Tag: NEPA

White House issues new orders to streamline federal broadband regulations

8:52 am

As part of its effort to eliminate the red tape imposed by Biden during his term as president, the White House last week issued new orders to streamline the federal broadband regulations as well as cancel those Biden restrictions.

This Trump executive order cancels a number of Biden executive orders that imposed net neutrality, DEI, climate change, and other requirements that added paperwork and cost money and time. Most important of all for rocket companies, this new order aims to streamline the environmental review process on new projects, a process that was expanded exponentially during Biden but had been growing out-of-control for decades, and appeared during Biden to destroy many rocket startups.

Of course, because this executive order was issued by Trump, it will likely be blocked by a federal judge, because only Democratic Party presidential executive orders are allowed in America now.

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Supreme Court unanimously rules the federal government’s regulatory overuse of environmental impact statements is wrong

12:34 pm

In a ruling that will have wide-ranging impacts across multiple industries, including rocketry, the Supreme Court yesterday ruled 8-0 that the mission creep expansion of federal government’s regulatory use of environmental impact statements (EIS) to hinder all new construction projects is incorrect and must stop.

The case involved a planned railroad in Utah, that had gotten all its permits for construction, including approval of its environmental impact statement, but was then stymied by lawsuits by political activist groups that claimed the impact statement, issued under the National Environmental Policy Act (NEPA), had not considered the impact of the industries the railroads would serve, including impacts far from the railroad’s location itself.

This is a perfect example of the broad expansion of NEPA that has been imposed in the last two decades by federal bureaucracy working hand-in-glove with these leftist political groups.

The Supreme Court, including all of the Democratic Party appointees, said enough!

In its majority opinion, authored by Justice Brett Kavanaugh, the Court clarified that under NEPA the STB “did not need to evaluate potential environmental impacts of the separate upstream and downstream projects.” The Court concluded that the “proper judicial approach for NEPA cases is straightforward: Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects.”

This statement “is particularly significant for infrastructure projects, such as pipelines or transmission lines, and should help reduce NEPA’s burdens (at least at the margins),” wrote Jonathan Adler, a law professor at the Case Western Reserve University School of Law, in The Volokh Conspiracy. “The opinion will also likely hamper any future efforts, perhaps by Democratic administrations, to expand or restore more fulsome (and burdensome) NEPA requirements.”

The article notes (and confirms) what I have been writing now for the past five years in connection with the FAA’s demand that rocket companies require new impact statements every time they revise their operations, even when those changes are relatively minor.

This point could reduce one of the largest delays caused by NEPA: litigation. Since its passage in 1969, NEPA has been weaponized by environmental groups to stunt disfavored projects—which has disproportionately impacted clean energy projects. On average, these challenges delay a permitted project’s start time by 4.2 years, according to The Breakthrough Institute.

The increased threat of litigation has forced federal agencies to better cover their bases, leading to longer and more expensive environmental reviews. With courts deferring more to agency decisions, litigation could be settled more quickly.

This ruling is an excellent move in the right direction, but no one should assume it will be followed honestly by the next Democrat who sits in the White House. Just as Biden expanded red tape by simple forcing the FAA to slow-walk its launch licensing process, future presidents could do the same.

Nor should be expect the lawsuits by these luddite leftists to cease. They will find other legal challenges and will push those instead.

The real solution is to reduce the bureaucracy’s size entirely, so there won’t be paper-pushers for these petty dictators to utilize for their authoritarian purposes. Eliminating or simplifying these environmental regulations would help as well, giving the activists fewer handles on which to hang their lawsuits.

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Major court decision could invalidate many federal environmental regulations

1:54 pm

In what could be a major legal ruling [pdf], a two-judge decision this week in the DC Circuit Court ruled that the White House Council on Environmental Quality (CEQ), which has for years imposed environmental rules on other federal agencies based on the National Environmental Policy Act (NEPA), does not have the statutory authority to do so, thus invalidating every regulation so imposed.

All three members of the three-judge panel agreed that the Agencies acted arbitrarily and capriciously in [in this particular case]. However, before reaching that conclusion, the majority analyzed whether the CEQ regulations the Agencies followed in adopting the plan were valid, an argument not raised by any of the parties. The majority held, sua sponte, that because there is no statute stating or suggesting that US Congress has empowered the CEQ to issue rules binding on other agencies, the CEQ has no lawful authority to promulgate such regulations.

…Although this decision does not explicitly vacate any action taken by the CEQ, it does establish a precedent that CEQ rules lack statutory authorization, and therefore that other agency actions taken under the CEQ framework are at risk of being vacated. If this decision is not overturned by the full appellate court sitting en banc or by the US Supreme Court, it has the potential to completely change the landscape of NEPA review.

The case is complicated, partly because the Byzantine nature of the federal bureaucracy and the many agencies involved. (It is almost as if these agencies created that complexity to confuse and protect themselves.)

The heart of the decision is that CEQ was apparently first created as an “advisory” body to help other federal agencies follow the intent of NEPA in their own rule-making, but instead soon became a “regulatory” body whose rulings other agencies were required to follow. As that authority was never given it by Congress, CEQ exceeded its authority by making its rulings mandatory.

This court decision will likely leave many agencies on their own in establishing environmental regulations, based on NEPA. However, even that regulatory ability faces limitations, based on the Supreme Court’s recent Chevron decision, which said that government agencies do not have right to promulgate new regulations that are not specifically described in congressional law.

In other words, Chevron says that the bureaucracy cannot make things up, based on its own vague opinions.

The trend of all these court rulings appears aimed at limiting the power of the federal bureaucracy. It will however take some time to determine how much that power is limited, as lawsuits begin to percolate through the courts. If there are lot of lawsuits (which does appear to be happening) we should therefore expect that power to be limited significanly.

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