The United States’ National Environmental Policy Act is a knowledge production process required by federal government agencies to assist in their evaluation of the environmental (and social) impact...

Environmental injustices in immigrant detention: How absences are embedded in the National Environmental Policy Act process:

Forty years ago, in Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma, the Supreme Court reserved a critical question that the federal courts have endeavored to answer. In so doing, the lower courts forged the novel common law doctrine of “implied exemption,” which releases agencies from National Environmental Policy Act obligations when they undertake “non-discretionary” actions. This Article tracks the development and consequences of this largely unnoticed but influential doctrine and concludes that, given the chance, the Roberts Court will uphold it. It also evaluates the doctrine’s impact on agency behavior and offers modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.

Kyle Robisch

Papers

The NEPA Implied Exemption Doctrine: How a Novel and Creeping Common Law Exemption Threatens to Undermine the National Environmental Policy Act

The NEPA Implied Exemption Doctrine: How a Novel and Creeping Common Law Exemption Threatens to Undermine the National Environmental Policy Act