Jennifer S. Recine, Lauren Tabaksblat and Tiffany L. Ho Co-Author New York Law Journal Article: “'BHUSD v. FTA': How the Court Departed From NEPA’s Presumptive Remedy to Justify a Popular Infrastructure Project”
Kasowitz partners Jennifer S. Recine and Lauren Tabaksblat, and associate Tiffany L. Ho, have co-authored “'BHUSD v. FTA': How the Court Departed From NEPA’s Presumptive Remedy to Justify a Popular Infrastructure Project” published in the New York Law Journal. In the article, the authors set forth that when a court finds that an agency has violated the National Environmental Policy Act by failing to properly analyze the environmental impacts of a project, the court almost always vacates the record of decision associated with the project, stopping the project until the remand analysis is completed. The article details two recent decisions where courts have permitted two of the biggest infrastructure projects in the United States – the Dakota Access Pipeline and the Westside Purple Line Extension in Los Angeles – to proceed notwithstanding findings that further environmental analysis is required. Contrasting the two decisions, the article explains how the court in BHUSD v. FTA improperly applied a limited exception to the presumptive remedy of vacatur, enabling an infrastructure project that had not been adequately analyzed to proceed, undermining NEPA’s central purpose and resulting in environmental harm.
Jennifer S. Recine is a partner and member of the management committee and Lauren Tabaksblat is a partner at Kasowitz Benson Torres LLP. Ms. Recine and Ms. Tabaksblat focus on complex commercial and securities litigation matters, regularly handling real estate, land use and environmental matters involving the investment, development, construction, sale, and management of billions of dollars in real estate assets and infrastructure projects. Tiffany L. Ho is a litigation associate at Kasowitz.