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The National Environmental Policy Act (NEPA) mandates that an agency reviewing an infrastructure project take a “hard look” at the project’s environmental consequences before the agency decides to proceed. Because the timing of environmental analysis is critical for it to serve its intended purpose under environmental law, when a court finds that an agency has violated NEPA by overlooking or omitting an important impact from its review and remands the decision to the agency for further study, the court almost always vacates the record of decision (ROD) associated with the project, stopping the project until the remand analysis is completed.

In two recent decisions, however, courts departed from this presumptive remedy, permitting two of the biggest infrastructure projects in the United States—the Dakota Access Pipeline and the Westside Purple Line Subway Extension in Los Angeles—to proceed, notwithstanding findings that further environmental analysis was required as to each project. In both instances, the courts relied on the limited exception to the presumptive remedy articulated in Allied-Signal v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1996). In Allied-Signal, the court determined that remand without vacating the ROD is appropriate where there is a serious possibility that an agency will be able to substantiate its decision on remand and stopping the project will lead to impermissibly disruptive consequences in the interim.

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