On May 29, the Supreme Court’s unanimous decision in Seven County Infrastructure Coalition v. Eagle County curbed lower courts’ ability to micromanage federal agencies’ environmental reviews under the National Environmental Policy Act.
This landmark ruling frees agencies from decades of defensive, litigation-averse mindsets, boosting prospects for projects critical to addressing urgent economic and environmental challenges.
The case centered on a proposed Utah railroad to connect the Uinta Basin’s growing oil (and potentially mineral) production to the national rail network. To comply with the National Environmental Policy Act, the Surface Transportation Board had produced a 3,600-page environmental impact statement that thoroughly analyzed alternative options, mitigation strategies and public input. It then concluded that the project’s benefits outweighed its environmental costs and issued an approval.
Environmental groups and a Colorado county promptly challenged the decision in the D.C. Circuit Court of Appeals, alleging that the Surface Transportation Board failed to adequately assess several environmental impacts, including those related to downstream oil refining and upstream drilling. The D.C. Circuit sided with several claims and vacated the approval.
The Supreme Court, which hadn’t addressed a National Environmental Policy Act case since 2004, saw a need for course correction. As Justice Brett Kavanaugh’s incisive opinion noted, “A 1970 legislative acorn has grown into a judicial oak that has hindered infrastructure development.”
Congress enacted the National Environmental Policy Act to balance resource use, high living standards and a healthy environment, not to stifle progress. Yet, activist groups have weaponized it as a “blunt and haphazard tool” to push unpopular policy agendas through litigation, undermining the law’s effectiveness and skirting the democratic process.
Kavanaugh’s opinion clarified two key points. First, the National Environmental Policy Act is a “procedural cross-check” in which agencies have substantial deference in how they evaluate environmental impacts. The judiciary’s sole role is to confirm that agencies address environmental impacts and feasible alternatives, not to police their methods or paralyze projects.
Second, agencies need not assess the environmental effects of separate projects, though they remain accountable for directly connected impacts — for example, of how runoff in a project might affect a fish population miles downstream.
These clarifications are transformative. By rebuking dubious precedents set by lower courts, the Supreme Court has set agency reviewers free from an impossible situation wherein, as the Property and Environment Research Center noted, “NEPA obligations could balloon as widely as the most creative plaintiff demands.”
No longer sitting ducks for deep-pocketed green litigators, agencies can now move beyond “litigation-proofing” their reviews. The days of an environmental impact statement averaging 4.5 years and 669 pages, with appendices topping 1,037 pages, should be over.
Taxpayers will save money, large projects will become more viable and whole industries (e.g. mining) will come back to life. The only losers here are groups like the Center for Biological Diversity, the Sierra Club and WildEarth Guardians, for whom grinding National Environmental Policy Act litigation was a cash cow.
Although oil was the subject of this specific case, all forms of energy will benefit. As Kavanaugh pointed out, environmental groups have used this statute to “fight even clean-energy projects — from wind farms to hydroelectric dams, from solar farms to geothermal wells.”
The nuclear industry was arguably the highest-profile victim of the National Environmental Policy Act weaponization. The first major case, a 1971 D.C. Circuit challenge to a reactor’s environmental impact study, resulted in an 18-month nationwide moratorium on reactor construction. This was the first devastating blow to the nuclear industry, which crumbled over the next decade and is still struggling to recover.
This decision will also boost our country’s capacity to mitigate the wildfire crisis. Forest management projects are the most common subject of National Environmental Policy Act litigation, according to a Breakthrough Institute study. The Property and Environment Research Center found that prescribed burns requiring an environmental impact study take an average of 7.2 years to implement.
Ironically, despite their apparent concern about trains sparking wildfires in the Uinta Basin, the Center for Biological Diversity, the Sierra Club and WildEarth Guardians all have extensive track records of obstructing mitigation projects in forests that eventually fall victim to extreme wildfires.
For example, the Center for Biological Diversity delayed a U.S. Forest Service forest thinning project that, if completed on schedule, could have saved the California town of Grizzly Flats, which was mostly decimated by the Caldor Fire in 2021.
By removing this poison from the regulatory well, the Supreme Court has begun to clear the path to tackling our most pressing energy and environmental challenges. But the court can only do so much. The core of the National Environmental Policy Act’s legislative text is still largely the same as it was in 1970.
Congress needs to resolve its vulnerabilities as part of a comprehensive permitting reform, and codifying durable limits to judicial review should be a top priority. Fortunately, the Supreme Court just delivered a clear signal that it is time to act.
Patrick Hynes is a fellow with ConservAmerica.