The Permitting Reform Bill introduces a sweeping change to how courts handle violations of the National Environmental Policy Act, or NEPA. The proposal aims to limit judicial remedies, a move that could reshape environmental litigation. This change is significant, as it alters the way courts approach NEPA violations.
New Remedy Framework
The bill’s core provision states that if a court determines an authorization does not comply with NEPA, the only remedy the court may order is to remand the authorization to the agency. The court may not order vacatur or issuance of an injunction, and the agency must correct the NEPA violations. This provision is a key aspect of the bill, as it limits the remedies available to courts.
A carve-out allows a preliminary injunction when four conditions are met. First, there must be a substantial likelihood that the agency action violates a federal law other than NEPA or the National Historic Preservation Act (the reference “division A of subtitle III of title 54, United States Code”). Second, the plaintiff must show irreparable harm. Third, the balance of equities must favor the plaintiff. Fourth, the injunction must serve the public interest. These conditions are specific and must be met in order for a preliminary injunction to be granted.
The new “substantial likelihood” test is a novel addition. It does not require the alleged violation to relate directly to the NEPA deficiency. Any federal statutory breach, even a minor one, could satisfy the threshold if cited in the complaint.
One alternative is the Administrative Procedure Act, or APA. Plaintiffs already sue under the APA when challenging NEPA decisions, arguing the agency acted arbitrarily or capriciously. If the APA counts as the “other” federal law, the injunction test might trigger for many NEPA cases. There are debates about whether you can have ‘independent’ violations of the APA separate from another statute, and courts may be reluctant to treat the APA as such.
Procedural Challenges
Moreover, the bill does not clarify the enforcement authority of a tribunal issuing a remand. It is unclear whether the tribunal can impose sanctions, hold parties in contempt, or issue stop-work orders if an agency fails to comply.
If an agency submits a revised environmental review that still falls short, the bill treats the challenge as a new claim. This could lead to a cycle of repeated remands without a clear mechanism to compel compliance.
Enforcement Uncertainties
Enforcement authority for remand orders remains undefined in the bill’s text.
Criticism of the Tailored Remedy Provision
Efforts to tailor remedies for NEPA violations address an important issue, but they may have misfired. The statutory reference cites “(bb) division A of subtitle III of title 54, United States Code,” which pertains to the National Historic Preservation Act.
“I’m increasingly concerned it is poorly drafted, and will not function well,” the commentator wrote, adding that it will have much less reach than both proponents and opponents might think.
