Philip K. Howard, in his 2014 book The Rule of Nobody, highlighted the complex layers of government approvals required for important projects in America. He criticized the evolving nature of environmental review, describing it as a game of finding complications. Howard also pointed out how courts have enabled individuals to misuse the law for personal gain.
Over the years, this perspective has gained traction, with commentators like Ezra Klein in The New York Times, Jerusalem Demsas in The Atlantic, and Matthew Yglesias in Bloomberg echoing similar sentiments. Demsas even went as far as titling an article “Community Input is Bad, Actually.”
In a 2023 law review article, Stanford University’s Michael Bennon and Devon Wilson analyzed the impact of litigation on energy and transportation projects. They found that post-EIS litigation significantly delayed projects, focusing more on local impacts than regional or national benefits.
Unlike the United States, European countries and others like Australia and New Zealand incorporate public comments on projects at an earlier stage, avoiding post-EIS litigation. Recent infrastructure reforms in the U.S. have targeted the EIS process, but post-EIS litigation remains unresolved.
Howard’s book advocated for reforming environmental litigation, pointing out the unintended consequences of judicial intervention in the National Environmental Policy Act. A just-released policy study explores various options for reform, including time limits on filing suits and limiting who can file.
The study suggests the potential for bipartisan action on environmental litigation reform in the new Congress, with different groups supporting reforms for transportation and energy projects. Centrist opinion leaders and growing coalitions in the House of Representatives may pave the way for bipartisan reform efforts.
