Members of both parties have expressed frustration with lengthy court delays caused by abusive litigation against environmental permits. Project opponents frequently use a “delay, delay delay” tactic, filing legal challenges based on minor procedural issues to trap projects in never-ending court battles. For obstructionists, getting injunctive relief to halt a project is the goal.
The National Environmental Policy Act (NEPA) is susceptible to being misused for delaying or obstructing projects. NEPA’s wide-ranging requirements for environmental review and implementation under procedural law creates a significant legal weakness. This vulnerability allows opponents to contest a finalized environmental review, secure an injunction from the court, and halt ongoing construction. These obstructionists then repeatedly employ this tactic against updated environmental reviews to obtain further injunctions, causing continuous delays until the developer surrenders or loses financial support. Injunctions are the critical instrument used by opponents to block projects.
Congress should address the misuse of injunctive relief by opponents who exploit the NEPA process to delay crucial projects. To achieve this, Congress should set a time limit on how long courts can grant injunctive relief. This approach would preserve a comprehensive NEPA process while establishing a firm deadline for obstructions.
A time limit mechanism would work by setting a start date when a developer submits an environmental review application under NEPA. The timer would be set for a predetermined period, such as two, three, or four years, based on the extent of time deemed appropriate by policymakers. During this period, agency reviews and legal challenges against finalized permits would proceed as usual. Agencies would still need to fully comply with NEPA, and lawsuits against finalized permits could still be brought to court. However, once the time limit expires, courts would no longer be able to halt projects from beginning (or continuing) with construction.
The time limit on injunctive relief would run concurrently with agency reviews under NEPA and provide time for public legal challenges. This deadline would encourage agencies to issue final decisions before the time limit, allowing ample time for public challenges. If policymakers worry that agencies may not finalize decisions in time or address legal challenges, the time limit could be extended, or they could explore alternative reforms to expedite the NEPA process. If policymakers worry that a time limit would allow agencies to wait out the time limit and issue incomplete delays, Congress could introduce an exception that allows injunctive relief if a court determines the relevant agency “egregiously or willfully erred.”
A time limit on injunctions would have several advantages. It would (1) create an effective deadline, (2) discourage obstructionist litigation, (3) promote faster agency review timelines, (4) preserve a thorough NEPA process, and (5) protect good-faith community input.
- A time limit targeting injunctive relief would create a concrete backstop against obstruction. Other proposals — such as limiting standing or lowering the statute of limitations — would not cut off obstructionists who have sophisticated legal teams. Congress should directly address legal obstruction by capping the length of time injunctive relief can be sought.
- By creating a hard deadline, a time limit on injunctive relief would ensure that litigating NEPA permits would no longer be a viable strategy for blocking a project. In most cases, obstructionists would no longer try to exploit litigation against NEPA permits, freeing up the legal system to handle good-faith objections within a reasonable time frame.
- A time limit on injunctive relief would enable agencies to complete environmental reviews more rapidly. With a time limit in place, agencies could expedite reviews without fearing that shorter timelines would result in further legal delays. This would also enhance the effectiveness of other provisions, such as page limits or agency review deadlines.
- A time limit would still maintain strong incentives for project sponsors and agencies to conduct thorough reviews. A limit on injunctive relief is a backstop for the worst cases of delay or obstruction. In most cases developers will expect to move forward much faster than four years meaning they will retain a strong incentive to complete a thorough NEPA review in order to avoid any legal challenges.
- Maintaining genuine community input is crucial to the NEPA process. A time limit on injunctive relief would not alter NEPA requirements and would still provide a reasonable timeframe for valid objections to be raised and addressed in court. Furthermore, Congress should actively work to improve community input (see our memos on enhancing community input and incentivizing community benefit agreements).
Section 41007 of the Fixing America’s Surface Transportation Act of the FAST Act of 2015 (Pub. Law 114-94) is amended by adding at the end the following:
“(f) For any [detailed statement/environmental impact statement], categorical exclusion document, or environmental assessment required by the National Environmental Policy Act of 1969 (42 U.S.C. § 4332(C)) or its implementing regulations, including but not limited to the covered projects under this Title—
- Certification.—the responsible Federal official shall certify a start date for drafting the [detailed statement/environmental impact statement], categorical exclusion document, or environmental assessment and shall later certify a date on which the [detailed statement/environmental impact statement], categorical exclusion document, or environmental assessment was finished.
- Limitation on judicial remedies.—
- If the responsible Federal official has certified a date on which the document was finished and more than [four] years have passed since the certified start date for drafting the detailed statement, no court may vacate, enjoin, or otherwise delay the Federal action for failure to comply with this chapter. After [enactment of this act], any court order to enjoin, vacate, or otherwise delay a Federal action or the environmental review thereof for failure to comply with this chapter shall expire within [four] years after the certified start date for the detailed statement required for that action; and any existing order enjoining, vacating, or otherwise delaying a Federal action for failure to comply with this chapter is of no force and effect once [four] years have passed from the certified start date for the detailed statement required for that action.