Supreme Court Unanimously Agrees To Curb Environmental Red Tape That Slows Down Construction Projects

The Supreme Court ruled in favor of a Utah railroad project on Thursday, setting a precedent that could make it easier to build things in the United States. 

The case at hand—Seven County Infrastructure Coalition v. Eagle County—involved an 88-mile-long railroad track in an oil-rich and rural area of Utah. The project would have connected this area to the national rail network, making it easier and more efficient to transport crude oil extracted in the region to refineries in Gulf Coast states. 

In 2020, a group of seven Utah counties known as the Seven Counties Infrastructure Coalition submitted its application to the federal Surface Transportation Board (STB) for the project. During its review process, the board conducted six public meetings and collected over 1,900 comments to produce an environmental impact statement (EIS)—which is required by the National Environmental Policy Act (NEPA)—that spanned over 3,600 pages. The board approved the project’s construction in 2021.

Before construction could begin, however, Eagle County, Colorado, and several environmental groups filed suit, challenging the STB’s approval. Specifically, this coalition argued that the STB did not consider the downstream environmental effects of the project—such as increased oil drilling in Utah and refining in the Gulf Coast. The Court of Appeals for the D.C. Circuit agreed with the plaintiffs and vacated the railroad’s construction approval. 

In an 8–0 decision on Thursday (Justice Neil Gorsuch recused himself from the case), the Supreme Court overturned the lower court’s ruling. 

In its majority opinion, authored by Justice Brett Kavanaugh, the Court clarified that under NEPA the STB “did not need to evaluate potential environmental impacts of the separate upstream and downstream projects.” The Court concluded that the “proper judicial approach for NEPA cases is straightforward: Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects.”

This statement “is particularly significant for infrastructure projects, such as pipelines or transmission lines, and should help reduce NEPA’s burdens (at least at the margins),” wrote Jonathan Adler, a law professor at the Case Western Reserve University School of Law, in The Volokh Conspiracy. “The opinion will also likely hamper any future efforts, perhaps by Democratic administrations, to expand or restore more fulsome (and burdensome) NEPA requirements.”

One recent example is former President Joe Biden, who finalized rules requiring federal agencies to consider a project’s impacts on climate change—a global issue that is incredibly complex and hard to forecast—in their NEPA analyses. The Trump administration recently rescinded this requirement. 

Kavanaugh’s opinion also clarified that courts should “afford substantial deference” to federal agencies in their EIS reviews and “should not micromanage” agency choices “so long as they fall within a broad zone of reasonableness.” 

This point could reduce one of the largest delays caused by NEPA: litigation. Since its passage in 1969, NEPA has been weaponized by environmental groups to stunt disfavored projects—which has disproportionately impacted clean energy projects. On average, these challenges delay a permitted project’s start time by 4.2 years, according to The Breakthrough Institute.

The increased threat of litigation has forced federal agencies to better cover their bases, leading to longer and more expensive environmental reviews. With courts deferring more to agency decisions, litigation could be settled more quickly.  

“NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects,” wrote Kavanaugh. “All of that has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation.”

Projects that receive the necessary permits to start “often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project,” he added. “And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like.”

For years, NEPA has delayed, or outright canceled, projects. The Court’s decision could be a significant step in reducing the regulatory labyrinth that has stymied America’s economy and environment.

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