I think the two real lodestars of "substantive" protection are 1) narrow definitions of standing, and 2) judicial review of cost-benefit. Germany is usually the exemplar of good environmental law (until at least the late 90s). Their approach:
1. The only people with standing to sue over infrastructure were people who owned land that would be negatively effected. The remedy was generally ordering the agency to mitigate their project, and they only had to mitigate it to protect the rights of the litigant (as opposed to any broader environmental concerns.) Procedural defects were generally curable: the agency could just amend their environmental statement at any point without delaying the project.
2. Judicial review of environmental regulation generally centered around whether the proposed environmental protection was disproportionate to the social benefit being pursued. (Because, as above, procedural defects were curable.)
Susan Rose Ackerman has a book on this that is brilliant, except she concludes that the US is better than Germany.
In the US, this whole issue (wrongly) becomes part of the non-delegation discussion. But if Congress directly mandates outcomes that fail a CBA, that's no better than the EPA doing so. And perhaps worse, since it's harder to get judicial review of a statute than a regulatory action.
I think the two real lodestars of "substantive" protection are 1) narrow definitions of standing, and 2) judicial review of cost-benefit. Germany is usually the exemplar of good environmental law (until at least the late 90s). Their approach:
1. The only people with standing to sue over infrastructure were people who owned land that would be negatively effected. The remedy was generally ordering the agency to mitigate their project, and they only had to mitigate it to protect the rights of the litigant (as opposed to any broader environmental concerns.) Procedural defects were generally curable: the agency could just amend their environmental statement at any point without delaying the project.
2. Judicial review of environmental regulation generally centered around whether the proposed environmental protection was disproportionate to the social benefit being pursued. (Because, as above, procedural defects were curable.)
Susan Rose Ackerman has a book on this that is brilliant, except she concludes that the US is better than Germany.
In the US, this whole issue (wrongly) becomes part of the non-delegation discussion. But if Congress directly mandates outcomes that fail a CBA, that's no better than the EPA doing so. And perhaps worse, since it's harder to get judicial review of a statute than a regulatory action.