In a unanimous 8-0 decision, the Supreme Court of the United States has reined in litigation under the National Environmental Policy Act (NEPA) and recognized that the NEPA process must be efficient and effective to fulfill its environmental purposes.
The case—Seven County Infrastructure Coalition v. Eagle County, Colorado—centered on whether federal agencies must analyze remote, speculative environmental impacts only loosely tied to a modest railway. But the Court’s decision has far-reaching implications not only for infrastructure but also for conservation.
NEPA reviews have ballooned in recent years, often running thousands of pages and taking years to complete. The Forest Service has been one of the hardest hit agencies, as it produces more NEPA reviews than any other agency, bogging down vital forest restoration projects for years. With an 80-million-acre restoration backlog fueling a wildfire crisis, such delays are a serious threat to the environment.
Many of these obstacles are not based in NEPA’s text, but decades of cases brought by activist groups seeking to hamstring agencies. Many courts have, according to Justice Kavanaugh’s opinion, “engaged in overly intrusive (and unpredictable) review in NEPA cases . . . caus[ing] litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects. The upshot: 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)”. Indeed, as PERC explained in an amicus brief, many of the projects challenged under NEPA seek to restore forests, maintain or establish wildlife habitat, or to promote water conservation.
In a welcome change of direction, the Supreme Court reversed this trend, reaffirming two simple principles:
- First, NEPA is “a procedural cross-check, not a substantive roadblock” for projects. It ensures environmental impacts are considered, but shouldn’t be weaponized simply to derail projects.
- Second, agencies, not courts, decide what indirect environmental impacts to analyze. In other words, agencies have the knowledge and discretion necessary to determine which environmental effects are reasonable and relevant to consider within the context of the project being considered.
This closely mirrors the arguments made in PERC’s brief. To be clear, our concern is not with the fate of this particular railroad, but rather with what precedent this ruling will set for other, beneficial environmental projects going forward.
The Supreme Court’s decision sets an important precedent that, by streamlining the environmental review process, will empower federal agencies to advance critical conservation projects.
