Key Permitting Dispute Heads to Supreme Court

What happened: ARTBA and industry coalition partners weighed in with the U.S. Supreme Court May 29 in a case that could affect how federal permits are challenged and reviewed.

At issue is whether project opponents can challenge a permit application before the government has made a final decision and whether agencies must conduct multiple environmental reviews covering the same project impacts.

What the brief said: In an amicus (“friend of the court”) brief filed in United States Department of the Air Force v. Prutehi Guahan, the coalition argued that applying for an environmental permit is simply a request for government approval, not a final agency decision that should trigger a lawsuit. Moreover, when a permitting program already requires a thorough review of environmental impacts, agencies should not have to conduct a second, overlapping review under the National Environmental Policy Act (NEPA).

Why it matters: Although the case revolves around collection and disposal of hazardous waste, the outcome could have broader implications for federal permitting. ARTBA and its partners warned the Court that allowing lawsuits to be filed before agencies make final decisions on permit applications could create new opportunities for opponents to challenge projects earlier in the review process, increasing the risk of delays and uncertainty and increased costs.

What’s next: The Supreme Court will hear oral arguments later this fall and may issue a decision sometime next year. Contact ARTBA’s Prianka Sharma for more information.