U.S. Supreme Court Tackles Evaluation of Effects in NEPA

On December 10, 2024, the U.S. Supreme Court heard oral arguments on Seven County Infrastructure Coalition v. Eagle County, Colorado. In this case, the Seven County Infrastructure Coalition and the Uinta Basin Railway sought to overturn the District of Columbia Circuit Court’s decision that the Surface Transportation Board improperly approved an 88-mile new rail line to transport waxy crude oil.

The question presented before the court was whether the National Environmental Policy Act (NEPA) requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Essentially, whether it was beyond the Surface Transportation Board’s scope to address environmental consequences outside the direct impacts of a new 88-mile rail line by evaluating the potential for indirect effects associated with future development of oil in the basin and train accidents hundreds of miles away from the new line.

Representatives of the Seven County Infrastructure Coalition and Uinta Basin Railway stated this type of project should undergo a two-part test: (1) If the project effects are remote in time and space and (2) fall within the jurisdiction of another agency, then the lead agency should not have to review the effects in the NEPA document. The Seven County Infrastructure Coalition representatives appeared to want the following:

• Predictability in NEPA: Project petitioners invest time and money in these projects and shouldn’t have to be afraid of litigation at every turn.
• Focus on alternatives: Environmental impact statements should focus on differences between the reasonable alternatives and mitigation measures placed on the alternatives.
• Prioritization of effects – Through the Builder Act, congress codified 150-page and 2-year time EIS limits; therefore, Congress supports the prioritization of effects (e.g., direct effects) over others (e.g. indirect effects)     
• Other environmental laws are in place: Other agencies can address effects comprehensively and concretely when they arise through their permitting authority.

The representative of the federal agency and Eagle County respondents believe it’s important to evaluate all reasonably foreseeable effects of the agency’s actions, including the following:

• Reasonably foreseeable standard: The applicable standard is to evaluate effects that are reasonably foreseeable; agencies are not required to evaluate speculative effects.
• Coordinated federal review: Congress doesn’t direct agencies to pass the buck to someone else; NEPA directs all federal agencies to cooperate on, where possible, a single environmental review.
• Informed decision making: NEPA requires federal agencies to thoroughly assess the environmental impacts of their proposed actions before making decisions, ensuring they consider all relevant environmental information and provide opportunities for public input to facilitate a well-informed choice.

The Supreme Court justices appeared to be skeptical of the two-part test presented by the Seven County Infrastructure Coalition and Uinta Basin Railway and how it could be applied across the board. Justice Neil Gorsuch recused himself from the case. Justice Sonia Sotomayor said the Seven County Infrastructure Coalition appears to be asking for “absolute rules that make no sense” and “most environmental effects, like effects on wetlands, are going to be sometimes remote in time and geography.”

However, some justices agreed something needs to be done. Justice Brett Kavanaugh stated, “It seems to me the problem that has crept in is conflating what the agency can do and should do from what the role of the courts is here […] And 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.” The Supreme Court should have their final ruling in Summer 2025.

The District of Columbia Circuit Court’s ruling in Marin Audubon Society v. FAA, which stated that the White House Council on Environmental Quality lacks the authority to issue binding regulations implementing NEPA, was not mentioned.