outcomes that are clear thanks to the Supreme Court’s latest decision impacting the National Environmental Policy Act of 1969 (NEPA).
NEPA will still require agencies to take a “hard look” at “direct” impacts of a project — events that are reasonably foreseeable, quantifiable, and imminently related and located within the scope of the project. Where things will get dicey: federal agency interpretation of indirect impacts — something that NEPA participants have long offered in comments and analyses submitted to agencies.
As Justice Brett Kavanaugh outlined in the 8-0 majority opinion in Seven County Infrastructure Coalition vs. Eagle County:
“To be clear, the environmental effects of the project at issue may fall within NEPA even if those effects might extend outside the geographical territory of the project or might materialize later in time—for example, run-off into a river that flows many miles from the project and affects fish populations elsewhere, or emissions that travel downwind and predictably pollute other areas. Those so-called indirect effects can sometimes fall within NEPA…”
However, moving forward, the scope of an environmental review will be very narrow. And, as Justice Kavanaugh wrote, sweeping cumulative impacts analyses are seemingly a thing of the past.
“The EIS need not address the effects of separate projects. In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.”
If an entity is building a highway through federal lands, for example, an agency won’t be required to analyze the potential impact of ancillary businesses that develop after the highway is built or the need for more power plants and water supplies necessitated by the project.
The decision assumes we live in vacuums. And some of the thinking in the case exemplifies that.
The majority opinion, quite ironically, leans heavily on agency deference — despite the fact that the U.S. Supreme Court recently emasculated the standard of agency deference via the Chevron Doctrine in Loper Bright Enterprise vs. Raimondo last year.
It seems that agencies should have no deference, unless it is in a NEPA case. Then agencies should have ALL THE DEFERENCE.
Nowhere in the recent decision is it noted that agencies are often being paid by project proponents to complete the studies and analyses necessary to conduct permitting. In other words, agencies don’t have time or staff to do actual permitting. So contractors get brought in to do the job. That leads to many gray areas about who is doing what for whom. For example, we know water officials in Iron County have been paying the BLM to complete the analysis for permitting and also hiring contractors to help them do so.
Furthermore, the recent decision ignores the shrinking budgets and spending slashes. Project proponents who seek a permit will now probably have more control over permitting than ever before. So who will really have the deference? Agencies or entities applying for permits from the very agencies they are paying to conduct environmental reviews?
Our legal team and allies are leaving no stone unturned in our analysis of how the Supreme Court’s decision. Additionally, we are watching the regulatory actions on NEPA that will impact future efforts on permitting water pipelines like the Cedar City Pipeline, energy infrastructure like White Pine Pumped Storage and many other projects — from gold mines, power lines, and geothermal. How this will determine analysis on environmental reviews for Colorado River related efforts — from broad management guidelines to water exportation — is not yet certain either.
What we do know is that this will be a Pyrrhic victory for some who claim NEPA was a problem.
Politicians often cast the procedural requirements of NEPA as a burden. But those talking points don’t really hold up. Ninety-five percent of actions initiated under NEPA per the Seven County Infrastructure Coalition decision were categorical exclusions, the lowest level of review that provides no real opportunity for engagement. Conversely, one percent of actions warranted a large-scale NEPA review known as Environmental Impact Statements. The remaining reviews are known as Environmental Assessments, which are expedited reviews that are smaller in scope.
In other words, 99 percent of the time, things moved pretty darn quickly. But the squeaky wheel gets the oil.
Nevertheless, many industries or business-friendly communities often find large-scale environmental reviews to be cumbersome and drawn-out. But when that same company’s holdings or town’s rights are at risk, folks understand the need for careful, prudent review standards.
At GBWN, we believe that more time for community engagement, review, and technical analysis will always ensure a better result that if those things did not contribute to the process.
We will keep showing up, no matter the circumstances, for the benefit of us all.
