The U.S. Supreme Court on Thursday severely limited the scope of the nation’s most important environmental law.
For more than 50 years, the National Environmental Policy Act, or NEPA, has required federal agencies to analyze the potential environmental harms of a proposed project, engage with communities that could be affected, and disclose those potential harms to the public before approval. It also gave the public legal recourse to sue federal agencies if they overlooked important environmental harms.
Thursday’s ruling relieves federal agencies of the obligation to review all foreseeable environmental harms and grants them more leeway to decide what potential environmental harms to analyze, despite what communities may think is important. It tells agencies that they can ignore certain foreseeable impacts just because they are too remote in time or space. And even if the agency makes the wrong call about how to draw that line, the court has now said that the agency gets deference.
The vote was eight to zero with Justice Neil Gorsuch recusing himself. The court’s liberal justices concurred but said an earlier court ruling, which held that agencies don’t have to study environmental effects they have no control over, would have resolved the case.
The case being ruled on was about the approval of a new 88-mile rail line in Utah that would be used to transport crude oil from Uinta to market, which is often to Gulf Coast refineries.
Environmental groups challenged the NEPA review by the Surface Transportation Board. They said the board should have considered “downstream” effects, including how much the new line would likely increase Uinta oil production, and “upstream” effects, including how the refinement’s emissions would impact Gulf Coast residents.
In a ruling by the D.C. Circuit Court of Appeals, it agreed with the environmental groups, saying the board should have considered those impacts and other environmental factors such as more possible risks of oil train derailment and spills.
The Supreme Court disagreed.
The opinion written by Justice Brent Kavanaugh sounds more like a policy statement from Congress than a judicial ruling. Among Kavanaugh’s statements are:
- 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) to try to stop or at least slow down new infrastructure and construction projects. Some project opponents have invoked NEPA and sought to enlist the courts in blocking or delaying even those projects that otherwise comply with all relevant substantive environmental laws. Indeed, certain project opponents have relied on NEPA to fight even clean-energy projects – from wind farms to hydroelectric dams, from solar farms to geothermal wells.
- 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.
- All of that has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation. Delay upon delay, so much so that the process sometimes seems to “borde[r] on the Kafkaesque.”
Environmental groups say the Supreme Court’s ruling will be devastating to environmental protection throughout the United States.
“Today’s decision undermines decades of legal precedent that told federal agencies to look before they leap when approving projects that could harm communities and the environment,” Sam Sankar, Earthjustice senior vice president of programs, said in a statement. “The Trump administration will treat this decision as an invitation to ignore environmental concerns as it tries to promote fossil fuels, kill off renewable energy, and destroy sensible pollution regulations.”
The ruling means the federal agency responsible for approving the railway can ignore the risks of increased oil extraction in the basin and the potential harm from refining to gulf communities in Texas and Louisiana, Sankar said, adding, even if these harms are inevitable, communities and courts have no power to compel the agency to consider them.
He said the court’s decision comes along with broader confusion about how government agencies will assess future projects. In February, the Trump administration rescinded NEPA regulations dating to the President Carter-era, setting the process for project approvals back half a century.
In addition, the Trump administration – with help from Elon Musk’s “Department of Government Efficiency” – has gutted the agencies responsible for analyzing the harm industry projects could cause to the environment and communities.
“The appeals court had ruled that the federal agency that approved the railway failed in its obligations to consider the regional consequences of massively increased oil extraction on the Uinta Basin, the increased air pollution for the communities in Texas and Louisiana where the oil would be refined, and the global climate consequences,” said Brian Moench, M.D., president of Utah Physicians for a Healthy Environment.
“The Supreme Court’s ruling will allow all these consequences to unfold without meaningful restraint,” Moench said. “This court has made a name for itself making rulings that mock science and common sense and fail to protect the common good. This unfortunate ruling fits that same pattern.”
The Supreme Court’s decision is a devastating loss for the nation’s wild places, wild rivers, and all of the human and non-human communities that depend on a clean environment and stable climate, said Katherine Merlin, staff attorney for WildEarth Guardians.
“The government has an obligation to ‘look before it leaps’ when it comes to major federal actions,” Merlin said. “At heart, the law says we have to take a hard look at reasonably foreseeable consequences – and that law has recently been under increasing attack as business interests try to sacrifice our country’s irreplaceable natural treasures.”
She said the Supreme Court’s NEPA decision is another step toward returning the U.S. legal system to the early 20th century, when the rampant and heedless destruction of entire ecosystems and species happened without much notice.
