On April 5, 2019, Kathryn Floyd, Maggie Fawal, and Chelsea O'Sullivan published "Ninth Circuit Should Reject Courts Fly-Specking of Keystone XL Pipeline's NEPA Review" in Washington Legal Foundation Legal Opinion Letter. The following is an excerpt:
The National Environmental Policy Act (NEPA) continues to result in delays to critical infrastructure projects despite streamlining pronouncements under the Obama and Trump Administrations. For example, the Department of Energy recently found that the average time to complete an environmental impact statement (EIS) is 49 months. And this process is but one essential part of the steps needed to green light these projects.
Much of this delay can be attributed to agencies' efforts to cross every "t" and dot every "i" during the environmental review. Because these projects are often controversial and draw strident opposition, agencies are increasingly risk averse and seek to meticulously evaluate every possible detail within an EIS. This approach is contrary to law and precedent. As long as an agency demonstrates that it has taken a "hard look" at environmental impacts, courts have historically deferred to agency expertise and decision making. But in Indigenous Environmental Network v. U.S. Department of State, the district court's opinion inappropriately "fly specked" the Department of State's 2014 EIS for the TransCanada Keystone Pipeline ("Keystone") and substituted its judgment for that of the agency. Such decisions only serve to delay projects even further, wasting agency resources for little to no additional environmental benefit.