Tyler Welti was featured in Bloomberg examining how courts are approaching NEPA challenges after the Supreme Court’s Seven County Infrastructure Coalition v. Eagle County decision. The following is an excerpt:
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.
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.
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.
For the full article, click here.