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:
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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.
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I did get a chuckle out of the link in the above article to another E&E news article about the proposed CEQ NEPA regs that I wrote about earlier this week.
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).
It’s a very progressive idea, that scientists and disinterested bureaucrats can steer society. That they will efficiently make decisions based on science and best practices. I am skeptical. My experience in California with the California Water Resources Control Board has increased my skepticism. Once the law is passed the Water Board then interprets the law, writes the regulations, Water Board employees interpret their own regulations, enforces their regulations, and acts are judge, jury, and executioner for their regulations. I have yet to see any Water Board action that did not have a unanimous vote.
I am reminded of Thomas Sowell’s comment about bureaucracies: “You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.” I don’t agree that the outcomes are nothing. Rather, outcomes are predetermined. The process is the kabuki theater that must be performed.
I am worried that this process would be performative and not transformative.
I agree with Thomas Sowell’s comment, but setting up a working structure can lead to better outcomes.
Scientists and “interested” bureaucrats think they can steer and SHOULD steer society these days. But they are mistaken.
I think it is a GREAT idea since it would lead to a “Equal Access to Justice” for Federal agencies when it comes to NEPA.
I remember working for the NPS in 1978 and watching the Landscape Architect prepare one of the FIRST NPS NEPA documents. Yep, ten years after the Legislation and the NPS interpretation was the law ONLY applied to “bad” agencies like FS and BLM!! Took them ten years to decide that was the wrong interpretation.
I retired in 2007 and one of the driving elements was a Federal judge that decided a 100 horses used by outfitters that were spending three months in a 500,000 acre Wilderness was a MAJOR FEDERAL ACTION and required a EIS.
I was not going to waste my time working on that, even if I got paid for it.
It was a couple of years later that the Obama Administration decided that the DeepWater Horizon drilling platform ONLY required a 26 page CE.
The total length from the “ship” to the oil reservoir was over 18,000 feet. The DeepWater Horizon drilling platform was a SHIP whose job was to keep the well pipe within a TWELVE INCH hole with 13,000 feet of pipe between the 12 inch hole and the “ship”. DeepWater horizon was the second SHIP of the type and the first to go that deep.
What could go wrong??
Very little according to the Obama Administration, until it did.
Having a specialized court system to deal with NEPA it would quickly LEVEL the playing field between Federal projects and the various Federal agencies. It would be hard for any agency with a straight face, propose a oil drilling project like DeepWater Horizon and get by with a CE, no matter the political pressure from the Administration.
The courts have crossed the line into making scientific and value judgements. That would be my concern, but rather quickly I think it would level the playing field and provide a “equal access to Justice” for agencies like the Forest Service or BLM.
It is a great idea. It would make NEPA worthwhile investment for the taxpayers.
Thanks for your thoughtful response, Vladimir.
I am generally an optimistic guy, except when it comes to government and bureaucracy. I trust markets more than bureaucrats. I can say this, in part, because I too was a bureaucrat. I was a forester for the California Dept. of Forestry and Fire Protection for ~25 years. Markets provide feedback. If people don’t like it they don’t buy it. That feedback is missing in government bureaucracy. I can vote someone out of office, but the reason is garbled and not clear. Did I vote on a single issue?
When it comes to government fixes, I am skeptical. The idea seems like a great idea, with the best of intentions. What could possibly go wrong? I see these fixes as, you did with the Deepwater Horizon, as likely having “Great Moments in Unintended Consequences.”
See Great Moments in Unintended Consequences (Vol.https://reason.com/video/2023/11/10/great-moments-in-unintended-consequences-vol-13-gun-buybacks-poppy-payday-cafe-standards/ 13): Gun Buybacks, Poppy Payday, CAFE Standards
And by “progressive” I mean it is progressive ideologically.
https://www.libertarianism.org/media/free-thoughts/illiberal-reformers-race-eugenics-american-economics-progressive-era
“[N]early all [early progressive economists] agreed that the best means to their several ends was social control — investigation and regulation by independent government agencies supervised by a vanguard of scientific experts [who supposedly] dedicated themselves to the public good.”
That’s what we already have now with the various federal agencies making technocratic decisions with almost no democratic accountability. I wonder if making independent courts that specialize in specific subject matter might actually do a better job of holding administrative agencies accountable to actually following the law. As it is, because judges lack the specialized knowledge necessary to review many agency actions, they simply defer to the agency’s expertise in every case and assume the agency’s take on the “best available science” is correct. I wonder if more specialized courts might allow for a more substantive review of whether agency decisions are really supported by the evidence.
Patrick, the other side of this is that they seem randomly to not defer to the agency. I’m sure there is logic, facts, maybe litigator and staff quality, maybe even judicial bias toward or against certain worldviews both about the feds, the plaintiffs. I think an advantage of the “one court” system is that we could effectively analyze these factors and this would inform plaintiffs, feds and judges to potentially all do better work.
As long as this specialized court system is established as basically a new federal district court with article 3 judges, I don’t see anything wrong with the idea of giving a specialized court original jurisdiction over environmental law claims. Of course, NEPA cases are only one sub-species of Administrative Procedure Act claims, so maybe that court should handle APA cases more broadly rather than just environmental law?
Honestly I think quite a few areas of law could benefit from having specialized courts. Lawyers routinely specialize in specific practice areas but federal judges are somehow expected to be equally familiar with all areas of federal law, deciding environmental cases one day, immigration cases another, and copyright cases after that. Different judges may be more knowledgable about certain practice areas and less knowledgable about others. I also follow tech law a fair bit and it’s just painful seeing 80 year old judges trying to understand abstract concepts of computer science well enough to make a rational ruling on issues like software patents and API copyrights.
Environmental law, immigration law, intellectual property law, etc. would probably ideally all have their own specific trial level courts, that judges could be appointed to based on their qualifications in those specific practice areas. Then only appeals court judges and Supreme Court justices would need to be generalists. We already have some specialization at the appellate court level with the DC Circuit, and at the district court level with the Court of Federal Claims. This would really just be expanding on that concept.
What’s an article 3 judge for the less legally minded around?
A judge confirmed by the United States Senate, per Article III of the Constitution.
Judges appointed under Article 3 of the Constitution. Appointed by the president, confirmed by the Senate, life tenure. Unlike administrative law judges who are just employees of an administrative agency. Interestingly from some quick research I did on this subject, I found that the judges on the Court of Federal Claims are not full article 3 judges in that they don’t serve for life, but they still are confirmed by the Senate. So apparently there’s a third option as well.
I agree with the observations that this would be a “long shot” in light of all the other problems the government has to deal with right now.
I don’t know if there are any facts to back up the “forum shopping” claim. The only real choices available are where the action would occur, or where an office is that was responsible for the decision. These are often not environmentally friendly. I agree with Patrick that the D. C. Courts often get to interpret federal law, and would have a head start on any effort to specialize. (But I don’t think a D. C. perspective is what the western governors had in mind.)
As for federal lands, I would wager that a large share of the cases have been in the 9th Circuit, and the judges there have more experience than elsewhere. If we like what is happening there, we could build on that. (But I suspect that the folks who are suggesting this don’t like how the 9th Circuit has applied their experience in this field.)
Are you saying that the 9th circuit (actions or offices) are not “environmentally friendly?”
A lot of cases are in front of district judges that seem to be hostile to environmental plaintiffs. I’ve not really kept track (someone help me out here?), but the Eastern District of California seems to be one, along with some judges in Idaho and eastern Washington. If a case goes to the 9th Circuit, those kinds of judges are probably in the minority.
Vilsacks comment is encouraging to at least a high level of recognition as to how big the elephant in the room is. But after 40 years of advocating the need to do something I’m not getting my hopes up