Michael Francis O’Donovan | Seven County Infrastructure Coalition v. Eagle County
INTRODUCTION
The National Environmental Policy Act (“NEPA”) requires agencies to analyze the environmental effects of proposed actions, such as infrastructure development, and incorporate those impacts in a detailed statement accompanying their proposal. NEPA stipulates that direct and indirect environmental effects must be included in this statement, defining indirect effects as those “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. §1508.1(i)(2).
In 2022, despite concerns over environmental impacts, the Surface Transportation Board approved the development and operation of the Uinta Basin Railway, an 88-mile railway connecting isolated, oil-rich areas of Utah and Colorado to the national rail network. The approval of this project was expedited by reliance on Department of Transportation v. Public Citizen, in which the Supreme Court held that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” 541 U.S. 752, 770 (2004). Under this rule, the Surface Transportation Board narrowed the scope of its environmental review for the Uinta Basin Railway excluding consideration of environmental effects caused by increased oil production, which the project would facilitate and depend on for success.
However, the D.C. Circuit found the Public Citizen argument was inapplicable, stating that the Surface Transportation Board has the authority to prevent the environmental effects of increased oil production by denying the project if such effects are deemed to exceed the potential benefits. This decision holds the statute’s reasonable foreseeability standard above the statutory authority condition set forth in Public Citizen.
In response, the Seven County Infrastructure Coalition, sponsor of the Uinta Basin Railway and petitioner, asserts that the D.C. Circuit’s application of Public Citizen conflicts with other circuits. It argues that the Third, Fourth, Sixth, Seventh, and Eleventh Circuits have allowed agencies to use the ruling to cabin NEPA review within a more proximate purview of their regulatory authority. The Supreme Court will have to compare the line it drew in Public Citizen with the lines agencies have been drawing and state more clearly the expectations of agencies under NEPA.
ISSUE PRESENTED
Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.
THE ARGUMENTS
Circuits are divided on how to interpret the Supreme Court’s decision in Department of Transportation v. Public Citizen, which addressed whether the Federal Motor Carrier Safety Administration (“FMCSA”) was required under NEPA to assess the environmental impact of increased Mexican truck traffic in the United States. Although FMCSA was required to issue safety regulations for Mexican motor carriers, the authority to permit their entry rested with the President of the United States. Therefore, the Court found that “because FMCSA ha[d] no discretion to prevent the entry of Mexican trucks, its [environmental assessment] did not need to consider the environmental effects arising from the entry.” Public Citizen, 541 U.S. at 770.
Seventh and Third Circuits: Narrow Environmental Review
Accordingly, the Seventh Circuit authorized a narrower scope for the National Park Service’s evaluation of the environmental effects of the new Obama Presidential Center in Chicago. See Protect Our Parks v. Buttigieg, 39 F.4th 389 (7th Cir. 2022). Because the National Park Service lacked authority over site selection for the project, the agency was not required to assess the environmental effects of building in the chosen park as opposed to an alternative nearby park. The court went further, stating, “Federal law does not require agencies to waste time and resources evaluating environmental effects that those agencies neither caused nor have the authority to change.” Id. at 393.
Similarly, the Third Circuit held that the Nuclear Regulatory Commission was not required to assess the environmental impact of an aerial attack on a nuclear power plant because it “had no authority over the airspace above its facilities.” These decisions are hardly controversial, but the petitioner includes them to show how courts have narrowed environmental assessments for agencies other than the U.S. Army Corps of Engineers.
D.C. and Ninth Circuits: Broad Environmental Review
Though presented as the minority in this split, over 65% of NEPA cases since 2006 have gone before the D.C. Circuit and Ninth Circuit Courts of Appeals. See Nat’l Ass’n of Env’t Professionals, 2022 Annual NEPA Report 26 (July 2022). These circuits have interpreted Public Citizen under a strict reading of NEPA’s reasonable foreseeability standard, preventing agencies from using the decision to circumvent statutory requirements.
In Sierra Club v. FERC (Sabal Trail), the D.C. Circuit held that the Federal Energy Regulatory Commission (“FERC”) could not approve new natural gas pipelines without conducting an environmental review of the impacts from burning the gas that would be transported through those pipelines. 867 F.3d 1357 (D.C. Cir. 2017). The court found such a consequence “reasonably foreseeable” under NEPA. This decision was contrasted with three prior hearings involving NEPA claims against FERC, where the court held that FERC was not required to broaden its evaluation of the effects of exporting natural gas when licensing upgrades for terminals through which those exports would occur. Id. at 1372.
According to the D.C. Circuit, the key difference in Sabal Trail is that FERC’s action directly controlled the environmental effect in question. Citing Public Citizen, the D.C. Circuit stated that “an agency has no obligation to gather or consider environmental information if it has no statutory authority to act on that information.” Id.
The Ninth Circuit applied Sabal Trail to the Bureau of Ocean Energy Management’s approval of an offshore drilling project that failed to assess the environmental effects of foreign oil consumption fully. The court held that the Bureau had the authority to act on the missing information by approving an alternative or denying the project. See Center for Biological Diversity v. Bernhardt, 982 F.3d 723, 740 (9th Cir. 2020). The court’s opinion did not directly address the relevance of Public Citizen.
Fourth and Sixth Circuits: Narrow Environmental Review for Corp of Engineers
In Ohio Valley Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), the Corps of Engineers issued permits allowing the filling of streams by coal mining operations, limiting NEPA assessment to exclude effects on upland areas. The Fourth Circuit held that “activity beyond the filling of jurisdictional waters is not within the Corps’ ‘control and responsibility.’” Id. at 197. The upland areas were instead under the regulatory authority of the West Virginia state government.
In a similar case against the Corps of Engineers involving surface mining, the Sixth Circuit also ruled in favor of the Corps, stating, “The restriction of the Corps’s scope of analysis is consistent with the congressional policy to give to state governments the primary responsibility to regulate overall surface mining operations.” Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698, 709 (6th Cir. 2014).
Eleventh Circuit: Opposition to D.C. Circuit
In Ctr. for Biological Diversity v. U.S. Army Corps of Eng’rs, 941 F.3d 1288 (11th Cir. 2019), another surface mining Corps of Engineers case, the Eleventh Circuit held that the Corps was within the scope of its regulatory authority in not evaluating environmental effects of the phosphate refinement process.
However, unlike in West Virginia and Kentucky, in Florida, “there is no comprehensive scheme of state regulation that would remove the Corps’ power to consider broad environmental effects of phosphate [refinement].” Id. at 1313. Instead, the court relies on Public Citizen to support its holding, and, in doing so, expressly rejects the D.C. Circuit’s interpretation in Sabal Trail. In clarifying its reasoning, the opinion distinguishes Sabal Trail, noting that, unlike FERC, “the Corps has no broad statutory authority to deny a [] permit based on the public convenience and necessity of the operation…” Id. at 1300. It further describes the D.C. Circuit’s decision as “questionable at best,” with an improper reading of Public Citizen that leads to “untenable consequences.” Id. Moreover, the petitioner in the instant case emphasizes the stark opposition presented by the Center for Biological Diversity, and indeed, it is evident of a substantial inconsistency that merits Supreme Court review.
LOOKING FORWARD
The Supreme Court’s ruling on this case may significantly impact the future of American infrastructure development. Whatever the holding, it is likely to be contentious, given the highly political nature of the issue and the strong opinions surrounding the relationship between environmental protection and economic progress. The White House Council on Environmental Quality has also been in flux on this issue between presidencies, first amending NEPA by codifying Public Citizen’s “scope of regulatory authority” condition, then reversing that change, citing concerns that it could undermine agencies’ “discretion to determine the appropriate scope of analysis or result in agencies making less informed decisions contrary to NEPA’s stated goals.” 86 Fed. Reg. 55757, 55766 (Oct. 7, 2021).
This ongoing regulatory uncertainty makes a new Supreme Court ruling even more necessary. Even with Public Citizen, agencies have struggled to determine the appropriate scope of their environmental impact statements, and with new legislation reinstating a reasonable foreseeability standard, those boundaries have become even more nebulous. Regardless of the Court’s decision, perhaps the most important outcome of this case will be the much-needed clarity it could provide.
