The U.S. Supreme Court reversed a D.C. Circuit judgment that found that the Surface Transportation Board violated the National Environmental Policy Act (NEPA) when it approved an 88-mile railroad line in northeastern Utah that would facilitate transport of crude oil from the rural Uinta Basin to the national rail network. The D.C. Circuit had found, among other violations, that the STB failed to disclose reasonably foreseeable upstream and downstream effects of increased oil drilling and refining, including greenhouse gas emissions. In a five-justice majority opinion authored by Justice Kavanaugh, the Court first found that the D.C. Circuit had not afforded “the substantial judicial deference required in NEPA cases” to the agency’s choices regarding the scope and contents of the environmental impact statement (EIS). The Court stated that some courts, by engaging in “overly intrusive (and unpredictable) review in NEPA cases,” had transformed NEPA “from a modest procedural requirement into a blunt and haphazard tool employed by project opponents” and that a “course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense.” Second, the Court ruled that the D.C. Circuit incorrectly interpreted NEPA to require the STB “to consider the environmental effects of upstream and downstream projects that are separate in time or place” from the proposed action. The Court distinguished the “indirect effects” of a project at issue such as “run-off into a river that flows many miles from the project and affects fish populations elsewhere, or emissions that travel downwind and predictably pollute other areas” from the environmental effects of a separate project that “breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project.” In addition, the Court stated that—“importantly”—NEPA does not require agencies “to analyze the effects of projects over which they do not exercise regulatory authority.” The Court noted that NEPA does mandate consultation with other agencies but further opined that “there is a vast difference between, for example, an agency’s consulting with the Forest Service to determine the effects of a railroad line that would pass through a national forest and an agency’s asking another agency to assess how 88 miles of additional track in rural Utah would contribute to emissions or climate change along the Gulf Coast.” The Court also emphasized that but-for causation and “mere foreseeability” were not a sufficient basis for courts to order agency analysis of the effects of separate projects. The Court found that the NEPA question in this case was “not close” and that the STB did not need to consider the impacts of future oil drilling in the Uinta Basins or the environmental effects of refineries on the Gulf Coast.

Justice Sotomayor, joined by Justices Kagan and Jackson, concurred in the judgment. The concurrence applied a two-step analysis for judicial review of an EIS: first, courts must “consider the grounds on which an agency may rely under its organic statute to modify (by mitigation) or reject a proposed federal action”; second, courts must determine whether the agency acted arbitrarily in determining that an impact was “too causally attenuated from the question at hand” to be considered. In this case, the concurrence found that the first step resolved the question because the STB’s organic statute would not permit the STP to reject the rail line application in order to prevent or mitigate the effects of oil drilling and refining. Justice Gorsuch did not participate in the consideration or decision of the case.

Challenge to a Surface Transportation Board decision approving construction and operation of an 85-mile rail line in Utah.

Seven County Infrastructure Coalition v. Eagle County

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Supreme Court Said NEPA Does Not Require Consideration of Effects of “Separate” Upstream and Downstream Projects

Filed

United States of America

District of Columbia

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Supreme Court Said NEPA Does Not Require Consideration of Effects of “Separate” Upstream and Downstream Projects

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Economic sector

Adaptation/resilience

Finance