Does the National Environmental Policy Act require an agency to consider environmental impacts beyond the proximate effects of actions within the agency's jurisdiction? That's the question that the U.S. Supreme Court has agreed to take up in response to a petition that we filed in March.
Our clients want to build a new 85-mile rail line that would link an isolated part of Utah to the national rail network. The new line would carry many different commodities, including waxy crude oil. The Surface Transportation Board authorized the project after a two-year environmental review.
When environmental groups and a Colorado county sued to stop the project, the D.C. Circuit found in their favor. It was not enough, the court held, that the Board had studied the project's upstream and downstream greenhouse gas emissions. NEPA also required a review of the neighborhood impacts at each oil well and refinery, as well as the potential effects of accidents and spills hundreds of miles away from the new line. It didn't matter to the D.C. Circuit that the Board had no power to "control or mitigate" those distant effects.
The D.C. Circuit's ruling in our case conflicts with the way other courts of appeals have interpreted NEPA. In those courts, "agencies may reasonably limit their NEPA review to only those effects proximately caused by the actions over which they have regulatory authority." Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs, 746 F.3d 698, 710 (6th Cir. 2014). Now, the U.S. Supreme Court will decide which view of NEPA is the right one.
The case—which will mark the first time the Supreme Court has addressed NEPA in 20 years—is Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975. The parties and amici will file merits briefs later this summer and early this fall. Argument is likely before the end of 2024.
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