Infrastructure

A Cheat Sheet for NEPA Judicial Reform

How do different reform proposals stack up?
May 28th 2024

NEPA needs reform

Reforming judicial review is vital for fixing the National Environmental Policy Act, or NEPA. Litigation of NEPA reviews has become an avenue for abuse and obstruction. Lawsuits can target these procedural reviews to block the construction of important infrastructure projects. As federal agencies “litigation-proof” their environmental reviews, NEPA documents grow longer by the year, further delaying construction for major infrastructure projects. According to an estimate by former EPA general counsel Donald Elliott, roughly 90% of the details in NEPA reviews are included to preempt litigation. 

This document assesses proposals for reforming the NEPA judicial review process. We evaluate these proposals for how well they would add certainty to the process, speed up agency reviews, and balance reform with the need for community input.

Reform mechanisms

Set a Time Limit on Injunctive Relief

Set a deadline on the length of time that courts are allowed to issue injunctive relief against a project. The time limit could start either at the beginning of review (at the Notice of Intent) and run for four years or at the end of the review (at the Record of Decision) and last for six months. 

Make Courts More Deferential to Agencies

Congress could set higher standards for remanding NEPA permits. Different options include requiring the plaintiff to prove a majority of their claims against a NEPA document, to prove the issue at hand would have changed the agency’s final decision, or to prove the error in question affects a majority of environmental impacts analyzed of the document.

Create a Permitting Appeals Board

Congress could create an administrative board to handle cases brought against federal permitting decisions. A board made up of five expert judges would concentrate expertise and ensure consistent rulings.

Have FPISC Mediate Lawsuits

This would give the Federal Permitting Improvement Steering Council (FPISC) authority to mediate cases where courts have determined a permit is deficient. FPISC mediation would determine a remedy to repair the permit, and further judicial challenges would not be allowed. 

Consolidate Lawsuits by Project

Congress could establish a procedure to join all legal claims against a NEPA permit and expeditiously consider all the claims at once. 

Limit Preliminary Injunctive Relief

Congress could disallow preliminary injunctive relief — a stay on construction while a case waits to be heard in court — unless plaintiffs file their challenges within 60 days of the publication of an approval under NEPA.

Expedite NEPA Challenges to Originate in the Court of Appeals for the D.C. Circuit

Alternatively, Congress could require that all NEPA challenges begin in the Court of Appeals for the D.C. Circuit, regardless of project or sponsor location. 

Expedite NEPA Challenges to Courts of Appeals

The legal process would be shortened if Congress required that all NEPA challenges begin in the appellate court of jurisdiction, rather than the district court level. This would mean only Courts of Appeals and the Supreme Court would have jurisdiction over NEPA cases. 

Increase Requirements for Judicial Standing

Tougher standards to demonstrate judicial standing would limit the number of people eligible to file lawsuits. Proposals require that a lawsuit be based on a public comment plaintiffs submitted during the NEPA process, and that plaintiffs must be personally harmed by the project.

Shorten the Statute of Limitations

A shorter statute of limitations would condense the time period in which litigants can file new lawsuits against NEPA decisions. Proposals have ranged from three years to as short as 60 days.

Put Deadlines on Court Action

Congress would set deadlines for courts to review legal challenges to NEPA permits and issue decisions (e.g., six months). However, these deadlines are difficult to meaningfully enforce.

Evaluation criteria

Protects good-faith lawsuits?

Reforms should protect the opportunity for good-faith legal challenges to be heard in court.

Speeds judicial review?

Reforms should speed the legal process for reviewing a lawsuit against a NEPA permit.

Creates certainty for developers?

Reforms should create certainty in the permitting and judicial review process by lowering litigation risk and completing permits faster. 

Is hard to circumvent? 

Reforms should proactively cut off loopholes that obstructionists might use to evade reforms. 

Reduces bad faith lawsuits?

Reforms should help lower the number of bad-faith lawsuits — legal challenges that are brought for the purpose of blocking a project, regardless of how thorough the review was.

Creates bright-line rules?

Reforms should be clear and unambiguous, and their effects should not be easily undermined via regulation or court interpretation.

Is harder to vacate? 

Reforms should make it harder to win cases against a NEPA permit. Permits should only be vacated if agencies make significant errors.

Speeds agency reviews?

Reforms should empower federal agencies to speed their reviews by lowering litigation risk. This will help agencies meet their timelines established in the Fiscal Responsibility Act (one year for an EA, two years for an EIS). 

Ends the “litigation doom loop”?

Reforms should unambiguously end the cycle of perpetual litigation and review.

References