WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Seven County Infrastructure Coalition v. Eagle County, a case in which the Court is considering whether the National Environmental Policy Act (NEPA) requires federal agencies to study all the reasonably foreseeable environmental effects of proposed projects before approving them, Constitutional Accountability Center Appellate Counsel Ana Builes issued the following reaction:

Since the 1970s, when NEPA was enacted, agencies have been required to study the reasonably foreseeable environmental impacts of proposed major infrastructure projects before approving them—even if those impacts are felt later and farther away. That makes sense in light of NEPA’s text, history, and purpose, as various Justices and the federal government noted this morning.

Take the situation here. A proposed 88-mile railway in Utah, built specifically to transport crude oil, will later have to transport that oil along the Colorado River and to refineries in Gulf Coast communities. Although the agency acknowledged that NEPA requires it to consider the environmental impacts along that route, Petitioners urge the Supreme Court to carve a hard-and-fast rule into NEPA that would force agencies to put on blinders and ignore these environmental impacts, simply because they do not happen immediately and in the immediate vicinity of the proposed project. Congress, when it recently amended NEPA, rejected a proposal to limit NEPA in that way. The Court should refuse to do so as well.

CAC Appellate Counsel Miriam Becker-Cohen added this reaction:

As we explained in our amicus brief filed in this case, NEPA was enacted to effectuate a broad national commitment to preserving the natural environment. As Justice Sotomayor noted today, “most environmental effects, like effects on wetlands, are going to be remote in time and geography.” Yet Petitioners are effectively asking the Court to cut those effects out of the NEPA analysis entirely.

Not only does Petitioners’ absolute rule “make no sense,” as Justice Sotomayor put it, but it is at odds with decades of practice by the Council on Environmental Quality (CEQ), the agency charged with administering NEPA. CEQ has always interpreted NEPA to require agencies conducting environmental reviews to consider all reasonably foreseeable environmental effects of the proposed project. That contemporaneously issued and remarkably consistent agency interpretation is entitled to great respect under the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo. And, unsurprisingly, it is compelled by the text of NEPA.