Jay Johnson, Tyler Welti, and Megan Algya authored the Law360 article “How NEPA Review Has Changed Since Seven County,” examining how the Supreme Court's decision has reshaped National Environmental Policy Act (NEPA) review. The following is an excerpt:
One year ago, in a case called Seven County Infrastructure Coalition v. Eagle County, the U.S. Supreme Court made a dramatic course correction to judicial review under the country's most litigated environmental law, the National Environmental Policy Act.
NEPA, the court explained, had become "a blunt and haphazard tool employed by project opponents." The court's decision in Seven County, it said, was bringing it "back in line with the statutory text and common sense."
Seven County flagged two key problems with the way NEPA had been working. First, the lower courts were creating too much litigation uncertainty by not deferring to agencies' technical work.
Second, partly in response to this litigation uncertainty, agencies were expanding their NEPA reviews to speculate about separate projects, attenuated effects and hypothetical alternatives.
The result, according to the high court? "Delay upon delay, so much so that the [NEPA] process sometimes seems to 'border on the Kafkaesque.'"
The court in Seven County tried to break this cycle. It rejected "just a little more process" as an excuse for interminable NEPA reviews.
It established deference as "the bedrock principle of judicial review in NEPA cases." And it emphasized that agencies applying NEPA must be allowed to draw "manageable lines."
More than one hundred judicial decisions later, the courts are effectively applying Seven County. The agencies are a different story.
For the full article, click here.