US Supreme Court Guts NEPA - Narrows Scope To Exclude Cumulative Impacts And Defers To Agencies

Gasoline On The Trump Deregulatory Dismantling Fire

• Decision Flies In The Face Of Recent Reversal of "Chevron Deference"

• NEPA Deemed "A Blunt And Haphazard Tool" - But Not The Impacts Of Fossil Fuel Development

• The “massive deleterious impacts” of climate change", Do Not Have To Be Considered

• Even The Liberals Have Surrendered

In a decision about construction of major new fossil infrastructure and climate impacts, the Supreme Court just severely narrowed the scope of the National Environmental Policy Act (NEPA) and abandoned strict judicial review of how Agencies prepare Environmental Impact Statements (EIS). Read the case:

• SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL., PETITIONERS v. EAGLE COUNTY, COLORADO, ET AL.

Remarkably, in harsh political language, the Court openly revealed its political bias, denouncing NEPA as a "blunt and haphazard tool" environmental groups use to block development, writing:

NEPA has transformed from a modest procedural requirement 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. ...

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.

A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development “under the guise” of just a little more process.

It is revealing that 55 years after Congress enacted NEPA, after decades of important success, and a large body of case law, that the Court now rules that a law designed to protect the environment by requiring that environmental impacts be considered is a "blunt and haphazard tool" of obstruction. But the fossil infrastructure is merely harmless "new infrastructure and construction", not an acceleration of deadly climate catastrophe.

The Court described this denunciation and gutting of NEPA after 55 years as "a course correction of sorts".

So, it could not be more obvious where the court's politics and ideology are.

The case involved construction of a railroad line in northeastern Utah to allow oil produced there to be shipped by rail to refineries in Texas and Louisiana.

The Court ruled that the EIS did not have to consider the upstream environmental impacts of oil drilling spurred by the railroad infrastructure or the downstream environmental impacts of refining the oil shipped by the rail line. These impacts are often referred to as secondary and cumulative and lifecycle impacts.

These impacts are mostly about greenhouse gas emissions and climate change (of course there also are major air and water quality and toxic emissions associated with oil drilling and refining). And those kind of impacts are involved in all major infrastructure projects, including pipelines, roads, ports, oil and gas drilling, mining, etc.

The Court also ruled that Agencies deserve "substantial judicial deference" in deciding how to prepare an EIS, including whether basic structural elements like secondary and cumulative impacts must considered - which the Court found to be mere "facts".

The Court made a major error here. The scope of the EIS is not a "detail" and a "fact". It is a crucial judgment. When an Agency narrows the scope of an EIS to exclude obviously foreseeable and major impacts - as was done in this case - then they are manipulating the analysis and exercising judgments which are not about science and facts, but about law and policy. The Court's attempt to shoehorn these critical issues into expert "fact" decisions that warrant "substantial judicial deference is absurd.

The Court's conclusion is at odds with the Court's recent reversal of the longstanding doctrine of judicial deference known as "Chevron", a major contradiction that the Court dismisses in one sentence:

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) [My note: reversing Chevron]. 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. Under that standard, a court asks not whether it agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained.

The Court absolutely nailed the door shut on these issues, and put crucial decisions in the Agency's hands :

In analyzing those scope questions, it is critical to disaggregate the agency’s role from the court’s role. 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 bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.

The combined effect of allowing the Agency who prepares the EIS to determine the scope of the EIS and lowering the judicial scrutiny of those decisions is devastating and effectively guts NEPA.

It also effectively kills efforts to address lifecycle climate impacts in NEPA and will be used to justify narrow regulatory reviews under other environmental laws as well.

The Trump regime is already very busy deregulating these environmental review and impacts and promoting all sorts of development. This decision throws gasoline on that fire.

The opinion does a really bad job of explaining why agency action under NEPA warrants "substantial judicial deference" in light of the Court's recent reversal of the longstanding "Chevron" doctrine of judicial deference under other laws. In a flawed attempt to resolve this contradiction, in a few sentences, the Court claims that NEPA discretion is about "facts" while other forms of discretion are about "law". That distinction is not supported in the opinion.

Why is judicial deference under NEPA different from other laws?

The Court's attempt to distinguish "reasonably foreseeable" impacts - which must be analyzed under NEPA - from "speculative scientific judgements" is equally absurd:

Black-letter administrative law instructs that when an agency makes those kinds of speculative assessments or predictive or scientific judgments, and decides what qualifies as significant or feasible or the like, a reviewing court must be at its “most deferential.”

If a railroad line is built for the sole purpose of transporting oil to refineries, of course it will stimulate more oil production and more oil refining. Those impacts are not "speculative", "predictive" or "scientific judgements".

Similarly, the greenhouse gas emissions from oil drilling, oil refining, and the use of refined oil products (gasoline, etc) are "significant" and can not be excluded from an EIS under NEPA.

The Court also went on to narrow NEPA review by distinguishing between the railroad project and the other secondary development that will occur in different locations and timeframes, developments that are not under the control of the railroad project developer or subject to its regulatory authority.

These distinctions also are absurd: consider building a public sewer line and trying to claim that the private development that uses the sewer line are not part of the environmental review of the project (Ironically, the NJ DEP actually narrows the scope of review in this way under their permit programs).

Rubbing salt in the wound, the court described the ruling in case as "not even close".

Closing with rhetoric straight out of the Chamber of Commerce's talking points, the Court found the need to weigh in on the role of Courts and NEPA in the economy:

In deciding cases involving the American economy, courts should strive, where possible, for clarity and predictability. Some courts’ NEPA decisions have fallen short of that objective. The proper judicial approach for NEPA cases is straightforward: Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects. In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.

I am not at all surprised by the decision or the fact that it was written by right wing anti-regulatory Justice Kavanaugh.

But what I was surprised by is that it was unanimous - 8-0.

JUSTICE SOTOMAYOR, JUSTICE KAGAN and JUSTICE JACKSON, concurred in the judgment, but under a narrower legal rationale. Sotomayor framed the legal issue more narrowly:

Petitioners asked this Court to review only one part of the D. C. Circuit’s decision: whether NEPA required the Board to study the environmental impacts of oil wells and refineries that lie outside the Board’s regulatory authority.

Sotomayor agreed with Kavanaugh on judicial deference, but for different but equally flawed reasons. Shocked by that.

But at least her opinion explicitly mentions the elephant in the room, which Kavanaugh's opinion did not:

Of particular relevance here, the Board recognized that “[r]efiners would refine the crude oil transported by the proposed rail line into various fuels,” which in turn would be combusted, causing an increase in greenhouse-gas emissions. Id., at 3.15–35. Depending on market conditions, the Board estimated that increased oil production made possible by the Railway would cause greenhouse-gas emissions equivalent to between 0.04 and 0.1 percent of the global total. Id., at 3.15–36. (By way of comparison, Sweden and Ireland are each responsible for about 0.1 percent of global emissions.2) Although the Board recognized the “massive deleterious impacts” of climate change, it explained that it was “not required to analyze impacts related to the destinations or end uses of ” products transported on proposed rail lines.

Despite those "massive deleterious impacts" on climate change, she folded:

Under NEPA, agencies must consider the environmental impacts for which their decisions would be responsible. 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. For that reason, I concur in the Court’s judgment reversing the D. C. Circuit’s holding requiring the Board to consider in further detail harms caused by the oil industry.

So now even the "liberals" have surrendered.