Conversation
![David Watson 🥑](data:image/svg+xml,<svg xmlns="http://www.w3.org/2000/svg" width="96" height="96"><rect fill-opacity="0"/></svg>)
Post your reply
. argues that most NEPA excess comes from the regs. The statute itself is short & simple. Marin Audubon v. FAA will free judges to ditch NEPA precedents that relied on regs and develop less onerous interpretations.
/2
Quote
James Coleman
@EnergyLawProf
Replying to @EnergyLawProf
NEPA, the statute, still applies to agency action. But statute itself doesn’t seem to impose onerous requirements on agency decisions—those have been imposed by a combination of the regulations & decades of expansive judicial decisions. Judges can now reconsider those decisions. x.com/energylawprof/…
Show more
But in Loper Bright--the Supreme Court decision that ended Chevron deference & invited yesterday's NEPA decision--SCOTUS said that past court decisions relying on Chevron were still good law.
"Statutory stare decisis" rules the roost.
/3
Perhaps a few judges will work through the stare decisis factors & conclude that particular NEPA precedents that relied on regs were "egregiously wrong," unworkable, and implicate no reliance interests.
/4
But precisely b/c the statute is so bare-bones, it'll be hard for a fair-minded judge to characterize any precedent as "egregiously wrong."
(Just look at the morass of analytical requirements that CA judges created by interpreting the similarly bare-bones CEQA.)
/5
So I think the main effect of the DC Circuit's decision will be to induce judges in NEPA cases to rely more on their circuit's precedents, and less on the CEQ's NEPA regs (er, "guidelines").
This is not a recipe for predictability or streamlining.
/6
By contrast, if CEQ had authority to issue NEPA regs with the force of law, a future president that wanted to simplify NEPA compliance could issue new regs that supersede cumbersome judicial precedents.
/7
Trump in fact tried to do this. NEPA defenders sued & Trump regs were withdrawn by Biden shortly after he took office.
Whether you loved or hated the Trump NEPA reforms, the point is that he at least arguably had authority to adopt them. No longer.
/8
One more concern: what deference (if any) do judges owe to NEPA categorical exclusions after Loper Bright & Marin Audubon?
They are textually authorized by NEPA. But Congress established no procedure (like N&C rulemaking) for their issuance.
/9
Will judges in the post-Chevron world micromanage categorical exclusions and insist on exceptions from the exclusions? (As some CA courts have done, with CEQA.)
/10
I don't know. But the recent blockbuster admin law and statutory interpretation cases -- Loper Bright, Ohio v. EPA, and now Marin Audubon v. FAA -- suggest that agencies won't get the benefit of the doubt if they issue new, more expansive categorical exclusions.
/end
