I think that any honest practitioner of administrative law would acknowledge that judicial deference in review of decisions under the Administrative Procedure Act has historically been a flexible concept. Judges inclined to support agency decisionmaking would point to the deference given to agency decisions under the APA, while judges unsympathetic to the agency position would point to the limits on deference to the agencies.

The natural ebb and flow between these two positions continued for many years. And then Seven County Infrastructure Coalition v. Eagle County, Colorado, happened. Justice Kavanaugh, writing for the majority, made clear that he had had enough of judges paying mere lip-service to the concept of deference to agency decisionmaking. Noting that “[t]he goal of the law is to inform agency decisionmaking, not to paralyze it”, Justice Kavanaugh criticized lower court decisions that:

have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases. Those decisions have instead engaged in overly intrusive (and unpredictable) review in NEPA cases. Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take evermore time and to prepare ever longer EISs for future projects. 

FollowingSeven County, the question is of course whether lower courts actually heed its message.Nexis Newsdesk (subscription required) recently reportedthat lower courts have largely been following the direction ofSeven County. However, as Nexis noted, in a decision issued last month in Center for Biological Diversity v. U.S. Forest Service, the District Court vacated a Forest Service treatment plan because it because it made findings about the plan’s protectiveness without even having established the location of the temporary roads that were the subject of the case.

It’s a careful decision and, in the grand tradition of NEPA cases prior to Seven County, it acknowledges the significant deference owed to the agency, while pointing out that agency decisions that simply ignore a key issue are not entitled to deference.  

I’ll make three predictions about what happens next. First, I would not wager that the decision will ultimately survive appeal. One trial judge’s ignoring of key issues is another appellate judge’s details that are subject to substantial deference. Second, if the decision is affirmed, it’s going to be written in such a way that still narrowly confines District Court authority to review agency NEPA decisions. Third, if the decision is affirmed, it will only give new force to Congressional efforts to pass legislation such as the SPEED Act, that would formally enact limits on judicial authority to override agency decisions under NEPA.

One way or another, it’s going to be a tough few years for those hoping to use NEPA to “paralyze” agency decisionmaking.