Supreme Court hands big win to fossil fuels, agency power

The Supreme Court last week reshaped how the federal government thinks about fossil fuel infrastructure.

While environmental groups frequently describe projects ranging from coal mines to pipelines as “carbon bombs,” the high court said in an 8-0 ruling that may not be the case — finding in Seven County Infrastructure Coalition v. Eagle County that the projects themselves are not responsible for the upstream or downstream pollution for fuel or other products they simply transport or produce.

The justices narrowed the scope of environmental reviews taken by agencies when they determine whether to approve an infrastructure project — and the grounds upon which such reviews can be challenged. 

The ruling is a blow to those fighting to protect the environment and a win for developers and fossil fuel companies, making it more difficult to challenge a project on its climate or environmental grounds, or even to get information about its environmental impacts.

“It is going to grease the wheels for … fossil energy approvals,” said Travis Annatoyn, who was an attorney at the Interior Department during the Biden administration.

“I think it’s going to make a difference,” added Annatoyn, who is now with the law firm Arnold & Porter. “You will see courts take a more hands-off approach to reviewing technical analysis.”

Frequently, opponents of projects approved by the federal government sue to get them overturned, arguing that the analysis underlying their approval was insufficient under the National Environmental Policy Act (NEPA).

But the justices determined Thursday that government agencies do not need to consider a project’s upstream or downstream impacts, that courts should defer to an agency’s judgment about where to draw the line when considering a project’s indirect impacts, and that courts cannot block agency projects based on the outcome of a potential future project.

What that means in practice is that a court cannot rule that an agency’s environmental analysis is insufficient because it did not consider whether it will spur more emissions or pollution when fossil fuels are burned. 

Many energy trade groups and their Republican allies cheered the decision.

In a written statement, Senate Environment and Public Works Committee Chair Shelley Moore Capito (R-W.Va.) said the ruling would allow the U.S. to “move important infrastructure initiatives like pipelines, roads, and energy development swiftly to completion to benefit the communities they serve.”

Nathaniel Shoaff, senior attorney at the Sierra Club, said the ruling means that many emissions impacts will never actually get counted.

He gave the example of mining coal on federal lands, saying the vast majority of the coal’s climate impacts may never come to light since there’s unlikely to be a downstream assessment.

“There is no ongoing NEPA review that I’m aware of at coal-fired power plants. If you want to know about the climate impacts of mining coal, the only place to find out about it is during the NEPA process,” Shoaff said.

He also noted this process may shut down access to information for nearby communities.

“This decision is to allow a project to go forward that adds pollution to the air in Black and brown communities in Louisiana and Texas, and it allows the federal government that’s making that decision to stick its head in the sand and ignore those pollution impacts,” Shoaff said, referring to the underlying case the decision comes from, which concerns an oil railway that would make it easier to get oil from Utah to the Gulf Coast.

“People have a right to know when the government’s making a decision that’s going to impact their lives,” he said.

“It is critical that people understand what impacts the federal government has on their daily lives, and if you give them better information, they will make better choices about who to put in office. My hope is that if you give the federal decisionmakers better information, they would make better choices,” he added.

The ruling comes against the backdrop of an administration that is not eager to consider climate change in its decision making.

President Trump has frequently described climate change as a “hoax” and has downplayed its destructive impacts.

His Energy Department recently indicated that it considers environmental impacts of gas export terminals to be outside of its authority, and his Interior Department recently said it planned to dramatically shorten the timeline for environmental reviews of coal, oil and gas projects.

Varu Chilakamarri, a former Justice Department lawyer, told The Hill that not only will the ruling likely result in faster approvals, it may also lead to more projects, as companies see a smaller chance of getting their permits revoked in court.

Chilakamarri said the ruling will give companies “more comfort that, when an agency makes a decision, that decision will be given more respect by the courts. … Even if there is a procedural error or a lack of explanation by the agency, what the court said was that that shouldn’t, on its own, allow a court to just vacate the entire authorization.”

“That, in itself, will give companies some comfort they can pursue these processes,” added added Chilakamarri, who is now with the law firm K&L Gates, “[and] that they’re not going to have their … permits yanked out from under them.”

—Updated at 10:59 a.m. EDT