Brooke Marcus Wahlberg Comments on NEPA Reforms

Brooke Marcus Wahlberg was quoted in the Inframation article, “NEPA Reform Potential Imperiled by Litigation and Political Risk.” The article examines the White House’s recent reforms to the National Environmental Policy Act (NEPA), which are aimed at streamlining environmental impact studies and minimizing redundancies and could lead to a more robust pipeline for infrastructure projects—but litigation, political risk and state laws could slow that pipeline.

A number of states—16 total, plus the District of Columbia and Puerto Rico—maintain state-level environmental policy acts similar to NEPA. This could have an impact on the effectiveness of federal reforms. Commenting on this, Brooke said, “To meet the requirements of some state regulations, it will actually require more than what the federal rules do…So in that case some of those attempts to avoid duplication of effort may not actually be realized because of what is required to pass muster for the state law.”

The NEPA reforms will also be challenged in court, on their face or as applied to individual projects, or both. Additionally, depending on election results, the next U.S. Congress may have the chance to void the updated polices under the Congressional Review Act. Addressing these factors, Brooke said, “I think where there are more significant changes is where we will see heightened scrutiny with how the new regulations are applied. That’s where you will get hesitancy from agencies as they carefully apply the new rules to make sure their position is legally defensible.”