June 10, 2025
Seven County Infrastructure Coalition et al. v. Eagle County, Colorado, 605 U.S. ____ (2025) (Kavanaugh, J.)
Response by Robert L. Glicksman
Geo. Wash. L. Rev. On the Docket (Oct. Term 2024)
Slip Opinion | SCOTUSblog
Seven County Infrastructure Coalition v. Eagle County: All of a Sudden, Sweeping Deference to Federal Agencies is a “Bedrock Principle”
Two different Supreme Court propensities met head on in Seven County Infrastructure Coalition v. Eagle County, Colorado.1 The first is the Roberts Court’s increasingly apparent antagonism toward the administrative state,2 reflected, for example, in the Court’s disavowal of Chevron3 deference in Loper Bright Enterprises v. Raimondo4 and its reliance on the major questions doctrine to narrow the scope of agency statutory authority.5 The second is the Court’s unblemished record of interpreting narrowly the scope of the obligations imposed on federal agencies by the National Environmental Policy Act (“NEPA”).6 In Seven County, the Court’s hostility to recognition of broad agency regulatory or management authority yielded to its persistent antipathy to NEPA. The Court added to its unbroken string of victories for federal agencies in NEPA cases by providing a resounding endorsement of judicial deference to agency implementation of the statute even when statutory violations have occurred.
Congress adopted NEPA in 1970, kicking off a decade in which the federal government’s role in protecting the environment grew steadily.7 NEPA’s purposes include “promot[ing] efforts which will prevent or eliminate damage to the environment and biosphere and stimulat[ing] the health and welfare of man.”8 Congress declared a continuing national policy of the federal government to “use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony.”9 NEPA makes it the continuing responsibility of the federal government to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”10 NEPA was designed, in short “to force agencies to consider in advance the potential environmental impacts of (and alternatives to) their actions and to disclose the information they acquire in the course of conducting that inquiry to help foster public input into government decisionmaking processes,” thereby promoting good government and democratic decisionmaking.11
NEPA’s key operative provision is § 102(2)(C), which requires every federal agency to prepare a “detailed statement” (called an environmental impact statement, or EIS) whenever it proposes to take a “major Federal action[ ] significantly affecting the quality of the human environment.”12 The EIS must analyze the “reasonably foreseeable environmental effects of the proposed agency action,” the unavoidable and reasonably foreseeable adverse environmental effects if the proposal is implemented, and a reasonable range of technically feasible alternatives and their environmental impacts.13
The issue in Seven County involved the scope of the environmental impacts that agencies must explore in an EIS. Seven Utah counties proposed the construction and operation of an approximately eighty-eight-mile railroad line in northeastern Utah that would facilitate the transportation of crude oil from Utah to oil refineries in other states.14 The U.S. Surface Transportation Board (“STB”) has the statutory authority to decide whether to approve construction of new railroad lines. STB prepared an EIS of more than 3,600 pages that addressed the railroad line’s environmental effects. The EIS analyzed the extent to which the new line could disrupt the habitat of protected species, the rail embankments could cause soil erosion, or trains on the new line could pollute the air. It acknowledged that STB’s approval of the line could lead to increased upstream oil drilling in Utah and downstream oil refining along the Gulf Coast, all of which would generate greenhouse gas emissions that contribute to climate change, but it did not discuss those potential impacts in detail. The Court of Appeals for the District of Columbia Circuit held that STB’s failure to analyze these upstream and downstream effects in more depth violated NEPA,15 but the Supreme Court reversed.
Justice Kavanaugh, joined by four other Justices,16 criticized the D.C. Circuit’s opinion on two grounds. First, the D.C. Circuit failed to afford STB the “substantial deference required in NEPA cases.”17 The issue was how far STB was required to go in analyzing the “indirect effects” of approving the rail line. Indirect effects are those that occur outside of the immediate project area or that would result from “other future or geographically separate projects that may be initiated (or expanded) as a result of or in the wake of the current project.”18 NEPA requires a “detailed statement,” and Justice Kavanaugh admitted that the meaning of “detailed” is a question of law to be decided by a court exercising independent judgment. He added, however, that the nature of the details that need to be included in a given EIS involves “primarily issues of fact,” which agencies are better equipped to resolve than courts.19 Determining how much detail is enough also involves the exercise of delegated discretion, “which should not be excessively second-guessed by courts.”20 The D.C. Circuit failed to respect STB’s factual findings and policy determinations.
Second, the D.C. Circuit erroneously required STB to address environmental effects “that are separate in time or place from the 88-mile railroad project at hand—that is, effects from potential future projects or from geographically separate projects.”21 NEPA requires an EIS to discuss the “reasonably foreseeable environmental effects of the proposed agency action.”22 The increased upstream oil drilling and downstream refining that might result from the new rail line’s facilitated transportation of crude oil from Utah to the Gulf Coast were activities separate from the proposed action, STB’s approval of the line. Contrary to the D.C. Circuit’s holding, STB therefore had no duty to include discussion of the effects of those activities in its EIS. The causal chain between the proposed action and those effects was “too attenuated” to require their coverage.23
In addition, STB had no regulatory authority over those separate projects. The Court quoted from one of its prior NEPA cases a statement that it labeled “one of the more important sentences in the NEPA canon”: “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.”24 STB approves rail lines, but lacks regulatory authority over oil drilling, oil wells, oil and gas leases, or oil refineries.25
Certain aspects of the Court’s decision are neither surprising nor novel. The Supreme Court had already decided in previous cases that effects with attenuated causal linkages to a proposed action may legitimately be excluded from an EIS.26 It had also held that the effects of activities outside the statutory authority of the preparing agency need not be considered.27 Justice Sotomayor, joined by Justices Kagan and Jackson, concurring in the judgment only, agreed that those issues were settled.28 Moreover, the majority noted that “other projects may be interrelated and close in time and place to the project at hand—a residential development next door to and built at the same time as a ski resort, for example.”29 The effects of those activities might warrant discussion in an EIS. So Seven County does not hold that agencies may always ignore indirect effects.30
Nevertheless, the majority’s analysis is troublesome. Seven County makes clear that agencies need not include in an EIS the effects of projects other than the relevant proposal. But agencies have a history of artificially carving up “proposals” into a series of smaller projects so that no single proposal clears the threshold of significance that triggers the duty to prepare an EIS. This strategy gives rise to what is known as the “segmentation problem.”31 The courts have been unwilling to accept at face value agency protestations that a group of activities did not constitute a single project,32 finding, for example, that an agency created a false impression of minimal impact by disaggregating analysis in an area-by-area study.33 Are agencies likely to try to use segmentation to artificially transform what fairly appears to be a single proposal into multiple, separate projects in an effort to avoid having to prepare an EIS? Almost certainly. Yet, the Seven County Court declared that deference to agency line drawing should be the norm as long as the agency draws a reasonable and manageable line.34
What is likely to be the most lasting legacy of Seven County, however, is its denigration of existing judicial review practices in NEPA cases and ultimately of NEPA itself. The Court’s characterization of NEPA as a purely procedural statute broke no new ground. But the Court took the case as an opportunity to “clarify the fundamental principles of judicial review” that apply in NEPA cases.35 It stated that when an agency makes “speculative assessments or predictive or scientific judgments,” as when it decides which alternatives to a proposed action are feasible, a reviewing court “must be at its ‘most deferential.’”36 Similarly, courts must afford agencies “broad latitude” in determining the scope of an EIS’s discussion of environmental effects.37 In short, “[c]ourts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.”38
In a vacuum, the notion that courts should apply deferential review to actions dependent on the exercise of delegated discretion by agencies with expertise that the courts lack is unremarkable. Seven County reflects no recognition, however, of the context in which Congress adopted NEPA. NEPA’s mandate that “all agencies of the Federal government”39 comply with its procedural duties responded to concerns that development-oriented agencies were at risk of capture by the interests they were responsible for regulating or managing. “These agencies accordingly were not inclined to place much importance on environmental considerations, even if ordered to do so by Congress.”40 The Conference Committee report on NEPA stated that the EIS mandate was meant to assure that “no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance.”41One of the earliest and most important appellate court cases interpreted the EIS provisions as establishing “a strict standard of compliance.”42 The D.C. Circuit added that this “high standard for the agencies . . . must be rigorously enforced by the reviewing courts.”43 Seven County’s call for broad deference to agencies sweeps in agencies inclined to view environmental protection considerations as obstacles to the accomplishment of their mission and who may seek to give short shrift to them, especially if they believe that the courts will not carefully scrutinize the extent to which they have engaged in good faith compliance.
Justice Kavanaugh saw things differently. He criticized the lower courts for engaging in “overly intrusive (and unpredictable) review in NEPA cases.”44 The Seven County opinion was therefore meant as a “course correction of sorts . . . to bring judicial review under NEPA back in line with the statutory text and common sense.”45 NEPA’s “bedrock principle . . . can be stated in a word: Deference.”46 Justice Kavanaugh added that NEPA’s “status as a purely procedural statute” means that even if an EIS is defective, “that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project.”47 This forgiving attitude toward procedural violations contrasts with the Court’s recent aggressive oversight of procedural errors and invalidation of actions by environmental protection agencies themselves,48 even when the agency’s organic statute explicitly limits judicial power to reverse agency action based on procedural errors.49
Justice Kavanaugh was not content to chastise overly aggressive judicial review, however. He condemned NEPA itself and agency efforts to comply with it. NEPA has “slowed down or blocked many projects.”50 It has prompted “[d]elay upon delay.”51 It has increased the cost of even projects that have successfully run the gauntlet of NEPA duties and yielded “fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like.”52 It has also led to the creation of fewer jobs. No empirical support is provided for these characterizations. Similarly, the only citation in support of Justice Kavanaugh’s casting of aspersions on NEPA litigants “who may not always be entirely motivated by concern for the environment” is an amicus brief by the Chamber of Commerce, a not entirely disinterested source.53 Justice Kavanaugh concluded by characterizing NEPA as “[a] 1970 legislative acorn” that “has grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process.”54 (Isn’t the growth of acorns into oaks usually regarded as a good thing?) This description is a far cry from the D.C. Circuit’s description of NEPA as “perhaps [the] most important” of the environmental statutes that Congress adopted during the early 1970s.55
This woeful tale of NEPA’s history is not balanced by any recognition whatsoever of the benefits that NEPA has provided. It is an entirely condemnatory account. What about the environmental harms avoided because the NEPA process revealed risks of which an agency was previously unaware? What about the environmentally destructive endeavors that courts have enjoined after finding serious NEPA violations? What about the mitigation measures that agencies have incorporated into their projects based on information gleaned during the NEPA process? What about the increase in environmental consciousness that the NEPA process has instilled in agencies previously disposed to shunt environmental concerns aside? What about the knowledge about governmental decisionmaking affecting the environment that the NEPA process has provided to a public that might otherwise have been in the dark about these matters? What about the useful input that affected stakeholders have provided to agencies at hearings convened by the proposing agency or in response to documents like draft EISs? None of these enhancements to the public welfare make their appearance in the Court’s fulminations about NEPA.
Early in the second Trump Administration, the Environmental Protection Agency issued a press release quoting the agency’s Administrator, Lee Zeldin, who cheered the announcement of a long list of planned deregulatory actions. Zeldin proclaimed that “[t]oday is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S. and more.”56 For decades NEPA has been the model for the adoption of environmental assessment laws around the world. It remains to be seen whether the Court’s belittlement of this pioneering environmental statute, and its ridicule of rigorous judicial review of agency implementation of NEPA, wind up driving a dagger into the heart of a law whose laudable purpose is avoiding costly and unnecessary environmental degradation.
Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at The George Washington University Law School.
Recommended Citation
Robert L. Glicksman, Seven County Infrastructure Coalition v. Eagle County, Geo. Wash. L. Rev. On the Docket (June 10, 2025), https://www.gwlr.org/seven-county-sweeping-deference/.
