Svend Brandt-Erichsen Comments on Impact of Permitting Bill
Svend Brandt-Erichsen was quoted in the Law360 story “Permit Bill Speeds Up Project Fights With Appeals Court Push” (subscription required). The article explores whether permitting measures in the U.S. Senate could shorten litigation for energy project developers by directing challenges to federal agency decisions straight to appellate courts.
The Bipartisan American Affordability and Jobs Act of 2026 would route disputes over federal reviews under the National Environmental Policy Act and the National Historic Preservation Act directly to the circuit court covering the project's location, skipping federal district court proceedings. Legal challenges to biological opinions issued under the Endangered Species Act would go straight to the D.C. Circuit.
Industry lawyers suggest that removing one stage of judicial scrutiny could offer developers greater certainty by reducing the wait for conclusive appellate decisions on whether those permitting determinations comply with the law but also could result in the same project facing legal challenges in multiple courts.
Commenting on the impact of the Act, Svend said, “This has the potential to ... make it easier to resolve litigation over project development.”
One concern is this change could lead to circuit courts being overwhelmed by NEPA litigation. But many in the industry believe that the U.S. Supreme Court's 2025 decision in Seven County Infrastructure Coalition v. Eagle County, which limited the scope of NEPA reviews by federal agencies and directed courts to defer more to those reviews, will safeguard against it.
"In the past, NEPA litigation would dwell on the details of the analysis contained in environmental documents, and that is less so the case as Seven County is beginning to be implemented," Svend said. "So I don't think that the courts of appeals will have as much difficulty in dealing with the NEPA caseload."
