By Kennedy Maize
In his 1841 essay “Self-Reliance,” American Trancendentalist philosopher Ralph Waldo Emerson wrote, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”
That seems to be the working credo of the current U.S. Supreme Court, at least when it comes to the National Environmental Policy Act. Or, more currently, giving a jurisprudential twist to a famous phrase from John Ford’s iconic 1948 movie Treasure of the Sierra Madre, “Precedents? We ain’t got no precedents. We don’t need no precedents! We don’t have to show you any stinkin’ precedents!”
In a case involving an 88-mile rail extension in Utah, the court in an 8-0 decision overturned a D.C. Circuit Court of Appeals ruling, saying the court should have given deference to the federal agency – the independent Surface Transportation Board – that in 2021 ruled in favor of a rail line to move heavy crude oil from the Uinta Basin in the Colorado Plateau to the main rail line and then to Gulf (of Mexico) Coast refineries.
The case is Seven County Infrastructure Coalition v. Eagle County Colorado.
Seven Utah counties and environment groups including the Center for Biological Diversity appealed to the D.C. appeals court, arguing that the surface board’s environmental impact statement (EIS) and decision failed to consider up-stream and down-stream environmental impacts. That made it invalid under the terms of the National Environmental Policy Act. The appeals court overturned the transportation board in August 2023, finding “numerous NEPA violations arising from the EIS.”
The federal board took the appeals court decision to the Supreme Court. The high court, in a May 29 opinion written by Justice Brett Kavanaugh, overturned the D.C. court. The decision severely limits the reach of the 1969 National Environmental Policy Act.
At the same time, the court also revived the basis of the 1984 Chevron doctrine, calling for courts to give deference to the expertise of federal agencies, which the court overturned last summer in Loper Bright Enterprises v. Raimondo. Justice Neil Gorsuch wrote the majority opinion in the 6-3 Loper decision. A native Coloradan, Gorsuch did not participate in the Seven Counties case.
Kavanaugh wrote, “Simply stated, 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.” He said that the D.C. circuit did not afford the surface board “the substantial judicial deference required in NEPA cases.”
In the 1984 Chevron case, a conservative Supreme Court ruled that a 1981 decision by the Reagan administration’s Environmental Protection Agency narrowing a key definition of an air pollution “source,” which benefitted the major oil company. Courts should not try to second guess the administrative agencies. Among the strongest supporters of the ruling was Justice Clarence Thomas.
Last year, the court reversed the 40-year precedent, ruling that the guiding principle in deciding these types of cases was not deference to agency expertise but the legal guidance of the Administrative Procedures Act. Among the strongest supports of the ruling was Justice Clarence Thomas.
Now deference is back. Kavanaugh wrote, “The agency is better equipped to assess what facts are relevant to the agency’s own decision than a court is.” He found, “Under NEPA, the Board’s EIS did not need to address the environmental effects of upstream oil drilling or downstream oil refining. Rather, it needed to address only the effects of the 88-mile railroad line. And the Board’s EIS did so.”
Echoing much conservative business opinion of NEPA, Kavanaugh described many of the decisions interpreting the act as “Kafkaesque.” He commented that NEPA litigation 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….”
A concurring opinion written by Justice Sonia Sotomayor joined by Justices Elena Kagan, and Kentaji Brown Jackson argued for a narrower reason to overturn the appeals court. “I agree with the Court that the Surface Transportation Board would not be responsible for the harms caused by the oil industry, even though the railway it approved would deliver oil to refineries and spur drilling in the Uinta Basin,” Sotomayor wrote.
“I reach that conclusion because, under its organic statute, the Board had no authority to reject petitioners’ application on account of the harms third parties would cause with products transported on the proposed railway. The majority takes a different path, unnecessarily grounding its analysis largely in matters of policy.”
Commenting on the case, three attorneys from the D.C. law firm Hogan Lovells commented, “The upshot is that NEPA challenges will be harder to win than ever before. But whether and how the court will step in if the courts of appeals continue to throw NEPA roadblocks in front of projects remains to be seen.”
The thread that emerges from these cases, and others, is that the court follows the money. When interpreting an environmental law supports wealthy business interests, it can stand. When it doesn’t, the court will find a way to ignore it.
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