Seven County Infrastructure Coalition v. Eagle County

Issues

Does the National Environmental Policy Act (NEPA) require an agency to study environmental impacts beyond those that are reasonably foreseeable results of the agency’s action and which the agency has the authority to regulate?

This case asks the Court to determine if the National Environmental Policy Act (“NEPA”) requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Seven County Infrastructure Coalition contends that NEPA only requires an agency to consider effects with a “reasonably close causal relationship” to the agency’s proposed action. Eagle County, Colorado counters that NEPA requires an agency to consider reasonably foreseeable effects of an agency’s proposed action that include effects a “prudent person” would consider when reaching a decision. This case touches upon important questions regarding the balancing act between economic and other national concerns and environmental protection.

Questions as Framed for the Court by the Parties

Whether the requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

Facts

Congress delegated jurisdiction over railways to the Surface Transportation Board (“STB”) in 1995. Those seeking to build railways must seek approval from the STB, which typically conducts a review and solicits public comments. The board will grant the petition, oftentimes with modifications, unless it finds that building the railway would be inconsistent with the public interest.

The National Environmental Policy Act (“NEPA”) requires federal agencies to examine the potential environmental impacts of federal projects in order to inform the public of any environmental concerns that are factored into an agency’s decision-making. For “major federal actions” that could have a significant impact on the quality of the environment, agencies must include a detailed environmental impact statement in every agency recommendation. Since NEPA applies to all federal agencies, the STB is required to conduct an environmental review and prepare a report when reviewing petitions for new rail lines.

In 2020, the Seven County Infrastructure Coalition (“SCIC”) petitioned the STB to allow for the construction of a more than 80-mile railway in Utah’s Uinta Basin. The Uinta Basin contains extensive deposits of valuable minerals, and the railway would primarily facilitate the shipment of waxy crude oil out of the basin. The STB published its initial draft Environmental Impact Statement (“EIS”) in October 2020 with a public comment period culminating in February 2021. The STB noted that construction of the train line could facilitate energy consumption that would, under a “high oil production scenario,” constitute up to 0.8% of national greenhouse gas emissions and 0.1% of global greenhouse gas emissions. The STB did not consider other effects, including the project’s effect on other railways, the effects of projected increases in spills and accidents, impacts on over-polluted Gulf Coast communities, and the possible impact on vegetation and protected wildlife in the Uinta Basin.

Eagle County, Colorado filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit in February 2022. In particular, Eagle County argued that the STB failed to appropriately consider enough of the proposed railway’s environmental impacts in violation of NEPA. The D.C. Circuit Court found that the STB failed to consider, among other things, the impact of the railway on increased oil refining along the Gulf Coast, the increased frequency of rail accidents downline from the railways, the risk and impact of wildfires caused by the railway, and the impact on downline water resources along the Colorado River. The court then vacated the STB’s EIS and ordered the STB to conduct a new environmental review.

Petitioners Seven County Infrastructure Coalition and Uinta Basin Railway, LLC subsequently petitioned the United States Supreme Court for a writ of certiorari on March 4, 2024. Petitioners sought the Supreme Court’s review to determine “common sense boundaries” to the environmental review process. The Supreme Court granted certiorari on June 24, 2024. ;

Analysis

DEFINING NEPA’S REASONABLE FORESEEABILITY STANDARD

The Seven County Infrastructure Coalition (“SCIC”) argues that NEPA only requires agencies to consider effects that are reasonably foreseeable and unavoidable results of the agency action in an EIS. SCIC argues that this standard has been articulated by courts for decades and was recently codified by Congress in the BUILDER Act . In particular, SCIC asserts that the mere risk of an effect is not sufficiently foreseeable to warrant being included in an EIS. SCIC contends that this limited standard is necessary to prevent NEPA from being turned into a “vehicle for environmental policy disputes.” SCIC argues that the standard of reasonable foreseeability required under NEPA is similar to the concept of proximate cause in private tort liability. SCIC points to the BUILDER Act to support their claim that Congress intended NEPA to extend merely to the proximate cause of an agency’s actions. SCIC distinguishes the proximate cause that NEPA requires from actual cause; just because agency action may cause an effect does not mean it needs to be evaluated under NEPA if the effect is too remote or outside the agency’s authority to regulate. The federal government agrees with SCIC in arguing that agencies only need to consider reasonably foreseeable causes of agency action. It also agrees that agencies need not consider effects that they have no ability to prevent in their NEPA analysis. In this case, SCIC and the government agree that the STB met its burden under NEPA to sufficiently consider the reasonably foreseeable effects of building the Uinta Basin railroad. ; In particular, SCIC argues that the lower court’s focus on effects including the impact of the railway on the communities in Louisiana and Texas, projected increases in spills, and the upline impact on vegetation was not reasonably foreseeable and outside the agency’s ability to prevent. Accordingly, SCIC argues that the EIS sufficiently considered the reasonably foreseeable effects of building the train line.

Eagle County counters that its interpretation of the “reasonably foreseeable” standard required under NEPA is broader than the standard adopted by SCIC. Eagle County argues that “reasonably foreseeable” effects under NEPA include effects that “a prudent person” would consider when making a decision. In particular, Eagle County contends that agencies cannot decline to study effects otherwise within NEPA’s scope just because the agency determines that they may be “otherwise insufficiently material.” Eagle County asserts that Petitioners’ standard of reasonable foreseeability is akin to that of proximate cause in tort, while NEPA demands a broader standard. Eagle County claims that repeated references to “proximate cause” in court decisions interpreting the scope of NEPA merely serve to indicate that the scope of an EIS required by NEPA is not governed by a “ but-for ” standard of causation. The federal government agrees with Eagle County that the scope of NEPA does not use the proximate cause standard from tort law and fears that adopting this standard would introduce “unnecessary confusion” into NEPA analysis. Here, Eagle County argues that the STB failed to consider numerous legally relevant effects of building the Uinta railway under NEPA’s reasonable foreseeability standard. In particular, Eagle County argues that effects including wildfires, water contamination, and derailments of oil-bearing trains were insufficiently considered in the EIS. Eagle County claims that these effects are all environmental effects that fall under NEPA’s scope. Eagle County also contends that Congress, through the passage of the BUILDER Act, codified its intent on reasonable foreseeability as applied to NEPA. Eagle County argues that because this case involves the pre-amended version of NEPA, the Court’s decision will be unlikely to affect the outcome of the lower court’s decision to order a new EIS. Eagle County suggests that the Court should thus dismiss the writ of certiorari as improvidently granted.

DETERMINING THE SCOPE OF THE ENVIRONMENTAL EFFECTS AN AGENCY MUST CONSIDER UNDER NEPA

SCIC argues that NEPA imposes a “rule of reason” on environmental reviews that places strong limits on the scope of the effects necessary for consideration. In particular, SCIC argues that NEPA allows agencies to decline to continue further study for reasons including that an agency lacks the ability to prevent a studied effect, the agency lacks the subject-matter expertise necessary to effectively evaluate the effect, or that another regulator has primary responsibility for addressing the effect. SCIC acknowledges that NEPA necessarily calls for inter-agency consultation when conducting environmental studies. However, SCIC interprets this mandate narrowly and asserts that inter-agency cooperation is only needed under NEPA to address problems that the studying agency is primarily responsible for addressing. SCIC also argues that effects far removed from a proposed project in time and space do not need to be reviewed under NEPA. In this case, SCIC views the STB’s decision to decline further study of the project’s impact on downline accidents, Gulf Coast communities, and the climate effects of the fuel to be extracted in the Uinta Basin in the EIS as well-reasoned. In particular, SCIC argues that this decision is consistent with NEPA because the STB is “not in a position to regulate rail traffic safety, refinery practices, or climate change.” Furthermore, SCIC argues that the STB’s decision not to evaluate potential harms of new construction resulting from the construction of the rail line was consistent with NEPA because other agencies will be better equipped to evaluate those effects in the future when they have more information. Additionally, SCIC asserts that the STB’s review of rail safety in the EIS was appropriate under NEPA both because it was concluded to be minimal and because it is more appropriately regulated by the Federal Railroad Administration .

Conversely, Eagle County argues that individual agencies must consider a broader array of possible effects of agency action. Eagle County asserts that SCIC’s belief that agencies only need to consider effects within their “primary jurisdiction” is inconsistent with NEPA. Rather than ignore effects that fall outside the general jurisdiction of an agency, Eagle County argues that the agency should ask other agencies to assume responsibility for aspects of an environmental review where other agencies may have a “special expertise.” Eagle County notes that most federal actions involve impacts that implicate many agencies, arguing that the current EIS process under NEPA envisions one report involving cooperation from many agencies instead of many separate reports.

The federal government agrees with Eagle County’s characterization of NEPA’s scope and argues that SCIC errs to the extent that it argues that agencies do not need to consider environmental effects that an agency does not directly regulate. It argues that SCIC’s interpretation of NEPA would leave many government agencies with no NEPA obligations at all, contrary to congressional intent. Additionally, the government argues that inter-agency cooperation concerning EIS reports is supported by Congress’s recent amendments to NEPA. In this case, Eagle County argues that because the STB has the authority to deny permits to projects based on their environmental consequences, it has the authority to prevent environmental harms flowing from the project. Accordingly, Eagle County asserts that the STB is required to learn of the reasonably foreseeable environmental consequences of the Uinta Basin railroad even if those environmental effects fall within the purview of other agencies. Under that standard, Eagle County argues that the board failed to consider various reasonably foreseeable effects covered under their interpretation of NEPA’s scope, including the railway’s effect on downline wildfires, the Colorado River, and a projected increased frequency of train accidents.

Discussion

ECONOMIC AND OTHER NATIONAL CONCERNS

The Chamber of Commerce of the United States (“Chamber of Commerce”) and a group of other business trade associations (“Chamber of Commerce”), in support of SCIC, argue that an expanded NEPA review would negatively impact the U.S. economy. The Chamber of Commerce contends that NEPA review, as it currently stands, has already caused costly delays to projects, and  expanding the scope of NEPA review would exacerbate this problem even further. The Chamber of Commerce explains that increasing costs to the point where it makes sense to shut the project down entirely rather than pay for legal expenses is often the goal of environmentalists.

The Chamber of Commerce further notes how NEPA delays will negatively impact America’s national security needs, as re-shoring and mining is essential for securing supply chains. Similarly, Anschutz Exploration Corporation, in support of SCIC, emphasizes that increasing oil drilling in the United States is essential to keep global energy prices and undercut foreign actors from holding global energy prices hostage.

In response, a group of former senior federal officials (“Former Officials”), in support of Eagle County, argue that expanded NEPA review will both save taxpayer dollars and result in economic gain. The Former Officials contend that the purpose of NEPA review is not to delay projects and increase legal costs but rather to identify an approach that will lessen environmental harm while simultaneously fulfilling economic growth. Further, the Institute for Policy Integrity at New York School of Law (“IPI”), in support of Eagle County, explains that any future economic benefits from increased oil production resulting from the railroad project are hypothetical and, therefore, speculative at best.

Further, the Former Officials note how NEPA review helps the project developers have a voice, pointing to an example where environmental concerns gave way to the interest of mineral extraction. Members of the U.S. House and Senate (“Members of Congress”), in support of Eagle County, expand on this point and emphasize that Congress has already enacted special procedures for industries in the national security interest.

NEPA REVIEW AND EXTENT OF ENVIRONMENTAL PROTECTION

The Property and Environmental Research Center (“PERC”), in support of SCIC, argues that expanding NEPA review will hinder environmental agencies from fulfilling their duties of protecting the environment because increased time and legal costs will take crucial time away from environmental protection. To illustrate its point, PERC notes that the Forest Service, an agency whose goal is to restore and protect forests, has been overwhelmed by NEPA review. PERC explains that because of these time constraints, forest fires are becoming larger and more destructive to wildlife, ironically hurting the environment. Further, NACCO Natural Resources Corporation (“NACCO”), in support of SCIC, explains that expanded NEPA review would hurt renewable energy projects more than fossil fuel projects. To illustrate this point, NACCO notes that the effects of electricity transmission in renewable projects entail more NEPA review than oil production, contravening NEPA’s entire purpose of environmental protection.

In response, the Former Officials argue that there are many examples where NEPA review has aided environmental protection. For example, the Former Officials point to the Everglades Restoration Project, which was implemented after NEPA review and resulted in the protection of a vital natural resource. The Former Officials argue that the Everglades are essential in desalinating drinking water in Florida, thereby protecting public health and serving as a natural barrier against hurricane damage, thereby also protecting public safety. Further, a coalition of Colorado communities, including Glenwood Springs, Grand Junction, and the Northwest Colorado Council of Governments (“Colorado Communities”), in support of Eagle County, expand on NEPA’s successes and note specific examples where NEPA review was imperative for agencies to protect the environment. For example, Colorado Communities point to the Moffat Collection System Project, a water diversion project that required the collaboration of multiple governmental agencies using comprehensive NEPA review to protect Colorado’s water.

Conclusion

Written by:

Andrew Hallowell

Kehan Rattani

Edited by:

Tedrick Au

Additional Resources