Supreme Court aims to provide predictability by narrowing the scope of NEPA review
The Supreme Court’s latest ruling in Seven County Infrastructure Coalition v. Eagle County marks a significant “course correction” in how federal agencies must conduct environmental project reviews under the National Environmental Policy Act (NEPA). The ruling clarifies that federal agencies are no longer required to analyze the environmental impacts of unrelated or far-off future activities – potentially streamlining approvals and enhancing regulatory certainty.
Seven County Infrastructure Coalition v. Eagle County overview
In Seven County, the Supreme Court ruled that consideration of indirect effects under NEPA does not include the environmental effects of upstream or downstream projects that are separate in time or place from the federal action subject to NEPA’s “hard look” requirement. Specifically, the Court found that an environmental impact statement (EIS) for a railway connecting Utah oilfields to the national freight network did not need to assess the environmental effects of increased oil refining along the US Gulf Coast, where the oil would be transported. Rather, the EIS only needed to address the effects of the project in question (ie, the railroad line).
The Court unanimously reversed the underlying District of Columbia (DC) Circuit opinion. The justices did, however, split 5-3 in their analysis. Justice Brett Kavanaugh wrote for the majority and was joined by Chief Justice John Roberts and the Court’s conservative justices, except for Justice Neil Gorsuch (recused). Justice Sonia Sotomayor wrote an opinion concurring with the judgment and was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson.
While the Court highlighted that the DC Circuit’s decision to vacate the EIS (and therefore the final approval of the railway) was consistent with DC Circuit precedent, a “course correction” was needed “to bring judicial review under NEPA back in line with the statutory text and common sense.”
Key takeaways from the Court’s decision
The Court’s decision provides several guidelines for federal agencies and lower courts to consider when compiling or reviewing EISs.
First, courts are required to give “substantial deference” to agency decisions regarding the scope of an EIS, thus ensuring that the agency’s decisions fall within a “broad zone of reasonableness.” Additionally, minor flaws or omissions in an EIS do not automatically require vacating project approvals unless the flaw would have affected the agency’s decision to approve the project in question.
Second, agencies and reviewing courts are not required to analyze environmental effects from separate projects that are not directly connected to the project under review. However, the law still requires agencies to look at any indirect and foreseeable environmental effects that the project itself might cause, and these effects (like stormwater runoff or air pollution) might happen outside the project’s location or occur later in time. Likewise, an agency is not required to analyze effects using the scope of “but-for causation or mere foreseeability,” and a court may not invoke such scoping to order analysis of “the effects of every project that might somehow or someday follow” from the project under review.
Implications of the ruling
As a procedural statute, the Court clarified that NEPA is not intended as a substantive roadblock to energy and other infrastructure projects. If a project under NEPA review could lead to future construction or increased use of a separate project, the federal action agency is not required to consider the environmental effects caused by that separate project in their NEPA analysis of the project at hand. The Court explained that such a factual scenario “breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project.”
In particular, if the agency preparing an EIS lacks statutory authority over the environmental effects in question, they may be permissibly excluded from the scope of an environmental assessment or EIS. For example, in Seven County, the US Surface Transportation Board reviewed and approved railway projects, not oil extraction or refining operations. Therefore, the Court found that the DC Circuit erred by vacating the agency’s approval of the railway project for failure to assess the environmental impacts of separate oil refineries located several states away – activities outside the scope of the agency’s regulatory authority.
Thus, the Court has created a key distinction between indirect future effects that must be analyzed and entirely separate future projects that do not.
Looking ahead
This ruling follows other recent Supreme Court decisions addressing agency deference, including Loper Bright Enterprises v. Raimondo (eliminating Chevron deference) and West Virginia v. EPA (invoking the major questions doctrine). Those opinions differ from Seven County in a critical way: Because NEPA provides that an EIS must be “detailed,” under Loper Bright, the meaning of “detailed” is a question of law to be decided by a court; whereas the specific project “details” to be included in a given EIS (where to draw the line on indirect effects) is a question of fact that entitles the agency to “substantial deference.”
Further, as a result of recent amendments to NEPA itself, most EISs are expected to be significantly narrowed (ie, less than 150 pages, and completed within two years). 42 U.S.C. §§ 4336a(e)(1)(A), (g)(1)(A). The Trump Administration has also expressed a desire to approve NEPA projects within weeks, not years, as has been common for decades.
The Court’s decision in Seven County clarifies that NEPA does not require an EIS to consider the upstream and downstream effects of energy and infrastructure projects. Its reasoning extends to other projects that are precursors to additional future development (projects that cause “growth-inducing impacts”). This decision, coupled with the current administration’s priorities, could reduce NEPA’s burdens on the regulated community and federal agencies. Businesses are encouraged to carefully consider whether a future potential environmental consequence of a project is a valid indirect effect that will be analyzed, or a separate project that does not have to be included in a project’s NEPA analysis.
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