On Tuesday, December 10, the Supreme Court heard arguments in a case that could redefine what constitutes a “reasonably foreseeable” environmental impact that must be studied under the National Environmental Policy Act (NEPA). Seven County Infrastructure Coalition, et al. v. Eagle County, Colorado, et al. considers whether NEPA requires an agency to study remote downstream environmental impacts over which the agency has no regulatory authority. The eventual decision could have implications for development and infrastructure projects critical to building green transportation networks, constructing development, and mining critical minerals.

Seven County Infrastructure Coalition contends that NEPA has become a means to frustrate infrastructure development by tying up projects in multiyear litigation, and empowering project opponents to compel agencies to review one potential impact after another. The justices’ reception of the case at oral argument suggests that the Supreme Court may be inclined to curb agencies’ consideration of remote environmental effects that occur far downstream or upstream of a project.

This case focuses on the proposed construction of an 88-mile rail line intended to transport waxy crude oil from the isolated Uinta Basin in Utah to the national railway system. The petitioners, Seven County Infrastructure Coalition and Uinta Basin Railway, LLC, appealed a decision from the D.C. Circuit Court, which faulted the Surface Transportation Board (STB)’s environmental review for failure to analyze reasonably foreseeable upline and downline impacts, such as impacts from increased drilling and oil-train traffic in Utah and Colorado as well as increased oil refining on the Gulf Coast. Because the STB had disclosed in its environmental impact statement (EIS) that crude produced in Utah would be refined in Louisiana and Texas, the D.C. Circuit ordered STB to consider impacts to Gulf Coast communities from crude oil refining and transport to the national railway system.

In their opening brief and at oral argument, the petitioners requested the court establish a “common sense” and “manageable” NEPA process that aligns with NEPA precedent in U.S. Department of Transportation v. Public Citizen. They urged the court to adopt the tort-law concept of proximate causation into the NEPA context. Under this theory, agencies would be required only to study environmental effects with a “reasonably close causal relationship” to the agency’s action. The coalition and railway asserted “it strains credulity to contend that laying 88 miles of track in rural Utah is proximately related to climate change or environmental harm in Gulf Coast communities.” During oral argument, the petitioners asked the court to adopt a two-part test: if the environmental impacts are “remote in time and space,” and another agency has regulatory authority over those effects, then a court should not hold an agency accountable for failing to consider such distant impacts.

The Biden Administration argued in its brief and at oral argument to overturn the D.C. Circuit Court’s decision, but requested a ruling that does not apply the tort-law standards of proximate cause, and allows agencies to draw causal lines based on the reasonable decision of the agency. The coalition and railway argued that the request sought by the federal government would fail to provide any clear guidance; and without such guidance, infrastructure development would continue to face a war of attrition in fighting numerous legal battles over far-flung, remote effects that the rule of reason would prevent a court from requiring an agency to consider.

Respondents Eagle County and Center for Biological Diversity, et al., requested the court affirm the lower court’s holding and maintain the established standard for environmental review. They argued that NEPA requires an assessment of all “reasonably foreseeable” environmental impacts, which include potential downline effects on the Colorado River, as well as an increased risk of wildfires and train accidents.

At oral argument, a majority of the justices appeared uninclined to adopt the respondents’ position, but several indicated interest in adopting a standard that incorporates agency deference to determine the extent of environmental effects an agency must consider in its NEPA analysis.

This is the biggest NEPA case in two decades, and it is poised to limit the scope of NEPA reviews—perhaps drastically. The NEPA process has significantly expanded over time, with the average final EIS averaging over 600 pages and the entire process taking about 4.5 years to complete. This extensive review process is onerous for many development projects, and often creates costly delays that chip away at the certainty desirable for investment.

The Supreme Court has not hesitated to clarify environmental regulatory schemes in recent years, and appears prepared to do so in this case as well.

This article summarizes aspects of the law. This article does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.