Requiring Robust NEPA Analysis for Fossil Fuel Projects: A Promising Trend in the Tenth Circuit

Since President Trump took office in 2017, the Bureau of Land Management and other executive agencies have pursued expansive and aggressive development of fossil fuel resources on public lands. This development will add to the United States’ already large contribution to climate change. Unfortunately, those seeking to convince the U.S. government to mitigate the nation’s contribution to climate change have faced barriers through all branches of government. Congress has failed to pass comprehensive legislation to address climate change, and most of the progress made through the executive branch has
been undone by President Trump. That leaves the courts—but how promising of an avenue is the judicial branch for those seeking to mitigate climate change? While federal courts have historically declined to provide broad relief in cases related to climate change, a promising trend has emerged in the Tenth Circuit. The Tenth Circuit Court of Appeals and several district courts within the Tenth Circuit are holding the Bureau of Land Management and other executive agencies accountable for failing to comply with the National Environmental Policy Act when enabling fossil fuel development. Although the relief these courts can provide is limited to the challenged agency decisions before them and by the procedural nature of the statute, this line of cases has potential to limit the executive branch’s aggressive pursuit of fossil fuel development and thus slow the United States’ contribution to climate change. This Note presents a case study of the trend in the Tenth Circuit and argues that it cannot be explained by
precedent or judicial ideology. Rather, the five key factors explaining the trend are rooted in the National Environmental Policy Act’s fundamental purposes and requirements. After introducing the primary cases within this trend and outlining its key factors, this Note provides reasons for caution and suggests litigation strategies for those seeking to capitalize on the trend to limit further
contributions to climate change.