Amicus Curiae Brief — American Petroleum Institute, et al., Petitioners v. Environmental Defense Center, et al.

No. 22-703

IN THE

Supreme Court of the United States

AMERICAN PETROLEUM INSTITUTE, ET AL.,

Petitioners,

v.

ENVIRONMENTAL DEFENSE CENTER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE SUPPORTING PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, DC 20062

WILLIAM M. JAY

Counsel of Record

BENJAMIN HAYES

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

(202) 346-4000

wjay@goodwinlaw.com

Counsel for Amicus Curiae

February 27, 2023

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 2

ARGUMENT .............................................................. 4

I.

Programmatic environmental review is

not “final agency action” because it is

only the first step in the agency’s

decision-making process and carries no

legal consequences. ........................................ 4

II.

The Ninth Circuit’s decision will

undermine the benefits of

programmatic review and hamper

agencies’ ability to efficiently process

permitting applications. .............................. 12

CONCLUSION ......................................................... 19

TABLE OF AUTHORITIES

Page(s)

Cases:

Bennett v. Spear,

520 U.S. 154 (1997) ................... 2, 3, 5, 6, 7, 9, 11

Dalton v. Specter,

511 U.S. 462 (1994) ................................... 3, 9, 10

Franklin v. Massachusetts,

505 U.S. 788 (1992) ............................................. 9

FTC v. Standard Oil Co. of Cal.,

449 U.S. 232 (1980) ................................... 2, 8, 11

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ..................................... 10, 11

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) ............................................. 8

Robertson v. Methow Valley Citizens

Council,

490 U.S. 332 (1989) ............................................. 6

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ............................................. 5

Statutes and Regulations:

5 U.S.C. § 551(13) ................................................... 11

5 U.S.C. § 704 ................................................. 4, 8, 11

ii

42 U.S.C. § 4332(C)(i) ............................................. 13

43 U.S.C. § 1332(3) ............................................. 9, 10

30 C.F.R. §§ 250.410-465 ......................................... 6

40 C.F.R. § 1500.4(k) .............................................. 15

40 C.F.R. § 1501.5 .................................................. 13

40 C.F.R. § 1501.11 ................................................ 14

40 C.F.R. § 1502.4(b)(2) .......................................... 14

40 C.F.R. § 1508.1(ff) .............................................. 14

Other Authorities:

Domenic A. Cossi, Getting Our Priorities

Straight: Streamlining NEPA to Hasten

Renewable Energy Development on

Public Land, 31 Pub. Land & Resources

L. Rev. 149 (2010) ............................................. 14

Council on Environmental Quality, Fact

Sheet: CEQ Report on Environmental

Impact Statement Timelines (2010-2018)

(June 2020),

https://ceq.doe.gov/docs/nepapractice/CEQ_EIS_Timeline_Fact_Sheet

_2020-6-12.pdf ................................................... 16

iii

Council on Environmental Quality, Fact

Sheet: CEQ Report on Length of

Environmental Impact Statements

(2013-2018) (June 2020),

https://ceq.doe.gov/docs/nepapractice/CEQ_EIS_Length_Fact_Sheet_2

020-6-12.pdf ....................................................... 17

Deadline for Agencies To Propose Updates

to National Environmental Policy Act

Procedures, 86 Fed. Reg. 34,154 (June

29, 2021) ............................................................ 17

Memorandum of Michael Botts, Council on

Environmental Quality, Effective Use of

Programmatic NEPA Reviews (Dec. 18,

2014), https://ceq.doe.gov/docs/ceqregulations-andguidance/Effective_Use_of_Programmati

c_NEPA_Reviews_Final_Dec2014_searc

hable.pdf ...................................................... 13, 14

National Association of Environmental

Professionals, 2021 Annual NEPA

Report (July 2022),

https://naep.memberclicks.net/assets/an

nualreport/NEPA_Annual_Report_2021.pdf............. 5

National Environmental Policy Act

Implementing Regulations Revisions, 87

Fed. Reg. 23,453 (Apr. 20, 2022) ...................... 17

iv

Philip Rossetti, Addressing Delays

Associated with NEPA Compliance,

American Action Forum (Mar. 20, 2017),

https://www.americanactionforum.org/pr

int/?url=https://www.americanactionforu

m.org/research/addressing-delaysassociated-nepa-compliance/ ...................... 17, 18

Rayan Sud, et al., How to Reform Federal

Permitting to Accelerate Clean Energy

Infrastructure: A Nonpartisan Way

Forward, Brookings Institution (Feb. 14,

2023), https://www.brookings.edu/wpcontent/uploads/2023/02/20230213_CRM

_Patnaik_Permitting_FINAL.pdf

......................................................... 14, 15, 16, 17

Update to the Regulations Implementing

the Procedural Provisions of the

National Environmental Policy Act, 85

Fed. Reg. 43,304 (July 16, 2020) ...................... 17

U.S. Dep’t of Interior, Bureau of Land

Mgmt., Final Programmatic

Environmental Impact Statement (EIS)

for Solar Energy Development in Six

Southwestern States (July 2012),

https://www.energy.gov/sites/default/file

s/EIS-0403-FEIS-Volume1-2012_0.pdf ............ 15

v

U.S. Dep’t of Interior, Bureau of Land

Mgmt., Final Programmatic

Environmental Impact Statement for

Geothermal Leasing in the Western

United States (Oct. 2008),

https://www.blm.gov/sites/blm.gov/files/

Geothermal_PEIS_final.pdf.............................. 15

U.S. Dep’t of Interior, Bureau of Land

Mgmt., Final Programmatic

Environmental Impact Statement on

Wind Energy Development on BLMAdministered Lands in the Western

United States (June 2005),

https://windeis.anl.gov/documents/fpeis/

maintext/Vol1/Vol1Complete.pdf ..................... 15

U.S. Dep’t of Interior, Minerals Mgmt.

Serv., Programmatic Environmental

Assessment for Grid 4: Evaluation of

Kerr-McGee Oil and Gas Corporation’s

Development Operations Coordination

Document, N-7045 (July 2001),

https://www.boem.gov/sites/default/files/

environmentalstewardship/EnvironmentalAssessment/NEPA/grid4ea.pdf................... 15, 16

INTEREST OF THE AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. The Chamber represents approximately

300,000 direct members and indirectly represents the

interests of more than three million companies and

professional organizations of every size, in every industry sector, and from every region of the country. An

important function of the Chamber is to represent the

interests of its members in matters before Congress,

the Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefing in cases, like this one, that raise issues of concern to the Nation’s business community.

Many of the Chamber’s members operate in industries that require federal permits that are subject to

environmental review under the National Environmental Policy Act (“NEPA”). These members have an interest in agencies utilizing available means to organize

and expedite their review processes to ensure timely,

effective permitting decisions. The Ninth Circuit in

this case adopted an expansive definition of “final

agency action” under the Administrative Procedure Act

(“APA”) that sweeps in agency programmatic review

that is merely a step in an agency’s decision-making

process, a step that does not create any legal consequences, rights, or obligations. The Ninth Circuit’s decision subjects preliminary, internal agency assess1 No party or counsel for a party authored any part of this brief,

and no person other than amicus, its members, or its counsel

made a monetary contribution intended to fund its preparation or

submission. All parties received timely notice of amicus’s intent

to file this brief.

2

ments to premature judicial review and threatens to

undermine the widely recognized efficiencies of programmatic reviews that benefit the Chamber’s members and society more generally.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Ninth Circuit held that any programmatic

NEPA document is final and reviewable—even if the

agency has not yet granted or denied any permit (or

made any other concrete decision) in reliance on the

NEPA review—because any such document marks the

culmination of the programmatic NEPA review itself.

That circular logic is deeply flawed, and the Ninth Circuit’s mistaken rule warrants this Court’s review.

First, the federal respondents’ environmental review did not “mark the consummation” of the Department of the Interior’s decision-making process. Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (quotation

marks omitted). By issuing its programmatic Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”), the Department did not

grant any drilling permits; it merely took one step in a

lengthy process that could lead to its approving permits sometime in the future. And before the Department makes any final permit determination, it will

conduct further environmental review of each project.

This Court has repeatedly held that a preliminary

agency determination that is part of a multi-step decisional process, and precedes the conclusion of that process, is not a “final” agency action under the APA. See,

e.g., FTC v. Standard Oil Co. of Cal., 449 U.S. 232,

241-42 (1980).

3

Second, the Department’s reviews also did not “determine[]” any “rights or obligations” or produce “legal

consequences.” Bennett, 520 U.S. at 178. The Ninth

Circuit leaned on the fact that the Department’s reviews make it possible for future permits to be granted.

But making future action possible does not itself “determine[]” any “rights or obligations.” Id. Final agency

action must produce “direct consequences,” Dalton v.

Specter, 511 U.S. 462, 469 (1994), and here that entails

the actual approval or denial of a permit.

The Ninth Circuit’s error is exceptionally important

and warrants review, not least because of the disproportionate number of NEPA cases decided by the Ninth

Circuit. From 2006 to 2021, fully half of all NEPA

opinions by the courts of appeals came from the Ninth

Circuit. And if plaintiffs are able to characterize their

NEPA challenges as attacking a programmatic decision

rather than an individual permit, they will be more

likely to claim venue in the Ninth Circuit. Particularly

litigious groups that oppose the use and development

of land and natural resources are already exploiting

the NEPA process (and the Ninth Circuit) to transform

a procedural rule into a substantive cudgel designed to

halt development on a large scale. The decision below

will only make that problem worse.

The decision below will also further subvert the

well-recognized efficiency benefits that come from programmatic environmental reviews. That form of review allows agencies to conduct an initial evaluation of

the environmental effects of potential future projects

(or aggregations of projects), which can then be used as

the foundation for more focused, project-specific reviews later on. Programmatic review thus performs

the immensely important function of organizing and

4

streamlining agency review for maximum effectiveness, and enabling more timely decisions at the project

level.

The Ninth Circuit’s decision will erode those substantial benefits. Agency review under NEPA is already a years-long and expensive process burdened by

constant litigation. By deeming agencies’ preliminary

environmental reviews “final,” the Ninth Circuit’s decision all but guarantees a barrage of additional lawsuits

that promises to interfere with agencies’ ongoing decision-making processes, increase the cost and timeline

of environmental reviews, and even deter agencies

from undertaking programmatic reviews in the first

place.

ARGUMENT

I.

Programmatic environmental review is not

“final agency action” because it is only the

first step in the agency’s decision-making

process and carries no legal consequences.

The APA authorizes judicial review only of “final

agency action.” 5 U.S.C. § 704. All other agency actions, such as “intermediate” and “preliminary” actions, are not subject to review until after “final agency

action.” Id.

The Ninth Circuit’s decision here goes far beyond

any credible conception of “finality” by authorizing review of preliminary agency deliberations that produce

no legal consequences for any party. The court of appeals held flatly that “[f]inal NEPA documents constitute ‘final agency action,’” because they finally determine the supposed right “to further environmental review”—regardless of whether any permit applicant will

ever actually be authorized to take the actions that

5

would be the subject of any further NEPA review. Pet.

App. 22a, 23a. And the effects of that error will be farreaching because of the Ninth Circuit’s outsized role as

a destination for NEPA litigation: it handed down half

of the total NEPA opinions decided by all the federal

courts of appeals between 2006 and 2021. See National

Association of Environmental Professionals, 2021 Annual NEPA Report 27-28 (July 2022). 2 The decision

below will only invite future NEPA challenges to be

brought in that circuit whenever possible. The Court

should grant the petition to prevent the lower court’s

error from doing widespread damage.

This Court has correctly taken a “‘pragmatic’ approach” to determining finality. U.S. Army Corps of

Eng’rs v. Hawkes Co., 578 U.S. 590, 599 (2016). But

pragmatism is not blanket permission. Two conditions

must be satisfied for agency action to be considered final, and the Ninth Circuit’s holding misapplies both

prongs in fundamental ways. “First, the action must

mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature.” Bennett, 520 U.S. at 177-78 (citation and quotation marks omitted). The Ninth Circuit’s circular reasoning—that the NEPA documents

were final because the NEPA work was done—ignores

that the NEPA process was merely a procedural step to

inform the agency’s completion of a substantive decision. Second, “the action must be one by which rights

or obligations have been determined, or from which legal consequences will flow.” Id. at 178 (quotation

marks omitted). These NEPA documents were directed

only to the agency itself; they did not determine the

2 https://naep.memberclicks.net/assets/annualreport/NEPA_Annual_Report_2021.pdf.

6

substantive rights of any permit applicant, or any private party at all.

1. The Department of the Interior’s programmatic

EA and FONSI do not constitute final agency action

because they do not “mark the consummation” of the

Department’s decision-making process. Bennett, 520

U.S. at 177-78 (quotation marks omitted). The Ninth

Circuit wrongly concluded that the only process that

matters is the NEPA process. Pet. App. 22a, 23a. That

gets the denominator wrong. See Pet. 16. NEPA is a

purely procedural statute that “does not mandate particular results”: it only requires that an agency’s decision about whether to undertake major federal action

is an informed one. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). In other words,

the NEPA document is not the agency’s decision; it informs the agency’s decision. It is the federal action itself, not the associated NEPA paperwork, that is the

“consummation” of decisionmaking.

Here, the relevant agency decision is the drilling

approval or denial, not the NEPA review that precedes

such decisions. A business that wants to conduct drilling activities on the Pacific Outer Continental Shelf

must apply for a permit from the Department and have

that permit approved. Pet. App. 13a-14a (citing 30

C.F.R. §§ 250.410-465). But a lot must happen before

the Department may grant that approval. Environmental review under NEPA is one step—but hardly the

only one. Here, the Department produced a programmatic EA—an environmental analysis covering multiple potential projects, see pp. 13-14, infra—to evaluate

whether to “continue to review” permit applications involving well-stimulation treatments. Pet. App. 72a. It

found that future approvals of such permits would not,

7

at the program-wide level, cause significant environmental effects. Id.

The Department did not, however, approve any

permit applications. See Gov’t Reh’g Br. 6-7 (“Interior

did not issue a permit or take any other action to authorize the use of treatments”). Nor did the outcome of

the NEPA review foreordain the outcome of any permit

application. Instead, the Department merely decided

to “continue to review applications,” Pet. App. 72a, and

left open the option of approving or denying permits at

some later time. See Gov’t Reh’g Br. 7 (noting that the

Department’s FONSI “does not constrain the agency’s

discretion in any way”). And no approval will be automatic. Indeed, the programmatic NEPA review itself

appears not even to be the final environmental step.

Before approving any permit, the Department must

conduct environmental review of the specific project at

issue, which may entail revisiting previous findings.

See Pet. 15. And if a permit is approved, a plaintiff alleging injury traceable to that approval may challenge

the adequacy of any aspect of the NEPA process, including both programmatic and site-specific review.

The Department’s programmatic EA and FONSI

were thus mere “interlocutory” steps in the Department’s ongoing process of assessing whether to grant

permits to conduct well-stimulation treatment on the

Outer Continental Shelf. Bennett, 520 U.S. at 177-78.

By definition, a preliminary step in an ongoing decision-making process is not the “culmination” of that

process. Id.

The Ninth Circuit recognized the preliminary nature of the Department’s determinations, acknowledging that “well stimulation treatments will not occur in

practice until an individual permit application has

8

been approved.” Pet. App. 21a. Even so, the court

purported to identify finality because “no further programmatic environmental review … will be conducted.”

Pet. App. 21a (emphasis added). But that rationale

obliterates the distinction between completing a preliminary agency determination and taking a final

agency action. After all, every preliminary step in an

agency’s decisionmaking must eventually come to an

end and “not be revisited.” Pet. App. 21a. Yet the APA

itself and this Court’s cases make crystal clear that

such preliminary steps are not final agency action. See

5 U.S.C. § 704. Completion of NEPA review alone, as

one stage within the agency’s decisionmaking process,

is no more a “final” agency decision than the resolution

of a discovery dispute (or some other interlocutory proceeding within a litigation) would be a “final” districtcourt decision. Review of such interlocutory decisions

is routinely deferred until the process culminates. E.g.,

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106

(2009).

Indeed, the Court rejected a rationale much like the

Ninth Circuit’s in FTC v. Standard Oil Co. of California, where the Court held that the Federal Trade

Commission’s complaint reflecting the agency’s belief

that the defendant was violating the law was not final

agency action. 449 U.S. at 241-42. The Court

acknowledged that “the issuance of the complaint” was

“definitive” on the specific issue of whether the “Commission avers reason to believe that the respondent …

[was] violating the [law],” but the Court refused to slice

finality so thin: Because the complaint was merely a

“prerequisite” to the Commission’s ultimate decision on

guilt, it was not “final” action. Id.

9

Here, as in Standard Oil, the Department’s actions,

though complete in themselves, merely set the stage

for potential future action; they do not constitute the

Department’s final determination on any matter. See

also Dalton, 511 U.S. at 469 (holding that the Secretary of Commerce’s “tentative recommendation” to the

President was not final agency action); Franklin v.

Massachusetts, 505 U.S. 788, 796-98 (1992) (holding

that the Secretary’s report to the President was not final agency action because “its effect … is felt only after

the President makes the necessary calculations and

reports the result to Congress”).

2. The Department’s EA and FONSI also do not

satisfy the second prong of Bennett because they do not

“determine[]” any “rights or obligations” or produce

“legal consequences.” 520 U.S. at 178.

The Ninth Circuit postulated that the Department’s

programmatic EA and FONSI “affect[ed] … legal

rights” because they “lift[ed] … the moratorium on well

stimulation treatments in the Pacific Outer Continental Shelf.” Pet. App. 23a. (By “moratorium” the Ninth

Circuit was referring to the Department’s agreement in

a prior settlement to temporarily pause permit review

until it had completed a programmatic EA. See Pet.

App. 16a.) But just because the Department will “continue to review applications,” Pet. App. 72a, does not

mean it will grant any. An environmental analysis

that does not grant or guarantee approval, but merely

can be used later to support possible future approval,

does not “determine[]” anyone’s legal rights. Bennett,

520 U.S. at 178. The plaintiffs here have no right to an

ongoing freeze on permit review; to the contrary, federal policy explicitly favors the “expeditious and orderly

development” of the Outer Continental Shelf. 43

10

U.S.C. § 1332(3). That the Department’s review may

indirectly affect future permit applicants by supporting

the possibility that their applications may be granted is

far from sufficient; final agency action must produce

“direct consequences,” Dalton, 511 U.S. at 469, and in

this context the actual approval or denial of a permit is

the only action that meets that standard. Plaintiffs

with standing can raise their objections to the agency’s

NEPA process at that time, not before. See, e.g., Lujan

v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (“Respondent alleges that violation of the law is rampant

within this program—… [including] failure to provide

adequate environmental impact statements. Perhaps

so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in

the offices of the Department or the halls of Congress,

where programmatic improvements are normally

made. Under the terms of the APA, respondent must

direct its attack against some particular ‘agency action’

that causes it harm.”).

The Ninth Circuit also reasoned that legal consequences flow from the Department’s action because it

affects, in some sense, what materials companies include in their permit applications—apparently meaning that if the agency had decided after the NEPA review to impose some new limitation on permits, then

applicants would thereafter need to conform their applications to those new limitations in order to win approval. Pet. App. 23a. But applications do not determine a party’s rights; it is the subsequent grant (or denial) of the application that does that. To be sure,

what must be included in an application has some effect on interested parties, but that effect is not enough

by itself to make immediately reviewable an agency

11

action that does not otherwise qualify as “final.” 3 The

Commission’s complaint in Standard Oil, for example,

imposed “substantial” burdens on the respondent, but

this Court nonetheless held that those were not the

kind of consequences that matter for purposes of finality. 449 U.S. at 242. Here, the Department’s programmatic EA and FONSI may inform the Department’s substantive decisionmaking about what to require before granting an approval, which in turn would

influence what materials businesses include in their

applications, but that is simply not the kind of “legal

consequence[]” that produces finality for purposes of

the APA. Bennett, 520 U.S. at 178.

The “legal consequences” that the Ninth Circuit hypothesized “because the agencies have not imposed”

certain new limitations, Pet. App. 23a, are not realworld consequences at all. Nothing that the Ninth Circuit posited will become a reality unless and until an

3 For instance, a final rule setting the procedural requirements for

all applications to the agency, conducted pursuant to notice and

comment, could potentially be a final agency action, if the issuance of the rule conclusively resolved the agency’s decisionmaking process on that subject. See 5 U.S.C. §§ 551(13) (rule is

“agency action”), 704; cf. Lujan, 497 U.S. at 891-92 (“[A] regulation is not ordinarily considered the type of agency action ‘ripe’ for

judicial review under the APA until the scope of the controversy

has been reduced to more manageable proportions, and its factual

components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or

threatens to harm him.”); id. (noting the exception that “a substantive rule which as a practical matter requires the plaintiff to

adjust his conduct immediately” is “‘ripe’ for review at once” (citations omitted)). The NEPA documents here, which merely find

that not imposing new requirements would create no significant

environmental impact, do not reflect any such procedural standard-setting decision.

12

application is approved without those limitations. By

holding that a supposedly easier-to-file application is a

“legal consequence[],” the Ninth Circuit authorizes

NEPA plaintiffs to end-run the requirement of final

agency action.

* * *

The Ninth Circuit’s decision thus dramatically expanded the APA’s conception of final agency action to

reach essentially every NEPA document, whether or

not it has any direct effect on any legal rights or even

represents the agency’s last word on environmental

considerations. That error will have far-reaching consequences if not corrected. The Ninth Circuit decides a

disproportionate number of NEPA challenges. See p. 5,

supra. The lower court’s decision thus has the potential to distort fundamental principles of finality in a

significant portion of the NEPA cases involving programmatic review. The Court should grant certiorari

to avoid such widespread distortion of its finality jurisprudence.

II.

The Ninth Circuit’s decision will undermine the benefits of programmatic review

and hamper agencies’ ability to efficiently

process permitting applications.

The Ninth Circuit’s misguided conception of final

agency action not only will damage the orderly application of the APA, but will undermine the widely recognized efficiency benefits from conducting environmental review on a programmatic basis, rather than

piecemeal. By opening the floodgates to lawsuits challenging programmatic review just because the agency

leaves open the possibility of later action, the Ninth

Circuit’s decision invites a barrage of burdensome law-

13

suits targeting preliminary agency action. That precedent will interfere with agencies’ ongoing decisionmaking processes, delay the completion of environmental reviews, and potentially deter agencies from undertaking programmatic reviews in the first place.

NEPA and its implementing regulations require

federal agencies to prepare either an Environmental

Impact Statement (“EIS”) or, when appropriate, a

shorter EA before undertaking a “major Federal action[] significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(C)(i); 40 C.F.R.

§ 1501.5; see Pet. 7. Under either approach, agency review may occur either at the “project-specific level” or

at the programmatic level. See Memorandum of Michael Botts, Council on Environmental Quality, Effective Use of Programmatic NEPA Reviews 6 (Dec. 18,

2014) (hereafter “CEQ, Effective Use”). 4

Programmatic review is an important mechanism

for agencies to efficiently conduct environmental assessments. Unlike project-specific review, programmatic review is used to “address the general environmental issues relating to broad decisions, such as those

establishing policies, plans, programs, or suite of projects.” CEQ, Effective Use, supra, at 9-10. Through

this high-level review, an agency can “effectively frame

the scope of subsequent site- and project-specific Federal actions,” including by analyzing possible alternatives and the potential cumulative effects of multiple

potential projects. Id. at 10, 13. Once this programmatic review is completed, the agency can then build

4 https://ceq.doe.gov/docs/ceq-regulations-and-

guidance/Effective_Use_of_ Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf.

14

(or “tier”) off the programmatic review to “analyze narrower, site- or proposal-specific issues.” Id. at 10; see

40 C.F.R. § 1501.11(c) (“Tiering” is appropriate when

the agency is moving from “programmatic” review to

review of a “program, plan, or policy statement or assessment” that is “narrower [in] scope or [] sitespecific”); id. § 1502.4(b)(2) (“Agencies may tier their

environmental analyses to defer detailed analysis of

environmental impacts of specific program elements

until such program elements are ripe for final agency

action.”); id. § 1508.1(ff) (defining “Tiering”).

This process offers substantial efficiency gains.

Without a programmatic review, “[t]here is significant

potential for the duplication of work” as the agency

prepares separate environmental analyses for each

proposed project. Rayan Sud, et al., How to Reform

Federal Permitting to Accelerate Clean Energy Infrastructure: A Nonpartisan Way Forward, Brookings Institution 6 (Feb. 14, 2023). 5 A programmatic review

obviates the need to “repeat[] information that has already been considered at the programmatic level” and

allows an agency to “focus and expedite the preparation of” its project-specific environmental analysis.

CEQ, Effective Use, supra, at 41; see Domenic A. Cossi,

Getting Our Priorities Straight: Streamlining NEPA to

Hasten Renewable Energy Development on Public

Land, 31 Pub. Land & Resources L. Rev. 149, 166

(2010) (“Tiering from a [programmatic EIS] allows for

many decisions to be made at the programmatic level …, which reduces time and saves money in completing the environmental reviews”); 40 C.F.R. § 1501.11(b)

(providing that a “tiered document needs only to sum5 https://www.brookings.edu/wp-content/uploads/

2023/02/20230213_CRM_Patnaik_Permitting_FINAL.pdf.

15

marize and incorporate by reference the issues discussed in the broader document” and “shall concentrate on the issues specific to the subsequence action”);

id. § 1500.4(k) (encouraging agencies to “[use] programmatic, policy, or plan” review and to “tier[] from

statements of broad scope to those of narrower scope,

to eliminate repetitive discussions of the same issues”).

For example, one agency utilized “programmatic NEPA

review” to help “cut its average drilling permit decision

time to just 49 days, as compared to 106-220 days at

other offices.” Sud, supra, at 6.

In short, programmatic agency review “yield[s] substantial efficiency gains in the long run.” Sud, supra,

at 6. For this reason, agencies have utilized programmatic review in connection with numerous energy projects, including wind, 6 solar, 7 geothermal, 8 and oil and

gas 9 projects.

6 U.S. Dep’t of Interior, Bureau of Land Mgmt., Final Pro-

grammatic Environmental Impact Statement on Wind Energy

Development on BLM-Administered Lands in the Western

United States (June 2005),

https://windeis.anl.gov/documents/fpeis/maintext/Vol1/Vol1Com

plete.pdf.

7 U.S. Dep’t of Interior, Bureau of Land Mgmt., Final Pro-

grammatic Environmental Impact Statement (EIS) for Solar

Energy Development in Six Southwestern States (July 2012),

https://www.energy.gov/sites/default/files/EIS-0403-FEISVolume1-2012_0.pdf.

8 U.S. Dep’t of Interior, Bureau of Land Mgmt., Final Programmatic Environmental Impact Statement for Geothermal

Leasing in the Western United States (Oct. 2008),

https://www.blm.gov/sites/blm.gov/files/Geothermal_PEIS_final.

pdf.

9 U.S. Dep’t of Interior, Minerals Mgmt. Serv., Programmatic

Environmental Assessment for Grid 4: Evaluation of Kerr-

16

The increased efficiency from programmatic review

is enormously beneficial to businesses whose projects

are contingent on a federal agency’s providing permitting approval. Greater efficiency means more timely

decisions, which can translate into significant cost savings for businesses. Even if the agency ultimately denies a permit (after conducting a project-specific review, for example), the business still benefits from having received a more timely resolution of its application,

which allows it to plan its affairs accordingly and dedicate resources to other productive ends.

The Ninth Circuit’s decision thwarts the efficiencies

of programmatic review (and the resulting benefits) in

the context where efficiency is desperately needed.

NEPA review is already notoriously lengthy, inefficient, and burdened by litigation. Across all federal

agencies, the average time to complete an environmental review is 4½ years—with a full quarter of reviews

taking longer than 6 years to complete. See Council on

Environmental Quality, Fact Sheet: CEQ Report on

Environmental Impact Statement Timelines (20102018) (June 2020). 10 Litigation itself “cause[s] … significant delay[s] in federal permitting, often as a result

of lawsuits challenging agency NEPA reviews.” Sud,

supra, at 17. And even the mere threat of litigation

creates delay, incentivizing agencies to prepare even

more lengthy environmental review documents to

make them “litigation-proof.” Id. As a result, the avMcGee Oil and Gas Corporation’s Development Operations Coordination Document, N-7045 (July 2001),

https://www.boem.gov/sites/default/files/environmentalstewardship/Environmental-Assessment/NEPA/grid4ea.pdf.

10 https://ceq.doe.gov/docs/nepapractice/CEQ_EIS_Timeline_Fact_Sheet_2020-6-12.pdf.

17

erage length of an EIS now exceeds 500 pages, with

more than 1,000 pages of appendices. Council on Environmental Quality, Fact Sheet: CEQ Report on Length

of Environmental Impact Statements (2013-2018) (June

2020). 11 The extensive agency resources needed to

generate these “litigation proof” documents is a “major

factor in the long timeframe” for NEPA review. Sud,

supra, at 17. 12

This lengthy review process comes with a real cost.

The preparation of an EA or EIS can cost anywhere

from several hundred thousand to several million dollars per project. See Philip Rossetti, Addressing Delays

Associated with NEPA Compliance, American Action

Forum 1 (Mar. 20, 2017) (noting that in 2015 “completion of an EIS averaged 49 months and cost $4.19 mil-

11 https://ceq.doe.gov/docs/nepa-

practice/CEQ_EIS_Length_Fact_Sheet_2020-6-12.pdf.

12 The NEPA regulations were comprehensively updated in 2020,

in part to address litigation-driven delays in the NEPA process

that had arisen since the 1970s. See generally Update to the Regulations Implementing the Procedural Provisions of the National

Environmental Policy Act, 85 Fed. Reg. 43,304, 43,305-06 (July

16, 2020). The current Administration, which is undertaking its

own comprehensive review of the 2020 regulations, has delayed

the deadline for agencies to propose procedures to implement

those regulations. See National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23,453, 23,455-56 &

n.24 (Apr. 20, 2022) (citing Deadline for Agencies To Propose Updates to National Environmental Policy Act Procedures, 86 Fed.

Reg. 34,154 (June 29, 2021)). Thus far, the Administration has

revised only three discrete aspects of the 2020 rule, id. at 23,453,

which do not affect the 2020 rule’s provisions governing tiering

and programmatic reviews.

18

lion”). 13 And the collective cost of NEPA review for

projects being assessed under EISs and EAs has exceeded $600 million. Id. at 2.

The Ninth Circuit’s decision will only exacerbate

those inefficiencies and costs by exposing preliminary

agency reviews that increase efficiency to burdensome

litigation. NEPA, intended as a procedural statute, is

already wielded as a weapon by committed opponents

of substantive agency action. Opening the door to

NEPA challenges earlier in the process will prompt litigation-adverse agencies to waste additional time and

resources in an effort to insulate each incremental step

in their decision-making from challenge. The end result will be to “disrupt careful and thoughtful deliberations throughout federal agencies” and risk “discouraging agencies from conducting” programmatic reviews at

all. Gov’t Reh’g Br. 11-12. And as already noted, the

damage from the Ninth Circuit’s decision will be widespread given the disproportionate number of NEPA

cases decided by the Ninth Circuit. See p. 5, supra.

The Court should grant the petition to prevent these

harms from taking root.

13 https://www.americanactionforum.org/print/?url=https://www

.americanactionforum.org/research/addressing-delaysassociated-nepa-compliance/.

19

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted.

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

WILLIAM M. JAY

Counsel of Record

BENJAMIN HAYES

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

February 27, 2023

Counsel for Amicus

Curiae