Co-hosts Mia Montoya Hammersley, director of the Environmental Justice Clinic at VLGS, and Savannah Collins JD/MCEP’26 speak with Elizabeth (Lizzie) Lewis, senior associate at Eubanks and Associates, about NEPA and the recent D.C. Circuit decision in Marin Audubon Society v. FAA.
Narrator
For this podcast, the production of the Maverick Lloyd School for the Environment, a Vermont law and graduate school.
Savannah Collins
Hello, and thank you for joining us today for another episode of Hothouse Earth. I'm Savannah Collins, a third-year JD and Master of Climate and Environmental Policy student. And I'm your guest host today, along with Mia Montoya Hammersley, director of the Environmental Justice Clinic here at Vermont Law and Graduate School and Assistant Professor of Law. Thank you for co-hosting, MIA.
Mia Montoya Hammersley
Looking forward to our conversation today.
Savannah Collins
We're very excited today to welcome our guest, Elizabeth Lewis, senior associate at Eubanks and Associates, to talk with us about all things NEPA and even musical theater.
Elizabeth Lewis
Hi. Thank you so much for having me. I'm excited to be here.
Savannah Collins
Before her work at Eubanks and Associates. Elizabeth, known to most as Lizzie, was a law fellow and then an associate at Meyer Goods. And Steen and Eubanks. And Eubanks and Associates. After first completing a yearlong now fellowship at NOA, she also serves as an adjunct professor of Vermont Law and graduate school and teaches at American University Washington College of Law, where she teaches ocean and coastal law and the Environmental and Energy Law Practicum.
Lizzie has obtained numerous honors, including her selection to the Environmental Law Institute's Emerging Leaders Initiative in 2020.
Mia Montoya Hammersley
Thanks, Savannah. So I think this is a really important time to be having a conversation of NEPA because of some of the changes that we're going to discuss later on, but also because it is such a it's such a critical tool in an environmental lawyer's toolkit and a really crucial statute for achieving procedural justice for communities as well, and an opportunity for communities to be educated about decision-making processes that are going to impact their lives and their health and their communities. So I'm excited to be having this conversation today.
Savannah Collins
Just talking a little bit about NEPA. I would love to hear just like some contextualization. A lot of people I think don't fully understand what NEPA is from the outside. And even if you are an environmental law student, sometimes NEPA kind of gets ahead of you. So can you tell us a little bit about how the National Environmental Policy Act or NEPA shows up in your work as an environmental litigator?
Elizabeth Lewis
Absolutely. Yeah. I mean, I would say that NEPA represents anywhere between 70 and 80% of our work because it really touches on everything that, you know, every project that the government undertakes that, you know, affects the environment. And what NEPA essentially is, is a a statute that requires that agencies just stop and think, you know, it was passed in 1969 and it was signed by President Nixon on January 1st, 1970, to really signal the start of the environmental decade.
And it was supposed to inject environmental considerations into agency decision-making around that time. We had really started to realize as a society that the actions that we were taking were having a very negative effect on the environment and on public health. You had terrible smog in major cities. You had rivers catching on fire, rising cancer rates. And there was this growing recognition that a lot of this was due to human activity and a lot of it could be controlled, in essence, by the federal government, and by decision making.
NEPA just requires that the government consider the impacts of their decisions on the environment and consider alternatives to those decisions that may have less of an impact. But the idea is that even by just requiring the consideration of those impacts is that you inspire federal decision-makers and, you know, applicants for licenses to make better decisions. And part of the way that you do that is by requiring the government to produce what we call an environmental impact statement or environmental assessment.
These are different levels of disclosures, essentially where the government has to inform the public of what the impacts of its particular action will be, what alternatives it considers, and tell the public why it's making that particular decision. And it must accept public comments from any member of the public. They're supposed to actually go out and proactively seek comments from experts in the field and consider and respond to those comments.
You know, they must issue a draft and then final documents and then finally a final decision. And so that is what we call kind of the twin aims of NEPA in the field. You know, one of those aims is, of course, to require the government to consider environmental impacts in agency decision-making but also to ensure that the public is informed of those considerations and that their concerns are taken into account throughout the process. And so that's kind of the idea behind this statute. Of course, in practice, it's been, you know, at times much maligned. You know, the industry has kind of viewed it as a make-work exercise. And, you know, in recent years with various litigation, it does seem it can be a little bit disheartening because it is very difficult because there is no real substantive requirement that the government actually takes the best environmental path.
Savannah Collins
So one of my most pivotal experiences here at Vermont Law and graduate school has been getting to work in the Environmental Justice Clinic. And I've had the real privilege to get to work on client comments for the neighbor process. And I've asked 1,000,001 questions about NEPA, and she's always been very helpful directing me on how to best advocate for my clients while still recognizing the importance of the lived experience. And I would just love to hear a little bit more about what thoughts you have on the NEPA process as we're heading forward.
Elizabeth Lewis
Beyond that, you know, another thing that we've seen a lot come up with NEPA is this idea that the administrative process has become more and more difficult for the average person to access. It's we call it the ossification of the administrative process. And so it is becoming more and more difficult for the average person to come and write in a comment to participate.
And so, you know, because you have to use all of these particular words and language and, you know, if you want to dispute a project or say that they should have done something differently, will you, as a member of the public must propose an actual alternative and show why that is reasonable and why it's objectively feasible and all of these things?
And how are you supposed to know that you essentially need to have an engineering degree or a law degree to understand and be able to meaningfully participate? And that is it's becoming a real challenge in the democratic process as we see these projects moving forward. So as much as NEPA was intended to kind of inject this public process into government decision-making, in reality, you know, as we've kind of seen with access to the courts, you know, through the years, it's really becoming more and more narrow about who can actually participate, what relief you get and how meaningful it actually is.
Savannah Collins
I was thinking why it's important for the public to engage. And I really appreciate you're talking about this like access to the process. And I know that I didn't understand the comment process before I came to law school, and it literally took me getting a legal degree to even know that was a thing because theoretically, NEPA was made for the public and it just hasn't been that way. And it's just so inaccessible because the public can’t access it anymore.
Elizabeth Lewis
I do think that ultimately a government should be observable to its people and when you severely limit the ability of the average person to make their views known and you make it more expensive to participate in that process and you make it inaccessible to the majority of people, I think that that is a problem, particularly when these projects deeply, deeply affect people's people's lives, people's livelihoods, the people who live next to the giant freeway, who are going to be affected by all the runoff, it's the people in Louisiana who are going to be affected by the Barataria sediment diversion.
And it's the introduction of the polluted water from the river into the basin. And, you know, whatever the ultimate decision is, you know, right or wrong, the public has a right to be informed so that they can make an informed choice and so that they know what the impacts are going to be. And I think that that is one of the greatest challenges that I see, is how do we make this process once again accessible to the public?
Because if you go back and you look at comments on NEPA documents, you know, from the eighties, they're much different. They're much less structured. I mean, of course, when you go back, you look at NEPA documents from the eighties, those too, you know, are much shorter. You know, I think that we do need to find some kind of a happy medium or some kind of a compromise so that there is a way to allow the public an avenue to participate and have more of a voice again and to understand this process. I mean, as you said, you didn't understand the commenting process.
Mia Montoya Hammersley
Yeah, Thanks for that, Lizzie. I think this is such an important conversation and something that we discuss in the Environmental Justice Clinic sometimes is like, what role do lawyers play actually in contributing to increasing expectations of how thorough and how legal in nature public comments are expected to be? Right. Because if the only comments that are seriously considered are the ones that are drafted by lawyers in non-profits or public interest organizations, you know, it makes it all the more difficult for individual people to just comment based on their understanding of how the project is going to impact their particular issue or their community as they understand it, perhaps through their lived experience, for example. So, I think that's just something we're going to have to continue to think about. Right. What role do we play as lawyers and also contributing to just the lack of access and this increasing standard of comments, specifically geared towards litigation?
Elizabeth Lewis
That is something that is really coming up a lot and it is really difficult to stop a project once it has been approved during the pendency of litigation. So, you know, once a project is approved that license is good until you litigate a case all the way to the end. And if you win at that point, you might get a decision from the court that overturns the agency permit.
But during that whole time, that license is good unless you get what we call a preliminary injunction. But that is a very high bar because that is emergency relief that you're getting before you get the entire record, the entire story essentially before the court and you get that relief before the case has even been fully litigated. And you essentially have to show what we call irreparable harm.
You have to show that you will suffer some kind of harm to your interest that will not be able to be repaired later. And if there is no requirement that the government make the best environmental choice, how are you harmed by the government not considering a particular impact when they might just make that same choice at the end of the day anyway, just by providing a better explanation? And so we're at this point now where we're seeing NEPA litigation, where by the end of it, the project's been built.
Mia Montoya Hammersley
Exactly. But as you know, and as you're probably also thinking about, we are still processing that pretty significant recent decision regarding NEPA out of the U.S. Court of Appeals for the D.C. Circuit, regarding the White House Council on Environmental Quality Authority under NEPA. So it would be great if you could tell us a little bit about this case, Marin Audubon Society versus the FAA, and talk about what the implications are for this recent decision for NEPA going forward.
Elizabeth Lewis
Yeah. So, when NEPA was drafted, the legislature did not give the agency that the statute created, as you said, the Council on Environmental Quality or CQ, the authority to make issue of regulations in our government. You know, the Congress issues the statutes and they, Congress, is permitted to delegate certain authority to agencies to issue binding regulations, but they must do so pretty explicitly, or else it's a separation of powers issue, right?
Because the legislature makes the laws and the executive is only supposed to enforce those laws. And Congress and NEPA did not give CQ Regulatory authority and therefore technically, CQ does not have the authority to issue binding regulations. So I guess I should back up a little bit and just explain. See, here was this agency created by NEPA to interpret NEPA and so it's this expert agency that is seated within the executive office of the president.
And they just started issuing regulations and all of the agencies just started following them. And President Carter actually issued an executive order requiring all executive agencies to follow the CQ regulations and all of the independent agencies. So the agencies that are technically not under the president's direct control, independently, each elected to adopt or to require their agencies to follow those regulations.
And the D.C. Circuit said that that is a violation of separation of powers. The President cannot order other agencies to make law. CQ doesn't have that authority. The President can't order other agencies to follow laws that CQ doesn't have the authority to make. Essentially. And so this really, you know, it overturns decades of precedent. And you know, what's really concerning is that if it's allowed to stand, you combine this with Loper Bright, which got rid of what we called the Chevron Doctrine, which means that agencies no longer get any deference in statutory interpretation, it's up to the judge to say what the best interpretation of the National Environmental Policy Act is.
Savannah Collins
I was actually like, Sorry, I don't mean to interrupt you, Lizzie, but like, this is just something I kept thinking about as I was reading it and just like really going through I mean, I think I wrote the word what, multiple times beside the opinion, but I just kept going through trying to understand, like the court even recognizes that you were talking about since 1978, the court even recognizes and talks about like Sierra Club V Morton, and like all of these decisions made in the seventies and eighties and they're like, Yeah, we came to this decision.
We've totally seen that this is how it's going to work. Clearly writing that there's at least like 40-plus years of precedent that people are relying on and not just like people but agencies. And I just, like, I wanted to ask you, what do you do with your clients and working in this field when you say, okay, there is no precedent anymore because someone changed their mind about it, Like, how do you move forward as a practitioner and…?
Elizabeth Lewis
Well, you know, I mean, it's going to continue to be challenging. And, you know, I think that, again, regardless of what I think about the decision itself and I think it is legally questionable merely because no party raised that particular issue. Right. I that was that issue was not before the court, but what it does signal is that if someone were you know, I mean so say this goes up on on bonk which I'm you know it probably will apply for a number which you know, for those of our viewers who don't know what that means, that means they apply for a review by the entire D.C. Circuit.
So instead of just this three, three-judge panel, they are rehearing, and if that is not or doesn't go their way, then they can go for cert petition up to the Supreme Court, which I don't imagine would a fair well, he's right is NEPA doesn't have regulatory authority and whether I can argue standing and argue that it should be implied you know whether I can stand here and say, well, of course they meant to put it in there.
Congress now knows what it has to do, you know, So either Congress amends the statute to give CQ rulemaking authority or you enter this kind of crazy world.
Savannah Collins
From a law student perspective, discuss just a little bit of the implications that we see going forward from judges picking up questions that aren't being raised and the cases to respond to it. I would love to hear if this a pattern at large or if this just happens to be like Supreme Court? We're kind of seeing this happen time and again where they're picking up questions that no one asked and also acknowledging that no one asked the question and then moving forward, because it's not until like page 22 of the opinion, that they even get into the actual substance.
Elizabeth Lewis
Yeah, that is a that is a good question. And so respond to essentially just means that they are raising the issue, you know, on their own. Right. Without it being raised by the parties. So there are certain things that, you know, a judge should raise to respond to things like questions that go to jurisdiction. Right. So standing is one, if there are questions of standing, a judge will argue they should raise that to respond to it because that goes to whether they can even hear the case in the first instance.
But we are seeing more and there are certain issues that a judge arguably has an obligation to raise on their own. Right. And those are issues that go to jurisdiction like standing, which questions whether a party even has the right to bring their case before the court. But there has been a recent rise in cases where judges are raising certain issues to respond on their own that have not been raised by the parties.
And these do tend to be in cases that are brought before more conservative judges. A lot of them tend to be Republican-appointed judges. I mean, you mentioned before this kind of idea that there is no respect for precedent. Right. The lot in terms of stare decisis. Right. You respect precedent. And that just is it's not there anymore.
And that does, you know, just as a lawyer and as a citizen that does give me cause for concern. But, you know, you just kind of deal with it. And I think that it's our job as activists, as attorneys, you know, it's hard not to get discouraged. But you have to remember that we are not in this for the short fight.
This was never going to be easy, because the only way that we are going to achieve the world that we want is a world of equity, a world with clean water. Clean air is by changing an entire system, and that is not going to be easy and that is going to face resistance. And it's only going to happen through incremental change and it's going to need to be a real cultural shift.
And I do I have seen part of that. You know, I think it remains to be seen how much of that will stay over the next few years. You know, we have seen more of a drive to take into account the views of marginalized communities. I hope that that continues. But I do think, you know, it's going to take lawyers and among all of the different disciplines, not just the litigators, to address that problem.
Mia Montoya Hammersley
Well, I wanted to end on a high note, so I was thinking we could just transition straight into musical theater.
Elizabeth Lewis
Thank you. I just got tickets to Les Mis this morning.
Mia Montoya Hammersley
And for the listeners, a fun fact that we learned about Lizzy is that Lizzie, like myself, is also a musical theater kid. Part of the musical theater kid to lawyer pipeline. So we're excited to talk about some of the ways in which we can continue to express our creativity and stay positive as lawyers in the midst of all of this, all of this change and the challenges that we face in our work, so.
Elizabeth Lewis
One of the ways I actually one of the things I did for my class is I took inspirational quotes from my favorite musicals, and I put them on a slide. So, you know, lame is even the darkest night will end and the sun will rise. Yeah. So, you know, just whatever, whatever you can do to keep you motivated, you know, because sometimes you need to listen to something that just gets you motivated.
But also whatever you need to do to unplug because unplugging is just as important as as staying in the fight. You know, sing, sing your heart out to whatever you want in the shower or in your car, whether it's a Wicked or Hadestown or, you know, SIX. I just saw SIX is fantastic.
Mia Montoya Hammersley
Thank you for that, Lizzie.
Elizabeth Lewis
But, you know, this is not the end. This decision will not be the end. We're going to have to figure out new ways to fight. We're going to have to figure out new arguments. But that's why we need new blood. We need new minds. We need new young activists, new young attorneys who we can train and who can approach problems differently, who aren't just set in the old ways of approaching things. Because this is it's a long it's a long haul. It's a long fight. And, you know, I hope you're all in it with me.
Mia Montoya Hammersley
No pressure, Savannah.
Savannah Collins
I guess I'm ready to do it. I mean, I am already, but. Wow. Okay. What a call to action was. Yeah, I'll graduate and pass the bar as quickly as I can. I'm on my way.
Mia Montoya Hammersley
Well, thank you so much, Lizzie, for joining us. We really enjoyed this conversation.
Elizabeth Lewis
Yep.
Mia Montoya Hammersley
And are just, you know, big fans of the work that you are doing. And thank you for the words of encouragement and we are all going to…
Elizabeth Lewis
Thank you.
Mia Montoya Hammersley
stay in this fight together.
Elizabeth Lewis
Exactly. Exactly. Yeah. Boots on the ground. It right.
Mia Montoya Hammersley
Right. Thank you, Lizzie.
Elizabeth Lewis
Thank you so much, you guys. This has been great.
Savannah Collins
And thank you listeners for listening. Please join us next time for another edition of my House Earth podcast.
Narrator
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