Sign In or Create an Account.

By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy

Podcast

The Supreme Court’s Double-Edged Change to Permitting Law

Rob and Jesse pick apart Justice Brett Kavanaugh’s latest opinion with University of Michigan law professor Nicholas Bagley.

The Supreme Court.
Heatmap Illustration/Getty Images

Did the Supreme Court just make it easier to build things in this country — or did it give a once-in-a-lifetime gift to the fossil fuel industry? Last week, the Supreme Court ruled 8-0 against environmentalists who sought to use a key permitting law, the National Environmental Policy Act, to slow down a railroad in a remote but oil-rich part of Utah. Even the court’s liberals ruled against the green groups.

But the court’s conservative majority issued a much stronger and more expansive ruling, urging lower courts to stop interpreting the law as they have for years. That decision, written by Justice Brett Kavanaugh, may signal a new era for what has been called the “Magna Carta” of environmental law.

On this week’s episode of Shift Key, Rob and Jesse talk with Nicholas Bagley, a University of Michigan law professor and frequent writer on permitting issues. He is also Michigan Governor Gretchen Whitmer’s former chief legal counsel. Rob, Jesse, and Nick discuss what NEPA is, how it has helped (and perhaps hindered) the environment, and why it’s likely to change again in the near future. Shift Key is hosted by Jesse Jenkins, a professor of energy systems engineering at Princeton University, and Robinson Meyer, Heatmap’s executive editor.

Subscribe to “Shift Key” and find this episode on Apple Podcasts, Spotify, Amazon, or wherever you get your podcasts.

You can also add the show’s RSS feed to your podcast app to follow us directly.

Here is an excerpt from our conversation:

Robinson Meyer: It seems like what the court is doing here is not only basically using this to make a statement, it’s announcing a new jurisprudence on NEPA. We want you to start treating this law really, really differently than you’ve been treating it in the past. And like, we are going to come down into your room and force you to clean up this mess whenever we want to now because of how important we think this is.

Do you think that’s too strong a statement? It seems this is not only declaring what the court’s view on NEPA is, but almost declaring a new plan of action.

Nicholas Bagley: Like many Supreme Court decisions, I think it’s amenable to two competing interpretations. One is exactly as you say: It’s a new era of NEPA jurisprudence, and the basic rule of a NEPA case is now going to be that environmental groups lose. And so I think there’s no way to read the decision except as a walloping loss to environmental groups, at least as a matter of tone and, I think, intention by the Supreme Court.

But there is a narrower reading available, and one that suggests that maybe this decision won’t have as big an effect as maybe the Supreme Court justices want it to. And the reason for that is they didn’t close the door altogether on the judicial evaluation of the reasonableness of its actions. And when a court goes in and says, Hmm, has an agency acted arbitrarily? Again, that’s a multifaceted inquiry. It’s going to involve a lot of different factors. And the court says be deferential, but that’s actually always been the rule.

They use a lot of strident language here, but that strident language is not going to make a lick of difference if you get in front of a highly motivated judge who happens to dislike the project in question in a district court in New Mexico. And that happens. So if you’re an agency and you’re thinking to yourself, Can I cut back on the amount of environmental studies that I do? Can I not investigate these dopey alternatives? You might think to yourself, you know, I have like a 20% or a 30% chance, my odds are a little better than they were before — maybe even a lot better than they were before — at winning if this case is litigated. But they’re also not 100%. So maybe what I ought to do is keep doing what I’ve been doing just to be safe. And I think that’s at least a possibility. We don’t know how it’s going to play out on the ground.

The last thing I’ll say about this is, you said that the Supreme Court is going to act like your mom who’s going to come and tell you to clean up your room.

Meyer: Yeah, exactly. Yes.

Bagley: The trouble is it takes something like, what, 50 cases a year? There are hundreds of these cases brought, and there’s only so much the Supreme Court can do, and in closer cases I think it might just be inclined to let matters lie.

So, you know, I think it is reasonable to think that this is the Supreme Court’s effort to usher in a new era of unique NEPA jurisprudence. It is reasonable to think it is going to have some effects on agency behavior and some effects on lower court behavior. But it may not pretend the revolution that it looks like on its face.

Music for Shift Key is by Adam Kromelow.

Yellow

You’re out of free articles.

Subscribe today to experience Heatmap’s expert analysis 
of climate change, clean energy, and sustainability.
To continue reading
Create a free account or sign in to unlock more free articles.
or
Please enter an email address
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Sparks

The Trump-Elon Breakup Has Cratered Tesla’s Stock

SpaceX has also now been dragged into the fight.

Elon Musk.
Heatmap Illustration/Getty Images

The value of Tesla shares went into freefall Thursday as its chief executive Elon Musk and traded insults with President Donald Trump. The war of tweets (and Truths) began with Musk’s criticism of the budget reconciliation bill passed by the House of Representatives and has escalated to Musk accusing Trump of being “in the Epstein files,” a reference to the well-connected financier Jeffrey Epstein, who died in federal detention in 2019 while awaiting trial on sex trafficking charges.

The conflict had been escalating steadily in the week since Musk formally departed the Trump administration with what was essentially a goodbye party in the Oval Office, during which Musk was given a “key” to the White House.

Keep reading...Show less
Climate

The Philanthropy Stepping in to Fund Center-Right Climate Groups

“You can’t just divest from the eco-right after the election,” contends Johannes Ackva of Founder Pledge.

Money being handed out.
Heatmap Illustration/Getty Images

Johannes Ackva likes a contrarian bet. Back in 2020, when he launched the climate program at Founders Pledge, a nonprofit that connects entrepreneurs to philanthropic causes, he sought out “surgical interventions” to support technologies that didn’t already enjoy the widespread popularity of wind turbines and solar panels, such as advanced nuclear reactors and direct air carbon capture.

By late 2023, however, the Biden administration’s legislative sweep was directing billions to the very range of technologies Ackva previously saw as neglected. So he turned his attention to shoring up those political wins.

Keep reading...Show less
Climate

AM Briefing: GOP Senators Call for Preserving IRA Credits

On Senate committees, a public lands selloff, and energy investment

GOP Senators Call for Preserving IRA Credits
Heatmap Illustration/Getty Images

Current conditions: Southern New England will experience its hottest day of the year so far today, with temperatures around 90 degrees FahrenheitRecord levels of Sargassum seaweed are overwhelming Caribbean resortsSaharan dust has spread across most of Florida and will continue over the coastal Southeast through this weekend.

THE TOP FIVE

1. The Senate’s first pass at IRA repeal cuts huge climate programs ...

Keep reading...Show less
Yellow