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The Supreme Court just gave America’s infrastructure builders their biggest procedural victory in a generation, potentially cutting years off infrastructure project construction and lowering its costs. In Seven County Infrastructure Coalition v. Eagle County—the first substantive National Environmental Policy Act (NEPA) ruling in twenty years—the Court, in a unanimous opinion by Justice Brett Kavanaugh, essentially told lower courts to stop behaving like environmental planning agencies.

The Court’s decision could significantly reduce the burdens—and the litigation target area—on agency environmental reviews under NEPA, significantly accelerating the permitting slog that strangles pipelines, rail spurs, transmission lines, and clean-energy projects. But lower courts could decide “not much to see here” and carry on with business as usual.

At issue in Seven County was an 88-mile rail line in Utah’s Uinta Basin. The Surface Transportation Board (STB) approved the project, but the DC Circuit vacated the decision, insisting that NEPA required the agency to assess the environmental impact of greenhouse-gas emissions from oil refining on the Gulf Coast and other impacts “separate in time and place” from those of the rail spur itself. The Supreme Court reversed 8-0, with Justice Gorsuch recused.

A Historic Decision?

Lower courts could seize on key language in the decision to significantly curtail and clarify exactly what an agency needs to worry about in conducting a NEPA review. Justice Kavanaugh’s opinion rested on two principles:

  • Real deference where deference belongs. Justice Kavanaugh reiterated that courts must give “substantial deference” to an agency’s technical and policy judgments. Of course, that is a mantra that federal courts faithfully repeat whenever they are about to do exactly the opposite. But Justice Kavanaugh made clear that the Supreme Court really means it this time. He wrote that an agency’s judgments about what environmental effects to study, which alternatives to consider, and how much detail to study them in, are factual questions the courts should not second-guess. A year after limiting judicial deference to agencies interpretations of law in Loper Bright, the Supreme Court is now showing courts where deference is valid and, indeed, required.
  • A limiting principle on the downstream/upstream effects that must be studied under NEPA. According to Justice Kavanaugh, NEPA does not compel agencies to chase every speculative ripple effect. Consequences of projects that are “separate in time and place” need not be folded into the environmental impact statement, notwithstanding the traditional scope of “indirect effects.” In plain English: a Utah rail spur isn’t on the hook for emissions from a Louisiana refinery.

The first of these principles may be extremely impactful in the years ahead. The main driver of the inordinate amount of work that goes into every NEPA review is litigation risk. Agencies have no firm idea what the law requires and often don’t find out until they are in court. This is perhaps the biggest problem in NEPA practice. By clarifying that courts should not be micromanaging technical aspects of the process, Seven County Infrastructure has real potential to take significant pressure off agencies and make the environmental impact review process more straightforward, predictable, and timely.

The second aspect of the Court’s decision is significantly less satisfying. There has long been a need for some clear limiting principle on what downstream and upstream impacts agencies need to study. It may be intuitively obvious that agencies with no jurisdiction over or expertise on climate impacts should not be required to study climate impacts as part of a NEPA review for an action unrelated to climate. But courts have increasingly imposed such requirements because NEPA doesn’t distinguish between direct and indirect effects. The Court’s holding here creates a carveout for impacts of “other projects” removed in time and place from the impact of the project at hand. But that still seems to leave impacts that are equally distant, with equally attenuated causal link to the federal action, within the impacts that must be studied under NEPA where there is no intervening “project.” That seems wrong in principle, as NEPA offers no basis for distinguishing between foreseeable downstream indirect impacts where there are other projects in the causal chain and downstream indirect impacts where there are no such projects.

As Richard Epstein, James Coleman, and I argued in our amicus brief in this case, the strongest limiting principle on impacts that must be studied under NEPA is not in NEPA, but rather in the Administrative Procedure Act. Under Section 706 of the APA, arbitrary and capricious review requires courts to defer to agencies on technical and policy matters within their jurisdiction and area of expertise. The corollary is that, as the Court said in West Virginia v. EPA, “When the agency has no comparative expertise in making certain policy judgments . . . Congress presumably would not task it with doing so.” And indeed, when agencies do venture into territory outside their jurisdiction and expertise, they risk running afoul of the arbitrary and capricious standard. Courts hold agency actions to be arbitrary and capricious where, among other things, “the agency has relied on factors which Congress has not intended it to consider. And NEPA must be enforced consistent with the APA.

Hence, the best resolution with respect to the second ground for the Court’s decision should have followed from the first: The DC Circuit should have deferred to the STB on matters within its jurisdiction and expertise rather than requiring it to carefully study a bunch of things outside its jurisdiction and expertise (which the agency could not expect deference on). But by couching the limiting principle in terms of the impacts of “other projects,” the Court has introduced a limiting principle that may not create a fully “manageable line” between the effects that must be studied and those which need not be.

Or Maybe Not?

Justice Sotomayor’s concurrence articulates the “nothing to see here” view for federal courts hoping to stick with NEPA business as usual. Justice Sotomayor observes that the STB’s statutory remit—deciding the “public convenience and necessity” of the rail line—does not include downstream greenhouse gas emissions or upstream oil development outside of its statutory jurisdiction. She says that the holding “follows inescapably” from the Court’s prior decisions. She argues that this was a sufficient basis for the Court’s ruling and that the Court should have gone no further than that.

Deference to Agency Technical Judgments: Back from the Dead?

Only a year after Loper Bright buried Chevron deference to agencies on questions of law, Seven County Infrastructure could restore robust deference on questions of fact, science, and policy. It accords with our separation of powers system to say that courts decide what statutes mean, but agencies take the lead (and therefore courts defer) on technical and policy judgments—things like, how much groundwater modeling or traffic analysis is “enough”? Indeed, the two decisions could be seen as opposite sides of the same coin: The restoration of the Administrative Procedure Act’s Section 706 deference doctrines to Congress’s original intention. That clearer division should shrink NEPA’s litigation “target area.”

Sabal Trail: On Life Support?

Though it doesn’t figure prominently in either the majority opinion or the concurrence, one potentially significant casualty of Seven County Infrastructure is the DC Circuit’s 2017 Sabal Trail decision, in which a Federal Energy Regulatory Commission (FERC) permit for a natural gas pipeline in Florida was vacated for not sufficiently estimating the greenhouse gas emissions of the downstream power plant that would be off-taking from the pipeline for power generation, an operation entirely subject to state regulators. That ruling ignited a litigation cottage industry: every pipeline, road, or mine was fair game for claims about distant, speculative climate harm. Seven County Infrastructure invites sponsors of energy and infrastructure projects to argue that Sabal Trail is effectively dead.

CEQ’s NEPA Regulation: Dead and Buried?

One curiosity: the opinion never cites the Council on Environmental Quality’s NEPA regulations. That silence speaks volumes. The Carter-era rulebook—rescinded by a Trump executive order—had popularized bloated concepts like “cumulative impacts” and “connected actions.” By treating those rules as non-binding guidance and flatly stating that NEPA doesn’t require the study of impacts of projects further in time and place from the project at hand, notwithstanding anybody’s definition of “indirect effects,” the Court arms the current administration’s effort to replace them with faster, agency-specific procedures.

What Happens Next?

Seven County Infrastructure is not a silver bullet. Plaintiffs will still sue, alleging overlooked “reasonably foreseeable” effects. Some lower courts will test the limits of Kavanaugh’s “manageable line.” And environmental groups will press agencies to expand their own reviews voluntarily.

But for project sponsors, two strategic moves now make sense:

  • Tie Scope to Statute. Show why distant climate or social-justice impacts fall outside the agency’s statutory purpose—and outside its expertise. The Court has signaled it will back that argument.
  • Lean on the Record. Document why additional studies would not change the agency’s decision. Under Seven County Infrastructure, courts cannot second-guess methodological calls that the record shows were considered—and reasonably declined.

A Win for Energy—and for the Environment

Streamlining NEPA isn’t a giveaway to industry; it’s a win for rational energy and environment policy. NEPA litigation adds an average of 4.5 years to major projects before a single shovel hits dirt. By curbing judicial micromanagement, the Court has cleared a path for both economic growth and cleaner energy.

The real test is cultural: will district judges respect the high Court’s admonition or lapse into old habits? If they heed the message—defer, don’t dictate—NEPA can finally return to what Congress intended: an informative disclosure tool, not a weapon of mass obstruction.