The National Environmental Policy Act requires agencies to take a hard look at the environmental impacts of their decisions, prior to acting. In this case, the Surface Transportation Board, after conducting an environmental review, permitted a proposed railway in Utah’s Uinta Basin. The railway’s purpose was to transport oil, which would allow for increased oil production in the region. The D.C. Circuit found that the Board’s environmental analysis failed to properly consider the indirect effects of the railway, including increased drilling and pollution impacts in the Gulf Coast, due to an influx of crude oil and increased refinery operations. The Supreme Court granted certiorari in June 2024 on the question “whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.”
We argue the Court should affirm the D.C. Circuit’s ruling and interpret NEPA–in line with longstanding precedent–to require agencies to consider reasonably foreseeable effects. Considering indirect effects and less-than-certain effects is a fundamental principle of rational decisionmaking. An interpretation of NEPA that would allow agencies to take credit for indirect benefits (as the Surface Transportation Board did here, arguing the railway could increase jobs in the region) while ignoring indirect costs would put an impermissible thumb on the scale. Our brief proceeds as follows:
First, NEPA commands agencies to “develop methods” to ensure environmental harms are given “appropriate consideration in decisionmaking along with economic and technical considerations.” 42 U.S.C. § 4332(2)(B). Best analytical practices across the federal government require agencies to evenhandedly consider important indirect or less-than-certain effects of their actions. Courts have consistently—and correctly—criticized agencies for failing to do so. NEPA regulations and caselaw require agencies to engage in these same best practices. An interpretation of NEPA that invites agencies to behave irrationally by ignoring foreseeable environmental costs would run contrary to Congress’ clear command to give such effects appropriate consideration.
Second, Petitioners’ contortions of NEPA doctrine would leave environmental reviews incomplete compared to non-environmental analyses, allowing agencies to disregard significant foreseeable effects. This approach would create an imbalance between how agencies treat environmental effects versus economic and technical effects. Meanwhile, the Government’s approach elides the fact that the Board arbitrarily minimized indirect environmental costs, while taking credit for similarly indirect economic benefits. NEPA cannot be interpreted to bless such irrational approaches to decisionmaking.
Third, the Board’s environmental impact statement touts many indirect economic benefits—including hundreds of “induced” jobs, millions in local tax revenue, and projected economic growth based on assumed new oil production—but fails to account for environmental impacts that result from the same assumptions. Other EISs demonstrate that the Board could have readily accounted for the environmental impacts of, for example, downstream refining activity, either quantitatively or qualitatively. The Board’s imbalanced approach violates best analytical practices.