This morning, CPR Member Scholar and George Washington University Law Professor Emily Hammond is set to testify before the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law at a hearing that will look at two highly flawed bills. While their particulars differ, each is conspicuously (if a bit clumsily) designed to rig the environmental permitting process to allow industry groups to ram through big infrastructure and construction projects while shutting out the public from its traditional and vital role of meaningful participation and engagement.
Hammond's testimony provides a devastating and thorough critique of each of the two bills under consideration – the Permitting Litigation Efficiency Act of 2018 (PLEA) (H.R. 5468) and the North Texas Water Supply Security Act of 2017 (H.R. 4423), respectively. The "problem" these bills try to "solve" is that existing administrative laws and procedures have a pesky habit of creating a neutral process meant to lead to better government decision-making, and oftentimes that means yielding results that cut into industry profits to ensure reasonable environmental protections. As Hammond puts it:
Both PLEA and H.R. 4423 are thinly veiled attempts to tamper with well-established procedural systems on behalf of anti-environmental interests. The Administrative Procedure Act (APA) embodies an important choice made by a unanimous Congress: The statute creates generally applicable, neutral procedures for agencies to follow, rather than creating piecemeal carve-outs for specific agencies or subject-matter areas. The Federal Rules of Civil Procedure are similarly designed. Both are procedural systems that provide access to enforcing substantive rights and obligations, thereby ensuring fairness and promoting confidence in the legal system.
On the basis of her analysis, Hammond concludes that the two bills "amount to stunning attempts to chill public engagement and undermine principles of good governance."
As she explains, some of the provisions in the bills seek to constrain judicial discretion when reviewing legal challenges to environmental permits – and to do so in ways that inevitably favor industry's preferred outcomes. For example, a provision of PLEA requires courts to presume "unreasonable delay" if an agency has not acted within a certain timeframe on particular permitting decisions. The result would be that the reviewing judge in many cases would be compelled to order the agency to act on the permit, thereby expediting the project that industry desires and short-circuiting public interest attempts to ensure that the permit properly accounts for environmental factors.
Other provisions are meant to limit the ability of public interest groups to challenge certain environmental permits in court. For example, another provision in PLEA would authorize reviewing judges to require public interest litigants to pay a bond of up to $5 million to have their challenges heard. Few public interest groups could satisfy this requirement, thereby effectively insulating permitting decisions against one of the most critical avenues of public engagement and oversight.
In this way, the two bills act as a pair of scissors – with one blade that skews decision-making in favor of industry and another that bars meaningful public engagement in environmental permitting decisions – designed to cut through important environmental protections.
On the whole, the bills are part of a broader conservative strategy to use "infrastructure policy" as a Trojan horse for smuggling in attacks on bedrock environmental laws like the National Environmental Policy Act (NEPA) and the Endangered Species Act. Despite their claims, we can have better and safer infrastructure without unnecessarily sacrificing our natural environment. It merely requires better priorities and realistic financial investment.
Professor Hammond's testimony provides a critical reality check. Hopefully, the conservative members in attendance at the hearing are prepared to listen.
This post was updated to add the bill number assigned to the Permitting Litigation Efficiency Act of 2018 on April 12.