Court Opinions
The National Environmental Policy Act requires the preparation by federal agencies of environmental impact statements analyzing proposed major federal actions significantly affecting the quality of the human environment. A large body of judicial precedent has accumulated, interpreting NEPA in a way that has led EIS’s to be found inadequate for failure to analyze more-remote effects of the projects being considered.
This body of precedent has now been sharply limited by the Supreme Court’s decision of May 29, 2025, in Seven County Infrastructure Coalition v. Eagle County, Colorado. The Court, in taking this action, issued a reminder of what many prior decisions have made clear: “Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.”
In this case, the responsible agency had approved the construction of a new railroad line, supported by a detailed EIS that analyzed “‘the significant and adverse impacts that could occur as a result’ of the railroad line’s construction and operation;” but the EIS, while also noting “the potential effects of increased upstream oil drilling . . . and increased downstream refining of crude oil carried by the railroad,” did not fully analyze those latter effects. The Court of Appeals held that the agency had impermissibly limited its analysis of upstream and downstream projects; and it vacated the EIS and the agency’s decision.
The Supreme Court, in reversing the lower court, first considered the degree of deference that was due to the agency’s decision. It stated that, “when an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard. Under that standard, a court asks not whether it agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained. . . . In short, when determining whether an agency’s EIS complied with NEPA, a court should afford substantial deference to the agency. . . . So long as the EIS addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line – including (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand” (emphasis added).
Second, the Court addressed the merits of the lower court’s interpretation of NEPA, as requiring the agency to consider environmental effects of upstream and downstream projects that were separate in time or place from the railroad project itself. The Court concluded that, “when the effects of an agency action arise from a separate project . . . NEPA does not require the agency to evaluate the effects of that separate project. . . . [T]he separate project breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project” (emphasis added). Moreover, the Court declared, “agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority” (emphasis added).
The Court’s judgment in this case was issued on an 8-0 vote (although three of the Justices joined in a separate opinion, concurring in the judgment while questioning some of the reasoning).
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Federal oil and gas leasing in the Wayne National Forest in Ohio has been on hold since the March 13, 2020, decision of the U.S. District Court for the Southern District of Ohio, in Center for Biological Diversity v. U.S. Forest Service. The court, in reviewing a 2016 environmental assessment covering the use of horizontal drilling and hydraulic fracturing in the Forest, found several deficiencies in the EA: First, the court was unpersuaded that the amount and type of surface disturbance resulting from fracking would not exceed what was anticipated in the applicable Forest Plan based on conventional development, and said that that needed to be resolved prior to leasing rather than at the time of applications for permit to drill. Second, the court found that the EA had given insufficient consideration to the cumulative effects of fracking in connection with two specific concerns (water depletion and Indiana bat conservation). And third, the court concluded that air quality was a general issue requiring complete analysis at the pre-leasing stage instead of the site-specific APD stage. After further briefing, the court, on March 8, 2021, ordered a remand of the matter to BLM and the Forest Service for completion of a revised environmental analysis, but declined to vacate the issued leases in the meantime.
On March 20, 2024, pursuant to the court’s order, BLM’s Northeastern States District Office published a draft supplemental environmental assessment (with the participation of the Forest Service as a cooperating agency). And on April 17, 2025, based on the District Office’s final supplemental EA and a finding of no significant impact, BLM’s Eastern States Office issued a decision enabling a resumption of leasing and development in the Forest. Additional leasing activity, though, may still depend on further consideration by the court.
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The U.S. District Court for the District of Columbia, in a decision of July 16, 2024, in Wilderness Society v. U.S. Department of Interior, considered whether leases must be vacated when relatively minor deficiencies occurred during the Bureau of Land Management’s environmental review process prior to lease issuance. The court weighed the likelihood that BLM, upon further review, may be able to remedy the deficiencies and substantiate its prior conclusions, as well as the disruptive effects that could result from setting the leases aside, and decided in favor of remanding the matter to BLM without vacating the leases.
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The Supreme Court, in its June 30, 2022, decision in West Virginia v. Environmental Protection Agency, articulated the major questions doctrine, as a limit on the ability of administrative agencies to adopt regulations that go beyond the statutes on which those regulations are based.
The statute in question, in this case, was a provision of the Clean Air Act directing EPA to determine the “best system of emissions reduction,” which power plants were required to implement; while the regulation determined that implementing the “best system of emissions reduction” meant requiring a transition by power plants from coal to natural gas, and then from coal and natural gas to wind, solar, and other renewables.
The Court was not called upon to consider whether such a requirement could have been imposed by Congress itself, through express statutory language – which Congress clearly could have done; nor whether the requirement was a good idea. Rather, the question before the Court was whether EPA had the authority to impose the requirement under the statute that Congress had enacted.
The Court, in its analysis of that question, observed that “our precedent teaches that there are ‘extraordinary cases’ that call for a different approach – cases in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” There were cases, the Court continued, in which “‘common sense as to the manner in which Congress [would have been] likely to delegate’ such power to the agency at issue . . . made it very unlikely that Congress had actually done so.” Such cases – implicating the major questions doctrine – represented “an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
And this, the Court concluded, was a major questions case: However sensible the policy underlying EPA’s regulation might be, “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme . . . . A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
(Comment: The Court’s analysis for invoking the major questions doctrine can be distilled to two components: (1) “agencies asserting highly consequential power,” (2) “beyond what Congress could reasonably be understood to have granted.” The latter of these presents a fairly objective issue; but the former is highly subjective. A good case can be made for taking the analysis a step further – and perhaps re-visiting some prior rulings in the process – by de-emphasizing the “major” in “major questions,” and thus enlarging the courts’ role in overseeing agency actions: Courts ought to intercede whenever agencies’ assertions of power go “beyond what Congress could reasonably be understood to have granted,” without any need to assess how “highly consequential” that power may be. The presence before the court of an aggrieved party should suffice to establish that an agency’s assertion of power is consequential enough. The question would then become whether the agency’s authority to assert that power is implicit in the statute– a “clear delegation” from Congress – or whether it’s something that Congress would never in a million years have imagined was a logical consequence of what it had enacted.)