Latest news with #SevenCountyInfrastructureCoalition
Yahoo
a day ago
- Politics
- Yahoo
The Supreme Court's Green Double Standard
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. [Jerusalem Demsas: The great defenders of the status quo] 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. [Jerusalem Demsas: Liberals can't blame Trump for California] 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. [Zoë Schlanger: American environmentalism just got shoved into legal purgatory] 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. Article originally published at The Atlantic
Atlantic
2 days ago
- Politics
- Atlantic
The Supreme Court's Green Double Standard
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. Jerusalem Demsas: The great defenders of the status quo 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. Jerusalem Demsas: Liberals can't blame Trump for California 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. Zoë Schlanger: American environmentalism just got shoved into legal purgatory 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.
Bloomberg
4 days ago
- Business
- Bloomberg
The Supreme Court Got the Environmental Policy Act Case Right
There's an old Hollywood joke where a screenwriter goes to pitch a romantic comedy, and the producer listens in silence, then exclaims, 'Sounds great! Throw in a couple of car chases, and you've got a movie!' The joke has endless variants: the screenwriter is pitching a zombie thriller, or a period biopic — whatever the writer pitches, the producer's punch line remains the same. That humoresque comes to mind in light of Thursday's decision by the US Supreme Court in Seven County Infrastructure Coalition v. Eagle County, which is being described, correctly, as sharply circumscribing the ability of litigants to use the National Environmental Policy Act (NEPA) to stack new review requirements on projects already approved by federal agencies. Because if you ask anybody who's trying to build, say, new infrastructure to support the power needs of AI — or just the growth of the digital world generally — the worry isn't having to get agency approval to break ground. It's all those car chases that the courts might insist they've got to add in before they've 'got a movie.'
Yahoo
4 days ago
- Business
- Yahoo
Supreme Court Deals a Body Blow to Bedrock Environmental Law
On Thursday, the Supreme Court dealt a body blow to America's bedrock environmental law, the National Environmental Policy Act. The court issued a unanimous decision that will buttress the Donald Trump administration's efforts to gut the law and fast track fossil fuel projects. Environmental advocates contend that the result of Thursday's opinion over a proposed oil train will be more Americans exposed to preventable environmental, health, and climate harms, a well as reduced public participation in key government decision-making. The largest and most immediate beneficiary is the fossil fuel industry. Seven County Infrastructure Coalition v. Eagle County, Colorado is now the latest in a growing list of radical opinions issued by the Supreme Court that undercut the nation's foundational environmental and civil rights protections. At issue is the National Environmental Policy Act (NEPA). The 1970 law requires federal agencies to consider the potential impacts on 'the human environment' prior to issuing authorizations for major projects, such as pipelines, refineries, and highways, and to inform and allow the public to weigh-in on its decision. The public is also empowered to bring legal action against the federal government if it fails to comply with these rules. 'NEPA has proven to be a vital civil rights tool that empowers those who have historically been excluded from decision-making processes,' writes the Howard University School of Law Civil Rights Clinic in a friend of the court brief. 'NEPA ensures that all people with a stake in federal action — regardless of race, color, national origin, tribal affiliation, or income — can have a voice.' Justice Brett Kavanaugh wrote the opinion for the conservative supermajority, ruling to severely circumscribe the law to focus only on the most immediate impacts of a given project. Justice Sonia Sotomayor wrote a concurring opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, agreeing with the majority's decision to reject a lower-court ruling, but arguing for a much more limited finding in the case. Justice Neil Gorsuch recused himself, likely due to his fossil fuel industry ties. 'It really underscores the extent to which seemingly unanimous opinions can actually conceal a lot of disagreement,' constitutional law professor Leah Litman of the University of Michigan Law School tells me. Litman is the author of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes and a cohost of the popular Supreme Court podcast, Strict Scrutiny. 'It's clear that the three Democratic appointees diverge pretty sharply from the majority opinion in their views about NEPA. They fault the majority opinion for writing unnecessarily broadly.' 'The court certainly ruled against the plaintiffs, but it went far beyond that to mount a broad attack on NEPA itself,' says Sambhav Sankar, senior vice president for programs for the environmental law firm Earthjustice, a respondent in the case. 'This administration is going to treat this ruling as permission to ignore the environment entirely as it promotes fossil fuels, attacks clean energy, tries to roll back sensible pollution regulations, [and] claim that it can entirely ignore the reality of climate change when it makes its decisions.' The Seven County case involves a dispute over construction of a new 88-mile stretch of railway to carry 'waxy' crude oil out of Utah's Uinta Basin by connecting to an existing national railway. The oil would travel from Utah through Colorado, and on to Texas and Louisiana where the oil would be refined. Eagle County, Colorado, and five environmental organizations argued that, in granting authorization for the Uinta Basin Railway, the federal U.S. Surface Transportation Board during the previous Trump administration failed to conduct a full analysis required under NEPA. The U.S. Court of Appeals for the D.C. Circuit largely agreed. It found that the board ignored key 'upstream' and 'downstream' harms, such as from increased oil production in Utah, from increased rail traffic in Colorado, and increased refining in the Gulf Coast. The proponents of the railway appealed to the U.S. Supreme Court. The case has drawn the attention of the nation's most powerful legal operatives, from the conservative lawyers group, the Federalist Society, to the nation's largest oil industry and business lobbies, including the American Petroleum Institute and the U.S. Chamber of Commerce. The majority opinion leans heavily on the amicus brief submitted by the U.S. Chamber of Commerce, the world's largest business organization, which often spends more money on federal lobbying than any other group. ExxonMobil holds a leadership position in the Chamber. Justice Samuel Alito participated in the decision despite owning stock in several oil and gas companies as recently as September 2024 and recusing himself from prior fossil fuel-related cases, presumably because of these potential conflicts. Last term, Alito agreed with the Chamber in 73 percent of cases. Justice Kavanaugh quotes the Chamber in describing NEPA as 'a 1970 legislative acorn [that] has grown over the years into a judicial oak that has hindered infrastructure development.' The opinion then describes new limits on the scope of NEPA, allowing that 'an agency may decline to evaluate environmental effects from separate projects upstream or downstream from the project at issue' particularly where 'those separate projects fall outside the agency's regulatory authority.' In an effort to limit future litigation, the opinion then calls for significant deference to be given by the courts to the government agency conducting the NEPA review. The effect of the ruling is to allow agencies to focus their analysis only on the immediate project proposal before them — in this case, the 88 miles of new rail. Major infrastructure projects, however, rarely have such circumscribed effects, particularly when considering impacts such as greenhouse gas emissions. Backers of the railway, for example, anticipate its construction will facilitate a quintupling of overall oil production in the Uinta Basin, creating a new colossal oil fracking hub. Uinta's oil is described as 'waxy oil' due to its uniquely thick viscosity and must be heated to be transported. The Uinta Railway would carry an estimated 350,000 new barrels of this waxy oil per day, sent in two-mile-long trains hauling 110 oil tanker cars, from Utah and on to Colorado, through an at-times treacherous 100-mile track along the Colorado River. It would travel down to refineries located in some of the hardest-hit environmental justice communities in Texas and Louisiana's Cancer Alley, in areas already overburdened by pollution. Opponents predict health harms from increased pollution for people living in states along the entire route. They cite increased pollution from more oil fracking in Utah and the risk of train derailments leading to oil spills into the Colorado River, which would threaten the drinking water supply of 40 million people in seven states across the Southwest, including 30 Native American Tribes. The climate impacts of burning an extra 350,000 barrels of oil a day would produce 53 million tons of carbon dioxide, roughly the equivalent of six coal-powered power plants. Writing a letter in opposition to the railway, communities in Louisiana where the oil would be refined say, 'We have worked hard to reduce the disproportionate burdens of pollution and environmental injustice on our communities caused by the fossil fuel industry. The massive influx of oil via train from Utah will only make our situation worse.' The majority opinion seeks to limit NEPA review to a consideration of only the immediate impacts on people and the environment along the 88-miles of new railway. 'It is disastrous,' says Wendy Park of the ruling. Park is a senior attorney at the national environmental protection organization, the Center for Biological Diversity, another respondent in the case. She has personally been litigating against the Uinta Basin Railway since 2018. The ruling 'draws artificial boundaries around the scope of NEPA review, ignoring decades of precedent and the plain language of NEPA, which says that agencies are required to consider the reasonably foreseeable effects of their proposed actions. This decision essentially allows agencies to bury their head in the sand and ignore harmful effects to air, water, and wildlife, and it will mean more pollution, more habitat destruction, more unhealthy communities.' 'This decision will embolden agencies to ignore the climate consequences of their proposed actions.' Park adds, 'It is probably just the worst possible outcome that we could have imagined.' A key reason for Park's concern is the context within which the ruling is taking place. The Trump administration is actively working to gut NEPA by taking out its legs. In April, the administration repealed the regulations used to implement the law across federal agencies. The administration also told agencies that they should no longer consider climate, environmental justice, or cumulative impacts of operations when conducting their analyses. 'Basically, the administration is stripping all substance from NEPA,' Andrew Mergen tells me. Mergen spent some three decades at the environmental division of the Department of Justice and has likely litigated more NEPA cases than any other lawyer in history. He is the Faculty Director of the Emmett Environmental Law & Policy Clinic at Harvard Law School. He describes Seven Counties as the most significant NEPA case in twenty years. Mergen calls NEPA, 'a profoundly important statute' and 'the most copied and emulated environmental statute of all time,' influencing the way the states, other countries, and international financial institutions approach environmental disclosures. 'The NEPA process results in countless projects that are redesigned in a way that avoid stupid, ill-intentioned, unnecessary harms to the environment.' He recently co-authored a paper (and shared another) dispelling many myths about NEPA and environmental permitting as the objects of undo infrastructure obstruction. He supports deference to agency experts in decision-making, but questions the Supreme Court's timing, because 'those people are, by and large, gone, the agencies are being hollowed out,' because 'Trump is in the process of completely gutting the federal agencies.' There is also more than a little bit of irony in the majority's adoption of agency deference, given its repeatedly articulated disdain for federal agencies as the backbone of the 'administrative state.' Less than one year ago, the Supreme Court's ultraconservative supermajority ruled to overturn the Chevron doctrine, which had instructed courts to generally show deference to how federal agencies implement and enforce the law. The case, known as Loper Bright, was argued by lawyer Paul Clement. Clement also argued on behalf of the railway in Seven Counties, this time asking for more agency deference, which the majority agreed to. Mergen also shares the concerns voiced by the environmental justice community of constraining NEPA's lens. 'For decades, Black, Latinx, and Indigenous communities have borne the brunt of environmental hazards, breathing in polluted air, living near toxic waste, and facing the worst effects of climate change. NEPA has served as a key tool for advocates to combat these injustices,' said Lourdes M. Rosado, President and General Counsel, LatinoJustice in a statement. 'Rolling back NEPA's regulations is an outright attack on communities of color.' Responding to Thursday's ruling, John Beard, Jr. who lives in Port Arthur, Texas — a small majority Black and Hispanic community and the site of a Valero refinery expected to receive the new Uinta Basin Railway oil trains — asks me, 'Who is ultimately going to be held responsible if these NEPA concerns are not addressed and looked at? That's the question.' Beard says that the matter is ultimately about the lives and health of people in his community and all along the rail, and the ruling 'seems to be a way of deferring responsibility and marginalizing those communities that are going to be adversely affected, so that their voice can't be heard.' 'At the end of the day, [the conservative justices] are hostile to industry regulation, and particularly regulation of polluters and the fossil fuel industry,' says Litman, the Lawless author. If that means that the justices have to come up with 'made-up' rationales to explain away their twists and turns of logic, they will, she explains. Michael Burger is the Executive Director of the Sabin Center for Climate Change Law at Columbia University. He argues that the impact of the ruling will be determined by how it is interpreted by the courts, but a likely casualty will be future consideration of the climate. 'The legacy of this case is going to depend on how it's treated by agencies and courts in the future,' he says. 'Certainly, it seems geared toward granting this administration in particular greater leeway to go faster in fossil fuel development and to do less environmental review than it otherwise would have had to do.' He adds, 'I don't think there's any question that this decision will result in less climate-related disclosure in NEPA reviews.' 'Right now, the courts are the only thing standing between the planet, the people, and an administration that essentially represents the fossil fuel industry and other polluters, Earthjustice lawyer Sankar warns. The Supreme Court's ruling will have far reaching impacts on U.S. environmental, public health, environmental justice, and climate policy for decades to come, particularly when combined with Trump's simultaneous decimation of the law. But the ruling does not greenlight the Uinta Basin Railway. It returns the case to the lower court for further review under more limited parameters. The railway is then subject to additional permitting and reviews before it can be built and faces innumerable internal hurdles, including a perennial lack of funding and a missing rail operator. The Seven County Infrastructure Coalition is the public partner of the Uinta Basin Railway. It is an independent political subdivision of the state of Utah composed of seven Utah counties. The Coalition held its most recent public meeting on May 8 at the Carbon County Commission Chambers in remote Price, Utah, which I attended via Zoom. Board Co-Chair Jack Lytle presided over the meeting and is a dead ringer for actor Sam Elliott, who, among other classic western characters, plays The Stranger in The Big Lebowski. Tall, wiry, and lanky with a shock of white hair and a mustache to match, Lytle even has the baritone voice and cowboy drawl to match Elliott's. There was an almost giddy excitement at the meeting on the fervent expectation that a favorable Supreme Court ruling was on the horizon. 'It's very exciting times,' Executive Director Keith Heaton said repeatedly. But there was also a more sober recognition that the rail project had largely been in stasis as the court cases proceeded, and it was now time to rapidly get things moving again. The first step is to secure federally subsidized tax-exempt bonds to pay for construction of the rail. In 2017, the same year that the Seven County Infrastructure Coalition took up the idea of oil train, Utah State Treasurer David Damschen questioned if the coalition's hefty appropriations of federal dollars were resulting in any material benefits for the rural communities it was designed to help, noting the 'significant' salaries and fees paid to board members and consultants, including lawyers and engineers, with little to show in outcomes, the Salt Lake City Tribune reported. On May 8, the coalition's financial advisor, Cody Deeter, seemed to confront these same concerns, explaining that the benefits of applying bonds to pay for the Railway include providing the coalition with 'political legitimacy throughout the state to show that you are, in fact, doing what your charter suggested you would do.' The price of the railway has ballooned over the years. Originally priced at $1.4 billion, it is closer to $3.4 billion today, 70 percent of which is to be paid for with the federal bonds. Bond attorney, Tim Stratton, whose fee, he explained, is $600 an hour, said 'given the passage of time, supply chain, issues, inflation, those sorts of things, the estimated costs have changed on the rail project' with the developer now asking the coalition 'to go with a dollar amount of $2.4 billion instead of the original $2 billion' for the bond request. If the coalition receives the request, it will effectively zero-out the U.S. Department of Transportation's Private Activity Bond program, which has exactly $2.4 billion left out of its original $30 billion allocation made in 2006. Originally known as Drexel Hamilton Infrastructure Partners, LP and then DHIP Group, the opaque Florida-based private asset manager that owns the Uinta Basin Railway now does business under its subsidiary's name, Uinta Basin Railway Holdings, LLC. It is also now the sole corporate partner after Texas-based Rio Grande Pacific Corporation, a private railroad holding company that was to be the rail operator, pulled out of the project back in 2023. Two years ago, the Seven County Infrastructure Coalition's effort to apply for bonds was met with a fierce public backlash, which is sure to be repeated when the coalition brings the proposal to a public meeting planned for June. Deeda Seed is the senior Utah campaigner for the Center for Biological Diversity where she has been leading organizing efforts against the Uinta Basin Railway for five years. 'If we don't have a healthy environment, what do we have?' Seed asks me from her home in Salt Lake City, Utah. 'From our perspective, from the community perspective, we're going to continue to fight the railway project, we're not going away,' Seed says. 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The Supreme Court goes after NEPA
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. Advertisement 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,' 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.
