NEPA, Energy, and Infrastructure: The Times They Are a Changin’?

For energy and infrastructure project developers, investors, and market participants, the past few weeks introduced increased regulatory uncertainty around the environmental reviews required as part of federal decision-making on matters like permitting and leasing.

As the Executive Branch attempts to curtail these reviews, some in the Judicial Branch are increasingly demanding additional consideration, especially on climate change. For example, the Trump Administration marched forward on implementation of Executive Order 13807 with announcement of new policies limiting the environmental reviews required under the National Environmental Policy Act (NEPA). In contrast, recent decisions from the Tenth and D.C. Circuit Courts of Appeals gave a robust reading to NEPA’s requirements and articulated an increasing skepticism about the quality of climate change analysis in NEPA reviews.

All of this comes as Congressional action to marshal significant, new federal funding resources for infrastructure remains stalled. The resulting status quo leaves project developers with greater regulatory uncertainty requiring a heightened awareness of litigation risks when engaged in federal environmental reviews and permitting.

Read our client alert.