The US Supreme Court granted a petition of certiorari in Seven County Infrastructure v. Eagle County, Colorado, which concerns the scope of review under the National Environmental Policy Act (NEPA). Granting certiorari allows the Court to resolve a circuit split on the question of whether NEPA requires federal agencies to consider environmental impacts that are outside of their direct responsibilities.
The decision on review comes from the DC Circuit, which joined the Ninth Circuit in the minority view that NEPA requires review over all effects that the agency has the power to prevent. Five other circuits have held that NEPA review is limited to only the effects over which the agency has regulatory authority.
If the Supreme Court sides with the narrower view, such a holding would be particularly notable for future consideration of climate change by agencies other than the US Environmental Protection Agency, which inherently involves considerations outside of the regulatory responsibilities of most agencies.
NEPA and Public Citizen
Enacted in 1970, NEPA was intended to reduce or eliminate environmental harm caused by the actions of federal agencies. NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions by conducting an environmental assessment (EA). Based on that EA, agencies determine whether they are conducting a “major Federal action” that “significant[ly] affect[s] the quality of the human environment.”[1] If so, the agency must produce an Environmental Impact Statement (EIS).
The Supreme Court previously considered the scope of review required under NEPA in Department of Transportation v. Public Citizen, wherein the Federal Motor Carriage Safety Administration (FMCSA) was designated by the US Congress to develop a set of safety regulations for Mexican motor carriers after the president lifted a previous moratorium.[2] The FMCSA did not account for the environmental effects of increased cross-border operation of cars from Mexico, reasoning that this was an effect of the lifting of the moratorium over which they had no control, and not an impact of their safety regulations.
Consumer advocacy group Public Citizen and others sued, alleging that NEPA required the agency to consider the environmental effects of cross-border operation of motor carriages that would foreseeably result from the regulation. The Court held that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions,” the agency need not consider those effects under NEPA.
The DC Circuit Decision
The DC Circuit consolidated petitions from various environmental organizations and a Colorado county objecting to a decision by the Surface Transportation Board to exempt a new rail line in Utah’s Uinta Basin from more extensive application requirements, including several objections to the validity of the review conducted under NEPA.[3]
The Surface Transportation Board granted the project conditional approval, contingent on the result of the EIS, and later approved the project. Eagle County, the Center for Biological Diversity, and four other environmental organizations sued to block the approval of the project, and the Seven County Infrastructure Coalition and Uinta Basin Railway intervened in the action.
The EIS created by the Surface Transportation Board did not analyze impacts from rail operations on existing rail segments originating from the new rail line, known as “downline impacts.” It also did not discuss downline effects of additional accidents and oil spills on waterways, upstream and downstream impacts on vegetation and special status species from increased drilling, impacts on the increase of crude oil refining in Gulf Coast communities, or increased risk of wildfires.
The DC Circuit held that the board could not “avoid its responsibility under NEPA to identify and describe environmental effects” for the reason that “it lacks authority to prevent, control, or mitigate those developments.”[4]
The DC Circuit found that the board had authority because it “has exclusive jurisdiction over the construction and operation of the railway, including authority to deny the exemption petition if the environmental harm caused by the railway outweighs its transportation benefits,” meeting the requirements under Public Citizen. Intervenors Seven County Infrastructure Coalition and Uinta Basin Railway filed a petition for certiorari.
The petition for certiorari frames the question presented as “[w]hether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.” Petitioners argue that Public Citizen cabins the scope of NEPA review based on an agency’s regulatory authority: it is “on the hook . . . only for the decisions that it has the authority to make.”
Granting certiorari allows the Supreme Court to resolve a circuit split in the application of Public Citizen: five circuits (the Third, Fourth, Sixth, Seventh, and Eleventh) read Public Citizen as allowing agencies to exclude impacts outside their general authority to regulate from NEPA review. The DC Circuit, joining the Ninth Circuit, reads Public Citizen as requiring analysis of all impacts that the agency has the power to prevent.
Petitioners argue that the DC Circuit’s view “turns agencies into environmental-policy czars” by requiring any agency with the power to prevent an effect—regardless of their actual regulatory authority in the area—to consider those impacts. This, petitioners argue, would result in agencies denying permits or taking other actions that lie outside their areas of authority and expertise.
If the Supreme Court cabins the scope of NEPA review to effects that are within the regulatory space of the reviewing agency, it would represent a narrowing of what federal agencies must consider under NEPA. That holding would likely be particularly significant with respect to climate change impacts, a set of considerations that are often outside of an agency’s specific regulatory jurisdiction, but are nonetheless an area over which agencies could conceivably exercise some control.
To be sure, it would only represent a change in the law for two jurisdictions—the DC and Ninth Circuits. But given that a large volume of NEPA litigation pops up in both such circuits, it would be significant nonetheless, and such a ruling would combine with other recent decisions by the Supreme Court in environmental cases to further constrain agency authority in the environmental space.
The language of the Court’s opinion could also shed light more generally on how the Court views regulations that touch on issues outside of an agency’s direct regulatory responsibility. That issue is of particular note because the Biden administration has pursued an “all of Government” approach for addressing climate change that has included notable climate change regulations issued by the US Securities and Exchange Commission and Department of the Interior, among numerous other agencies.
Summer associate Rachel Linton contributed to this LawFlash.
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[1] 42 USC § 4332(C).
[2] Department of Transportation v. Public Citizen, 541 U.S. 752, 759–60 (2004).
[3] Seven County Infrastructure Coalition et al. v. Eagle County, Colorado et al., No. 23-975.
[4] Eagle County v. Surface Transportation Board, 82 F.4th 1152, 1180 (D.C. Cir. 2023).