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Nicholas Bagley
@nicholas_bagley
This is a fascinating and important opinion, but it doesn't mark the end of NEPA. To the contrary, it may even make NEPA compliance more uncertain and -- at least in some cases -- more onerous. /1
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James Coleman
@EnergyLawProf
Huge decision holding that CEQ never had authority to issue the National Environmental Policy Act regulations that have been used for nearly half a century x.com/thomashochman/…
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Nicholas Bagley
@nicholas_bagley
Since NEPA was adopted, the Council on Environmental Quality in the White House has issued guidelines for how federal agencies ought to comply with NEPA. Originally, those guidelines were internal best practices, enforced by the White House (and not directly by the courts).
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Nicholas Bagley
@nicholas_bagley
But then CEQ got into the practice of issuing notice-and-comment regulations and publishing them in the Federal Register. What originally looked like internal guidelines for federal agencies now looked like binding rules -- and the courts started enforcing them.
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Nicholas Bagley
@nicholas_bagley
Some of those CEQ rules required agencies to do more than they would have chosen to do themselves. To the extent, CEQ regulations have contributed to NEPA burdens.
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Nicholas Bagley
@nicholas_bagley
But some of those CEQ rules are categorical exemptions from NEPA. To that extent, CEQ regulations can reduce NEPA burdens by giving agencies a justification for refusing to do even more extensive environmental review.
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Nicholas Bagley
@nicholas_bagley
If this decision stands, which seems likely (though by no means certain), the playing field for agencies is somewhat altered. Before, agencies could say: "We did X because CEQ said we had to," and courts would say, "Cool cool cool."
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Nicholas Bagley
@nicholas_bagley
Now, agencies will say, "We did X because we think that's how best to understand what NEPA requires." Courts will scratch their heads and ask if what the agency has said is "arbitrary or capricious."
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Nicholas Bagley
@nicholas_bagley
From an agency's perspective, there's still a lot of uncertainty. When it comes to categorical exemptions, maybe a lot more uncertainty! Maybe you've got more freedom to ignore silly things that CEQ says you should do. But you've still got to worry about the courts.
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Nicholas Bagley
@nicholas_bagley
In the meantime, CEQ regulations still continue to bind you *outside* the courts. Those are still rules that the White House has laid down for how you're supposed to go about your business. It's just that the DC Circuit won't pay much attention to them in litigation.
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Nicholas Bagley
@nicholas_bagley
Is that good or bad when it comes to minimizing NEPA burdens? I'm honestly not sure. The tl;dr is that the decision is a big deal, but NEPA is still very much kicking and the upshot for agencies is equivocal.
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Jason Cox
@jasoncoxnc
Q - in line with your mention of how would apply in DC. If this goes to SCOTUS 1) how does this now further apply assuming they held the same and 2) what are potential outcomes if they go a step further (unsure if such likely applies) or 3) if a very different council exists
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Nicholas Bagley
@nicholas_bagley
Replying to @nicholas_bagley
In the meantime, CEQ regulations still continue to bind you *outside* the courts. Those are still rules that the White House has laid down for how you're supposed to go about your business. It's just that the DC Circuit won't pay much attention to them in litigation.
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