In the upcoming October term, the Supreme Court of the United States (SCOTUS) will hear Seven County Infrastructure Coalition v. Eagle County, Colorado, assessing the permitting procedures required under the National Environmental Policy Act (NEPA). On its face, the case asks SCOTUS whether indirect environmental effects must be considered before Seven County Infrastructure’s proposed railroad expansion is approved. More broadly, however, the case may allow the Supreme Court, operating with a conservative supermajority, to further disassemble the administrative state.
SCOTUS granted review of Seven County in June 2024, but the legal question stretches much further back. In 2020, Seven County Infrastructure requested approval for a railway project that would transport crude oil in and out of Utah’s Uintah River Basin to Gulf Coast refineries. A year later, the federal Surface Transportation Board granted approval for construction with an accelerated Environmental Impact Statement (EIS). Progress was soon halted, however, by an appeal from local environmentalists who voiced concerns about the transportation of crude oil along the Colorado River. These objectors alleged that the Environmental Impact Statement had not taken into account the ‘downline’ effects of the railway that could impact the more than 100 miles the train would span, considering only the effects on the Uintah River Basin.
The Center for Biological Diversity, argued that the Environmental Impact Report filed by Seven County Infrastructure did not take into account the destruction of wildlife habitats through the disruption of more than 400 streams and the removal of trees and brush. Additionally, Colorado Senator Michael Bennett issued a statement requesting further investigation into the potential environmental consequences of the railway, including the potential of oil spills into the Colorado River.
The D.C Circuit Court validated these concerns in 2023, noting that Seven County Infrastructure had violated NEPA, which mandates “proper consideration to the environment prior to undertaking any major federal action.” Circuit Court Judge Robert Wilkins vacated the railroad’s approval due to Seven County’s insufficient review of the environment surrounding the proposed railway. In his opinion for the court he found that there were “numerous NEPA violations arising from the EIS, including the failures to quantify reasonably foreseeable upstream and downstream impacts.”
With oral arguments quickly approaching for Seven County, the energy lobby has thrown their legal weight behind the petitioners. Groups including the American Petroleum Institute and American Exploration and Mining Association have filed briefs on behalf of Seven County Infrastructure, alleging that NEPA’s environmental impact requirements have been unfairly expanded by the D.C. Circuit to include the ‘downline’ effects of infrastructure projects, putting an undue burden on developers. The U.S Chamber of Commerce’s brief dramatically cautioned that the decision could “turn each agency into a ‘de facto environmental-policy czar.’”
Though the outcome of the case is still pending, statements like that of the Chamber of Commerce suggest that this case will be far more than a procedural decision on the scope of NEPA’s EIS requirements. Rather, this case could become the next battleground for the future of the administrative state, as many supporters of Seven County Infrastructure express through their briefs a desire to see environmental agencies significantly restricted.
The National Environmental Policy Act, passed in 1970 under Richard Nixon empowers the bureaucratic arm of the government in two ways. NEPA sanctions the Council on Environmental Quality, which operates within the Executive Office of the President and creates procedural rules for the investigations and EIS reports filed under NEPA. From these rules, executive agencies from the Environmental Protection Agency to the Surface Transportation Board review applications and retain the discretionary power to accept or reject infrastructure projects, as well as any action that will impact federal land.
The Supreme Court showed significant interest in restricting the administrative state, and found environmental agencies to be the perfect fodder through which to do so. While this case seems to ask a highly specific question about the required scope of EIS reports, the Supreme Court created a precedent of expanding the question presented with the ultimate aim of restructuring executive agencies’ power.
In Loper Bright. V. Raimundo, a case ostensibly about safety requirements for herring fishermen, SCOTUS decided to hear the case with regard to a much broader question about the power of executive agencies. Ultimately, the decision undid the Court’s precedent on executive agencies’ discretion, which previously allowed administrative bureaucrats to interpret the ambiguities within statutes like the NEPA to make comprehensive policy. Loper Bright removed this discretion, conveniently remanding the decisions on legislative vagaries to courts. Immediately following the decision, the American Bar Association warned, “Consider every agency rule—from established rules such as the Department of Labor’s white-collar exemption to newer regulations such as the NLRB’s joint-employer rule—up for grabs.”
This case could very well be the next area of executive policy the Supreme Court ‘grabs' for itself, as SCOTUS has the opportunity to expand their power of review to include NEPA policies as a whole, instead of on a case-by-case basis. Time will tell, then, whether Seven County Infrastructure will claim land for their railway, and whether the Supreme Court will claim NEPA as the next form of bureaucracy to fall to judicial discretion.
Image by Bernd Thaller, via Wikimedia Commons.