Kavanaugh Urges NEPA ‘Course Correction.’ Courts Should Listen.

The US Supreme Court vigorously condemned delays that have plagued American infrastructure development, ruling that federal agencies don’t need to evaluate environmental impacts they have no authority to regulate in Seven County Infrastructure Coalition v. Eagle County. The ruling was the court’s first major interpretation of the necessary scope of environmental impact analysis under the National Environmental Policy Act in 20 years. And it was a doozy.

The court’s unanimous holding wasn’t a surprise: The US Court of Appeals for the D.C. Circuit erred when ruling that the Surface Transportation Safety Board was required to consider coastal climate change impacts when evaluating whether to approve an 88-mile rail line in rural Utah. The effects of separate projects need not be evaluated based on mere “reasonable foreseeability” or “but for” causation.

More striking than the holding was the forceful dicta. The majority didn’t stop—as three concurring justices did—with a narrow ruling that reiterated agencies need not evaluate impacts they can’t control.

Instead, the majority opinion by Justice Brett Kavanaugh bluntly called for lower courts to “make a course correction” and “bring judicial review under NEPA back in line with the statutory text and common sense.”

Kavanaugh lamented that “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects.”

The court’s expansive opinion should help reduce the major cause of delay for the biggest infrastructure projects: third-party litigation or agency fear of it.

NEPA is a procedural statute implemented via the Administrative Procedure Act. When faced with a deficient impact analysis, courts can only require the agency to do more analysis, with or without vacating the final agency action supported by that analysis. Vacatur typically produces a three-year delay when followed by more district court and appellate litigation.

Kavanaugh pointedly reminded courts they shouldn’t vacate an agency approval whenever they find flaws in an environmental impact statement. He wrote, even “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.”

In recent litigation over the Thacker Pass lithium project, the Ninth Circuit recognized this same critical point: affirming the district court’s remand without vacatur because the agency reasonably could reach the same decision following remand. Kavanaugh’s exhortation should encourage more courts to follow suit.

The majority noted the irony of NEPA, a statute intended to facilitate good environmental decision-making, being employed to delay or kill renewable energy projects intended to reduce carbon emissions. Columbia professor Michael Gerard warned in 2022 that plodding along with “business-as-usual environmental regulation” under NEPA would produce “a world of killing heat and mass human migration and species extinction.”

The court’s analysis also put to rest a related fear: The collapse of the Council on Environmental Quality’s NEPA rulemaking and new limits on agency deference might create more rather than fewer opportunities for the courts to second-guess agency approvals. Last year, the Supreme Court, in Loper Bright Enterprises v. Raimondo, held that courts shouldn’t defer to agency interpretations of ambiguous statutes but instead decide themselves on the best interpretation.

Not to worry. Notwithstanding Loper Bright, the court ruled, “The central principle of judicial review in NEPA cases is deference.” That’s because NEPA analysis involves the agency making “a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS.” That’s the sort of agency analysis that continues to warrant deference after Loper Bright.

Absent an additional statutory amendment to NEPA, the court’s forceful opinion may be the last, best hope for America to be able to build things. To date, reform efforts have borne little fruit. While Congress amended NEPA in the Fiscal Responsibility Act of 2023, the amendment only added soft presumptive deadlines for agency action and didn’t address third-party litigation delays directly.

NEPA is the most litigated federal statute, with the Ninth Circuit bearing a heavy NEPA case load because of the West’s disproportionate amount of federal and tribal land. That the Ninth Circuit is also the largest circuit and among the busiest doesn’t help. Unsurprisingly, many of the tales of litigation woe have a western flavor. The Coeur Kensington Gold Mine in Alaska, to mention one, experienced a 17-year delay in production because of NEPA delays and litigation.

The Supreme Court has seen enough delay. Have the lower courts?

The case is Seven County Infrastructure Coalition v. Eagle County, Colo., US, No. 23-975, 5/29/25.

Andrea Driggs and Chris Thomas were counsel in Seven County for amicus American Exploration and Mining Association. Laura Granier represented the proponent in the Thacker Pass litigation.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Chris Thomas is a partner at Holland & Hart handling major infrastructure siting work and litigation arising from it.

Andrea Driggs is a partner at Holland & Hart delivering strategic counsel to mining and energy clients on permitting and regulatory matters.

Laura Granier is a partner at Holland & Hart helping mining, energy, and natural resources clients navigate litigation and regulatory challenges.

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