March 10, 2020

Inside EPA Quotes Tom Lingan on NEPA Rollback’s Reliance on Unique High Court Ruling

2 min

On March 10, 2020, Tom Lingan was quoted in Inside EPA about the White House Council on Environmental Quality (CEQ) proposal to vastly limit the reach of the National Environmental Policy Act (NEPA) on a single, unique Supreme Court ruling.

The legal debate adds to spirited discussion over the sweeping proposal to amend the NEPA implementing rules in order to speed environmental reviews of federal actions, which CEQ accepted formal comments on the plan as of March 10.

Many aspects of the plan rely on the high court’s unanimous 2004 decision in Public Citizen v. Department of Transportation, which held that the Federal Motor Carrier Safety Administration (FMCSA) need not consider the environmental impacts of allowing highly polluting Mexican trucks on U.S. roads because it had no control over the trucks once a ban on their entrance was lifted.

Lingan flagged the Public Citizen link during a Feb. 5 webinar. “Adopting and putting into the regulations” the limiting Supreme Court language means the court’s interpretation to not require cumulative effects “is now part and parcel of the rule,” he said.

And while the statute does not mention either “indirect” or “cumulative” impacts, it does require evaluation of adverse environmental effects, “which cannot be avoided” and could extend to those types of impacts, he added.

Like many others, Lingan expects the final rule will be challenged in court, and that its fate will be “based on what the statute says."