Seven County Infrastructure Coalition v. Eagle County decision summary

Writing for a five-Justice majority, Justice Kavanaugh held that courts must grant substantial deference to agencies when evaluating an EIS.¹ He urged agencies to pull back on the practice of producing voluminous EISs and chastised courts for their attempts to micromanage agency decision-making. The Court also made clear that NEPA requires consideration of only the project under review – not the upstream or downstream effects of other potential projects. And agencies deserve substantial deference in drawing those dividing lines, too. 

This represents a significant shift in how courts and agencies have approached EISs in recent history. The Court’s opinion makes clear that agencies should streamline EISs going forward, and that courts must afford agencies significantly more deference on these issues. The upshot is that agencies have more leeway to approve projects moving forward – and may do so more quickly – and that judicial challenges to those approvals under NEPA are less likely to succeed. Moreover, even if a court deems an EIS insufficient, it should not vacate the project’s approval unless there is reason to believe the agency could not cure that deficiency with further analysis on remand. 

Background 

NEPA requires the government to prepare an EIS for certain infrastructure projects identifying significant environmental effects of the projects and feasible alternatives. NEPA is “purely procedural”; it mandates certain processes, not substantive results. 

Seven Utah counties applied to the Surface Transportation Board for approval to construct a railroad line to help transport oil to refineries. The Board’s 3,600-page EIS analyzed numerous potential impacts from the railroad’s construction and operation – but not the potential upstream effects of increased drilling to produce the oil the railroad would carry, or the downstream effects of refining that crude oil post-delivery. The Board found the railroad’s substantial transportation and economic benefits outweighed the environmental impacts identified in the EIS and approved the project. The D.C. Circuit vacated that approval, on the theory that the Board failed to adequately consider reasonably foreseeable upstream and downstream effects of the project. 

The majority opinion 

The Supreme Court reversed on two grounds: (1) The D.C. Circuit failed to afford the required “substantial judicial deference” and (2) incorrectly held that NEPA required considering the environment effects of separate upstream or downstream projects. 

First, the Court explained that “[t]he bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” Because “NEPA is a purely procedural statute,” the court’s only role is “to confirm that the agency has addressed environmental consequences and feasible alternatives as to the relevant project.” The Court stressed that the agency is best positioned to determine what details the EIS must include (and thus whether a particular EIS is “detailed enough”). Courts should not mistake brevity “for lack of detail,” as “length is not a prerequisite for” approving an EIS. An agency also “exercises substantial discretion” in making the “predictive and scientific judgments” inherent in identifying “significant environmental impacts and feasible alternatives.” Agencies likewise deserve substantial deference in determining “the scope of the environmental effects that it will address.” “So long as the EIS addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line – including (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand.” 

The Court chastised lower courts for exceeding these limits and “micromanag[ing] . . . agency choices” through “overly intrusive” review. That unduly aggressive approach “slowed down or blocked many projects” and forced agencies to “take ever more time and to prepare ever longer EISs for future projects,” resulting in a project that borders on “Kafkaesque.” That has serious consequences for industry and the public, by limiting or indefinitely delaying projects and their associated infrastructure investments. 

Finally, the Court stressed that “review of an agency’s EIS is not the same thing as review of the agency’s final decision concerning the project.” “[T]he adequacy of an EIS is relevant only to the question of whether an agency’s final decision . . . was reasonably explained.” Thus, “[e]ven if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.” 

Second, the Court held that the D.C. Circuit erred in requiring the Board to address the upstream and downstream environmental effects from potential future projects or geographically separate projects. NEPA focuses on “the project at hand” – not other potential or separate projects that might follow “in the wake of” that project. Thus, although the indirect “environmental effects of the project at issue may fall within NEPA even if those effects might extend outside the geographical territory of the project or might materialize later in time,” NEPA does not require agencies to consider effects that might result from separate projects that “break[] the chain of proximate causation [from] the project at hand,” The fact that other projects might follow as a foreseeable consequence of the approval, or but for the approval, is not sufficient. In fact, many agencies often possess “no regulatory authority over those separate projects,” as was true in Seven County itself because the Board lacks authority over oil and gas projects. So although agencies must consult with other agencies under NEPA as appropriate, they need not analyze the effects of other projects that fall outside their regulatory purview. Courts, moreover, must defer to the agency’s decisions about how to draw these lines, so long as they are “reasonable and manageable.” 

Consistent with his urging to streamline EISs moving forward, the Court also observed that although the Board identified some potential effects from separate projects, it “should not necessarily earn bonus points for studying more than NEPA demanded.” But at minimum, the Board’s decision to go beyond NEPA in some respects did not warrant faulting it for failing to more thoroughly analyze other separate projects. 

Applying these principles, the Court held that the Board’s EIS was adequate. Indeed, the question was “not close.” The Board comprehensively evaluated the effects of the project at hand – the railroad – concluded it did not need to assess “any future oil and gas development projects.” That was “[a]bsolutely correct.” 

The concurring opinion

Justice Sotomayor concurred in the judgment, joined by Justice Kagan and Justice Jackson. The concurring Justices agreed that the D.C. Circuit erred in requiring the Board to consider the upstream and downstream effects of the project under review, but would have held only that the Board lacked authority to do so under its organic statute. 

Justice Sotomayor explained that agencies must consider environmental impacts proximately caused by their decision, but “need not consider every conceivable environmental consequence of a proposed federal action” (i.e., but for causes or causes that are so attenuated as to be ancillary) or consequences unrelated “to the agency’s statutorily assigned tasks.” These “dual limitations” produce a “rule of reason”: “NEPA requires consideration of environmental impacts only if such consideration would result in information on which the agency could act.”

Justice Sotomayor distilled this into a two-step test for reviewing courts: (1) Does the agency’s organic statute permits or precludes consideration of a particular issue, and (2) did the agency act arbitrarily in deeming a particular environmental impact “too casually attenuated from the question at hand” – an issue on which agencies deserve deference. 

The concurring Justices would have resolved the case at the first step and held the Board correctly determined it lacked authority to reject the project based on other potential projects outside its purview. The Board’s authority is limited to transportation-related issues. Because the Board lacked authority to approve oil drilling and refining, the Board did not err in refusing to consider “environmental impacts it could not lawfully prevent.” 

Authored by Sean Marotta, Danielle DeSaulniers Stempel, and Dana Raphael.