Elizabeth McCarthy
@3lizabethMcC
@TheBTI's In-house NEPA wonk
Our report shows how litigation risk has become a barrier to abundance—and offers ideas for fixing it. 🔗 thebreakthrough.org/issues/energy/… Thanks to @nicholas_bagley @ProfSchleich @CSElmendorf @EnergyLawProf @ArnabDatta321 @ceqalaw for expert review.
The biggest defenders of NEPA’s status quo? The same groups that rely on it in court — just 10 NGOs brought 35% of all NEPA lawsuits that led to a court opinion. They benefit from the system staying just the way it is.
Very helpful new NEPA database 🥳
⚙️ NEW MICROSITE JUST DROPPED ⚙️ Today @TheBTI launched navigatingnepa.com, featuring our analysis and open-source database of over 2000 District-level judicial NEPA opinions.
When we released our original analysis, Eric's criticism was that it only looked at appellate cases without looking at the full universe of litigation in district courts. Now that we've done that and found that most of the findings we identified at the appellate level also hold…
Breakthrough Institute @TheBTI has issued another report on NEPA litigation. Like BTI’s prior report in 2024, this report has some important flaws, flaws that undermine the policy recommendations in the report. More details in the thread 1/n
Good 🧵 on limits of what one can learn from "win rates" in corpus of reported NEPA cases. ⤵️ FWIW, I think/hope the main payoff from @TheBTI's effort to compile NEPA cases will be facilitating future studies of what judges *say*. Study the texts, not the outcomes.
Breakthrough Institute @TheBTI has issued another report on NEPA litigation. Like BTI’s prior report in 2024, this report has some important flaws, flaws that undermine the policy recommendations in the report. More details in the thread 1/n
The Westerman-Golden NEPA reform bill is first out of the gate for bipartisan permitting negotiations! Most notable: judicial review provisions are getting more sophisticated — which is a good sign for future negotiations. 🧵👇 x.com/ThomasHochman/…
Courts may only invalidate a final agency action if: 1. It finds that the agency *abused* its *substantial discretion* complying with NEPA, and 2. The agency would have reached a different result on said action without that abuse. This is pure 7 County SCOTUS chef's kiss.
No vacatur by default. Now we're cookin' 🧑🍳
Here is, imo, the biggest kahuna of them all: Remand-without-vacatur. When a court finds there's a deficiency in the NEPA review, the agency must correct it... but the *action is allowed to continue.* This is HUGE.
Speaking of putting one's money where one's mouth is - this is my favorite idea in our report for reducing frivolous tactical lawsuits. Taxpayers should not be footing the bill for unserious lawsuits brought by a handful of NGOs!
Our report shows how litigation risk has become a barrier to abundance—and offers ideas for fixing it. 🔗 thebreakthrough.org/issues/energy/… Thanks to @nicholas_bagley @ProfSchleich @CSElmendorf @EnergyLawProf @ArnabDatta321 @ceqalaw for expert review.
We call this THE PROCEDURAL HANGOVER. Read the report here: thebreakthrough.org/issues/energy/… Grateful to my excellent coauthors @3lizabethMcC @lrntex @alexjmssmith for incredible work on this. Also very grateful to @Arnold_Ventures for supporting this project.
Alongside the report, we built a public site sharing the full NEPA litigation dataset—because sharing is caring. Explore the cases, rulings, and remedies here:
NEPA is widely understood as an impediment to timely, orderly, and cost-effective infrastructure investment and deployment. Explore how NEPA litigation is impacting clean energy, forest management, and much more with our new interactive website: navigatingnepa.com
"Environmental review should come down equally hard on a natural gas pipeline and a high-voltage transmission line that cut through the same ecosystems." WaPo get this editorial on NEPA, ESA, and permitting right. The case for or against projects needs to be evaluated…