The National Environmental Policy Act (NEPA), signed into law in 1970, was the country’s first modern environmental statute. It required federal agencies to evaluate and disclose the environmental impacts of their actions. By mandating public input and transparent decision-making, NEPA democratized federal decision-making and set the stage for subsequent environmental legislation. However, this foundational law is now under scrutiny, with its legacy of transparency and public participation at risk of being significantly altered.

Environmental Review Requirements

NEPA embodied the mood at the end of the 1960s, when smoggy skies and burning rivers were on the national consciousness. The statute recognizes that “each person should enjoy a healthful environment” and declares a national policy to “prevent or eliminate damage to the environment and the biosphere.” Unlike subsequent environmental laws, NEPA does not dictate substantive standards or particular outcomes. NEPA directs federal agencies to prepare a detailed environmental impact statement (EIS) for every major federal action significantly affecting the quality of the environment. The statements must consider the foreseeable adverse impacts of a proposed action and evaluate alternatives to mitigate impacts. NEPA has helped prevent federal agency decisions from being made behind closed doors, yet recent judicial and administrative developments suggest significant shifts in how NEPA is implemented.

SCOTUS Case Could Narrow NEPA’s Scope

Oral arguments in a potentially precedent-setting U.S. Supreme Court case, Seven County Infrastructure Coalition v. Eagle County, were held on December 10. The case centers on whether NEPA requires agencies to evaluate indirect or secondary environmental effects beyond their direct regulatory authority. The Court is reviewing whether the Surface Transportation Board adequately considered upstream impacts (increased oil production) and downstream effects (emissions from refining) for a proposed rail project in Utah. The underlying facts suggest that the Court may view the case as a vehicle to significantly curtail the scope of required environmental review.

Lower courts ruled that these broader impacts must be analyzed under NEPA, but the Court is being asked to adopt a narrower standard, focusing only on proximate environmental effects directly tied to the agency’s regulatory authority. If the Court accepts this argument, it could significantly limit NEPA’s scope, particularly in evaluating climate-related or cumulative impacts. The decision is expected in 2025.

Further Challenges to NEPA Regulations

Another legal development threatening NEPA’s stability comes from the D.C. Circuit’s Marin Audubon Society v. Federal Aviation Administration decision. The court questioned the statutory authority of the Council on Environmental Quality (CEQ) to issue binding regulations interpreting NEPA—a framework that has guided agencies and courts for over four decades.

Similar to the U.S. Supreme Court in recent cases like Loper Bright, the majority in Marin Audubon expressed little interest in the parties’ actual dispute. After holding that CEQ’s NEPA regulations are ultra vires and suggesting that they also implicate separation of powers concerns, the Marin Audubon majority opinion leaves us with more questions than answers. Is it permissible for another federal agency to simply adopt CEQ’s regulations as its own? Good question, the court muses, but not what happened here and thus not resolved by its opinion.

Marin Audubon seems to suggest that courts should independently determine how NEPA works, following the Supreme Court’s direction in Loper Bright, without regard to half a century of interpretative rules and a vast body of case law.

More Congressional Tinkering?

Even before Marin Audubon was decided, a group of conservative law professors submitted an amicus brief supporting petitioners in Seven County and urging the Court to find that consideration of climate impacts are beyond the scope of the board’s authority over railway extensions. The amicus brief closed with a full-throated argument that CEQ lacks the statutory authority to promulgate judicially enforceable NEPA regulations, essentially the same argument adopted subsequently by the Marin Audubon majority. The target of the law professors’ ire in Seven County was the CEQ requirement to consider a project’s reasonably foreseeable “cumulative” impacts.  So we might well see further efforts to defang the concept of “cumulative” impacts along with “indirect” impacts.

The Biden Administration’s amendments to the CEQ regulations that restored some but not all of the deletions made in the Trump administration’s 2020 revisions are under challenge by 20 “red” states in federal court in North Dakota.

Congress could decide to step in and address the ambiguity being created by the courts. One obvious legislative response is to clarify CEQ’s rulemaking authority as a way to restabilize the applicable legal regime, perhaps in return for some additional permit streamlining—a sensible proposition that nevertheless seems improbable in the current political climate. But could the uncertainty created by these recent developments create an opening for compromise that would modernize NEPA and still preserve its legacy of transparency, protection, and accountability? Only time will tell.

The full essay can be found at law.stanford.edu/blog. SL