Shout out to E&E news reporter Yachnin for attending and finding interesting stuff at the WGA Meeting! Governors of different parties agreeing on stuff and trying to solve problems together is well worth some reporting IMHO.
I like the Vilsack idea because it’s not just about NEPA, but would seemingly help make consistent case law around ESA, climate analysis, scientific controversies and so on that seem to be decided more or less randomly by different courts in different cases. And we don’t know if it was Vilsack’s idea or one of his staff, or someone at OGC or at the FS, but still how often do we hear new outside-the-box ideas in this space? Also if the issue is litigation, the tweaks in the so-called Fiscal Responsibility Act and the proposed CEQ NEPA Regs are either not helpful, or in the wrong direction. I’ll post a few more posts on various efforts and studies in the next few weeks, but props to Vilsack for saying the “L” word out loud.
From this E&E News story:
When it comes to speeding up often lethargic legal challenges to environmental reviews, Agricultural Secretary Tom Vilsack is floating a novel idea: Create a specialized court system.
Vilsack raised the concept Tuesday in remarks to the Western Governors’ Association at its annual meeting in Jackson Hole, Wyo., where conversations among state officials often turned to possible reforms of the National Environmental Policy Act.
The Biden administration is weighing how to reshape the nation’s bedrock environmental law to streamline environmental permitting and speed the process of reviews.
“The challenge is no matter what you do, somebody always disagrees with it and you have litigation,” Vilsack said.
“Sometimes it’s litigation because people think you should be doing more, and sometimes people think you should be doing a heck of a lot less.”
Preempting his own idea by asserting it is “probably not feasible,” Vilsack then went on to propose a NEPA court system — akin to admiralty courts, which apply maritime laws — that “would essentially be responsible for adjudicating those decisions.”
“I think you’d get greater consistency with people who do this every day,” Vilsack said “You’d have precedent, people would understand what the rules are. You wouldn’t have the forum shopping that takes place in this circumstance.”
Plus you might have some kind of consistent case law for NEPA practitioners to aim for..
Such a court system could potentially serve to balance environmental protections with a need to speed up the often lethargic process, Vilsack said.
“It seems to me that until you deal with the issue of litigation and trying to figure out ways to streamline it in a way that doesn’t interfere with the quality of the analysis and assessment, you’re going to continue to be stuck with taking forever for things to get done,” he said.
The idea appeared to spark the interest of several officials at the meeting, including Utah Gov. Spencer Cox (R), whose response to Vilsack prompted audience laughter. “That makes far too much sense, and there’s no way it could ever happen,” Cox said.
Wyoming Gov. Mark Gordon (R) revisited the idea during a Wednesday panel on infrastructure permitting, describing a separate legal system as “provocative.”
“There is a tendency to try to find the best court to bring a particular action in NEPA,” Gordon said.
New Mexico Gov. Michelle Lujan Grisham (D) responded to Gordon, noting that the idea would require both dedicated funding and training, and pointing to failures in the immigration court system.
“If we’re not willing to take on controversial ideas that are provocative, then we aren’t going to solve problems,” Lujan Grisham said. “I think there’s a there, there. I don’t know exactly what it is.”
She later added, “If we have a stalling aspect, we should figure out a way so that it is a fair objective review, so that we get guidance about where to go and not a situation that continues to stall us out all across the country.”
I’m not sure that it would take any more funding or training, we’re already doing all the work but in a less coherent fashion.
NEPA experts are still poring over the 236-page draft document. But several said the changes are an encouraging step toward broader permitting reform, balancing efficiency and environmental risk — while staying consistent with the underlying law and court precedent.
“I don’t see a lot of legal risk” to CEQ, said Max Sarinsky, a senior attorney at New York University’s Institute for Policy Integrity.
He described the draft as “meaningful” but “also fairly modest and incremental.”
Well, I’m glad NYU has an Institute for Policy Integrity as opposed to .. I don’t know.. whatever the opposite of integrity is? But it’s OK because foundations are funding them, many of the usual suspects..and even our own tax dollars via EPA. Now everyone knows I like lawyers and economists (especially forest economists and lawyers), but if we want to provide things like energy to people who need them, I think we’ll need more expertise at the table, or in the university, or at the think tank, or in the White House than those who generate analyses and lawsuits. Because generally lawsuits are good at slowing down things that are bad (to some). I’m not sure that they’ve ever speeded up things that are good (to some).