SCOTUS reins in use of federal law to delay projects By EPN Staff A recent U.S. Supreme Court decision may boost energy and other infrastructure projects by reining in government application of – and lawsuits over – the National Environmental Policy Act (NEPA). Court justices were unanimous in their bottom line in the case, ordering lower courts to pay more deference to government agencies when environmental groups and others sue and claim that the agency didn’t take a close enough look at a project’s environmental impact. The court also said NEPA doesn’t require reviews to consider the environmental impacts of “upstream and downstream” projects that may follow major infrastructure construction. In this case, the court said there was no need to consider the environmental impacts of increased oil drilling near the Utah-Colorado border, which are likely to result from construction of the rail line at issue in the case. “When the effects of an agency action arise from a separate project – for example, a possible future project or one that is geographically distinct from the project at hand – NEPA does not require the agency to evaluate the effects of that separate project,” Justice Brett Kavanaugh wrote for the majority in the case. Why it matters Lengthy delays have become the norm for major infrastructure projects, and particularly for energy projects. Across the U.S., a significant reason for that is due to lawsuits and lengthy reviews under NEPA. The high court’s decision here removes that roadblock, but the justices noted in their opinions that other state, local and federal laws still impose environmental obligations. Legal analysts see the decision as a significant win for infrastructure developers, but not necessarily a game changer. “Agencies may feel confident embracing a much briefer review not only as a result of the opinion’s explicit limits on consideration of indirect effects but also because greater court deference may reduce agencies’ fears of litigation risks,” Eno Center for Transportation Vice President of Policy Rebecca Higgins wrote in one analysis. “It is all but certain that climate effects will receive less discussion,” she wrote. “On the other hand, the ruling leaves a good number of questions unanswered.” The bigger picture The ruling boosts a rail project to carry crude oil and other freight from the Uinta Basin near the Colorado/Utah border and connect the area to the national freight network. A D.C. Circuit Court ruling in the case had ordered more expansive reviews before the 88-mile rail project could move forward. The Supreme Court ruling casts that aside and restores “critical momentum to one of the most significant infrastructure projects in the country,” the Seven County Infrastructure Coalition – the group behind the rail project – said in a statement. The decision should speed up other projects, too, as lower courts absorb the precedent. “Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness,” Kavanaugh wrote in the majority opinion. Additional details The decision was unanimous but split into two opinions that agreed on the bottom line. Kavanaugh wrote for the court’s more conservative justices and Justice Sonia Sotomayor wrote for the more liberal members. Justice Neil Gorsuch recused himself from the case after some public pressure over his ties to a Colorado oil billionaire who may benefit from the ruling. The case, Seven County Infrastructure Coalition v. Eagle County was argued in December. The decision was announced May 29.
