Today the Supreme Court heard a case about environmental impact statements allegedly running amok. The case concerned an 88-mile railway line in Utah that generated 3,600 pages of environmental reports but was sued because it analyzed only the local effects in Utah. Environmental groups argued that it connected to a national network—how could it not?—so the EIS should have looked at possible effects ranging over much of the country.
According to press reports, the justices appeared unanimous in believing that this claim was sort of ridiculous and the project should be allowed to proceed. However, they were unsure of what kind of general rule should be applied to cases like this.
If I were them I'd rule on the narrowest possible basis for now. Last year's debt ceiling bill included permitting reform that already deals with some of this stuff, so why not let it roll out for a while and take a broader look in a few years?
Did you know, for example, that the bill mandates a maximum time of two years to complete an EIS and generally limits EIS reports to 150 pages. Here's how page counts break down right now:
Out of this sample, the median EIS length was 445 pages. The longest was 8,951 pages for an I70 straightening project near Denver. Only 41 of the 568 statements met the new 150-page guideline.
But there's a catch: the new rule doesn't include appendices, which run to an average of 432 pages. That brings total average length to 877 pages. But who decides what has to be put in the body of the report and what can go into an appendix? What's to keep anyone from simply writing a 150-page "report" that has a thousand pages of appendices?
I suppose the new rules try to address this in some way, but it sure seems like Congress would have done better to address the substance of EIS statements instead of the page count. Someone is going to have to provide guidelines for what has to be addressed in an EIS, and if Congress doesn't do it they're just punting their job to federal agencies and the courts.¹
These new rules were originally recommended by the Council on Environmental Quality during the Trump administration. Biden reversed the rules and then set about reinstating them. They were codified in the debt ceiling deal in 2023 with broad bipartisan support and then adopted by the CEQ in final form earlier this year.
I'll be curious too see how this all works out. Note, however that these are federal rules that apply to a federal law. They don't apply to state or local laws.
¹Then they'll complain that federal bureaucrats have their own agenda and courts have too much power.
I'm guessing they'll keep it simple- Along the lines of Drill Baby Drill
For some reason Kevin leaves out that this rail line was being built specifically to haul oil so it isn't like there aren't upstream and downstream consequences.
We want environmental regulations to run amok, but not gender treatment regulations. I smell hypocrisy!
Coming soon: EIS in 8pt font with 1/8" page margins!
And that's why few people, except lawyers, read beyond the executive summary.