Justices Narrow Scope of Environmental Review for Infrastructure Projects

WASHINGTON — A nearly unanimous Supreme Court on Thursday narrowed the scope of environmental review required under the National Environmental Policy Act, holding the act does not require agencies to consider certain upstream or downstream impacts of the projects.

At issue was a proposal by seven Utah counties for the construction and operation of an 88-mile railroad line in the northeastern part of the state to facilitate the transportation of crude oil from there to refineries along the U.S. Gulf Coast.

Because of the nature of the project, the U.S. Surface Transportation Board was tasked with reviewing the proposal, and in the process, compiled an environmental impact statement that spanned more than 3,600 pages.

After the board gave its approval to the plan, concluding that the project’s transportation and economic benefits outweighed its environmental impacts, a Colorado county and several environmental organizations sued.

They claimed the agency had failed to consider the environmental effects of upstream drilling in Utah’s oil-rich, rural Uinta Basin or downstream refining activity in Texas or Louisiana. Among their concerns were the potential for oil spills and sparks causing potentially catastrophic wildfires.

Ultimately, the U.S. Court of Appeals for the D.C. Circuit agreed with the plaintiffs and voided the agency’s approvals. As a result, construction has still not begun on the project, despite the fact it was approved in December 2021.

On Thursday, writing for the court’s 8-0 majority, Justice Brett Kavanaugh struck down the lower court’s ruling, holding that it had imposed requirements under the law that simply aren’t there.

“An agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws,” Kavanaugh wrote. “Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. 

“The goal of the law is to inform agency decision-making, not to paralyze it,” he added.

Kavanaugh was joined in the decision by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Amy Coney Barett.

Justice Sonia Sotomayor wrote a separate, concurring opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson. 

Justice Neil Gorsuch recused himself from the case.

In his opinion, Kavanaugh noted that the National Environmental Policy Act was the first of several statutes passed by Congress and signed into law by President Richard Nixon, that required federal agencies to conduct thorough environmental reviews of project proposals that come before them.

Subsequent statutes included the Clean Air Amendments of 1970, the Clean Water Act of 1972, and the Endangered Species Act of 1973, among others. 

“Unlike those later-enacted laws, however, NEPA imposes no substantive environmental obligations or restrictions,” Kavanaugh wrote. “NEPA is a purely procedural statute that, as relevant here, simply requires an agency to prepare an EIS — in essence, a report. 

“Importantly, NEPA does not require the agency to weigh environmental consequences in any particular way,” he continued.

As a result, he said, NEPA does not allow courts, “under the guise of judicial review” of agency compliance, to delay or block projects based on the possible adverse environmental impact of projects separate from the proposal at hand.

Sotomayor agreed, writing that the act only requires agencies to consider environmental impacts for which their decisions would be responsible. 

As a result, she said, the Surface Transportation Board could not “be responsible for the harms caused by the oil industry, even though the railway it approved would deliver oil to refineries and spur drilling in the Uinta Basin.” 

“I reach that conclusion because, under its organic statute, 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,” Sotomayor wrote.

She explained that she felt the need to write a concurrence because “the majority takes a different path, unnecessarily grounding its analysis largely in matters of policy.”

Dan can be reached at [email protected] and on X @DanMcCue