The National Environmental Policy Act (“NEPA”) is a procedural statute that requires federal agencies to prepare an Environmental Impact Statement (“EIS”) to identify significant environmental effects of a proposed project and to consider feasible alternative measures to mitigate those effects. The U.S. Supreme Court recently addressed the scope of NEPA review in Seven County Infrastructure Coalition v. Eagle County, Colorado. The decision narrows the scope of environmental review of reasonably foreseeable projects and sets forth a “course correction” for judicial review of NEPA compliance.

The case involved the construction and operation of an 88-mile railroad line that would connect Utah’s oil-rich Uinta Basin to the national rail network. Pursuant to NEPA, the U.S. Surface Transportation Board (the “Board”) produced a 3,600-page EIS. The sufficiency of the EIS was challenged and the DC Circuit found that the Board had failed to analyze the reasonably foreseeable potential upstream (additional drilling) and downstream (additional refining) effects of the project. The Supreme Court reversed, finding that the upstream and downstream effects were separate projects, and the Board was only required to evaluate the environmental impacts of the railroad project.

Regarding agency deference, the Court distinguished last year’s decision in Loper Bright Enterprises v. Raimondo which found that courts generally do not defer to an agency’s statutory interpretation. In this case, where the Board was exercising discretion granted by a statute in determining what details to include in the EIS, courts should analyze whether the agency’s action was reasonable. Whether an EIS adequately identifies significant environmental impacts and feasible alternatives are not questions of law but factual questions evaluated under the Administrative Procedure Act’s arbitrary and capricious standard.

The decision went on to provide further commentary regarding the role of NEPA, and providing examples from amici briefs regarding delayed projects before concluding that “[c]itizens may not enlist the federal courts, under the guise of judicial review of agency compliance with NEPA, to delay or block agency projects based on the environmental effects of other projects separate from the project at hand.” Instead, NEPA should function as a “modest procedural requirement.”

The concurring opinion (J. Sotomayor) sets forth the limitations within the Board’s organic statute that precludes consideration of upstream and downstream projects. The concise analysis disposes of the matter while noting that “the majority takes a different path, unnecessarily grounding its analysis largely in matters of policy.”

The decision narrows the application of NEPA regarding reasonably foreseeable impacts. The extended explanation of deference to agencies regarding which details to include in an EIS will likely result in less comprehensive environmental reviews.