This is big news: in recent decades, it has been just about impossible to get anything done in the United States. The permitting process for infrastructure projects of all kinds has become, essentially, a never-ending gauntlet that few projects can survive. There are several reasons for this, one of which is the expansive reading that activists and courts have given the National Environmental Policy Act. NEPA requires permitting agencies to analyze environmental impacts before proceeding with projects. That is a feel-good principle that, in practice, has often brought progress to a screeching halt.
Today’s case is Seven County Infrastructure Coalition v. Eagle County, Colorado. The case involved permitting of a railroad, construction of which had to be approved by the U. S. Surface Transportation Board. The Seven County group applied for a permit to build an 88-mile railroad line to connect “Utah’s oil-rich Uinta Basin to the national freight rail network, facilitating the transportation of crude oil to refineries along the Gulf Coast.”
The Board prepared an Environmental Impact Statement, but the D.C. Circuit Court of Appeals sent the project back to the drawing board on the ground that the Board did not sufficiently consider the environmental impacts, not just of building the railroad, but of more oil drilling in Utah and more refining of crude oil along the Gulf Coast. The Supreme Court, in an opinion by Justice Kavanaugh, held that NEPA requires no such analysis. It also addressed what one might call NEPA mission creep:
Unlike those later-enacted laws [Clean Air Act, Clean Water Act, and Endangered Species Act], NEPA is a purely procedure statute that, as relevant here, simply requires an agency to prepare an EIS [environmental impact statement]—in essence, a report…
NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it…
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.
For many years, liberals have used environmental legislation not to safeguard the environment, but to block progress in general. The Court is finally on to them. More:
The proper judicial approach for NEPA cases is straightforward: courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects…
Citizens may not enlist the federal courts, “under the guise of judicial review” of agency compliance with NEPA, to delay or block agency projects based on the environmental effects of other projects separate from the project at hand.”
Notably, the decision was 8-0. The three left-wing justices agreed with the result, on the ground that an EIS does not need to consider upstream and downstream impacts of projects different from the one for which the EIS was required.
This decision is great news for America’s economy and future standard of living, especially as a major effort to expand American mining and mineral processing is about to begin.
Sarah Montalbano has more.
