Policy and Legal

The U.S. Supreme Court has put limits on a procedural requirement that has become a major roadblock for infrastructure and energy projects: environmental review under the National Environmental Policy Act.

The background: The predecessor of substantive statutes like the Clean Water and Clean Air Acts, NEPA is the “the single most litigated environmental statute,” NAM Vice President and Deputy General Counsel Erica Klenicki told us.

• In this case, local government and environmental groups brought a NEPA challenge to the Surface Transportation Board’s approval of an 88-mile rail line in Utah’s Uinta Basin, which would connect to the national rail network and carry crude oil to refinery markets along the Gulf Coast.
• The board approved the project after issuing a comprehensive, 3,600 page environmental impact statement under NEPA.
• But that wasn’t enough—the D.C. Circuit blocked the board’s approval, ruling that its exhaustive analysis failed to consider the repercussions of more oil production made possible by the rail line. It contended that the board should have considered the potential impact of increased oil refining on Gulf coast communities thousands of miles away—even though the board had no power at all to control for those effects.

The issue: The NAM filed an amicus brief in the case, urging the court to reject the premise adopted by the D.C. Circuit—that NEPA requires agencies to analyze the effects of upstream or downstream projects over which they do not exercise regulatory authority.

• Yesterday, the justices ruled 8–0 (Justice Neil Gorsuch recused himself) that the board did not have to consider such sweeping effects when evaluating whether to approve a project.

What they said: “NEPA is a procedural cross-check, not a substantive roadblock,” Justice Brett Kavanaugh wrote . “The goal of the law is to inform agency decision-making, not to paralyze it.”

• “Courts should review an agency’s [environmental impact statement] to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects,” Kavanaugh wrote. “In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.”

The NAM’s advocacy: The NAM has been a tireless proponent of limiting regulatory overreach, especially the out-of-control permitting process that strangles important new infrastructure and energy projects.

• “The congressional intent behind NEPA when it was passed was to make sure a specific project could be reviewed for its environmental impact—not to slow down progress on important economic growth,” said NAM Director of Energy and Resources Policy Michael Davin. “The U.S. should learn from other nations and review projects for environmental impacts without taking years and years to approve them.”