On August 22, 2022, Fred Wagner was quoted in Vice on improving the implementation of environmental review laws, most prominently the National Environmental Policy Act (NEPA), in order to accelerate important infrastructure projects.
According to the article, an ideologically diverse coalition has emerged in recent years that broadly agrees environmental reviews are now more a problem than a solution. Critics observe that the laws are slowing or even stopping the construction of necessary infrastructure, including affordable housing, public transportation, and wind and solar farms. However, many experts believe the problems with the environmental review process can be solved without changing a word of NEPA.
Critically, much of the actual process for how all these reviews were to be done was left up to the courts. Judges, not legislators, decided how NEPA was applied. To cement predictability in how NEPA cases are ruled, Wagner suggested the creation of a specific technical court within the federal system for hearing environmental law cases. This could be done by amending the Administrative Procedure Act, which governs how federal rules are made and managed. This, he argues, will ensure cases are heard by experts on environmental law rather than federal circuit judges who might set unrealistic standards for adequate review.
This would help federal agencies be more confident in knowing which project alternatives they have to study or how to deal with obstructionist naysayers. The problem now is, they don’t know what standards they will consistently be held to by the courts, so they take the most risk-averse path, even if it causes months or years of delay. A designated court with more consistent standards, Wagner believes, “would help a great deal.”
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