SCOTUS NEPA limitations could expedite energy & infrastructure projects

On May 29, 2025, a unanimous US Supreme Court opinion authored by Justice Brett Kavanaugh placed clear limits on agencies’ consideration of indirect effects under NEPA. In Seven County Infrastructure Coalition v Eagle County Colorado, the Court held that The Surface Transportation Board’s Environmental Impact Statement (EIS) for an 88-mile railroad line connecting Utah’s oil rich Unita Basin to the national rail network did not have to consider indirect upstream effects of oil drilling and the indirect downstream effects of refining oil transported to refineries in the Gulf Coast including greenhouse gas (GHG) emissions. The Court stated that NEPA is “purely a procedural statute” and “does not mandate particular results.” The Court’s important limiting principles under NEPA should help expedite the review and approval of energy and infrastructure projects. The key points of the opinion are:

• Affirming deference that courts have historically given in EIS reviews. The Court made clear that judicial deference in NEPA cases extends to an agency’s determination of what details are relevant in an EIS, noting that “the agency is better equipped to assess what facts are relevant to the agency’s own decision.” While the Court cited last term’s Loper Bright ruling that rejected the “Chevron deference” test on legal issues, it clearly stated that the case did not turn on the legal definition of “detail” in the EIS at issue.

  
  

• Criticizing NEPA’s use as a “blunt and haphazard tool” to stop projects. The Court noted that project opponents have used NEPA as a “blunt and haphazard tool” to stop or slow new infrastructure and construction projects including clean energy projects. That has led to “delay upon delay so much so that the process sometimes seems to border on the Kafkaesque.”

  
  

• Limiting the scope of indirect effects analysis. The Court rejected the DC Circuit’s interpretation that the upstream and downstream effects of the rail project had to be more fully considered including climate change GHG impacts from possible future projects that the Board did not have legal jurisdiction over.

Instead the Court held that while the rail line’s construction might foreseeably lead to construction of a separate future project, those possible effects were too attenuated and beyond the Board’s authority. Thus, whether the rail line would lead to an increase in GHG emissions from downstream refineries was outside the agency’s NEPA responsibilities.

• Affirming that reasonably foreseeable indirect effects within the agency’s authority must still be considered. The Court stressed that environmental effects of a project may still fall under NEPA even if those effects might extend outside the geographical territory of the project or might occur later in time. This could include “run off into a river that flows many miles from the project and affects fish populations elsewhere.” This could also include consideration of reasonably foreseeable GHG emissions such as a proposed fossil fuel power plant.

However it would not include project effects that are separate in time and space that might be induced by the project such as where an airport might “someday lead to a new stretch of highway, a new housing development or a new subway stop.” The Court made clear that courts should defer to agency discretion in drawing a “manageable line” on the scope of analysis.

The Court’s opinion should help proponents of infrastructure and energy projects by clearly limiting the scope of NEPA analysis to direct and indirect effects of the project itself that the agency has the legal authority to consider. However, where the agency draws the line on how far reaching that analysis may extend remains uncertain.

Larry Liebesman, Esq

Senior Advisor

A nationally recognized environmental lawyer, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA). In 1978, while at the U.S. Department of Justice, Larry provided legal support and analysis to the Council on Environmental Quality‘s original NEPA regulations.