A "Course Correction" of NEPA Review
In an 8-0 judgment, the U.S. Supreme Court recently struck down the D.C. Circuit Court of Appeals decision that had vacated the U.S. Surface Transportation Board’s (the “Board”) approval of a proposed railroad construction project in Utah. The proposed rail line would connect a rural part of Utah to the national freight rail network and enable the transportation of crude oil to refineries in Louisiana, Texas and other locations. In Seven County Infrastructure Coalition v. Eagle County, 23-975 (May 29, 2025), the Supreme Court clarified that courts are required to “afford substantial deference” to agency decisions made in the context of preparing an Environmental Impact Statement (EIS) under the National Environmental Protection Act (“NEPA”). “The central principle of judicial review in NEPA cases is deference.” Further, NEPA only requires an agency to consider the effects of the proposed project under consideration and not the potential effects from “upstream and downstream projects that are separate in time or place” – in this instance potential increased upstream oil drilling and downstream refining of crude oil.
The Supreme Court rebuked some lower courts for aggressively policing NEPA compliance and causing projects to grind to a halt. The railroad project in this case has been pending since 2020. “Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.” Accordingly, the Supreme Court decided “a course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense.” [1] We highlight key takeaways from the Supreme Court’s decision below.
“Substantial Deference” must be given to agency decisions under NEPA, as long as they fall “within a broad zone of reasonableness”
Whether the courts should defer to administrative agency decisions is a question that has been on the forefront since the Supreme Court upended the paradigm of Chevron deference last year in Loper Bright Enterprises v. Raimondo.[2] Under Loper Bright, courts will no longer defer to an agency’s interpretation of an ambiguous statute. However, the Supreme Court distinguished the level of judicial review required under NEPA by clarifying in Seven County Infrastructure Coalition that when discretion is granted to an agency by a statute, the court “asks not whether it agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained.” NEPA must be applied “with the judicial deference demanded by the statutory text and the Court’s cases.” According to the Supreme Court, “[t]he bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.”
In reviewing NEPA cases, the court’s role is limited. “[T]he ‘only role for a court’ is to confirm that the agency has addressed environmental consequences and feasible alternatives as to the relevant project.” The scope of the inquiry and detail of the EIS are the agency’s call. Agency choices regarding the depth and breadth of the inquiry and the length, content, and level of detail in the final EIS must be given “substantial deference” by the courts, “so long as they fall within a broad zone of reasonableness.” Agencies must be given “broad latitude to draw a ‘manageable line.’”
The final EIS in this case was more than 3600 pages and it noted the potential effects of increased drilling and refining of crude oil, although it did not fully analyze them. The Supreme Court explained that whether an EIS is adequate is only relevant to the question of whether the agency’s final decision was reasonably explained.“ Judicial deference in NEPA cases extends to an agency’s determination of what details are relevant in an EIS.” Agencies should not be “excessively second-guessed by a court” on this issue, which requires the exercise of agency discretion.
NEPA is purely procedural and does not impose substantive obligations or restrictions
The Supreme Court distinguished NEPA from subsequent environmental laws passed in the same era, like The Clean Water Act of 1972 and the Endangered Species Act of 1973. “Unlike those later-enacted laws…NEPA imposes no substantive environmental obligations or restrictions. NEPA is a purely procedural statute that…does not require the agency to weigh environmental consequences in any particular way.” NEPA sets out the required process for an agency’s environmental review of a project and “as relevant here, simply requires an agency to prepare an EIS—in essence, a report.” The EIS must address the significant environmental effects of a proposed project and identify feasible alternatives that could mitigate those effects. Yet, “an agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws.” In this case, the Board determined that the “substantial transportation and economic benefits” of the proposed railroad line outweighed the environmental impacts assessed in the EIS.
Projects may not be delayed or blocked based on effects of future or geographically separate projects or projects outside of the agency’s regulatory authority
The Supreme Court emphasized that not only did the DC Circuit fail to lend the requisite level of deference to the Board’s analysis under NEPA, the appellate court also was incorrect to insist that the Board should have more fully assessed the environmental impacts of potential increases in upstream oil drilling and downstream crude oil refining that may result if the railroad line were built. “The textually mandated focus of NEPA is the ‘proposed action’…not future or geographically separate projects that may be built (or expanded) as a result of or in the wake of the immediate project under consideration.” Here, the Board reasoned that the “’proposed rail line and any future oil and gas development projects are not two phases of a single action,’ but ‘separate, independent projects.’” The Supreme Court concluded the Board’s EIS only needed to address the effects of the 88-mile railroad line. “[T]he fact that other projects might foreseeably be built or expanded in the wake of the current project does not, by itself, make the agency responsible for addressing the environmental effects of those other projects.”
Further, the Supreme Court clarified that agencies do not need to assess the effects of “projects over which they do not exercise regulatory authority.” In this case, other agencies regulate oil drilling, oil wells, oil and gas leases, and oil refineries. “[W]here an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” Given the circumstances, the Supreme Court found that in this case “the NEPA question is not close.”
Judicial review under NEPA, boiled down to three sentences
The Supreme Court invoked the need for courts to strive for “clarity and predictability” in cases “involving the American economy,” boiling its nearly 21-page opinion down to three sentences:
The proper judicial approach for NEPA cases is straightforward: Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects. In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.
The Supreme Court acknowledged that the concerns of those attempting to challenge a particular project may/may not be persuasive. But, it stressed that the political process, and not judicial review of NEPA compliance, is the correct vehicle for citizens to challenge a project based on policy differences and the effects of separate projects. “Citizens may not enlist the federal courts, ‘under the guise of judicial review’ of agency compliance with NEPA, to delay or block agency projects based on the environmental effects of other projects separate from the project at hand.”
The Takeaway: NEPA was not meant to obstruct infrastructure development
Transportation infrastructure is vital to economic development and opportunity, particularly in connecting rural areas to centers of economic activity. But substantial delays occur in the delivery of infrastructure projects due to several factors, including the magnitude of their scope and potential environmental impacts. In explaining the need for a “course correction of sorts” in the judicial approach to reviewing NEPA cases, the Supreme Court painted a picture of what the delays mean:
Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.
A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development “under the guise” of just a little more process….Congress did not design NEPA for judges to hamstring new infrastructure and construction projects. On the contrary, as this Court has stressed, courts should and “must defer to ‘the informed discretion of the responsible federal agencies.’”
It remains to be seen how long it will take for this “course correction” to translate into the more efficient completion of infrastructure projects. Moving forward, we can expect that challenges to agency NEPA compliance will continue, but the courts’ ability to second-guess agency environmental impact analysis and revoke approval of infrastructure projects will be circumscribed by this case. While there is room to argue where the lines should be drawn in the environmental impact analysis, the Supreme Court stressed, “a difference may exist between what an agency should do as a matter of good policy and best practices under NEPA, and what a reviewing court may subsequently order an agency to do under NEPA.” Even when a court “might think that NEPA would support drawing a different line, a court should defer to an agency so long as the agency drew a reasonable and ‘manageable line.’” We will keep you informed on developments in this space.
[1] The judgment in Seven County Infrastructure Coalition was 8-0 because Justice Gorsuch recused himself from the matter. The opinion of the Court was delivered by Justice Kavanaugh and joined by Chief Justice Roberts, as well as Justices Thomas, Alito, and Barrett. Justice Sotomayor filed an opinion concurring in the judgment, which was joined by Justices Kagan and Jackson. The concurrence agreed with the judgment because, “under its organic statute, the Board had no authority to reject petitioners’ application on account of the harms third parties would cause with products transported on the proposed railway,” but it criticized the majority for “unnecessarily grounding its analysis largely in matters of policy.”
[2] Loper Bright Enterprises v. Raimondo, 603 U. S. 369 (2024) overruled Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), which had established a requirement that courts sometimes “defer to ‘permissible’ agency interpretations of the statutes those agencies administer – even when the reviewing court reads the statute differently.”
