“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.” Justice Kavanah’s words in the Supreme Court’s majority opinion in Seven County Infrastructure Coalition v. Eagle County are an apt description of what the National Environmental Policy Act (NEPA) has become. Indeed, a law that was once simple and easy has made any infrastructure development crawl at a snail’s pace.
NEPA is a purely procedural statute that only requires agencies to prepare an environmental impact statement (or an assessment) before approving a project or commencing with a project. The law’s text requires nothing further. All a government agency has to do is create a “detailed” study.
But over the years, federal courts have reviewed NEPA cases. And reviewed them some more. Over the decades, some courts’ aggressive review of NEPA has created an arduous, seemingly impossible task of compliance. “Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer [environmental studies] for future projects.”
The study at issue in Eagle County was 3,600 pages long. Yet, the D.C. Circuit still determined that the study was not comprehensive enough. The study involved the effects of an 88-mile railroad extension that would help connect oil reserves in rural Utah to the open market. Yet the D.C. Circuit chastised the U.S. Surface Transportation Board, which conducted the study, for not considering the effects on refining oil in Texas and Louisiana. The judicial oak required a seemingly limitless reach of studies, just to build a small railroad extension.
This is the system we have all become accustomed to, sadly. If a project is proposed, we all assume it will take years to come to fruition, if ever. Companies spend considerable resources just to get a go-ahead. And even further, the go-ahead may be paused when an environmental activist sues, asking the court to require even more hurdles. Some project managers may give up hope and not even try, understandably.
But perhaps this arduous system is no more. The controlling opinion established two common-sense principles for NEPA. First is deference. Courts are not to take the place of a government agency in determining what factors are required to author a detailed decision. Justice Kavanagh is careful to stress this in several sentences of the opinion:
[T]he question of whether a particular report is detailed enough in a particular case itself requires the exercise of agency discretion — which should not be excessively second-guessed by a court …. Brevity should not be mistaken for lack of detail …. An EIS need not meander on for hundreds or thousands of pages …. So long as the [study] addresses environmental effects from the project at issue, courts should defer to the agencies’ decisions about where to draw the line.
This is significant! Not only can courts not enter their own make-believe, extra-statutory rules, but agencies will no longer feel compelled to author excessively long studies that take years on end to complete.
Another good result of this opinion is that it takes one of the biggest tools out of the toolkit for environmental activists. No longer can they sue over made-up rules and convince courts to lay roadblocks to projects. Lawsuits will be less effective.
Second, the controlling opinion makes clear that the statute does not require agencies to consider every possible effect of the project. The “mandated focus of NEPA is the ‘proposed action’ — not other future or geographically separate projects that may be built … as a result of or in the wake of the immediate project under consideration.”
This, too, is significant! Now, agencies do not have to spend extraordinary amounts of time and effort determining every possible thing that could happen if a project were to happen. Again, this should shorten the process.
Nitpicking NEPA has cost the taxpayers a fortune. It has slowed down needed projects. It does not do good for the American public. Only those who wish to harass the “doers” enjoyed this system. But the harassment litigation system, hopefully, is no more. It is cause to celebrate.
Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.
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