Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases

Ruple, John; Race, Kayla

doi:10.2139/ssrn.3433437

Cited by 3 publications

(5 citation statements)

References 3 publications

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“…Use of the best available science in decisions supports defensible decision making (Mills et al 2002) and helps to ensure that agencies comply with federal laws and directives (e.g., Bureau of Land Management 2008, Executive Memorandum 2021. Decision-making on federally managed public lands is challenging, as evidenced by the increasing number of legal challenges to BLM decisions and decades-long discussions by both practitioners and academics about defensibility in the NEPA analysis process (Laband et al 2006, Tzoumis 2007, Ruple and Race 2020. Litigation and administrative appeals may be reshaping managers' approaches to land-use decisions in some federal agencies, as managers are increasingly prioritizing actions that can withstand legal challenges .…”

Section: Discussionmentioning

confidence: 99%

“…Although there have been numerous reviews of legal challenges to federal land management agencies over the last two decades (Teich et al 2004, Broussard and Whitaker 2009, Miner et al 2014, Ruple and Race 2020, little exists about challenges specifically to the BLM and with this level of analysis. Detailed and actionable information about legal challenges is important to land management agencies, as legal challenges can significantly delay projects and paralyze active land management (Morgan and Baldridge 2015, Adelman and Glicksman 2018, Keele and Malmsheimer 2018.…”

Section: Application Of Findingsmentioning

confidence: 99%

“…Litigation that challenges public lands decisions is common, and a repeatedly expressed concern of land management agencies Malmsheimer 2011, Wollstein et al 2021). Challenges to management decisions on federal public lands have increased over time (Ruple and Race 2020). Some suggest that frequent litigants to federal decisions use the legal process as a means, in and of itself, to affect agency actions: lawsuits bring publicity to controversial actions, and continued litigation can delay projects for substantial amounts of time (Malmsheimer et al 2004, Keele et al 2006, Prestemon et al 2006.…”

Section: Introductionmentioning

confidence: 99%

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Using public litigation records to identify priority science needs for managing public lands

Foster¹,

Carter²,

Haby³

et al. 2023

E&S

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Relevant science is essential for effective natural resource decision making, including on public lands managed by the United States Department of the Interior (DOI) Bureau of Land Management (BLM), that cover 1/10th of the United States. Most of the BLM's management decisions require analyses under the National Environmental Policy Act, and the use of science in these decisions is often challenged. Using coproduction, we assembled an interagency team of scientists and resource managers to develop a method for using public litigation to identify priority science needs for the BLM. We searched publicly available case documents finalized from 2015-2019 in Wyoming, Colorado, Utah, and New Mexico within federal courts and the DOI Office of Hearings and Appeals, and identified 108 case documents that involved challenges to the BLM's use of science. We retained 48 case documents that contained at least one challenge about the BLM's use of science for a specific resource. We categorized all challenges in each case document according to the proposed action, affected resource, type of science challenged (data about resources, science relevant to potential impacts, methods for analyzing potential impacts, and mitigation actions), and specific nature of the challenge (e.g., challenging direct effects analysis). We identified priority science needs based on the frequency of challenges, the number of states where similar challenges occurred, whether the BLM lost the challenge, and whether the case was remanded. Top needs related to oil and gas development actions and included science about effects on air quality and climate, water, and socioeconomics; data for air quality and climate; and methods for analyzing potential impacts to cultural resources and air quality and climate. The BLM can use this information to prioritize actions (e.g., funding new research or science syntheses) to strengthen its science foundation for decision-making.

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Section: Discussionmentioning

confidence: 99%

Section: Application Of Findingsmentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

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Using public litigation records to identify priority science needs for managing public lands

Foster¹,

Carter²,

Haby³

et al. 2023

E&S

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show abstract

“…Every year, each of these federal agencies must make hundreds to thousands of formal planning and management decisions that balance diverse resource uses and values. Those decisions are complex and regularly litigated (Ruple and Race 2020).…”

Section: Figurementioning

confidence: 99%

Prioritizing science efforts to inform decision making on public lands

Carter,

Haby,

Meineke

et al. 2023

Frontiers in Ecol & Environ

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Public land management agencies in the US are committed to using science‐informed decision making, but there has been little research on the types and topics of science that managers need most to inform their decisions. We used the National Environmental Policy Act to identify four types of science information needed for making decisions relevant to public lands: (1) data on resources of concern, (2) scientific studies relevant to potential effects of proposed actions, (3) methods for quantifying potential effects of proposed actions, and (4) effective mitigation measures. We then used this framework to analyze 70 Environmental Assessments completed by the Bureau of Land Management in Colorado. Commonly proposed actions were oil and gas development, livestock grazing, land transactions, and recreation. Commonly analyzed resources included terrestrial wildlife, protected birds, vegetation, and soils. Focusing research efforts on the intersection of these resources and actions, and on developing and evaluating the effectiveness of mitigation measures to protect these resources, could strengthen the science foundation for public lands decision making.

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“…Some critics contend that NEPA enables costly and timely litigation that can stop important, needed projects. In an analysis of NEPA litigation, Ruple and Race (2019) found that 0.22% of NEPA actions resulted in litigation with environmental plaintiffs prevailing at a higher rate than nonenvironmental plaintiffs. Adler (2006) points out that by not carefully consulting with other agencies and the public and not genuinely using the NEPA process to guide decision making in the Legacy Parkway case, the lead agencies of the project themselves caused the delay.…”

Section: The National Environmental Policy Actmentioning

confidence: 99%

Transforming Institutions to Connect Land and Water for Healthy Communities

Endter‐Wada

Sternlieb²,

Welsh

et al. 2022

J American Water Resour Assoc

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Interconnected global environmental and societal risks threaten the health of human and ecological communities. Institutions are avenues through which people can mobilize to respond, but institutional landscapes are fragmented. We focus on the need for institutional change in environmental management and water services to better connect land and water in the United States. Using a historical institutionalist approach and insights from sustainability transitions research, we analyze four diverse examples of connecting land and water occurring across public and private institutions where people are putting innovative perspectives and principles into practice: National Environmental Policy Act, Engineering with Natureâ; Water Utilities as Anchor Institutions, and Growing Water Smart. Comparative analysis of these examples focuses on the particular risks these institutions are responding to, how each connects land and water to promote healthy communities, the institutional transformations that are occurring, how problems are being reframed, how leadership and mobilization are driving change, what tools help bridge multiple boundaries, and what new ways of knowing and action strategies are emerging. Our examples focus on transformations within and between institutions in recognition of their importance for driving larger system change. Findings reinforce previous research on the critical role of human agency and boundary spanning in facilitating and steering sustainability transitions.

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Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases

Cited by 3 publications

References 3 publications

Using public litigation records to identify priority science needs for managing public lands

Using public litigation records to identify priority science needs for managing public lands

Prioritizing science efforts to inform decision making on public lands

Transforming Institutions to Connect Land and Water for Healthy Communities

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