In my comments on the earlier post on this case, I questioned the role of deference, given the Supreme Court’s turnabout from Chevron deference to Loper Bright scrutiny. And I said I’d better read the whole opinion. That answered my question. And raised a few others, so I thought it worth a separate post. Maybe it’s not very productive to criticize a Supreme Court decision, but I think it provides a good example of an “activist” court. (I’m sure there’s been lots written about this case, but these opinions are my own.)
- Court decision in Seven County Infrastructure Coalition v. Eagle County, Colorado (Supreme Court)
On May 29, the Supreme Court reversed a lower court decision that would have required the U. S. Surface Transportation Board to consider the effects of increased oil and gas drilling and refining that would be facilitated by a proposed railroad. Based on the procedural nature of NEPA, the court stated emphatically that, “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” It distinguished NEPA cases from the new non-deference approach adopted by the Supreme Court in Loper Bright (quotes are not in the same order as in the opinion, which I found to be disorganized):
As a general matter, when an agency interprets a statute, judicial review of the agency’s interpretation is de novo. See Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392 (2024). But when an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard.”
While NEPA requires an EIS to be “detailed,” 42 U. S. C. §4332(2)(C), and the meaning of “detailed” is a legal question, see Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392, what details need to be included in any given EIS is a factual determination for the agency… based on the usefulness of any new potential information to the decisionmaking process.
So 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…
The Court first determined that oil and gas development projects should not be considered “part of the proposed action.” It then held, “when the effects of an agency action arise from a separate project—for example, a possible future project or one that is geographically distinct from the project at hand—NEPA does not require the agency to evaluate the effects of that separate project.”
The circuit court had found that these effects were reasonably foreseeable, and the agency did actually acknowledge them (it found the effects of future oil and gas drilling to be “speculative” and attenuated, but it forecasted the number of additional oil wells; and it anticipated refining the oil and gas, but could not identify specific destinations where refineries would be located). However, the Court dismissed the relevance of foreseeability:
The effects from a separate project may be factually foreseeable, but that does not mean that those effects are relevant to the agency’s decisionmaking process or that it is reasonable to hold the agency responsible for those effects… Simply stated, a court may not invoke but-for causation or mere foreseeability to order agency analysis of the effects of every project that might somehow or someday follow from the current project.
The court reasoned that the federal action must be the “proximate” (but-for) cause of the effects, and “a separate project breaks the chain of proximate causation.” Therefore, “agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority,” such as these separate oil drilling and oil refining projects.
The concurrence takes a different approach, finding that, “the Board had no authority to reject petitioners’ application on account of the harms third parties would cause with products transported on the proposed railway.” The circuit court had held that statutory language stating, “the Board ‘shall’ issue a certificate ‘unless’ inconsistent with public convenience and necessity” (emphasis by the court) allowed it to consider environmental impacts in making its decision, and therefore made it subject to NEPA. The concurrence disagreed because of other statutory language prohibiting the Board from making its decision based on what might be transported on the railroad. The plaintiffs had conceded this point, and their argument was therefore foreclosed by prior case law (Public Citizen).
Commentary
After establishing the principle of deference, the Court did not grant such deference to the agencies to determine whether these kinds of indirect effects could be relevant to decisionmaking. Instead, it drew a bright line for all future cases that contradicted previous policy interpretations of NEPA. This is a situation where you would expect Congress to decide whether the law needs clarifying, not the Court.
The Court has now limited the effects that must be considered to those from “connected actions” (“closely related and therefore should be discussed in the same impact statement”) even though the CEQ regulations in effect at the time required consideration of any reasonably foreseeable indirect effects. The court also did away with the accepted NEPA principle that effects of future decisions by other parties were the kinds of “induced” indirect effects an EIS should address, regardless of the agency’s lack of any authority for the future actions (36 CFR §1508.8, the version that was in effect at the time the decision was made):
Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth-inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.)
The Court may have considered effects of other actions to be “detail” that is up to the Court to exclude. However, the Court has provided very little basis for revising the decades-old conventional interpretation of NEPA’s statutory language, now excluding effects based on how subsequent decisions are related instead of letting agencies apply the Court’s own stated principles – a “rule of reason” based on “usefulness” of the information.
The main precedents the Court cites are distinguishable. Metropolitan Edison was about effects that would be attenuated because they are “psychological” reactions to nuclear risk, which is a greater and different kind of attenuation than in this case. Public Citizen involved lack of authority to make the decision at issue, and therefore NEPA did not require effects of the decision to be addressed at all, which is not the case here.
The concurrence would have isolated this case based on the application of railroad laws and left the traditional NEPA requirement of reasonable foreseeability intact for other kinds of decisions. If the majority did not like the concurrence’s reasoning, there was another easy way to decide this case. The concurrence had characterized the circuit court decision as a holding “that the Board should have more carefully considered the deleterious environmental effects of increased oil production made possible by the Railway’s construction” (my emphasis). This Court could have simply disagreed and held that, given the degree of attenuation and affording deference, the agency did consider the nature of these indirect effects to the degree necessary to inform this decision. This would have left it to future agency factual determinations of the relevance of separate actions, instead of the Supreme Court reinventing NEPA for energy development policy and disturbing decades of precedents.
The Court’s editorial comments about how NEPA “has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents” were unnecessary and inappropriate to decide this case, and simply reveals its policy bias. So too is this extraneous opinion: “In deciding cases involving the American economy, courts should strive, where possible, for clarity and predictability.” That’s found nowhere in NEPA that I am aware of.
The court can speculate that Congress never thought NEPA would produce fewer and more expensive projects, but if not, what was the point? There was no discussion of legislative history to support the Court’s reasoning. Even though NEPA is a procedural statute, it purpose was not just to produce paperwork but to reduce environmental impacts – which would obviously require changes in projects that are sometimes more expensive, or even not pursuing the project.
Here’s a strange statement from the Court: “Even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.” This is clearly dicta, but it suggests that there must be evidence of how important different factors would be to the agency before a decision can be vacated. That would be nice, but how often do you see this in the administrative record?