State Environmental Policy Act Review: Fill & Download for Free

I would add, to what others have written, the National Environmental Policy Act (NEPA). There are some who argue that NEPA has not been effective because NEPA has primarily procedural requirements, rather than requiring a particular substantive result. I would suggest the opposite. NEPA may not require that a particular result occur, and so one might say it doesn't automatically protect the environment. But what NEPA has done is much broader in many ways.The concept of environmental assessment before proceeding with an activity or project is now widely accepted.Many states now have their own "mini NEPAs" requiring additional levels of environmental review before a project can proceed.Ordinary citizens may well be much more aware of environmental issues and what people can do to encourage government agencies to adopt various environmental protections and restrictions than they were before NEPA was enacted.

Well, the most obvious immediate ramifications are that this policy will go into effect for now, which will effectively cut off the ability for most Central American migrants who come through another country such as Mexico to get to the U.S. to apply for asylum.The medium-term ramifications are a little less clear. The preliminary injunction in the case was issued on the grounds that the promulgated rule did not comply with the Administrative Procedures Act, which is kind of the cornerstone of administrative law. A great deal of what the Trump administration has been trying to do has been slapped down by the courts because they just plain don’t listen to lawyers who understand the APA’s requirements and try to rush things through without process.Here’s the brief 10,000 foot overview of administrative law and the Administrative Procedures Act.You have to have bureaucracy to run government. There’s just no two ways around it. That’s been acknowledged as long as the Constitution has been in existence. That is why we have an executive branch to carry out laws, and why the Constitution explicitly provides for the executive branch to form departments and offices and the like (with legislative approval for department formation).There are three primary ways that administrative agencies act: rulemaking, adjudication, and investigation.In other words, administrative agencies kind of take on a little bit of legislative and judicial functions.Rulemaking is what comes into play here.Understand, Congress just can’t legislate on every little detail. It doesn’t have the expertise to do so. Congress is not made up of people who are experts in policy decisions, no matter how wonky some particular members are. AOC was a bartender, even if educated in economics. Devin Nunes was a dairy farmer - literally, an expert in bullshit. These people might develop some areas of expertise over years, but they are not Ph.D’s on the whole.This is a feature, not a bug.But, it would be kind of bad if we let them dictate all of the policies of, say, regulating safe pharmacology and medical device practices. They’re just not the most qualified people for that job.And so, the legislative branch delegates some, and I stress some, of its legislative authority to these departments and offices through enabling statutes. The experts at the agencies then use their expertise to craft the specific rules and regulations necessary for enforcement.Obviously, there has always been some sort of need to put some limitations and procedures on that to prevent the executive branch from running away with it.One of those limitations is that enabling statutes for an agency have to have some specific directions and parameters for the agencies. Congress can’t just pass a law that says, “EPA! Go make the water clean!” as nice as that would be. They have to at least give some sort of intelligible principles and guidelines, or the statute is too vague and violates what we call the “non-delegation doctrine.”The other main limitation is process. We give the agencies a very clear, very specific process for precisely how they can promulgate rules so that everyone can make sure that it’s a good rule before it goes into effect.And that’s what the Administrative Procedures Act does. There is a federal level one and every state has one. These acts specify how executive agencies can do what they do.By default, agencies can promulgate rules by “informal rulemaking.”The agency has to issue the proposed rule in a special newspaper that the general public can read, but pretty much only admin law geeks like me do, called the Federal Register. They have to give a summary of the rule, the time/place/manner of the proceedings, the legal authority under which they are proposing the rule, and provide an open period for public comment. After they go through that process, they can publish the final rule no less than 30 days before it takes effect, which must include at least something of the evidence and rationale the agency relied on for making their decision.If Congress says the magic words in the enabling statute “hearing on the record,” then the agency has to go through the formal rulemaking process, which bumps all this up a notch.Then there’s also often compliance with a number of other additional requirements, such as the Environmental Policy Act and the Paperwork Reduction Act and the Regulatory Flexibility Act and the Unfunded Mandates Act and… well, you get the picture.And there’s judicial review, to make sure that all of those processes were done correctly. 98% of the time when some group is suing to stop some agency rule from going into effect, that’s what the lawsuit is about.This is called “ossification,” and the end result is that most rules take between 3–5 years to get off the ground and get into effect.Now, there’s ways to run around that particular rulemaking process, called nonlegislative rulemaking.You can issue what are called “interpretive rules,” which are rules that tell the public how the agency thinks a particular statute works, so we know what to expect if we have to interact with the agency. This is how the agency reads the statute right now. Those don’t require all that pesky notice and comment and hearings and stuff, and change the amount of judicial review required.You can also issue policy statements, or statements to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power. This is how the agency intends to read the law later, such as if you end up being hauled in front of an administrative law judge in an administrative proceeding.Buuuuuut, agencies run the risk of someone saying, “Hey, wait! This is really a legislative rule in disguise!”And that’s basically where we are here.In the present case, the Trump Administration issued a rule without notice and comment and findings - going around the APA’s procedures. The Administration argues that it doesn’t need to do all that because it’s a nonlegislative rule that is not subject to those procedures. That was challenged in federal district court, and the judge disagreed and issued a preliminary injunction until he could decide the case on its merits. This is done when there’s a risk of immediate harm to the plaintiffs and there was a really, really good chance the plaintiffs are going to succeed.The 9th Circuit narrowed this and applied it only to border states within the Circuit. The government appealed because it wants a uniform policy across the border, asking for a stay of the order.Unfortunately, the 7 justices that issued the order didn’t explain why. They just granted the stay and it’s kicked back down to the district court pending adjudication of the merits of the case. All they did was stay the preliminary injunction.So… we don’t know much else. We don’t know if they thought the risk of harm to applicants was not immediate, or because they don’t think there’s an almost certainty that the plaintiffs are going to win, or what. We really can’t glean anything from Sotomayor’s dissent, either. She’s pissed that the government is upending 40 years of asylum policy, but that’s just not what’s being adjudicated right now.Thus, the medium-range consequence is that it’s going to go back to get adjudicated on the merits.The other likely immediate ramification is that this is likely to significantly increase unlawful border crossings. These people didn’t cross through an entire country to be told to sit down and wait. Other Trump Administration crackdown policies like “metering” and the like have resulted in dangerous camps on the Mexican side of the border and as winter approaches, people are going to get more and more desperate. They’re going to start looking for ways across the border. If they can’t do it legally, they’ll do it unlawfully. It’s that simple.This will continue to enrich coyotes who facilitate this. It will continue to result in dangerous conditions for migrants who will try to get across in remote, harsh places that can easily kill them. It will put more and more people in danger.If they’re caught and deported immediately for not following the proper channels, many of them will be going back to countries where it is very likely they will die in short order.It will create an even greater humanitarian crisis than what already exists.And it will continue to highlight the incredible callousness of this administration and the utter lack of empathy from those who support these policies.Thanks for the A2A.

The recent and successful Standing Rock protest was about much more local and legal issues than Global Warming.Importantly, in an 1851 treaty, we the people of the United States, promised to protect the reservations and indigenous people.[1] An oil spill into the reservation would violate our promise. The protest was a call for our integrity.Quoting from FAQ: Standing Rock LitigationWhy did the Standing Rock Sioux Tribe bring a lawsuit?The Standing Rock Sioux Tribe is deeply concerned about the construction of a major crude-oil pipeline that passes through its ancestral lands. There are two broad issues. First, the pipeline would pass under the Missouri River (at Lake Oahe) just a half a mile upstream of the tribe’s reservation boundary, where a spill would be culturally and economically catastrophic. Second, the pipeline would pass through areas of great cultural significance, such as sacred sites and burial grounds that federal law seeks to protect.The Tribe sued the U.S. Army Corps of Engineers, which is the primary federal agency that granted permits needed for the pipeline to be constructed. The lawsuit alleges that the Corps violated multiple federal statutes, including the Clean Water Act, National Historic Protection Act, and National Environmental Policy Act, when it issued the permits.DAPL Easement Not Granted: What Happens Next?On Sunday, Dec. 4, the U.S. Army Corps of Engineers announced it would not grant an easement to allow the Dakota Access Pipeline to cross under Lake Oahe in North Dakota near the Standing Rock Sioux Tribe reservation. Instead, the Corps will prepare an Environmental Impact Statement for alternate routes. This pipeline has been the subject of peaceful protests by hundreds of tribes and others across the nation, and the Corps of Engineers’ historic decision is a huge victory for the rights of indigenous people and the cause of environmental justice.The decision has raised several questions, however, which are answered below.What happens to the legal case against the Dakota Access Pipeline now?The lawsuit Earthjustice filed on behalf of the Standing Rock Sioux Tribe said the Corps violated the National Historic Preservation Act, the National Environmental Policy Act, and other federal laws by ignoring the environmental and cultural impact of the pipeline when it approved a permit to allow the pipeline company to dig under Lake Oahe.The decision to refuse to grant the easement necessary for the project, along with the announcement of an Environmental Impact Statement examining the impact of alternate routes, may make parts of that lawsuit unnecessary. However, we will wait and see how the decision plays out, especially under the incoming administration, before deciding how to proceed.What are the next steps in the Environmental Impact Statement, and how long does that process normally take?An Environmental Impact Statement (“EIS”) as required by the National Environmental Policy Act is a thorough community participation process involving several rounds of public input. This process could take a year or two to complete. The first step is to invite public comment on the scope of the EIS, what alternatives should be analyzed and what potential impacts should be studied. When that is decided, the draft EIS would be compiled, followed by another round of public comment before a final EIS is issued.On behalf of the Standing Rock Sioux Tribe, we are ready and willing to fully engage in that public process.Could President-Elect Trump reverse this decision after he is inaugurated?Reversing this decision would be arbitrary, capricious and unlawful, and we would challenge it in court. The government has made a considered decision that this pipeline needs more review. There are important issues on the table concerning tribal treaty rights and environmental justice that the Corps decided need a full review.Federal courts have established that federal agencies cannot arbitrarily change policies and ignore previous findings simply because a new president has taken office.Footnotes[1] Fort Laramie Treaty