The Breakthrough Institute published a new report that examined recent NEPA-related court cases.
Breakthrough Institute analysts, in collaboration with legal experts at Holland & Knight, compiled and analyzed 387 NEPA cases brought to the U.S. appellate court system over the 2013-2022 period and categorized them by project type, environmental review, length of judicial review, federal agency, and plaintiff.
One of the key findings is that federal agencies win 80% of the cases, meaning that their environmental reviews are largely accurate and upheld by the judicial system. But the lawsuits generally add 3–4 years to project timelines.
Most of the lawsuits are brought by non-governmental organizations (NGOs) like the Sierra Club and Center for Biological Diversity. Oftentimes they challenge fossil fuel infrastructure like oil and gas pipelines and extraction projects, but one-third of energy-related lawsuits target clean energy projects like wind farms, nuclear power plants, and electrical transmission lines.
There's another important category of lawsuits dealing with public lands management, and almost half of these center around forest management. The report notes, "one of the most concerning challenges imposed on land management agencies by NEPA [is] obstruction of wildfire mitigation efforts."
In a hotter and drier climate-changed world with over a century of excessive wildfire suppression practices, our forests are highly vulnerable to extreme wildfires. That's why we've seen so many terrible wildfire seasons in recent years. But governments and agencies have had a very difficult time implementing wildfire abatement measures like controlled burns and forest thinning due to opposition like these kinds of lawsuits. The report again finds that government agencies win about 80% of these lawsuits, but they add 3–4 years to project timelines, leaving forests and local communities vulnerable to extreme wildfires in the meantime.
There's a bill to try and address this problem called the Fix Our Forests Act. It has bipartisan support in the House, including 11 Republicans (including John Curtis) and 5 California Democrats (including Scott Peters). CCL staff helped support the bill as it recently passed through the Committee on Natural Resources. It's interesting because it touches both on our permitting reform and healthy forests policy areas.
It's an interesting report that illustrates why judicial reform, if done right, is an important component of permitting reform, because in most cases these lawsuits aren't doing anything except extend the timelines of energy infrastructure projects an extra 3–4 years.
@Dana Nuccitelli
Environmental groups support fuel reduction, but forest thinning is code for clear cutting which is opposed for obvious reasons.
I don't think it's fair to assume that all proposals to thin forests are “code for clear cutting,” @Rob Johnson. Forest thinning is a legitimate and important strategy that agencies have proposed to lessen extreme wildfire risks. Certainly we should ensure that those thinning plans are well thought out and executed, but I don't think we should make sweeping assumptions of malicious intent.
If an environmental group has filed a lawsuit against the project, that kinda proves my point. Well, that is where this comes this from, (over decades) I didn't make it up just now. While neither side holds a patent on the terminology, I think both sides will use the terminology which helps their case. I am absolutely in favor of fuel reduction, usually refers to burning , but they also gather it up and bail it for later burning. (mechanical fuel reduction)
Markup Letter on Westerman Forestry Bill (earthjustice.org)
But I realize that CCL tries to live in reality and reach across the aisle. It is an awesome group which I am honored to be a part of.
Search Forums
Forum help
Select a question below
CCL Community Guidelines
- Discuss, ask and share
- Be respectful
- Respect confidentiality
- Protect privacy
CCL Blog Policy Area Categories
- Price on Carbon
- CBAM
- Clean Energy Permitting Reform
- Healthy Forests
- Building Electrification and Efficiency