The National Environmental Policy Act, commonly known as NEPA, requires that large projects obtain federal environmental permits if they cross state borders or federal property (including not just parks, but also interstate highways). Many states and localities have permitting processes as well. If you believe that the US needs to have a wave of building–perhaps to produce green energy and the associated electricity transmission lines, or perhap for additional housing develoment, or perhaps to expand mass transit in cities, or perhaps to build the data centers needed to run the new AI tools, or perhaps to build the factories for the US jobs of the future–then you should be concerned that the lawsuits from small and unrepresentative groups enabled by NEPA are a cause of serious delay.
I’ve written about permitting reform before. For example, Zachary Liscow wrote in the Winter 2025 issue of the Journal of Economic Perspectives on “Getting Infrastructure Built: The Law and Economics of Permitting.” Broadly speaking, his notion is to find ways to get broad public input earlier in the permitting process, and if such input is collected and taken into account, then courts would be quite hesitant to let a lawsuit from a small special-interest group block a project. Or for wincing and giggles, consider this the figure accompanying this post on “What Permits are Needed for New Electricity Transmission Lines?”
Now the US Supreme Court has weighed in, in the case of Seven County Infrastructure Coalition, et al., vs. Eagle County, Colorado. The decision was released earlier today. Here’s the fact setting as described by the court:
Under federal law, new railroad construction and operation must first be approved by the U. S. Surface Transportation Board. 49 U. S. C. §10901. In 2020, the Seven County Infrastructure Coalition applied tothe Board for approval of an 88-mile railroad line connecting Utah’s oil-rich Uinta Basin to the national freight rail network, facilitating the transportation of crude oil to refineries along the Gulf Coast. As part of its project review, the Board prepared an environmental impactstatement (EIS) that addressed significant environmental effects of the project and identified feasible alternatives that could mitigatethose effects, as required by the National Environmental Policy Act (NEPA). The Board issued a draft EIS and invited public comment. After holding six public meetings and collecting more than 1,900 comments, the Board prepared a 3,600-page EIS that analyzed numerous impacts of the railway’s construction and operation. Relevant here, the EIS noted, but did not fully analyze, the potential environmental effects of increased upstream oil drilling in the Uinta Basin and increased downstream refining of crude oil. The Board subsequently approved the railroad line, concluding that the project’s transportation and economic benefits outweighed its environmental impacts. Petitions challenging the Board’s action were filed in the D. C. Circuit by a Colorado county and several environmental organizations. The D. C. Circuit found “numerous NEPA violations arising from the EIS.” 82 F. 4th 1152, 1196. Specifically, the D. C. Circuit held that the Board impermissibly limited its analysis of the environmental effects from upstream oil drilling and downstream oil refining projects, concluding that those effects were reasonably foreseeable impacts that the EIS should have analyzed more extensively.
You can see the issue here. The Environment Impact Statement focuse on the construction and operation of the 88 miles of railroad track. However, it did not “upstream” and “downstream” issues, like the costs and benefits of increased oil drilling in Utah’s Uinta basin, or the effects of additional oil at Gulf refineries, or perhaps even the basic question of whether US oil production should rise or fall.
The Court’s decision was 8-0 (Judge Gorsuch did not take part). The main opinion says:
Some courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases. Those decisions have instead engaged in overly intrusive (and unpredictable) review in NEPA cases. Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.
The upshot: NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects. Some project opponents have invoked NEPA and sought to enlist the courts in blocking or delaying even those projects that otherwise comply with all relevant substantive environmental laws. Indeed, certain project opponents have relied on NEPA to fight even clean-energy projects—from wind farms to hydroelectric dams, from solar farms to geothermal wells. See, e.g., Brief for Chamber of Commerce of the United States of America, et al. as Amici Curiae 19–20.
All of that has led to more agency analysis of separateprojects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation. Delay upon delay, so much so that the process sometimes seems to “borde[r] on the Kafkaesque.” Vermont Yankee, 435 U. S., at 557. Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion. A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development “under the guise” of just a little more process.
The United States is a famously litigious society, and there will always be a small interest groups what wants to sue–not because they want the project to be done better, but because they don’t want the project at all. Having the Supreme Court alter the interpretation of the law in this way may be an imperfect way to proce4ed, but one way or another, some pushback on the current permitting process was in the wind.
