Peter Tomasi Comments on Recent Environmental Permitting Decision

Foley & Lardner LLP partner Peter Tomasi commented on a federal court’s recent decision to reject a coal mine’s challenge of federal agency action in the Bloomberg Law article, “Coal Decision Poses Fresh Questions About New Permitting Rules.”

Tomasi expressed that the case shows that some of the Fiscal Responsibility Act’s amendments stand on shaky legal ground, in particular one clause which codified a two-year deadline for the completion of environmental reviews under the National Environmental Policy Act. If the deadline is not met, an agency can receive an extension “in consultation with the applicant.”

“The agency’s position seems to be that they just have to tell the sponsor what the new deadline is, and consultation does not require consent,” Tomasi said, highlighting the murkiness of what consultation exactly means. “So it’s an open question: does this two-year window mean anything, or does the agency just get to tell you, ‘We’re not going to make two years; you’re going to take 56 months and like it’?”

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