Blog

A sleeper provision in one of President Donald Trump’s executive orders attempts to revolutionize the way the National Environmental Policy Act (NEPA) operates and cut environmental review to a minimum.

On December 11, 2024, in Roanoke Rapids, North Carolina, 40 folks attended the first annual rural clean energy convening co-sponsored by the Center for Progressive Reform and the Center for Energy Education. Attendees included FEMA representatives, USDA and other government agency officials, local residents, county commissioners, and energy policy advocates. The main topic of the […]

The U.S. Congress is back and the U.S. House of Representatives is already roiling, as exemplified by the lobbyists and pundits who trail members and staff through the halls and into their offices. Republicans are already desperate to regain momentum after tripping out of the starting gate, even astride their newly minted control of both ends of Pennsylvania Avenue—a “trifecta” in Washington lexicon. Many backroom negotiations are inevitable, and the idea that a massive legislative package will be easier to pass could run into the reality that members will want innumerable concessions to take tough votes. The process will bog down, and Republicans must find something else to do. Senator Mitch McConnell (R-Ky.) has already fingered the most promising possibility—killing Biden Administration rules under the Congressional Review Act (CRA). The CRA allows narrow majorities in Congress to pass “resolutions of disapproval” for recently issued final rules.

If there were any doubts about the policy priorities of the second Trump administration, these have been swiftly clarified after the first barrage of executive orders (EOs) aimed at deconstructing environmental, scientific, and democratic safeguards. One of the most extensive EOs is titled “Unleashing American Energy,” which contains a wide array of actions aimed at boosting “America’s affordable and reliable energy and natural resources.” This is merely coded language for doubling down on an extractive model of development poised to pump, mine, and log every possible inch of American public lands. Unsurprisingly, it is also aimed at “unleashing” only some types of energy resources: fossil fuels.

President-elect Donald Trump’s picks for office provide a strong hint of what the next year will look like. In Trump’s first term, government actions were often overturned by the courts. Agencies made basic mistakes: skipping mandatory procedural steps, ignoring important evidence, or failing to address opposing arguments. Many people thought he had learned his lesson and would pick competent, experienced administrators this time. They were mostly wrong.

They say that history never repeats itself, but it often rhymes. As in many sequels, there will be many things we’ve seen before. Much of that consisted of an all-out attack on environmental law. If you hated the original, you won’t enjoy watching the same thing the second time around. But there are a few additions to the cast and some new backdrops on the set. Today, I’m going to talk about some areas of continuity.

This is the final installment in our series of posts about the causation issue under NEPA. In our previous post, we laid out NEPA’s purposes and why analogies to tort law can misfire because that area of law has very different purposes. Today, building on our recent working paper, we explain the functional approach to causation that we believe courts should apply.

Overall, the Supreme Court has articulated a functional approach that is based on the purposes of NEPA, based on the structure and text of the statute. Today’s post will lay the foundation by discussing NEPA’s purposes and how they differ from those of another area of law often used as an analogy, tort law.

NEPA requires that agencies consider the environmental effects of their projects, but the petitioners in the Seven Counties case raise hairsplitting arguments to exclude obvious effects due to technicalities. We consider their arguments one by one.