No one was surprised when yet another progressive federal district court substituted its own judgment for that of the president of the United States regarding immigration policy and halted use and ordered dismantling of the so-called Alligator Alcatraz for the housing of illegal aliens in Florida.

Fortunately, earlier this month, the U.S. Court of Appeals for the Eleventh Circuit intervened, allowed the U.S. Department of Homeland Security to use the facility, and stayed the lower court’s edict pending a final ruling sometime in the months ahead.  What may surprise the casual observer is the basis for the holding of the Florida federal district court: the National Environmental Policy Act.

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FIVE MORE LARGE-SCALE DETENTION FACILITIES LIKE ALLIGATOR ALCATRAZ ‘COMING SOON,’ NOEM SAYS

That NEPA was the mechanism, not the motive, was made clear by a declaration of Rep. Maxwell Alejandro Frost (D-FL):  “The Everglades Immigrant Detention Center is nothing more than a state-sponsored, government-funded internment camp designed to keep Black and Brown immigrants in hellish conditions while Donald Trump pretends it makes our country safer. … This is a major victory for justice, civil rights, and [he seems to note as an afterthought] our environment.”

Yes, NEPA, the 1970 federal statute whose purpose was to “encourage productive and enjoyable harmony between man and his environment” and that requires, before undertaking “major Federal actions significantly affecting the quality of the human environment,” preparation of “a detailed statement” that sets out, among other matters, “reasonably foreseeable environmental effects of the proposed agency action,” “reasonably foreseeable adverse environmental effects,” and “a reasonable range of alternatives to the proposed agency action.” 

Passed unanimously by the Senate and with only fifteen “no” votes in the House, its supporters anticipated short, simple, and straightforward statements and timely decisions, but that was not to be.  As the Supreme Court first noted, a mere eight years after NEPA’s enactment, thanks to judicial review — what it termed “judicial intervention run riot” — NEPA “borders on the Kafkaesque.”

NEPA got even worse. Nearly fifty years later, wrote Justice Kavanaugh for a unanimous Court:  “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents;” indeed, “[a] 1970 legislative acorn has grown over the years into a judicial oak.”

All of that has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation — delay upon delay. Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. 

The Supreme Court, over the decades, has strived mightily to end the abuse of NEPA.  Its most recent NEPA ruling, from its last term, mandates a “course correction … to bring judicial review under NEPA back in line with the statutory text and common sense,” holding that NEPA is a procedural statute, that an agency is entitled to judicial deference as to what effects it addresses, and that only environmental effects of the project at issue fall within NEPA. 

For its part, the Trump administration, using a landmark ruling from the U.S. Court of Appeals for the District of Columbia reversing NEPA abuses by the Carter administration, has ordered federal departments and agencies to “eliminate all delays.”

One hopes the Supreme Court’s ruling will have its desired effect; however, recent experience demonstrates that the federal judiciary is slow in getting the court’s message. More drastic action, by Congress, may be required to address NEPA’s deficiencies related to judicial review, a right that is not set forth in NEPA but in the Administrative Procedure Act of 1946 (APA), which permits lawsuits by those “adversely affected or aggrieved” as a result of an agency’s decision.

First, who may sue? Although Justice Scalia limited standing in his 1990 ruling for a 5-4 Court, federal district courts continue to permit nearly anyone to mount a NEPA challenge. For example, the Alligator Alcatraz federal district court found the plaintiffs had “recreational, conservational, and aesthetic interests,” which were affected adversely, including their “ability to observe the night sky.”

Folks like Rep. Frost, whose district lies 250 miles north of the Everglades, may be interested in what happens there, but he is not affected. As my Colorado friend Reeves Brown once distinguished, “A chicken is interested in what you have for breakfast; a pig is affected.”

Second, the standard applied. As ludicrous as it sounds, since 1972, the test for the adequacy of a NEPA document is whether the federal agency took a “hard look,” which was first used by federal courts to determine if an agency’s action was perfunctory, akin to the Administrative Procedure Act’s arbitrary and capricious analysis.

Given that the phrase is allegorical, ambiguous, and arbitrary, little wonder that NEPA rulings seem so haphazard and that project opponents engage in forum shopping; they know which courts are likely to find a NEPA document failed to take a “hard look.” As a result, federal departments and agencies engage in the futile paper chase of attempting, through sheer length, to make their documents litigation-proof.

Third, the double whammy of the cost of NEPA and the rarity of Supreme Court relief. Today, full scale NEPA documents for major projects cost tens of millions of dollars, without litigation, which can cost additional millions, especially if they involve the Supreme Court. Unfortunately, major Supreme Court NEPA rulings, those like the one last term, which sought a rigorous return to the statute itself, come decades apart. In the meantime, projects die, and with them, people’s hopes and dreams.

EPA ENDANGERMENT FINDING: A MISGUIDED RELIC THAT MUST BE REPEALED

Time will tell, but a radical remedy may be necessary: that of ending judicial review of NEPA itself and of leaving its implementation up to Congress and the executive. Permit both branches to do their jobs.  Should a department or agency fail to fulfill its NEPA responsibilities, Congress can step in with legislative oversight, statutory rewrite, and targeted appropriations. 

Justice Louis Brandeis called “sunlight,” which I take to mean transparency and accountability, “the best of disinfectants.” Let the public know why those in the Deep State seem unable to Make America Great Again. The risk of such an approach could be costly, especially for those such as ranchers, miners, or oil and gas operators and others, especially in the West, who depend upon agencies to do their duty under NEPA; however, if lower courts ignore the Supreme Court’s latest “course correction,” we may have no other choice.

Mr. Pendley, a Wyoming attorney and Colorado-based public-interest lawyer for three decades with victories at the Supreme Court of the United States, served in the Reagan administration, and led the Bureau of Land Management for President Trump.