Supreme Court skeptical of expansive environmental reviews

Watch Seven County Infrastructure Coalition v. Eagle County closely!

More exciting news on the permitting front! The U.S. Supreme Court heard oral arguments [on December 10] in Seven County Infrastructure Coalition v. Eagle County. It’s a case that has significant implications for the size and scope of the National Environmental Policy Act (NEPA), which “critics say has led to delays and increased costs” for any project that is likely to affect the environment.

The case came about when the Surface Transportation Board granted a petition to construct and operate an 88-mile railway in Utah’s Uinta Basin, with the primary purpose to transport crude oil from the basin to the national rail network. In 2021, the railway was fully authorized after thorough environmental impact statement (EIS) analysis. However, Eagle County, Colorado, and several environmental organizations contend that the Board omitted analysis of some “downline impacts” such as increased train traffic on existing rail lines, increased crude oil refining impacts on Gulf Coast communities, increased drilling in the region, and potential oil spills along the Colorado River.

The question presented is whether NEPA requires an agency to study environmental impacts “beyond the proximate effects of the action over which the agency has regulatory authority.” Precedent from Department of Transportation v. Public Citizen (2004) holds that agencies need only analyze impacts with “a reasonably close causal relationship” and over which they have “statutory authority” and can prevent.

It’s hard to imagine how the Surface Transportation Board would have the expertise to evaluate climate and greenhouse gas impacts of potentially increased oil drilling caused by availability of an 87-mile railroad. Yet opponents of infrastructure projects routinely litigate against projects through “endless technical second-guessing,” and when a judge agrees, studies are sent back to the drawing board and redone, often taking years. This chills investment and delays projects for years if not decades.

NEPA regulations finalized in July are being challenged. This rule effectively requires agencies to consider the “global indirect and cumulative effects of greenhouse gas emissions” and waive analyses for politically favored projects, which opens a can of worms for technical nitpicking.

Luckily, the Justices seem skeptical of such sweeping analyses and appear likely to issue a “decision that would establish general rules describing the kinds of effects that are too remote for agencies to require consideration of them.”

Reuters reports on several questions the Justices asked:

Liberal Justice Ketanji Brown Jackson told William Jay, a lawyer for the challengers, that the board would not have the power to prevent oil from being transported on the railway since it regulates railroads, not cargo.

“If they can’t say what gets carried, then what difference does it make that the refinery is putting out environmental effects, to their decision as to whether or not to approve this?” Jackson asked…

Conservative Justice Brett Kavanaugh expressed concern that judicial second-guessing has prompted agencies to carry out sprawling environmental reviews.

“By the courts taking an overly aggressive role it’s, in turn, created an incentive for the agencies to do 3,000-page … environmental impact statements,” Kavanaugh told Edwin Kneedler, a Justice Department lawyer, who agreed.

Justice Kavanaugh seemed particularly skeptical, according to reporting for FOX13 in Salt Lake City:

Justice Brett Kavanaugh noted various federal agencies involved and “so many different environmental checks are in place on land, air, water, pollution.”

“What is NEPA adding to the substantive statutes, and how should that affect how we think about NEPA in terms of what the judicial role is with respect to enforcing NEPA?” he asked.

Bingo. The U.S. has other laws, such as the Clean Water and Clean Air Acts, that set environmental standards; NEPA is a procedural act, not a protection act.

Justice Neil Gorsuch recused himself in early December. Audio of the oral arguments are available on C-SPAN here, and several friend-of-the-court briefs worth reading are available here and here. A decision is expected by the end of June 2025.

Debra Struhsacker and I address NEPA delays in our October report, “Mission Impossible: Mineral Shortages and the Broken Permitting Process Put Net Zero Goals Out of Reach” in Section VI. Paring back the scope of NEPA’s required analyses to the effects that agencies have expertise to anticipate would be a welcome step to reduce the lengthy and litigious permitting process.

This piece was originally published at Center of the American Experiment on December 11, 2024.