United States Supreme Court to Hear Case on Required Scope of Agency NEPA Reviews

07.19.2024

On June 24, 2024, the United States Supreme Court agreed to hear a case (Seven Cnty. Coalition v. Eagle Cnty., Co.) concerning the required scope of a federal agency’s environmental review under the National Environmental Policy Act (NEPA). Generally, NEPA requires that federal agencies examine the potential environmental effects of proposed actions by the federal government and prepare a report outlining the effects and potential alternatives or mitigation methods.

The petition to the Supreme Court was filed by the Seven County Infrastructure Coalition, a group of seven counties in Utah. The counties allege that the United States Courts of Appeal (D.C. Circuit) improperly interpreted a prior case, Department of Transportation v. Public Citizen (2004) (Public Citizen), when the court revoked a federal approval for a rail line to transport crude oil from Utah on the basis that the NEPA report did not sufficiently address future environmental effects including climate change.

In Public Citizen, the Supreme Court held that “when an agency cannot prevent an environmental effect ‘due to its limited statutory authority over the relevant actions,’ the National Environmental Policy Act does not require [the agency] to study that effect.”

Since then, the Courts of Appeal have been divided on how to interpret Public Citizen, with most courts ruling that agencies may reasonably limit their NEPA review to only the effects their agency has regulatory responsibility over. The counties in the present appeal contend that the U.S. Surface Transportation Board’s NEPA analysis of their railway project was sufficient because it addressed all environmental concerns within the Board’s regulatory scope.

However, the D.C. Circuit sided with the minority interpretation in denying the railway permit, finding that the test in Public Citizen turned on whether an agency could block a project deemed to be “too harmful to the environment,” not whether the NEPA determination involved a matter within the agency’s scope. Using this standard, the D.C. Circuit examined whether the U.S. Surface Transportation Board’s NEPA analysis properly addressed future environmental effects, not whether the agency was limited in addressing these concerns by their regulatory scope.

If the Supreme Court rules in favor of the Seven County Infrastructure Coalition, projects subject to NEPA will only require the federal agency to consider environmental impacts proximately caused by actions within their regulatory jurisdiction. This would generally reduce the scope of NEPA reviews. A ruling upholding the D.C. District Court’s decision would require federal agencies conducting NEPA reviews to evaluate any environmental impacts caused by the project, even those beyond their regulatory jurisdiction.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.

Special thanks to John Adamson, our FCPPG law clerk, for his extensive work on this alert.

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