On May 29, 2025, the United States Supreme Court issued an 8-0 opinion in Seven County Infrastructure Coalition, et al. v. Eagle County, Colorado, et al. that affirmed agency deference in review of environmental documents prepared under the National Environmental Policy Act (NEPA).[1] This important decision will bring much-needed certainty for project developers and financing agencies that should reduce permitting obstacles resulting in greater time and cost savings to developers.
In approving an 88-mile railroad line in northeastern Utah, the Surface Transportation Board prepared a comprehensive Environmental Impact Statement (EIS) consisting of more than 3,600 pages and analyzing impacts to local wetlands, land use, and recreation. The EIS declined to analyze the potential effects of upstream oil and gas drilling or downstream oil refining as outside the Surface Transportation Board’s jurisdiction. On appeal, the D.C. Circuit vacated the approval of the railroad line, finding that the Surface Transportation Board failed to take the requisite “hard look” at all of the environmental impacts of the railway line as it impermissibly limited its analysis of upstream and downstream projects.[2]
The Supreme Court reversed the judgment of the D.C. Circuit and held that the Surface Transportation Board appropriately reviewed the environmental effects of the proposed railroad line under NEPA. The Court affirmed a number of important aspects of judicial review under NEPA:
- NEPA is a procedural statute and simply prescribes the necessary process for an agency’s environmental review of a project;
- Under NEPA, an agency’s only obligation is to prepare an adequate report and NEPA imposes no substantive constraints on the agency’s ultimate decision to approve a project;
- A court’s review must be at its “most deferential” when reviewing the sufficiency of an agency’s analysis of project alternatives and environmental impacts; and
- Agencies retain discretion to determine where to draw the line with respect to indirect impacts.
In recent years, courts have “strayed and not applied NEPA with the level of deference demanded by the statutory text” and have “engaged in overly intrusive (and unpredictable) review in NEPA cases.”[3] The Court correctly notes that these court decisions “have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.”[4]
Energy infrastructure project developers have long faced substantial uncertainty with respect to court review of agency NEPA actions. Project costs have skyrocketed as opponents have weaponized NEPA to block the development of essential energy infrastructure. Today’s Supreme Court decision is a welcome and overdue affirmation of agency discretion.
Footnotes
[1] Seven Cty. Infrastructure Coalition, et al. v. Eagle Cty., Co., et al., No. 23-975 (May 29, 2025).
[2] Eagle Cty. v. Surface Transp. Bd., 82 F.4th 1152, 1196 (2023).
[3] Opinion at 12.
[4] Id.