Today, the Supreme Court of the United States (SCOTUS) released an opinion that helped to add some clarity to federal agencies' role in conducting statutorily-required National Environmental Policy Act (NEPA) reviews for projects that require federal permits.
Seven County Infrastructure Coalition v. Eagle County, Col. involved a NEPA review for a railroad line that would connect Utah's oil-rich Uinta Basin to the national freight rail network. At issue in the case was the fact that the U.S. Surface Transportation Board (USTB), the federal entity responsible for conducting the NEPA review of the project, did not consider the environmental impacts of (1) the likely increased oil production in the Uinta Basis and (2) the likely increased oil refining along the Gulf Coast, both of which were reasonably foreseeable to occur after the construction of the rail line.
With no dissenting justices, SCOTUS reversed the D.C. Circuit Court's earlier decision to vacate both the EIS and the USTB's approval of the rail project for failing to consider the environmental impacts of these related upstream and downstream activities in its NEPA review. While all justices agreed on the ultimate outcome of the case, they split along ideological lines when it came to the reasons behind their decision.
In the Court's opinion, delivered by Justice Kavanaugh and joined by Chief Justice Roberts and Justices Thomas, Alito, and Barrett, the justices stated that sufficient deference required in NEPA cases was not given to the USTB by the appellate court, explaining that NEPA's procedural nature requires a court to only ask whether the agency has addressed environmental consequences and feasible alternatives relative to the project. How an agency complies with this procedural requirement should be granted substantial deference by the courts. The justices explain how the misapplication of this standard has resulted in NEPA challenges that have slowed down or blocked projects, turning the procedural requirement into a tool to oppose new infrastructure and morph the NEPA review into a somewhat untenable process. The opinion then went on to say that, even without such deference, the lower court erroneously required the USTB to address environmental effects from potential projects that are separate in time and place from the project at issue - NEPA only required the USTB to consider the impacts of the proposed rail line in its NEPA review, which it did.
In the concurring opinion, written by Justice Sotomayor and joined by Justices Kagan and Jackson, the same conclusion was reached via a different rationale. The concurrence found, based on SCOTUS precedence (e.g., Public Citizen), that the USTB did not need to consider the potential increased drilling and refining activity in its NEPA analysis because the Board did not have any authority over those types of projects. Clearly stated in their opinion: "NEPA requires consideration of environmental impacts only if such consideration would result in information on which the agency could act." Because the USTB has no authority over drilling or refining projects, the environmental impacts of those potential projects need not be considered in their NEPA review of the rail line. The concurring justices also appear to take issue with the fact that the majority largely grounds its analysis in what the concurrence believes are matters of policy, not law.
Justice Gorsuch did not participate in the consideration or decision of this case due to a conflict of interest.
Recall that APGA engaged in this legal challenge by joining a coalition of energy groups that submitted an amicus brief to SCOTUS, urging the Court to return the scope of NEPA to its appropriate scope. How NEPA is implemented is important to APGA and its members, as it can impact projects important to the natural gas industry, including interstate pipelines, the nationwide permit program, and even NGDISM grant recipients.
For those interested, the full Court opinion can be found here.
For questions on this article or APGA's engagement in legal matters, please contact Renée Lani of APGA staff by phone at 202-464-0836 or by email at rlani@apga.org.