The permitting bill will let the Trump administration ignore NEPA

Most people who are trying to understand the Senate’s permitting bill, the Bipartisan Affordability and American Jobs Act (BAAJA),have heard of the (many) laws it amends: things like the Federal Power Act, the Clean Water Act, the Endangered Species Act and the National Environmental Policy Act (NEPA). Earthjustice posted our full analysis of those changes here.  

But there’s also been discussion of a law BAAJA doesn’t change: the Administrative Procedure Act (APA). Specifically, some of the bill’s proponents are saying Senate Democrat negotiators pulled a fast one on their Republican counterparts by giving away the right to seek injunctions for NEPA violations while secretly preserving it via the APA.  

I’ve litigated NEPA cases from both sides; as a defense lawyer in DOJ’s Environment and Natural Resources Division, and from my plaintiff-side perch at Earthjustice. So let me explain why the BAAJA believers are wrong: 

Section 1110 of BAAJA says that “the only remedy the court may order to redress [a NEPA] violation is to remand, without vacatur or issuance of an injunction, the applicable order to the agency.”  That means if an agency does a shoddy NEPA analysis while issuing a permit, the only thing a court can do is send the NEPA analysis back to the agency to do it again. The permit stands in the meantime, and the project can continue.   

But wait, there’s more: Section 1401 of BAAJA says that the agency can’t revoke or modify a permit after it has been issued except under very limited exceptions. So, its new NEPA analysis can’t lead to a change in the permit. And Section 1106 exposes the agency to serious liability if it doesn’t hit tight deadlines for issuing NEPA analyses, forcing the agency to rush and eliminate any real consequences for a screwup. That’s why eliminating people’s ability to stop or improve a project really matters.  

Without meaningful judicial remedies, NEPA will be virtually impossible to enforce, especially against bad faith actors like the Trump administration. And not just for wind towers or transmission lines. For coal mines, gas pipelines, clear cuts, and mining projects too. The Trump administration has already shown its willingness to blow past the law to permit these, and it will exploit BAAJA to launch an epic permitting campaign on behalf of its fossil fuel patrons.  

Here’s where the BAAJA believers start throwing screwballs.  First, they say that even though Section 1110 forecloses injunctive relief under NEPA, injunctive relief will remain available under the Administrative Procedure Act (APA). Courts will almost certainly reject the argument. Here’s why:   

1. This argument starts from the premise that there is a distinction between suing under the APA and suing under NEPA. There isn’t, because you can’t sue under NEPA.  Plaintiffs sue under another law: the Administrative Procedure Act. That law is the operating system for government agencies.  It tells them how they have to regulate (with public input, transparency, and sound factfinding), and it requires them to follow the law.  If they don’t, the APA gives people the right to sue.  And that’s how people enforce NEPA.  

Which is all to say that there are no “NEPA lawsuits.” There are only “APA lawsuits to enforce NEPA.”  

1. The limits on judicial remedies in BAAJA apply to APA lawsuits to enforce NEPA. How do I know? Because Section 1110 of the bill states that its NEPA provisions apply to any claim that “seeks judicial review under any provision of Federal law” for a NEPA violation. “Any provision” includes the APA.  

1. It’s highly unlikely that a court would get creative with its reading. The Supreme Court has consistently said that courts should give effect, if possible, to every clause and word of a statute. Therefore, judges are not going to be eager to read the bill’s sweeping limits on judicial review to apply to non-existent “NEPA lawsuits.” They’re going to recognize that Congress was eliminating vacatur and injunctive relief in APA suits to enforce NEPA.  

1. Finally, the Trump administration is right now arguing before the Supreme Court that, even without BAAJA, the APA doesn’t allow courts to vacate anything—permits, regulations, whatever.  

As someone who has personally practiced in this area of law and who works with hundreds of litigators who do so daily, I hope I’ve set the record straight.