“Building anything significant in the United States requires layers of approval at all levels of government,” Philip K. Howard wrote in his 2014 book, No one rules. “Environmental review has evolved into an academic exercise, like a game of who can find the most sophisticated ones…The courts have become enablers of people using the law for selfish ends.”
This sounded radical at the time, but a decade later, these types of assessments are becoming mainstream. Recent critics include Ezra Klein this New York TimesJerusalem Demsas atlantic organizationand Matthew Iglesias Burundi Pillar. Demsas’s article was provocatively titled: “Community Input Actually Is Bad.”
In a 2023 law review article, Michael Bennon and Devon Wilson of Stanford University provide empirical data on the impact of litigation on large energy and transportation projects. Using the Council of Environmental Quality’s (CEQ) database, they investigated what happened after the environmental impact statements (EIS) of 171 energy projects and 184 transport projects were finalized (2010 to 2018). Overall, 28% faced post-EIS litigation, with the overall permitting process taking up to 7 years for energy projects and 10 years for transportation projects. They note that the litigation process tends to have a local impact and downplay or ignore regional and national interests.
Most European countries, as well as Australia and New Zealand, seek public comment on large projects, but usually at an early stage so the results are incorporated into the EIS rather than followed by litigation following the EIS. With the exception of the UK, protracted post-EIS litigation is rare in Europe.
In recent years, Congress has enacted modest infrastructure reforms, but these reforms have focused primarily on the EIS process itself. Page limits and production time limits on such documents would help, but post-EIS litigation has yet to see any reforms.
Howard’s 2014 book called for reform of such litigation: “The history of environmental review shows how it has been hijacked by the courts and spiraled into a spiral of endless protest. Nowhere in the National Environmental Policy Act of 1969 does it indicate that judicial This could only be accomplished through President Jimmy Carter’s Executive Order 11991, which gave the CEQ regulatory powers, which led to a series of court decisions and increasingly to citizen and interest group litigation. that power.
In the newly released policy studyDuring this time, I asked a dozen organizations and academic researchers for ideas for reforming environmental litigation. Some ideas are quite radical, such as revoking the executive order giving the CEQ regulatory powers, but others could be considered first steps, such as imposing time limits on filing lawsuits, imposing time limits on injunctions, sending cases directly to appeals courts and limiting the The class that brought the lawsuit.
The study therefore suggests a range of options. It also uses the Bipartisan Policy Center’s review process to assess the impact and likelihood of near-term enactment of a number of potential litigation reforms.
Will the new Congress in January enact environmental litigation reform? The study shows the possibility of a bipartisan coalition, with a majority of Republican and business groups supporting accelerated transportation program reforms and a majority of Democratic groups supporting energy/environmental program reforms.
The report also cited two growing coalitions in the House: the bipartisan Problem Solvers Caucus and the relatively new Conservative Climate Caucus, whose membership overlaps to some extent. This is where bipartisan litigation reform could begin.
The fact that centrist opinion leaders have recognized the need for environmental litigation reform suggests that building a bipartisan coalition on this issue is feasible. Much will depend on the makeup of the 119th Congress and the extent to which mainstream business and environmental groups make litigation reform a priority.
