As a co-author of the “Recent NEPA Case Law” report to be published in the National Association of Environmental Professionals (NAEP) annual publication, alongside fellow environmental attorneys, Pam Hudson and Bilal Harris, we identified five key trends that environmental professionals should keep on their radar. The report reviewed decisions on substantive NEPA cases issued by federal courts in 2023 and explains the implications of these decisions and their relevance to NEPA practitioners. Below are some of the key trends.
1. The Courts Were Busy—but Mostly on the Agencies’ Side
In 2023, the U.S. Courts of Appeals issued 25 substantive NEPA decisions, with federal agencies coming out on top in 76% of the cases. That’s a strong win rate, and it shows that courts still generally support agency decisions under NEPA. The Department of Agriculture, for instance, prevailed in all but one of its eight cases, and the Department of Transportation had a perfect record in its five cases.
2. The Alternatives Game: Agencies Continue to Get the Benefit of the Doubt
Courts reviewed the sufficiency of alternatives in nine cases, with agencies prevailing in all but one. The message here? Agencies that do their homework on alternatives can still expect a lot of deference from the courts—at least for now.
3. Impacts Assessments: A “Hard Look” Still Goes a Long Way
Challenges to impact assessments, particularly those involving greenhouse gas emissions and cumulative impacts, were front and center in 21 of the 25 cases. The courts upheld the agencies’ analyses most of the time, emphasizing the importance of a thorough, well-documented “hard look” at the potential impacts.
4. Categorical Exclusions Under Scrutiny
While agencies successfully used Categorical Exclusions (CEs) in most cases, there were a few hiccups. In Solar Energy Industries Ass’n. v. FERC, the court pushed back, stating that uncertainty about environmental impacts should lead to an Environmental Assessment (EA), not the shortcut of a CE. This suggests that courts may be looking more critically at when and how agencies apply CEs.
5. Public Participation and Comment: A Growing Area of Challenge
Public participation and comment have become increasingly significant in NEPA litigation. In several cases, courts highlighted the need for agencies to thoroughly address public comments, particularly when they raise substantial concerns about environmental impacts or the adequacy of alternatives. This trend underscores the growing importance of meaningful public engagement and detailed responses to comments in the NEPA process.
6. The Chevron Doctrine Takes a Hit: What This Means for NEPA
One of the biggest shifts in 2023 was the U.S. Supreme Court’s overruling of the Chevron doctrine, which had guided courts to defer to agency expertise when interpreting ambiguous statutes. This is a game-changer for NEPA practitioners. Without Chevron, courts may no longer automatically side with agencies on complex environmental issues. This could lead to more rigorous judicial scrutiny of agency decisions—so agencies need to be more meticulous than ever in documenting their processes and justifications.
How Scout Guides Clients Through Complex NEPA Projects
At Scout, we understand the challenges that these legal shifts can pose to our clients. That’s why we offer comprehensive NEPA services, leading multi-disciplinary teams from start to finish. Whether it’s developing schedules, managing complex environmental assessments or environmental impact statements, or ensuring thorough documentation, we’re with you every step of the way. Our goal is to navigate these changes together, providing clarity and confidence in an evolving legal landscape. Contact us today to help you with your next NEPA project, hello@scoutenv.com.
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