In a much-anticipated decision, the U.S. Supreme Court made a major “course correction” to the law governing federal environmental reviews and permitting decisions for infrastructure and other projects under the National Environmental Policy Act (“NEPA”). See Seven County Infrastructure Coalition, et al. v. Eagle County Colorado, et al., No. 23-975 (May 29, 2025). The Court’s unanimous decision in Seven County builds on the reasoning of the Supreme Court’s last NEPA decision, Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), and is in line with the bipartisan zeitgeist that the federal permitting process, like much of the nation’s infrastructure, is itself in need of repair. In a decision meant to bring NEPA “back in line with the statutory text and common sense,” the Court emphasized that “NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.” Op. at 2, 13.
Background
This case concerned the U.S. Surface Transportation Board’s (the “Board”) decision to approve an application to construct an 88-mile railroad line after analyzing the potential environmental consequences of the proposed action in an Environmental Impact Statement (“EIS”) prepared under NEPA. The U.S. Court of Appeals for the D.C. Circuit held that the Board had violated NEPA by failing to sufficiently consider the reasonably foreseeable effects of increased upstream fossil fuels production and downstream refining activity that would be facilitated by the railway.
The U.S. Supreme Court (with Justice Gorsuch not participating) unanimously upheld the Board’s approval of the railway, making significant holdings about the scope of NEPA reviews and the level of deference that courts owe to agencies in the post-Loper Bright context. See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Justice Kavanaugh authored the majority opinion, and Justice Sotomayor authored a concurrence joined by Justices Kagan and Jackson.
Calibrating the Scope of NEPA Reviews
Seven County provides important guidance focusing the scope of NEPA analyses in two ways. First, the Court highlighted the textual requirement that agencies must evaluate the effects of the specific “proposed action” it is considering, not “other future or geographically separate projects that may be built (or extended) as a result of or in the wake of the immediate project under consideration.” Op. at 16 (citing 42 U.S.C. § 4332(2)(C)). Second, the Court held that agencies are not required to analyze the environmental impacts of projects they have no authority over. Id. at 17. In the present case, these holdings meant that the Board only needed to evaluate the effects of the construction and operation of the 88-mile railway—not separate projects that may later occur, such as upstream oil drilling or downstream refining activities, even if those other activities are reasonably foreseeable.
The concurrence agreed that the Board’s NEPA analysis was reasonable, but focused its rationale on the scope of the Board’s statutory authority and Public Citizen, writing that an agency is not required to analyze issues that it is not allowed to consider in making a decision under its organic statute. Id. at 26. Both opinions firmly refocus NEPA analysis on the action the agency has the authority to approve and on the effects that are reasonably expected to influence the decision.
These holdings have the potential to enable federal agencies to conduct more focused and timely environmental analyses under NEPA. By finding that the Board was not required to consider upstream and downstream effects from fossil fuel activity, the Court reversed a trend across a number of federal appellate courts (including the D.C. Circuit) reprimanding agencies for inadequate analysis of impacts related to fossil fuels, including greenhouse gas emissions. But the principles in Seven County are not limited to analysis of effects related to fossil fuels. As the Court noted, a course correction under NEPA was necessary for all manner of infrastructure, including “railroads, airports, wind turbines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like.” Id. at 13.
While Seven County provides useful clarity about the required scope of NEPA reviews, uncertainties remain. The Court did not alter the long-standing requirement that agencies evaluate “indirect effects” of a proposed action, stating that “the environmental effects of the project at issue may fall within NEPA even if those effects might extend outside the geographical territory of the project or might materialize later in time[.]” Id. at 16 (emphasis in original). The Court acknowledged that defining the “manageable line” for these analyses can be challenging. For example, the Court discussed “run-off into a river that flows many miles from the project and affects fish populations elsewhere, or emissions that travel downwind and predictably pollute other areas.” Those “so-called indirect effects can sometimes fall within NEPA[.]” Id. And the decision does not specifically address how agencies should treat the cumulative effects of the proposed action—i.e., how the effects of the proposed action may cumulatively contribute to other effects caused by past, present, and reasonably foreseeable actions.
Further, the Court acknowledged that there may be close cases where it is not clear whether one project is separate from another, or when actions should properly be considered parts of a whole. For example, “in certain circumstances, other projects may be interrelated and close in time and place to the project at hand—a residential development next door to and built at the same time as a ski resort[.]” Id. at 19-20. These examples of agency line-drawing echo connected action and segmentation issues, and agencies and project proponents will need to continue to be attentive to potential segmentation challenges.
Judicial Deference
The other major feature of Seven County is how it addresses judicial deference in the context of NEPA compliance post-Loper Bright. From start to finish, the Court emphasized that “the central principle of judicial review in NEPA cases is deference.” See Op. at 8. The Court stressed that because “NEPA is a purely procedural” statute, “an agency’s only obligation is to prepare an adequate report.” Id. at 9 (emphasis in original). And the adequacy of an EIS is relevant only to the question of whether an agency’s final decision (here, to approve the railroad project) was reasonably explained. Id. The Court recognized that agencies are better able to answer questions such as “what are the likely impacts [of the project]; do they rise to the level of ‘significant’[?]” and “what are potential alternatives; are they really ‘feasible’[?]” Accordingly, when a reviewing court is examining an agency’s judgment on the content and scope of a NEPA review, including “speculative” or “scientific” issues, “a reviewing court must be at its ‘most deferential.’” Id. at 11 (citations omitted).
In a broad declaration of deference to agency decisionmaking, the Court wrote, “[s]o long as the EIS addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line—including (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand.” Id. In short, on those questions the agency “must have broad latitude to draw a ‘manageable line.’” Id. (citation omitted). Therefore, courts “should afford substantial deference and should not micromanage those agency choices so long as they fall within the broad zone of reasonableness.” Id. at 12.
Accordingly, Seven County has the potential to meaningfully reform the NEPA process and increase defensibility of federal approvals and permitting decisions. Indeed, the Court also explicitly references harmless error and suggests that a NEPA violation is not necessarily grounds to vacate an agency decision “at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.” Id. at 14.
Despite the high level of judicial deference in the context of NEPA, litigation risks remain in relation to other types of environmental challenges. For example, the Court pointed out that agencies and project proponents must comply with the broad suite of substantive federal environmental statutes. In the permitting context, these include procedural and substantive requirements under laws such as the Endangered Species Act and the National Historic Preservation Act, both of which require agencies to avoid and mitigate impacts to natural, biological, cultural, and historical resources. Project opponents may also seek remedies under state environmental laws and under tort claims sounding in nuisance or misrepresentation.
The Implications for Infrastructure Permitting
Although the decision provides welcome clarity for the environmental review process under NEPA, certain best practices and principles will remain essential to the ultimate success of major infrastructure project permitting. These include meaningful engagement with the public and potentially impacted communities, development of thorough analysis and understanding of impacts, and sound planning and decisionmaking to inform project design. These practices will continue to reduce conflict and objections, ensuring better outcomes.
