Showalter Quoted on Permit Bill Aimed at Speeding Project Litigation Through Appeals Courts

Mike discussed the potential for direct appellate review to give project developers earlier clarity, while noting questions about whether the change would actually speed litigation. 

Mike said, “If you’re thinking about permitting reform as sort of a project-certainty problem for a developer, there’s a lot to like about getting to a court that ultimately decides the legal questions sooner.” 

He also cautioned that faster results are not guaranteed, particularly if there is a change in presidential administration, and noted that some Clean Air Act cases he worked on in the DC Circuit took 10 years to complete. Mike said, “Congress here is asking appellate courts to do kind of ‘first instance’ work in highly fact-specific cases. So the test there is if it produces faster … decisions, or simply shifts the bottleneck from one place to another.” 

On the work required to litigate these cases, Mike added, “Eliminating a level of review doesn’t really eliminate the work. NEPA and related challenges involve big administrative records and questions that require a court really digging into the details of what an agency considered and what alternatives were evaluated. Whether it happens in a court of appeals or a district court, the briefing is still going to look the same.” 

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