A Supreme Court Course Correction for NEPA

The Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County was an important step toward reorienting enforcement and implementation of the National Environmental Policy Act (NEPA) in line with the actual text of the statute. As such, it was a rebuke to the expansive lower court interpretations of the statute that had accumulated over the past several decades. I discuss this development, and the significance of the decision, in my latest Civitas Outlook column. It begins:

Congress enacted the National Environmental Policy Act of 1969 (NEPA) to ensure the federal government would consider environmental protection among its priorities. The brief statute imposed a simple requirement that federal agencies consider the environmental impacts of their activities, but imposed no substantive environmental obligations. However modest at its enactment, the burden imposed by NEPA spread like kudzu, fed and watered by expansive court decisions, ensnaring even the most worthwhile projects in years of litigation and delay. Last month, however, the Supreme Court took notice.

In Seven County Infrastructure Coalition v. Eagle County, Colorado (SCIC), the Court concluded that lower courts had overread NEPA’s requirements and disregarded federal agency expertise. Writing for the Court, Justice Brett Kavanaugh explained that NEPA, as written, “is a procedural cross-check, not a substantive roadblock” to governmental action or economic development. “The goal of the law is to inform agency decisionmaking, not to paralyze it.” Yet, NEPA had become a frequent cause of obstruction and delay for all manner of infrastructure and other projects planned or authorized by the federal government. Observing that this “legislative acorn” had “grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process,” the Supreme Court cut NEPA’s requirements back down to size. Wrote Kavanaugh: “A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense.”

It takes more than a single Supreme Court decision to set things right, but it is a significant step. From the column:

Cutting NEPA’s requirements down to size will help facilitate infrastructure and energy development, but Seven County Infrastructure Coalition is no silver bullet. NEPA is but one of many laws deployed against disfavored projects, and unleashing the next wave of energy and infrastructure development will require both administrative reforms and legislative action to lower hurdles and lift road blocks. The courts can only be expected to do so much.

I previously blogged about the decision here and here. Additional recent posts on NEPA nd permitting are here, here, and here.

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