Highway Interchange

Several presidential administrations have sought to shorten the lengthy process for obtaining federal authorizations and permits, with particular attention on infrastructure projects that usually require multiple federal permits with accompanying environmental reviews. Despite consistent interest in improving this process, delays persist, in part because of how courts have interpreted the level of analysis required during these environmental reviews. This past Tuesday, President Trump issued a new Executive Order (EO) 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” As this EO is implemented, the big question is: How much relief can this or any other executive action provide?

Continue Reading Will Executive Direction Accelerate Federal Environmental Review and Permitting?

Despite oil already flowing through the pipeline, federal litigation involving the controversial Dakota Access Pipeline (DAPL) took another turn last week when partial summary judgment was granted to tribes challenging the adequacy of the US Army Corps of Engineers’ review of DAPL under the National Environmental Policy Act (NEPA) and other statutes. Two tribes, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, filed suit in July 2016 attempting to block construction of the last remaining segment and operation of DAPL. As sometimes is the case, agency approvals came faster than the court’s opinion, and without a stay of proceedings DAPL began operating in early June 2017. Having granted partial summary judgment, the court did not require pipeline operations to cease, instead delaying the question of an appropriate remedy until after further briefing by the parties.

Continue Reading Federal Court Remands Corps Environmental Analysis for Dakota Access Pipeline

About to turn 100, the Migratory Bird Treaty Act of 1918 (MBTA) is among the oldest wildlife (or any environmental) laws. Yet major questions persist whether the Act applies to the unintended “take” of birds, and how to avoid criminal liability under the Act for many common and beneficial commercial activities.
Continue Reading Migratory Bird Compliance and Enforcement – Questions Loom Large Across the Landscape

Infrastructure_background of the city at night

Yesterday President Trump signed several Executive Orders (EOs) and Presidential Memoranda designed to speed environmental permitting and reviews. Among them is an EO to “Expedite Reviews and Approvals for High Priority Infrastructure Projects.” While past administrations have recognized the costs and delays of federal environmental permitting and encouraged timely decisions by regulatory agencies (e.g., EOs 13,212, 13,274 and EO 13,604), President Trump’s EO reflects a new sense of determination by the White House to move important infrastructure projects forward. The EO reflects a recognition that major infrastructure projects trigger an array of overlapping environmental and natural resource laws and requirements.

Continue Reading President Orders Expedited Review of Infrastructure Projects – Bringing Natural Resource Issues to the Forefront

On November 2, 2016, the US Fish and Wildlife Service (the Service) announced its intention to issue a permit authorizing the take of up to three golden eagles during the five-year permit term for the 48-turbine Alta East Wind facility in Kern County, California. The announcement was contained in a notice published in the Federal

There has been much controversy in recent weeks surrounding the Dakota Access Pipeline (DAPL), a 1,172-mile line proposed to carry crude oil from North Dakota to Illinois. Although only 3 percent of the DAPL requires federal approval, much of the pipeline has already been constructed In particular, the DAPL has raised issues regarding the scope and adequacy of the US Army Corps of Engineers’ (Corps’) consultation with federal tribes in authorizing segments of oil and gas pipelines crossing federal waters, and has caused the administration to consider reforms for how tribes weigh in on infrastructure reviews.

Continue Reading Dakota Access Pipeline Controversy May Spur Overhaul of Tribal Consultation for Infrastructure Projects