The Supreme Court's Green Double Standard

The Atlantic

4 days ago

An 88-mile rail line in a remote Utah desert was at the center of the Supreme Court's bracing decision last Thursday in Seven County Infrastructure Coalition v. Eagle County. The legal battle over that tiny project has now led to a decision from the Court's conservative majority that will shrink the role of environmental litigation across the country.
The case can only be described as a walloping loss for environmental groups that depend on litigation to thwart projects and extract concessions. Much less clear, however, is whether the decision is a blow to the environment. There's much to like in a decision that will reduce the dysfunction arising from the judiciary's disastrous efforts to police compliance with the National Environmental Policy Act. In the courts' hands, a law that was meant to be a mild corrective has become a major impediment to desperately needed infrastructure development.
But there's room for concern, too. The Court's deference to the government in Seven County doesn't seem to extend to cases where the government seeks to rein in environmental harms. That mismatch suggests that the Court's approach to NEPA grows out of its skepticism toward environmental regulation generally, and not from an evenhanded legal theory that would apply to all government decisions equally.
When it was signed into law on January 1, 1970, NEPA wasn't meant to be all that powerful. In the fast-building decades after the Second World War, some federal agencies—especially the U.S. Army Corps of Engineers and the Atomic Energy Commission—refused to consider the environment when they made decisions. That wasn't their job, they said.
Congress grew tired of hearing that. As the modern environmental movement took shape, NEPA declared a national policy that environmental concerns ought to factor into any big decisions that government agencies made. The task wasn't supposed to be onerous. Agencies just had to offer a 'detailed statement' about the environmental consequences of 'major' actions, as well as explore alternatives. The courts weren't mentioned at all.
But it was the fate of this five-page law to be adopted at the very moment when the courts were transforming the field of law that governs executive-branch agencies. Federal judges, like many Americans, had become disenchanted with a government that rammed highways through urban neighborhoods, sent tens of thousands to die in Vietnam, and allowed smog to choke its cities. Much of the public came to think that it was under the thumb of Big Business, Big Labor, and Big Government, as the environmental and legal historian Paul Sabin describes in his book Public Citizens.
For judges hunting for ways to more closely supervise the work of government, and who were taken with the promise of the nascent environmental movement, NEPA supplied a perfect tool. In a seminal 1971 decision, the U.S. Court of Appeals for the D.C. Circuit rebuked federal officials for not taking the environment seriously enough in approving a nuclear plant in Calvert Cliffs, Maryland. 'These cases are only the beginning of what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment,' the court wrote.
The flood came quickly. Within a couple of years, judges blocked construction of a huge oil pipeline in Alaska; delayed highway construction in Arlington, Virginia; and stopped a new dam in Arkansas. Orders halting projects such as nuclear-power plants and forest-timber sales soon became routine.
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Agencies got the message. They hired environmental scientists, wildlife biologists, and hydrologists. They stitched environmental review into their planning, sought more feedback on their projects, and issued longer and more detailed environmental reviews. To a point, this was healthy. NEPA made bureaucracies think about things that they hadn't thought much about before.
Within just a few years, however, close observers were warning that agencies faced ' severe difficulties ' in their efforts to satisfy the courts. The chief problem wasn't that agencies were deliberately shirking their responsibilities under NEPA. It was that there were so many different ways to lose. Maybe the agency thought a decision wasn't 'major' enough to trigger NEPA, but a judge disagreed. Or maybe the agency ignored an alternative that the court thought should have been studied. Or maybe the environmental review was deemed to be too thin. Combine that with crusading judges and litigious environmental groups, and agencies found themselves on their back heels.
The problem has only grown worse over the decades. Because big projects are complicated and delicate, agencies today work extremely hard to hedge against bad outcomes in court. That means they don't investigate just the reasonable alternatives. They investigate stupid ones, too, in case a judge later says that the agency really ought to have looked into one of them. They're constantly on the defensive, and they waste loads of time, money, and energy bulletproofing environmental reviews instead of doing the work that is at the core of their mission.
By 2020, the average NEPA environmental-impact statement (EIS) was 661 pages long and took four and a half years to complete. Some take as long as a decade. These 'detailed statements' were supposed to help educate the public. They are now so long, turgid, and technical that they're basically unreadable.
From time to time over the years, the Supreme Court has intervened to push back on maximalist interpretations of NEPA. But not all the lower courts have gotten the message. The Seven County litigation is a case in point. The D.C. Circuit held that the Surface Transportation Board's EIS—a 3,600-page door stopper—was inadequate. Why?
The 88-mile railroad was meant to connect the rich oil fields in the Uinta Basin to the interstate rail network. Its boosters hoped that a ready connection to Gulf Coast refineries would spur new drilling in the basin. The Surface Transportation Board, which has authority to approve new railroad lines, observed that the additional drilling and refining would have environmental consequences. But the agency didn't study them fully. It thought its job under NEPA was to evaluate environmental impacts of building the railroad, not activities that the railroad might enable.
Environmental groups sued, as they do over just about any project that will lead to more greenhouse-gas emissions. The D.C. Circuit sided with them, ruling that the agency should have considered the upstream and downstream consequences of the oil drilling that the railroad would lead to. That teed up the appeal to the U.S. Supreme Court.
The Supreme Court unanimously ruled against the environmentalists. The justices all agreed, even the liberal ones, that the Surface Transportation Board was not legally allowed to consider environmental harms that might arise from third-party use of the railroad. If the agency couldn't take those harms into account, what purpose would be served by forcing it to study them?
If that's all the case said, it wouldn't be such a big deal. But that's not all it said.
In an opinion for the Court written by Justice Brett Kavanaugh, the six conservative justices chastised judges for going overboard with NEPA. 'Some courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court's cases. Those decisions have instead engaged in overly intrusive (and unpredictable) review in NEPA cases. Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EIS for future projects.'
That's legalese for, 'We keep telling you and you keep not listening. Knock it off!'
The watchword for the courts, the justices insisted, was deference. Deference to the government's choice about how detailed its environmental review should be. Deference on which environmental impacts to study. Deference on which alternatives to investigate. To make sure the lower courts got it, the justices repeated the word a dozen times. 'The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.'
Equally striking was the Court's description of why deference was so important. 'NEPA has transformed from a modest procedural requirement,' the Court wrote, 'into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects.' It is long past time, the Court insisted, for a course correction.
There are at least two ways to understand the Supreme Court's decision. The first is optimistic and eco-friendly. The second is somewhat grimmer.
The optimistic take is that the decision reflects a healthy regard for how the world has changed over the past 50 years. Back then, we were building much too recklessly. Today, we aren't building enough, and overzealous NEPA litigation is a big reason for that. As the Supreme Court explained, the threat of litigation:
has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation. Delay upon delay, so much so that the process sometimes seems to 'borde[r] on the Kafkaesque.' 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.
Here, the Supreme Court sounds like it's taking a page from Abundance, the best-selling book by Ezra Klein and The Atlantic 's Derek Thompson. Klein and Thompson also see overzealous legalism, and NEPA in particular, as a root cause of why America has become so bad at building things.
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That inability to build is not just a problem for roads and subways and trains. It's a problem for the green transition too, which is subject to a disproportionate number of recent lawsuits under NEPA. As the environmental-law professors J. B. Ruhl and James Salzmann have written, building enough solar and wind facilities to drive our carbon emissions to zero will demand 'the most ambitious infrastructure project in our nation's history. To succeed, it must start now, go nationwide, and progress rapidly. Based on past experience with opposition to deploying renewable infrastructure—good luck with that.'
But if courts pull back on NEPA, will agencies become too heedless of the environment? Not as much as one may think. Even under the Supreme Court's decision, agencies still must consider the immediate environmental consequences of their actions. Ignoring them is still going to be a basis for reversal. Agencies must also comply with all the substantive environmental laws on the books—the Clean Air Act, the Clean Water Act, the Superfund law, and more. All the Seven County case says is that agencies don't have to go hog wild with their environmental reviews. The added value of that extra year or the additional hundred pages is often very small.
Nor is it true that environmental litigation always advances environmental protection. Many local chapters of the Sierra Club, for example, are quick to ally with NIMBY homeowners to stop renewable projects. And they routinely exploit NEPA to challenge new solar facilities and wind farms. Another favorite target of environmental groups is the Forest Service, which aims to suppress wildfires out West by doing controlled burns and mechanical timber thinning. But the Forest Service's fuel-reduction efforts keep getting snarled in NEPA litigation —so much so that it has become common for forests to burn down while the Forest Service studies how to protect them.
The optimistic take, then, is that the Supreme Court has cleared away legalistic sludge to needed development, at little or no cost to the environment. The groups may complain bitterly over losing a main source of leverage and fundraising appeals. But let them complain. They do not speak for the trees, much less for the American public.
There's a less rosy way to tell the story. The Supreme Court's paean to agency deference is oddly selective. At the end of the last term, for example, the Court invalidated the Environmental Protection Agency's effort to adopt a rule that would have prevented upwind states from polluting the air of downwind states. 'The EPA's sin,' as I explained for this magazine at the time, 'was failing to adequately respond to a single oblique comment that it received.'
That's the opposite of deference. It's intensive, even hyperactive, scrutiny of the EPA's decision to protect the environment. Instead of deferring to the agency's lengthy, technical defense of the rule, the Supreme Court flyspecked it—just as the D.C. Circuit flyspecked the agency decision approving the 88-mile railroad in the Uinta Basin. That's exactly the kind of 'overly intrusive (and unpredictable) review' that the Supreme Court criticized the lower courts for.
It sure looks like the conservative majority is adjusting the intensity of judicial scrutiny to suit its policy preferences. When agencies downplay environmental harms, Seven County says they should get a free pass. When agencies move to protect the environment, the courts will tie them into knots.
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That's not the way administrative law is supposed to work. If deference is the touchstone in NEPA cases, it ought to be the touchstone across the board. If the Supreme Court means it when it says that 'the political process, and not NEPA, provides the appropriate forum in which to air policy disagreements,' that same line of thinking should extend to other government decisions that aren't about NEPA.
But it doesn't seem to. That's why I fear that the Supreme Court in Seven County may not have been motivated by a principled desire to pare back counterproductive judicial scrutiny in order to improve government performance. It may instead reflect a frankly partisan belief that efforts to protect the environment are intrinsically suspect.
Which is why it's reasonable, even for NEPA skeptics, to have misgivings about Seven County. Judicial review under NEPA really has gone too far, and I am not sad to see it taken down a peg. But environmental protection remains a worthy goal, and the Court's apparent doubt about its value is disquieting.