Podcast Summary: "Did the Courts Just Nuke Environmental Review?" Statecraft, Hosted by Santi Ruiz | Release Date: December 18, 2024

In this compelling episode of Statecraft, host Santi Ruiz delves into the intricate world of administrative law, focusing on a pivotal court case that could reshape environmental reviews in the United States. Titled "Did the Courts Just Nuke Environmental Review?", the episode features insightful discussions with three esteemed administrative law experts: Nicholas Bagley, James Coleman, and Adam White. Together, they unpack the ramifications of the Marin Audubon Society v. FAA case and its broader impact on policy-making and infrastructure development.

Introduction to Administrative Law and NEPA

Santi Ruiz sets the stage by highlighting the significance of administrative law within Statecraft’s discourse. Introducing the guests, Ruiz emphasizes their collective expertise in environmental policy, energy infrastructure, and constitutional law. He notes that the conversation centers around two crucial court cases with profound implications for America's infrastructure projects.

Understanding NEPA and Its Evolution

James Coleman provides a historical overview of the National Environmental Policy Act (NEPA) of 1969, elucidating its original intent to mandate federal agencies to assess environmental consequences before permitting or funding projects. He explains how NEPA was conceived during a period of extensive post-World War II infrastructure growth, aiming to prevent adverse impacts on local communities. Coleman remarks, “NEPA is the United States' principal environmental review law, ensuring that environmental consequences are considered before any major federal action” (04:00).

Over decades, NEPA's requirements expanded through judicial interpretations, leading to prolonged review processes. Coleman attributes this to environmental groups leveraging court injunctions to halt projects, resulting in environmental impact statements (EIS) that can extend over five years (04:40).

The Role and Authority of CEQ

Adam White delves into the function of the Council on Environmental Quality (CEQ), elucidating its role in crafting regulations that guide NEPA’s implementation. He highlights that CEQ's authority primarily stems from executive orders rather than direct statutory power. White notes, “CEQ's authority to create binding rules under NEPA comes from executive orders, not the statute itself” (08:07).

White discusses CEQ’s influence in shaping agency regulations, including the integration of environmental justice and indigenous knowledge under the Biden administration. He underscores the exponential growth of CEQ's authority in response to climate change and its proximity to presidential power (11:27).

Marin Audubon Society v. FAA: Case Overview

Nicholas Bagley introduces the Marin Audubon Society v. FAA case, where environmentalists challenged the Federal Aviation Administration’s (FAA) air tour management plan for four national parks. The FAA sought to bypass a comprehensive NEPA review by invoking CEQ regulations that exempted minimal environmental impacts. Environmentalists argued that the FAA failed to adequately assess the environmental consequences, prompting legal action (19:31).

D.C. Circuit Court’s Groundbreaking Decision

The conversation pivots to the D.C. Circuit Court's unexpected ruling, which determined that CEQ regulations are not binding in court. Bagley explains, “The court decided that CEQ never had the authority to issue binding regulations, challenging decades of judicial enforcement” (17:00). This ruling questions the long-held assumption that CEQ’s guidelines were enforceable standards, potentially dismantling the procedural backbone of NEPA compliance.

James Coleman adds, “The court acknowledged that CEQ lacked the statutory authority to make those regulations binding, opening the door for reconsidering how NEPA is applied” (24:00). This decision undermines the previous judicial stance that heavily relied on CEQ’s expansive interpretation of NEPA, advocating for a return to the Act’s original, more streamlined intent.

Implications for Environmental Reviews and Infrastructure

The panel explores the broader consequences of this decision. Adam White suggests that without binding CEQ regulations, there could be a shift towards more efficient environmental reviews, reducing the bureaucratic delays that have plagued infrastructure projects for decades (35:21). Conversely, Nicholas Bagley remains skeptical, arguing that agencies will continue adhering to CEQ guidelines internally, rendering the court's decision less impactful on actual practices (36:11).

Bagley emphasizes, “Even if CEQ regulations aren’t enforceable in court, agencies will still follow them to avoid litigation risks, maintaining the status quo in NEPA compliance” (35:21). This contention highlights a potential divergence between judicial rulings and administrative behaviors.

Upcoming Supreme Court Case and Future Outlook

With anticipation building, Santi Ruiz brings attention to an imminent Supreme Court case that parallels the D.C. Circuit’s ruling. The Supreme Court is set to hear oral arguments on whether CEQ regulations should remain enforceable, a decision expected next summer (33:34). James Coleman anticipates that this case could either reinforce the D.C. Circuit’s stance or offer a new interpretation aligning closely with the Supreme Court’s original, more conservative view of NEPA (35:21).

Adam White remains optimistic about the potential for substantive NEPA reforms, suggesting that the judicial uncertainty presents an opportunity for revisiting and streamlining the environmental review process (36:52). He advocates for Congressional action to modernize NEPA, reducing its unintended burdens on infrastructure development.

Path Forward: Potential Reforms and Challenges

The experts discuss possible reforms, including limiting judicial injunctions and imposing stricter timelines for environmental reviews. James Coleman and Nicholas Bagley both see the current legal landscape as a catalyst for necessary changes, albeit with differing views on the extent of impact. Coleman envisions an “Etch A Sketch moment,” a chance to reset and redefine NEPA’s application in light of contemporary needs (46:00).

Adam White concurs, emphasizing the need for Congress to address NEPA’s outdated frameworks to accommodate modern infrastructure demands without undermining environmental protections (42:19). The panel underscores the complexity of balancing environmental stewardship with infrastructure advancement, advocating for thoughtful, bipartisan solutions.

Conclusion

The episode concludes with a consensus on the necessity for NEPA reform, recognizing both its foundational role in environmental protection and the substantial hurdles it poses to timely infrastructure development. Nicholas Bagley poignantly remarks, “The Marin Audubon Society case may serve as a pivotal moment for NEPA, urging a reevaluation of entrenched practices and fostering a dialogue for meaningful change” (58:35).

Listeners are left with a profound understanding of the legal and administrative intricacies surrounding environmental reviews, the pivotal role of CEQ, and the transformative potential of recent court decisions. This episode of Statecraft not only illuminates a critical juncture in environmental policy but also invites policymakers, legal professionals, and engaged citizens to contemplate the future trajectory of America's infrastructure and environmental stewardship.

Notable Quotes:

• Nicholas Bagley (17:00): “CEQ regulations are binding on you. Just as a matter of executive branch internal governance.”
• James Coleman (24:00): “Why are we following the CEQ regulations as binding? Because CEQ was never given authority to issue binding regulations.”
• Adam White (35:21): “There has been concurrent growth in judicial scrutiny that makes NEPA much harder to administer.”
• James Coleman (46:00): “This decision is an opportunity to reconsider a set of conventions that have hardened over time.”