Bipartisan Policy Center Ideas for Reforming Judicial Review: What Do You Think?

I first ran across The Bipartisan Policy Center when I read their comments on the USDA Climate Smart Forestry and Ag comment request. I was impressed by their work, especially since we don’t usually see them in the forest space. Students: there appear to be many spring internships with them.

Anyway, this fall they published  “Reforming Judicial Review for Clean Infrastructure:  A Bipartisan Approach.”

BPC has had three roundtables thus far with experts from across the political spectrum.

This roundtable was the third in a series on permitting. The first roundtable focused on public engagement, and the second focused on permitting linear infrastructure (i.e., transmission and pipelines). The goal of this roundtable was to foster robust discussions on reforming the judicial review process related to permitting, with participants weighing the pros and cons of a variety of policy proposals from across the political spectrum.

According to a forthcoming study of 355 of the largest energy and transportation projects between 2010 and 2018, solar energy projects experienced the highest litigation rate, with nearly two-thirds facing a claimed National Environmental Policy Act (NEPA) violation. Transmission and wind energy projects similarly face higher-than-average rates of litigation, as well as light-rail transit projects. Maintaining opportunities for people to file meritorious lawsuits against projects that have the potential to unduly harm the environment or communities is vital. Nevertheless, the status quo prevents the accelerated build-out of desperately needed infrastructure, all while increasing costs and discouraging investment.

Since many of us have experience with lawsuits (on the USG and plaintiff sides) I’m curious as to what you think about these.  I put my opinions below each one, more to prime discussion than anything else.

(1) Option: Reduce the Statute of Limitations

Under current law, initial lawsuits can be filed for up to six years after final permitting decisions. Participants generally agreed on the value of reducing that time frame.


Current proposals in Congress vary for placing time restrictions on legal challenges, ranging from 60 days up to three years. Some participants advocated shorter time limits, while others wanted to ensure that affected communities would have a longer period to file lawsuits. Although no consensus on a specific time frame was reached, the majority felt that a deadline of two years or less to file suit was acceptable, and most were comfortable with a statute of limitations under one year.

I like two years, seems like most file by then anyway in our world.

(2) Option: Reduce Standing 

One proposal raised by participants, similar to a provision in H.R. 1 passed by the House of Representatives earlier this year, is to limit eligibility to those who raised concerns during the public comment period in the administrative process: If a person or group did not express their concern during the process designed to receive such comment, then they would not be able to petition the courts after the administrative process ended. Some participants expressed concern that such limitations could shut persons out directly affected by a project but were not aware or able to participate in the administrative process. Participants also noted that if this change were adopted, agencies would need to do a better job advertising and make the public comment process accessible.

This has always seemed like a no-brainer to me, since people who can afford lawyers tend to also track projects pretty well.  However, I suspect different agencies do better and worse at public engagement.

(3) Option: Elevate Litigation Filed after Final Agency Actions Directly to U.S. Courts of Appeals

One proposal that received near unanimous support at the roundtable was to elevate litigation directly to an appeals court following the administrative process. This option would speed up the entire litigation process by bypassing district courts and eliminating a step in the judicial process. Because litigation under NEPA is essentially an appeal of a government agency decision, participants agreed that moving directly to a court of appeals would streamline the process without undermining the rigor or thoroughness of judicial review.

I don’t see a downside to this..

(4) Option: Establish a Technical Court with Jurisdiction Over Federal Permitting Decisions

Another proposal that received general backing is the establishment of a single technical federal court with jurisdiction over American Procedure Act reviews and NEPA decisions. This court would have the expertise to address these cases in an effective and timely manner. Participants noted that the U.S. Court of Appeals for the D.C. Circuit already has environmental review expertise and could play this role well. Participants also noted that sending appeals directly to a single technical court would solve the issue of court shopping. Overall, participants agreed that this would be an effective solution that would provide certainty to project developers and appropriate judicial review.

I like this one, as I’ve said before, it would be easier for practitioners to track case law and perhaps make for more consistent case law.

(5) Option: Establish a Permitting Review Board for Energy Projects

Similar to the Environmental Protection Agency’s Environmental Appeals Board, an independent technical appeals board consisting of judges would act as a forum for parties to appeal permitting decisions for energy projects. After a final permitting decision is issued, rather than filing an appeal with district courts, litigants could appeal to a review board that attempts to resolve disputes between the parties. If the board is unable to resolve a dispute, the appealing party can raise their concerns to U.S. Circuit Courts of Appeals. The review board could help concentrate permitting expertise in a single independent body and expeditiously resolve disputes. However, some roundtable participants added that appointments to this board would need to be handled with care to avoid it becoming politicized.

If this is important for climate mitigation (renewable energy) why not climate adaptation.. say fuels and prescribed burning projects?  I like the “resolving disputes” aspect rather than “remandng for more paperwork.”

(6) Option: Setting Court Deadlines

A proposal that participants found appealing was to set deadlines for court actions, such as requiring court decisions on federal permitting challenges within a time frame designated in statute. However, there was skepticism as to whether the legislative branch’s decision to place time restrictions on the judiciary would withstand constitutional scrutiny, or whether the deadline would be enforceable.

Constitutional dogs usually won’t hunt.

(7) Option: Setting Deadlines on Agency Remand

Some participants proposed requiring courts to set deadlines for agency action when the judges remanded a decision. (A remand is when the courts send the decision back to the agency for further consideration, or when a judge vacates a permit, which means the courts invalidated or canceled the permit.) In these cases, deadlines for agency action would provide needed certainty on the timeline for next steps for developers. However, as with the previous option, participants questioned whether requiring courts to set agency deadlines would withstand constitutional scrutiny. Congress could, however, set agency deadlines for agency action following remand, though a deadline set in statute would have less flexibility than one set by a court for a specific action under review.

Most agencies don’t kick back and take a break with a remand anyway, so I don’t know what deadlines would help with.

(8) Option: Narrowing the Scope of Decisions

Participants broadly supported narrowing judicial outcomes by directing the courts to specify aspects of review requiring additional analysis, revision, or remand. By specifying the particular aspects requiring attention, agencies  can focus their efforts on rectifying specific deficiencies without the need to entirely vacate permits. This would streamline the process and promote more efficient decision-making. The familiarity of this procedure to the D.C. Circuit also garnered support, as it builds upon existing practices that have proven to be effective in addressing complex regulatory challenges.

I think they already do this to some extent in our world. Not sure I understand when and when not. Maybe our legal friends can help us out here?

(9) Option: Direct CEQ or the Permitting Council to Develop a Public Database of NEPA Lawsuits

Roundtable support was strong for the Council on Environmental Quality (CEQ) or the Permitting Council to establish a public database of NEPA lawsuits that would include information about timelines for both filing of initial claims and total length of the judicial review process. CEQ previously tracked such data, but it stopped doing so in 2013. One participant stressed that transparency is critical for accountability.

Duh. Transparency is also critical for coherent public policy, as well as useful policy discussions and writing of papers.

6 thoughts on “Bipartisan Policy Center Ideas for Reforming Judicial Review: What Do You Think?”

  1. How about eliminate the charitable tax deduction and revoke the tax exempt status for the litigation-mills masquerading as “environmental” charities if they spend over a certain percentage of their time filing suits similar to the lobbying restrictions.

  2. How about eliminate the charitable tax deduction and revoke the tax exempt status for the litigation-mills masquerading as “environmental” charities if they spend over a certain percentage of their time filing suits similar to the lobbying restrictions.

    • I’m not sure that will help.. certainly litigating is a legitimate thing to do. I do think there’s a lot of policy work that c3s do that I can’t tell from c4, but perhaps I don’t have a legal enough brain to figure it out.

  3. A good find – thanks. What I think FWIW.

    1) The SOL seems like a non-issue. If this whole discussion is about urgency and moving faster, the need for a lawsuit to enjoin an action would be driven by the speed of the project and not likely to bump up against a SOL. (If an agency hasn’t moved to implement a project prior to the SOL, then I don’t think the SOL was not the problem.)

    2) Organizational litigants probably can be expected to understand and participate in administrative processes, but local NIMBY mom and pops maybe not.

    3) The downside would be seen by those wanting the courts to give higher their issues that don’t involve climate/energy – who are probably not represented here.

    4) The downside of this is the logistics of setting up a new court and making it a high enough priority to do that.

    5) If the issue is “don’t build it here,” I don’t see disputes over projects likely to be resolved. (This is a broader scale planning problem.) The process of mediation of technical legal disputes with a legal expert could provide an objective assessment of the outcome of litigation, which may peel off a few future cases.

    6) See also (3).

    7) Deadlines also increase the risk of more losses in court.

    8) There seems to be a set of judicially made “rules” for vacatur that could be adjusted by Congress to reduce the number of projects set back to square zero. However, the reasoning for such rules, and the relationship of vacatur to injunctions, goes beyond my knowledge of civil procedure. Much of the literature seems to focus on vacating regulations rather than agency “projects.” Here’s a couple of things I have quoted from two recent court cases.

    The court remanded the decision to the agencies “to address the deficiencies in the BiOp and the ROD,” but did not vacate the decision because “deficiencies in the BiOp and the ROD are curable upon remand to the agencies, and vacatur would cause disruption.”

    “This court need not wade into the scientific debate to determine that important steps were skipped,” they said, adding that “the failure to abide by the required procedural steps necessitates vacatur and remand of the Screens Amendment.”

  4. India has a “National Green Tribunal” which is essentially a specialized court set up to hear environmental cases and which has judges with specialized expertise. Although I’ve done alot of research on forests in India, I’ve never focused on this aspect so I’m not particularly well informed about it, but it could serve as a potential model for looking at specialized environmental courts in the US. India is obviously a very different place, but many aspects of the judicial system (and environmental reviews in particular) are similar to those in the US, so its not an especially far-fetched comparison. I found this article which presents an introduction to the topic for those unfamiliar with it (although there has been alot of change in Indian environmental law in the last decade which means that a 12 year old article is certainly quite out of date).

    • Thanks, Forrest! One thing I noted when I was working that somehow we always thought we could help other countries.. but maybe they have better ideas that we do! And there wasn’t much of an interest.. I tried to import some Canadian ideas without much success.


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