Thus concludes a very merry NEPA week. Let's dig in 🧵
https://twitter.com/SiegelScribe/status/1948757526687723932
The SPEED Act starts by clarifying that NEPA is a purely procedural statute that does not mandate results, etc etc. This doesn't really do anything but it's still good fun. 
It then hard-codes the functional equivalence doctrine (as a long-time FE enjoyer this brings a tear to my eye), whereby compliance with a similar statute (eg, CWA, CAA, etc) can obviate the need for NEPA.
Notably similar to what Dem Rep. Harder called for in a recent letter.
Notably similar to what Dem Rep. Harder called for in a recent letter.
It then allows *state* environmental reviews to substitute for NEPA.
I feel weird about this, as it may make state NEPA reform harder. But I get what they're going for here and it's probably net positive.
I feel weird about this, as it may make state NEPA reform harder. But I get what they're going for here and it's probably net positive.
Now we get onto the big stuff, starting with Scope of Review
This reads like a codification of the recent SCOTUS NEPA ruling: agencies may only consider effects proximately caused by the agency action.
They may not consider speculative, cumulative, etc effects. Good!
This reads like a codification of the recent SCOTUS NEPA ruling: agencies may only consider effects proximately caused by the agency action.
They may not consider speculative, cumulative, etc effects. Good!
Onto major federal action (what triggers NEPA in the first place?).
This is the big one: federal financial assistance alone is no longer enough to trigger NEPA.
This is the big one: federal financial assistance alone is no longer enough to trigger NEPA.
DRUM ROLL PLEASE
Courts may only invalidate a final agency action if:
1. It finds that the agency *abused* its *substantial discretion* complying with NEPA, and
2. The agency would have reached a different result on said action without that abuse.
This is pure 7 County SCOTUS chef's kiss.
1. It finds that the agency *abused* its *substantial discretion* complying with NEPA, and
2. The agency would have reached a different result on said action without that abuse.
This is pure 7 County SCOTUS chef's kiss.
Here is, imo, the biggest kahuna of them all:
Remand-without-vacatur. When a court finds there's a deficiency in the NEPA review, the agency must correct it... but the *action is allowed to continue.*
This is HUGE.
Remand-without-vacatur. When a court finds there's a deficiency in the NEPA review, the agency must correct it... but the *action is allowed to continue.*
This is HUGE.
150 day statute of limitations yada yada yada
Moving onto standing...
1. You must have participated in public comment and made a specific, substantive claim to sue.
2. Gotta show direct harm if that issue isn't addressed.
3. No challenges to the establishment of categorical exclusions (BUILD BETTER CXs!!)
1. You must have participated in public comment and made a specific, substantive claim to sue.
2. Gotta show direct harm if that issue isn't addressed.
3. No challenges to the establishment of categorical exclusions (BUILD BETTER CXs!!)
And, finally: The completion of an EA, EIS, FONSI, or CX is not considered a final agency action under the APA.
This means that opponents cannot sue immediately to attack those NEPA documents alone; they gotta wait for the separate underlying final decision.
This means that opponents cannot sue immediately to attack those NEPA documents alone; they gotta wait for the separate underlying final decision.
All in all, great fun, lots to sit with, seems like they did a great job, and it almost perfectly covers every single recommendation we made here. Like, to a tee.
greentape.pub/p/charting-out…
greentape.pub/p/charting-out…
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