Supreme Court ends the abuse of NEPA—and encourages the abundance agenda
Fifty-five years ago, Congress passed and President Richard Nixon signed the National Environmental Policy Act (NEPA) into law. For a number of infrastructure projects that are built, funded, or approved by the federal government, NEPA requires federal agencies to prepare an environmental impact statement, or EIS. That EIS is essentially a public report that must (by law) address the significant environmental effects of a proposed project and identify feasible alternatives that could mitigate those effects.
When NEPA works correctly, it helps agencies make better decisions and ensure good project management. But NGOs, partisan advocacy groups, and activists have turned NEPA into a tool used to delay and, in many cases, altogether prevent development and innovation in the United States.
For years, scholars on both sides of the ideological divide—and Congress itself—have recognized that the misuse of NEPA needs to stop so the country can build much-needed infrastructure and other projects. Last week the Supreme Court weighed in—and agreed with these critics of NEPA abuse.
The case before the Court was Seven County Infrastructure Coalition v. Eagle County. It revolved around the “Seven County Infrastructure Coalition” building a railroad line connecting Utah’s Uinta Basin to the national freight rail network, which would allow the shipment of crude oil to refineries elsewhere. After the Surface Transportation Board completed a comprehensive 3,600-page environmental impact statement, they gave the Coalition the go-ahead for the project. They planned to move forward with the project— until the DC Circuit said no. According to the DC Circuit, the Board didn’t have to simply analyze the railroad and its impacts; they had to analyze every possible impact of the oil that would eventually be shipped down these railways, refined, and used. Moreover, the additional amount of oil refining at the Gulf—where the crude oil from Utah would be shipped via the railway and refined—would also need to be part of the EIS. Over three thousand pages of analysis wasn’t nearly enough for the judges of the DC Circuit.
In a unanimous decision released last week, the Supreme Court overturned the DC Circuit’s erroneous interpretation of the law. While the DC Circuit might not have liked the Surface Transportation Board’s decision to approve the project, that doesn’t matter, the Court ruled—the Board made a “reasonable and reasonably explained” choice. (I would hope that 3,600 pages is enough to reasonably explain something!)
More importantly, the Supreme Court said that a NEPA analysis needs only to focus on the project at hand, rather than every possible potential future or geographically separate project, like the additional drilling or refining that would be indirectly related to the railline’s approval. Here, in Seven County, the project was the railroad. The analysis, that 3,600-page environmental impact statement, correctly was about the railroad and its impacts. Sure, it was a railroad that would ship oil, but that’s a separate project; all that is at issue—and more importantly, all that the Surface Transportation Board can regulate—are the trains. The Surface Transportation Board, and agencies in general, “are not required to analyze the effects of projects over which they do not exercise regulatory authority,” the Court explained.
There’s no way to put it better than the Supreme Court did. “No rule of reason worthy of that title would require an agency to prepare an [Environmental Impact Statement] addressing effects from another project that is separate in time or place from the project at hand—particularly when it would require the agency to speculate about the effects of a separate project that is outside its regulatory jurisdiction.” Why would we ask an agency to analyze something that it cannot control and about which it has no expertise?
The bottom line, according to the Court: “Congress did not design NEPA for judges to hamstring new infrastructure and construction projects.” It took the Court 55 years to make this clear, but hopefully this Seven County decision will reduce court-imposed delays on needed improvements to infrastructure and help America make better use of its vast natural resources.
