A unanimous Supreme Court on Thursday restricted the scope of National Environmental Policy Act reviews for federally backed projects, in a decision with potentially far-reaching consequences for how agencies analyze environmental impacts.
The justices aimed to rein in what they said were sprawling agency analyses that were bogging down projects.
“Because NEPA’s central aim is to improve agency decisionmaking, an agency need not consider every conceivable environmental consequence of a proposed federal action,” wrote Justice Brett Kavanaugh, who authored the 8-0 majority opinion in Seven County Infrastructure Coalition v. Eagle County.
Kavanaugh added that “agencies need only analyze environmental impacts for which their decision would be (at least in part) ‘responsible'” and that “courts should defer to agencies’ decisions about where to draw the line” on issues including indirect environmental effects.
The high court’s ruling could have far-reaching effects on proposed oil and gas pipelines and other energy projects the Trump administration hopes to fast-track under its “energy dominance” agenda.
Keith Heaton, director of the Seven County Infrastructure Coalition, the public partner developing the oil rail line at the heart of the case, praised the court’s decision as a “turning point” for rural Utah. “We look forward to continuing our work with all stakeholders to deliver this transformative project,” Heaton said.
The court’s decision was also a win for the myriad energy, timber and other industry interests that had weighed in on the closely watched case.
“We are hopeful this ruling will establish a precedent for a more efficient and predictable environmental review process, one that empowers public land managers to carry out projects that reduce wildfire risks, restore forest health and build more resilient landscapes,” said Nick Smith, spokesperson for the American Forest Resource Council.
The Seven County Infrastructure Coalition had challenged an order from the U.S. Court of Appeals for the District of Columbia Circuit requiring the Surface Transportation Board to conduct a more thorough analysis of a proposed 88-mile oil rail line in Utah’s Uinta Basin. In particular, the coalition questioned the demand for study of how the rail line could lead to increased planet-warming emissions from increased oil production within the basin, as well as more pollution at the Gulf Coast refineries that would process the oil.
The decision arrives amid an ongoing push among federal agencies to truncate NEPA reviews and approve projects more quickly, including pipelines and critical mineral projects. The administration has already dismantled decades’ worth of regulations for how the law should be implemented and laid out a process for truncating reviews from more than a year to mere weeks.
Earlier this month, the administration conducted an 11-day review for a uranium and vanadium mine in Utah, the first project to move through the Interior Department’s accelerated plan for approving projects.
Kavanaugh emphasized that NEPA was just one of the laws governing how agencies approve federal projects. Courts should give agencies “substantial” deference for their environmental analyses, he said. In this case, the Surface Transportation Board’s NEPA review had spanned more than 3,600 pages, but the D.C. Circuit still faulted the agency’s analysis, he noted.
An agency could not be responsible for environmental effects of a project it did not have legal authority to avoid through either mitigation or blocking the project, or that were far removed from the project itself, Kavanaugh wrote.
The rest of the court’s conservative wing joined Kavanaugh’s opinion except for Justice Neil Gorsuch, who recused himself from the case.
The court’s liberal members also joined the court’s ruling in a separate concurrence penned by Justice Sonia Sotomayor. However, the separate opinion sought to tailor the ruling more closely to the analysis at issue in the case, rather than address NEPA reviews across the board.
“Here, the Board correctly determined it would not be responsible for the consequences of oil production upstream or downstream from the Railway because it could not lawfully consider those consequences as part of the approval process,” she wrote.
Larry Liebesman, a senior adviser at the environmental permitting firm Dawson & Associates, said — based on his initial reading — that the court’s decision reaffirms a more limited scope of NEPA. Going forward, federal agencies reviewing projects like natural gas pipelines and rail lines will not have to consider indirect impacts like greenhouse gas emissions, Liebesman predicted.
“Agencies now, under the Trump approach applying NEPA, do not have to speculate or try to analyze what those indirect effects of those other projects might be on the environment” where those indirect emissions are too remote from the project and beyond the agency’s authority, he said. “That’s outside the purview of NEPA.”
Tom Jensen, a partner with the firm Perkins Coie, said the ruling is a disappointment for groups that have pushed the government to use NEPA to analyze greenhouse gas emissions and address climate change in every federal decision.
Jensen said it’s gratifying to see the court place a limit on federal decisionmaking and that the ruling will create a “new test” for how a single project is defined under NEPA, which could expedite some reviews. The law requires a “hard look,” Jensen noted, but that could be more narrowly focused under the Supreme Court’s ruling.
On the other hand, Jensen expressed concern that the ruling could also fuel “gamesmanship” among some project proponents to break up larger projects into smaller components to avoid review of the entire project. The practice, called “segmentation,” could draw skepticism from the courts and actually slow reviews, he said.
“I think what you’ll see is much more temptation by some parties to break large programs, large projects, large proposals, into smaller pieces, hoping to make downstream and upstream concepts impacts seem very attenuated,” said Jensen.
Environmental groups echoed those concerns.
Sambhav Sankar, Earthjustice’s senior vice president for programs, said in a statement that the decision undermines decades of legal precedent directing federal agencies to “look before they leap” when approving projects that could harm communities and the environment.
Earthjustice represented environmental groups that had challenged the agency’s NEPA review. Officials from Eagle County, Colorado, had also challenged the agency analysis.
“The Trump Administration will treat this decision as an invitation to ignore environmental concerns as it tries to promote fossil fuels, kill off renewable energy, and destroy sensible pollution regulations,” said Sankar.
Wendy Park, a senior attorney at the Center for Biological Diversity, said the “disastrous” decision is poised to undermine NEPA, and would allow for more polluting projects to move forward and bureaucrats to ignore harm from federal projects to wildlife and the climate. Park also vowed to continue fighting the Uinta Basin Railway, which the group has challenged for years.
“We’ll keep fighting to make sure this railway is never built,” said Park.
Industry and environmental advocates alike recognized the potential significance of the case from the start, with organizations and companies including the American Petroleum Institute, American Forest Resources Council and Energy Transfer all submitting amicus briefs supporting the Seven Counties Coalition.
William Doffermyre, the Trump administration’s nominee to serve as the Interior Department’s solicitor, formerly worked for Energy Transfer but was not part of the company’s brief in the Supreme Court case.
Mario Loyola, a professor at Florida International University and senior fellow at the conservative Heritage Foundation, was another amicus filer and called the decision a “victory for common sense” in federal environmental review.
“It’s a crucial reminder that courts have to defer to agencies on technical and policy judgments, not substitute their own preferences as the court of appeals did,” Loyola said Thursday.
