Supreme Court Likely to Rein in Environmental Impact Studies (1)

The US Supreme Court seemed almost certain to limit the scope of environmental impact studies, but how the court will do so remains unclear.

The justices at argument on Tuesday overwhelmingly suggested that the US Court of Appeals for the D.C. Circuit went too far when it required federal regulators to look at potential effects on communities on the Gulf Coast in considering whether to approve a railway in Utah.

Regulators are required to analyze environmental impacts under the National Environmental Policy Act (NEPA), which is intended to assist federal agencies in their decision making.

The question for the justices is whether agencies must consider environmental impacts beyond the scope of their regulatory authority when approving projects.

But several Justices across the ideological spectrum didn’t think the court had to adopt a whole new test to restrain the scope of such reviews, and that deference to regulators might be appropriate in this instance.

“I just was wondering whether we need a new test or whether the law in terms of what we have already said is supposed to be happening here is enough,” Justice Ketanji Brown Jackson wondered.

Time Is Money

Investors say NEPA reviews have grown beyond what Congress intended. The result is often unexpected delays that can drag out the approval process for years or even decades.

“For investors, time is money,” said Paul Clement, who represents the coalition of counties attempting to gain approval for an 88-mile rail line in Utah.

In the case before the justices, the D.C. Circuit told the Surface Transportation Board it had to consider the impact to the Gulf Coast communities where oil transported on the new line will be refined in addition to weighing the direct environmental effects of the railway itself.

All parties agree that NEPA and the court’s previous cases say that agencies must only consider environmental effects that are “reasonably foreseeable.”

Opponents of the project say the impacts to Gulf Coast communities meet that definition because the railway will almost exclusively transport “waxy crude oil” that can only be refined in certain places, like those far away communities.

The purpose of the proposed rail line is to “transport one commodity and one commodity only,” said William Jay, who represents those challenging the project.

Jay added that the effects are relevant even if they are far away.

Justice Elena Kagan noted that the STB has no authority over refineries. So considering those effects “takes NEPA outside of the things that are reasonable to inform agency decision-making.

And “if the agency can’t mitigate the harm and it can’t turn down the entire project, one wonders what all this fuss and bother is about,” she said

‘Time and Space’

Still, several justices were also skeptical of the test put forth by the other side to limit the scope of NEPA reviews.

Clement explained that agencies shouldn’t have to consider effects that are “remote in time and space” and are under the authority of another federal agency.

Many justices struggled with how remote something had to be to be too remote.

How “far down line or upstream or downstream should you look?” Justice Clarence Thomas asked Clement.

In response to questions from the justices, Clement explained that pollution caused by the trains and affecting communities beyond the new line could be considered, but that effects from refineries in Gulf Coast communities would be going too far.

Chief Justice John Roberts questioned what was practical.

“If you’re at the agency or counsel for the private party, I mean, what are you going to do?” Roberts asked. “Are you going to say: OK, I’ve identified this possible issue, but I think it’s too far away?”

Deference Raised

Given the uncertainty regarding Clement’s test, several justices wondered if it would be enough to clarify the old rule rather than outright adopt a new one.

Maybe the court should just say “what we’ve said before but maybe” put “a little bit more flesh on the bone,” Justice Amy Coney Barrett said.

That could mean the justices emphasize to lower courts that agencies are entitled to a lot of deference in this case.

The court last term pulled back on the deference’s owed to agencies when interpreting an ambiguous federal statute. But when agencies are deciding what kinds of environmental impacts they should be looking at, the justices said they should get a lot of deference.

The problem isn’t that the test is wrong, it’s that “the D.C. Circuit did not give the agency sufficient deference, as we have said they’re supposed to do,” Jackson said.

Justice Brett Kavanaugh agreed that deference to agencies in this situation was important.

It “seems to me the deference of the courts has to be huge with respect to how the agencies think about the scope of what they’re going to consider,” he said.

So “maybe it’s just extra deference,” he said, adding that maybe the word “extra” wasn’t necessary. “Just appropriate deference.”

The case is Seven County Infrastructure Coalition v. Eagle County, Colorado, U.S., No. 23-975, argued 12/10/24.