Brief of Amici Curiae in Seven County Infrastructure Coalition v. Eagle County, Colorado

Summary of the argument

This case is not about what constitutes sound energy, infrastructure, environmental, or social policy. The question presented has nothing to do with those issues, which must be addressed through substantive authorizing statutes, subject to constitutional limits. Instead, this case is about whether NEPA, as enacted by Congress and construed by this Court in Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), requires agencies to study questions beyond their regulatory authority and outside their expertise. The answer is no.

Congress wrote NEPA as a purely procedural statute that does not dictate outcomes. It merely obligates agencies to study the proximate environmental effects of proposed actions within their jurisdiction and report the results. But over the past 50 years some lower courts have transmogrified NEPA into a substantive, outcome-oriented environmental statute that allows project opponents to block projects that do not align with their policy preferences. This decades-long accretion has layered onto the statute an expansive and elaborate body of compliance requirements going far beyond what the text requires and has led to the creation of, in essence, a NEPA industrial complex.

The decision below—which held the Surface Transportation Board (“STB”) had “responsibility under NEPA to identify and describe” upstream effects “it lacks authority to prevent, control, or mitigate,” Pet. App. 36a—highlights the scope of the problem. It is the jurisprudential equivalent of requiring a law student to obtain a medical degree as a condition precedent to practicing law. That cannot be right. And it makes zero sense.

This extratextual gloss on NEPA cannot be allowed to stand. “Just as NEPA is not a green Magna Carta, federal judges are not the barons at Runnymede.” Citizens against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (Thomas, J.). And the time has come to closely examine the operative statutory text. Amicus respectfully submits it is well worth the effort. A thorough statutory investigation may reveal that a large body of NEPA precedent has no textual foundation, instead resting on nothing more than statutory quicksand and judicial policy preferences.

A root cause of the problem is that courts have long assumed the Council on Environmental Quality (“CEQ”) has broad authority to issue NEPA regulations that bind other agencies and are entitled to judicial deference. CEQ, in turn, has created an elaborate body of NEPA interpretations that venture far beyond NEPA’s statutory requirements. This has, in turn, led to judicial interpretations of CEQ regulations straying yet further from NEPA’s text.

The problem is that CEQ does not have, and never has had, any authority to issue binding NEPA regulations. Instead, its charge is to serve a purely advisory function and make policy recommendations. Indeed, shortly after NEPA’s passage, Congress enacted major substantive authorizing statutes, such as the Clean Air Act of 1970 and the Clean Water Act of 1972, which empowered the Environmental Protection Agency, underscoring CEQ’s modest, advisory role. An Executive Order issued years after NEPA’s enactment cannot retroactively revise NEPA to grant CEQ sweeping “legislative” rulemaking powers that Congress withheld from it. The atextual judicial gloss on NEPA—based, in part, on a misguided reliance on CEQ’s legislative project— likewise cannot change or add to the actual words Congress enacted into law.

As relevant here, nothing in NEPA requires agencies to study indirect or cumulative effects outside of the scope of the specific proposed agency action under review. Instead, agencies must only study effects that are proximately caused by specific decisions within their regulatory authority. Each individual agency must also comply with their organic statute, which sets forth the factors Congress intended the agency to consider in assessing the proposed action. This limits the scope of NEPA to matters within each agency’s statutory authority as it considers each individual project. In sum, NEPA reviews must be tethered to effects proximately caused by the specific agency decision that are within the scope of the agency’s jurisdiction, guided by the agency’s mission as set forth by Congress.

For the foregoing reasons, this Court should reverse the decision below.