The question of over-regulation has been front and center of recent public debate, with blamestorming over stalled infrastructure projects—many commentators pointing a finger at environmental laws.

It was with this scene set that the scope of environmental review under the National Environmental Policy Act (NEPA) was again at the Supreme Court and the Court’s unanimous decision on May 29 was made to limit the its scope.

But, according to Professor Deborah Sivas, director of Stanford’s Environmental Law Clinic, the arguments were flimsy at best—with briefs to the Court lacking in real data.

“I’m not sure that a couple of anecdotes drawn from amicus curiae footnotes citing superficial media stories constitutes credible basis for the Court’s sweeping indictment of NEPA. Indeed, I’m pretty sure it does not,” says Sivas in the discussion that follows. “Whether and to what extent NEPA is actually complicit in stalling critical energy transition projects are empirical questions, of course, and I am not aware of a single study actually showing that NEPA is the problem—or even a significant factor.  Lots of political, technical, economic, regulatory, and bureaucratic factors are at play in, for example, expansion of the electricity grid or delays in connecting new energy generation projects to it.”

Here, Sivas explains Seven County—including looking at the question of agency deference and the broader implications of this decision.

What was at issue in the Seven County case? What was the question before the Court?

The case addresses the required scope of environmental review under the National Environmental Policy Act (NEPA).  For any major federal action that may have significant impacts on the environment, NEPA requires that the federal agency approving the action must prepare an Environmental Impact State (EIS). The EIS must evaluate “reasonably foreseeable environment impacts of the proposed agency action.”

Here, the Surface Transportation Board evaluated and approved an 88-mile railroad line extension into the remote Uinta Basin of Utah, which contains significant quantities of crude oil.  The new line will provide an alternative to trucking oil over difficult mountain road and allow oil developers to more efficiently transport oil out of the basin to downstream refineries in the Gulf states.  The project EIS acknowledged the existence of impacts from upstream oil production and downstream oil refining, but did not conduct a detailed evaluation of such impacts.  Among other things, the D.C. Circuit held that STB’s failure to more fully evaluate these upstream and downstream impacts violated NEPA.  That holding was the only issue before the Supreme Court, which reversed the D.C. Circuit’s decision.

What are the key points of the Court’s decision? Will it narrow the scope of key environmental laws going forward?

A couple of points.  First, the Court pretty clearly took up the case to narrow what it sees as the overly expansive view of NEPA’s requirements by some lower court.  The majority opinion, authored by Justice Kavanaugh and joined by Justices Roberts, Thomas, Alito, and Barrett, signals its displeasure from the start with the admonition that “NEPA is a procedural cross-check, not a substantive roadblock.  The goal of the law is to inform agency decision making, not to paralyze it.”

Contrary to this goal, the majority claims, “some courts have assumed an aggressive role in policing agency compliance with NEPA.”  Thus, “it is important to reiterate and clarify . . . the central principle of judicial review in NEPA cases is deference.”  A few pages later, Kavanaugh hammers the point home: “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.”  In fact, the 22-page majority opinion mentions the need for judicial deference to agency NEPA decisions no fewer than 14 times.

There is some question of how to square this robust articulation of deference with last year’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 391 (2024), where the Court entirely abandoned any notion of deference to agency interpretations of ambiguous statutes under the Chevron doctrine.  Kavanaugh distinguishes Seven County by explaining that “when an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard.”  I’m not sure that pivot totally holds up.  I guess we’ll see as lower courts try to sort it out and determine which agency decisions get deference and which don’t.

With this prefatory discussion out of the way, the majority opinion finally gets to the critical question of how to bound EISs.  It concedes that “indirect” effects from an agency action “can sometimes fall within NEPA,” but then makes clear that where an agency action might lead to “the construction or increased use of a separate project, then the agency need not consider the environmental effects of that separate project.”  Drawing this line may still prove challenging for agencies, but the Court gives one hint: Where an agency has no regulatory authority over the separate project or its environmental effects, it does not need to account for those effects in its EIS.

In short, after scolding lower courts for expanding NEPA, the Court’s actual holding is a bit more modest: The scope of an agency’s environmental review obligations under NEPA turns on whether there is a “separate project” that breaks the chain of proximate causation—or where “the causal chain is too attenuated”—in which case the agency need not evaluate the impacts from that separate project even if those impacts are “factually foreseeable.”  This result, it seems to me, shifts the inquiry to whether some other agency will be evaluating the upstream or downstream consequences that flow from the project.

A key question in this case was whether the U.S. Court of Appeals for the D.C. Circuit went too far in requiring regulators to look at potential effects on Gulf Coast communities. But how and who would make the “overreach” call?

There is a lot of language in the first half of the majority opinion taking (some) lower courts to task for what the majority perceives as judicial overreach.  Kavanaugh writes: “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents . . . A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process.”  The “under the guise” in quotes is particularly curious, but I read it to express distain for some environmental challenges.

The Court clearly believes that project opponents have used NEPA “to enlist the courts in blocking or delaying even those project that otherwise comply with all relevant substantive environmental laws.” But the only thing Kavanaugh cites for this proposition is a page from the Chamber of Commerce’s amicus brief; that brief merely cites, in footnotes, a few newspaper accounts about renewable energy projects being challenged.  One is the proposed Yellow Pine Solar Farm in Nevada.  If I’m not mistaken, that project was built and is operating; I don’t think a NEPA lawsuit was even filed.  Another is the controversial wind farm project south of Martha’s Vineyard, but the environmental challenges to that project were unsuccessful in the lower courts, and just a few weeks ago, the Supreme Court declined to hear the case.  I’m not sure that a couple of anecdotes drawn from amicus curiae footnotes citing superficial media stories constitutes a credible basis for the Court’s sweeping indictment of NEPA. Indeed, I’m pretty sure it does not. This feels like yet another example of the Justices latching onto highly-selective and curated external information to draw very broad conclusions—precisely the opposite of how trial courts go about testing and admitting information into evidence.

Whether and to what extent NEPA is actually complicit in stalling critical energy transition projects are empirical questions, of course, and I am not aware of a single study actually showing that NEPA is the problem—or even a significant factor.  Lots of political, technical, economic, regulatory, and bureaucratic factors are at play in, for example, expansion of the electricity grid or delays in connecting new energy generation projects to it.  Of course, NEPA has the potential to slow or stall projects, especially when wielded by those with non-environmental motives, but the Court’s broadside attack in the Seven County decision really is not supported by anything other than media narrative and vibes.  And here’s the most interesting and important point:  The Court’s three more liberal judges reached the same legal conclusion regarding this particular project without making unfounded assumptions or gratuitous attacks on NEPA.

What are the broad implications of the decision—positive and negative?

The Court is quite clear that lower courts should defer to an agency’s boundary drawing—and in the present administration, we can expect that the outer boundaries of environmental review may be very narrowly drawn.  So, we might see some courts pull back from some of the more expansive NEPA jurisprudence.  But on the other hand, the statute still requires that agencies evaluate the “reasonably foreseeable environmental effects” of their actions, so they still must provide a credible basis and reasonable explanation for wherever they draw the line around a project’s impacts analysis.

As with virtually all of the recent environmental cases coming out of the Supreme Court, the lower courts will now have to sort it out, which likely means no decrease in NEPA litigation, at least in the short term.  In the longer term, maybe we will reach a slightly different equilibrium that does help speed up worthwhile projects like renewable energy, battery storage, and grid expansion.  Stay tuned.

It was a unanimous decision. What does that tell us?

Yes, it was an 8-0 opinion, with Justice Gorsuch taking no part in the case.  As noted, Justice Sotomayor, joined by Justices Kagan and Jackson, concurred in the judgment and wrote her own opinion.  She agreed with the majority that the D.C. Circuit overstepped in this case, primarily because STB has very constrained authority here.  Under its authorizing statute, that agency’s role is limited to evaluating whether the application for a rail line extension is consistent with the public convenience and necessity—a legacy concept from the old, regulated monopolies jurisdiction of STB’s predecessor, the Interstate Commerce Commission.

The modern statute carries through the idea that railroads, as common carriers, are required to provide transportation services to all comers—they cannot discriminate against persons or commodities.  Given that constraint, STB could not, for example, condition approval of the rail line extension on not allowing oil shipments or in some other way limiting such shipments.  Once the line is operating, it must carry all products on equal terms.  On that basis, Sotomayor concluded that STB did not need to evaluate upstream or downstream impacts related to drilling and refining crude oil in the EIS because it had no ability to deny or condition the certificate of public convenience and necessity on environmental grounds.

The majority clearly agreed with that analysis and could have reached the same result without wringing its hands over judicial overreach and expansion of NEPA.  It seems pretty obvious that the Court wanted to use this case as the vehicle for taking a slap at both NEPA litigants and lower court judges.

What is the throughline from previous NEPA challenges to this case?

Twenty years ago, the Supreme Court decided Department of Transportation v. Public Citizen, a sui generis NEPA case which held that because the Federal Motor Carrier Safety Administration lacked discretion to prevent Mexican motor carriers on U.S. roads (after President George W. Bush lifted a long-standing moratorium on their entry into the country—a presidential action not subject to NEPA), the agency did not have to evaluate the impacts of the increased presence of Mexican trucks on domestic highways when it evaluated new safety regulations.  In their original cert. petition, the Seven County petitioners swung for the fences by suggesting that Public Citizen should be expanded to relieve agencies from having to evaluate any environmental impacts over which they have no regulatory authority.

That would have been a catastrophic gutting of NEPA because most agencies have only limited jurisdiction over a project, but the lead agency typically does a single environmental review to cover impacts from other agency approvals.   At the merits stage, the petitioners backed away from the most full-throated version of this argument.  But by convincing the Court to take another NEPA case arising from another agency with quite narrow jurisdiction, the litigants were able to continue nibbling away at the edges of NEPA.

Is there anything else you’d like to add?

Just one other issue worth noting:  Almost in passing, the majority opinion notes that “Even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if is added more to the EIS.”  As the decision discusses at length, NEPA is a purely procedural law—it does not mandate any particular substantive outcome—and thus its entire value is in requiring decisionmakers to consider environmental effects before they make a final decision.  No challenger can show that, on remand, the agency will make a different decision; indeed, such a showing does not even make sense because the environmental review has not yet been completed.

For that reason, courts typically vacate the decision and remand inadequate NEPA documents for more analysis and then reconsideration.  That means the agency must undertake additional evaluation and then consider it before making a new final decision.  If we take Justice Kavanaugh at his word about vacatur, an agency could prepare a NEPA analysis that a court finds inadequate and still move forward with the project even while it is revising that analysis to comply with the law.  In that case, NEPA remedies would become nothing more than paper exercises in futility, untethered from their purpose of actually informing decisionmakers.  That sends exactly the wrong message to agencies, which should be doing a legally adequate job the first time around.

Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law at Stanford Law School. A leading environmental litigator, Sivas is the founding director of the highly regarded Environmental Law Clinic, in which students provide legal counsel to dozens of national, regional and grassroots nonprofit organizations on a variety of environmental issues. Sivas’s litigation successes include challenging the Bush administration’s gas mileage standards for SUVs and light trucks and holding the U.S. Environmental Protection Agency accountable for regulating the discharge of invasive species in ship ballast water. Her current research is focused on the interaction of law and science in the arena of climate change and coastal/marine policy and the ability of the public to hold policymakers accountable. She is also the director of Stanford Law School’s Environmental and Natural Resources Law and Policy Program; a senior fellow at Stanford Woods Institute for the Environment; affiliated researcher at the Center for Ocean Solutions; faculty advisor at the  Emmett Interdisciplinary Program in Environment and Resources; and a professor at the Doerr School of Sustainability.