Petition for Writ of Certiorari — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.

No. 23In the

Supreme Court of the United States

__________

SEVEN COUNTY INFRASTRUCTURE COALITION

and UINTA BASIN RAILWAY, LLC,

Petitioners,

v.

EAGLE COUNTY COLORADO and

CENTER FOR BIOLOGICAL DIVERSITY, et al.,

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Courts of Appeals

for the District of Columbia Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

JONATHAN A. STEARMER

625 South 400 West

Vernal, UT 84078

435.219.1390

jonathan@

stearmerlaw.com

JAY C. JOHNSON

Counsel of Record

FRED R. WAGNER

VENABLE LLP

600 Massachusetts Ave. NW

Washington, DC 20001

202.344.4000

jcjohnson@venable.com

Counsel for Petitioners

March 4, 2024

QUESTION PRESENTED

In Department of Transportation v. Public Citizen,

541 U.S. 752, 770 (2004), this Court held that when

an agency cannot prevent an environmental effect

“due to its limited statutory authority over the relevant actions,” the National Environmental Policy Act

does not require it to study that effect. This holding

has divided the courts of appeals. Five circuits read

Public Citizen to mean that an agency’s environmental review can stop where its regulatory authority

stops. Two circuits disagree and require review of any

impact that can be called reasonably foreseeable.

Here, the Surface Transportation Board relied on

Public Citizen to cabin its environmental review of a

new rail line in Utah. But the D.C. Circuit rejected

that approach, ruling that the Board “cannot avoid”

environmental review “on the ground that it lacks authority to prevent, control, or mitigate” distant environmental effects. As a result, it ordered the Board to

study the local effects of oil wells and refineries that

lie outside the Board’s regulatory authority.

The question presented is:

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.

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

This petition seeks review of two cases that were

consolidated by the D.C. Circuit Court of Appeals. In

this Court, Petitioners are the Seven County Infrastructure Coalition and Uinta Basin Railway, LLC.

Respondents in this Court who were petitioners in the

court of appeals are Eagle County, Colorado, the Center for Biological Diversity, Living Rivers, Sierra

Club, Utah Physicians for a Healthy Environment,

and WildEarth Guardians. Respondents in this Court

who were respondents in the court of appeals are the

Surface Transportation Board, the United States of

America, and the U.S. Fish and Wildlife Service.

Petitioner Seven County Infrastructure Coalition is

an independent political subdivision of the State of

Utah. Its member counties are Carbon, Daggett,

Duchesne, Emery, San Juan, Sevier, and Uintah. It

has no parent corporation, nor does it issue shares

held by any publicly traded company.

Petitioner Uinta Basin Railway, LLC is a limited

liability company organized and existing in the state

of Delaware. It is a wholly owned subsidiary of Uinta

Basin Railway Holdings, LLC, which is an affiliate of

DHIP Group, LP. Neither Uinta Basin Railway Holdings, LLC nor DHIP Group, LP issues securities to the

public, and no publicly held company has a 10% or

greater ownership interest in either Uinta Basin Railway Holdings, LLC or DHIP Group, LP.

iii

RELATED PROCEEDINGS

This case arises from the following proceedings:



Eagle County, Colorado v. Surface Transportation Board, Nos. 22-1019 & 22-1020 (consolidated) (D.C. Cir.), petition for rehearing en

banc denied on December 4, 2023



Seven County Infrastructure Coalition – Rail

Construction & Operation Exemption – In Utah,

Carbon, Duchesne, and Uintah Counties, Utah,

Docket No. FD 36284 (Surface Transportation

Board), final decision issued on December 15,

2021

No other proceedings in state or federal trial or appellate courts, or in this Court, directly relate to this

case under this Court’s Rule 14.1(b)(iii).

iv

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT .................................... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ....................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY AND REGULATORY PROVISIONS

INVOLVED ............................................................ 1

INTRODUCTION ........................................................ 4

STATEMENT OF THE CASE .................................... 7

A. Legal Background ............................................. 7

B. Factual Background ......................................... 9

C. Administrative and Judicial Proceedings...... 10

REASONS FOR GRANTING THE PETITION ....... 14

I. The circuits are split over what Public Citizen’s

“limited statutory authority” holding means. ..... 14

A. Five circuits hold that agencies need not

study environmental effects that they

do not regulate. ............................................... 14

B. Two Circuits require agencies to review effects

they do not regulate, despite Public Citizen. . 18

v

II. The D.C. Circuit’s cramped reading of Public

Citizen is not just wrong; it turns agencies into

environmental-policy czars. ................................. 21

III.The scope of NEPA review is a vital issue for

agencies, project proponents, and the public. ..... 24

A. Recent, conflicting changes to the NEPA

rules highlight the active dispute over

Public Citizen. ................................................. 24

B. The reasonable foreseeability standard is

an unmanageable line. ................................... 25

CONCLUSION .......................................................... 28

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Aracely v. Nielson,

319 F. Supp. 3d 110 (D.D.C. 2019) ................... 27

Baltimore Gas & Elec. Co. v. Natural

Resources Defense Council,

462 U.S. 87 (1983) ............................................... 7

Center for Biological Diversity v. Bernhardt,

982 F.3d 723 (9th Cir. 2020) ............................. 19

Center for Biological Diversity v. U.S. Army

Corps of Engineers,

941 F.3d 1288 (11th Cir. 2019)

..................................... 5, 6, 14, 15, 19, 20, 21, 23

Department of Transportation v.

Public Citizen,

541 U.S. 752 (2004)

...........................4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16,

17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28

Kentuckians for the Commonwealth v. U.S.

Army Corps of Engineers,

746 F.3d 698 (6th Cir. 2014)

..................................................... 4, 15, 16, 20, 24

Metropolitan Edison Co. v. People Against

Nuclear Energy,

460 U.S. 766 (1983) ....................................... 8, 14

vii

New Jersey Department of Environmental

Protection v. U.S. Nuclear Regulatory

Commission,

561 F.3d 132 (3d Cir. 2009) .......................... 4, 17

Ohio Valley Coalition v. Aracoma Coal Co.,

556 F.3d 177 (4th Cir. 2009) ................. 16, 17, 20

Protect Our Parks v. Buttigieg,

39 F.4th 389 (7th Cir. 2022) ......................... 4, 17

Robertson v. Methow Valley Citizens

Council,

490 U.S. 332 (1989) ............................................. 7

Sierra Club v. FERC (Sabal Trail),

867 F.3d 1357 (D.C. Cir. 2017)

..................................... 4, 5, 13, 18, 19, 20, 21, 22

Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council,

435 U.S. 519 (1978) ............................................. 7

Statutes

28 U.S.C. § 1254 ....................................................... 1

28 U.S.C. § 2321(a) ................................................. 12

28 U.S.C. § 2342(5) ................................................. 12

42 U.S.C. § 4332(C) ............................................ 1, 14

49 U.S.C. § 10502 ................................................... 11

Pub. L. 118-5 § 321 ................................................. 26

viii

Regulations

33 C.F.R. § 320.4(a) ................................................ 20

40 C.F.R. § 1508.1(g)(2) .......................................... 24

40 C.F.R. § 1508.8 .............................................. 2, 26

49 C.F.R. Parts 200–299 ........................................ 11

85 Fed. Reg. 1684 (Jan. 10, 2020) .......................... 25

85 Fed. Reg. 43304 (July 16, 2020) .................... 6, 24

86 Fed. Reg. 55757 (Oct. 7, 2021) .............. 24, 25, 26

87 Fed. Reg. 23453 (Apr. 20, 2022) .................... 6, 25

Other Authorities

J. Wood, Speeding Up Environmental

Reviews Is Good for the Economy and

the Environment, The Hill (Feb. 6 2020). ........ 27

Mackenzie, A. & Ruiz, S., No, NEPA Really

Is a Problem for Clean Energy, Institute

for Progress (Aug. 17, 2023) ............................. 27

Nat'l Ass'n of Env't Professionals, 2022

Annual NEPA Report (July 2022) .................... 26

Tripp, J. & Alley, N., Streamlining NEPA's

Env't Review Process: Suggestions for

Agency Reform, 12 N.Y.U. Env't L.J. 74

(2003) ................................................................. 25

PETITION FOR A WRIT OF CERTIORARI

Petitioners Seven County Infrastructure Coalition

and Uinta Basin Railway, LLC respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the D.C. Circuit.

OPINIONS BELOW

The court of appeals’ opinion is reported at 82 F.4th

1152. Pet.App.1a–71a. The court of appeals’ order

denying rehearing en banc is unreported but available

at Pet.App.72a–73a. The Surface Transportation

Board’s decision is unreported but available at 2021

WL 5960905. Pet.App.74a–189a.

JURISDICTION

The court of appeals issued its decision on August

18, 2023. Petitioners sought en banc rehearing of that

decision, which the court denied on December 4, 2023.

Pet.App.72a–73a. This Court has jurisdiction under

28 U.S.C. § 1254.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

42 U.S.C. § 4332(C) (2019) provides:

The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the

Federal Government shall—

(C) include in every recommendation or report on

proposals for legislation and other major Federal actions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

2

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has

jurisdiction by law or special expertise with respect to

any environmental impact involved. Copies of such

statement and the comments and views of appropriate

Federal, State, and local agencies, which are authorized to develop and enforce environmental standards,

shall be made available to the President, the Council

on Environmental Quality and to the public as provided in section 552 of title 5, and shall accompany the

proposal through the existing agency review processes[.]

40 C.F.R. § 1508.8 (2019) provides:

Effects include:

(a) Direct effects, which are caused by the action

and occur at the same time and place.

(b) Indirect effects, which are caused by the action

and are later in time or farther removed in distance,

but are still reasonably foreseeable. Indirect effects

may include growth inducing effects and other effects

related to induced changes in the pattern of land use,

3

population density or growth rate, and related effects

on air and water and other natural systems, including

ecosystems.

Effects and impacts as used in these regulations

are synonymous. Effects include ecological (such as

the effects on natural resources and on the components, structures, and functioning of affected ecosystems) aesthetic, historic, cultural, economic, social, or

health, whether direct, indirect, or cumulative). Effects may also include those resulting from actions

which may have both beneficial and detrimental effects, even if on balance the agency believes that the

effect will be beneficial.

4

INTRODUCTION

This case presents a circuit split over the meaning

of Department of Transportation v. Public Citizen, 541

U.S. 752 (2004). That decision held that “where an

agency has no ability to prevent” an environmental effect “due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” Id. at 770. Hence,

the agency need not study that effect in its National

Environmental Policy Act review. Id.

Most circuits see Public Citizen as tying the scope

of an agency’s NEPA review to the limits of that

agency’s regulatory authority. As the Sixth Circuit

put it, “agencies may reasonably limit their NEPA review to only those effects proximately caused by the

actions over which they have regulatory responsibility.” Kentuckians for the Commonwealth v. U.S. Army

Corps of Eng’rs, 746 F.3d 698, 710 (6th Cir. 2014).

Thus, the “line between those causal changes that

may make an actor responsible for an effect and those

that do not” will “approximate the limits of an

agency’s area of control.” N.J. Dep’t of Env’t Protection

v. U.S. Nuclear Reg. Comm’n, 561 F.3d 132, 139 (3d

Cir. 2009). In other words, an “agency is on the hook”

under Public Citizen “only for the decisions that it has

the authority to make.” Protect Our Parks v. Buttigieg,

39 F.4th 389, 400 (7th Cir. 2022).

But the D.C. Circuit takes a conflicting view. It

reads Public Citizen as turning “not on the question

‘What activities does [the agency] regulate,’” but on

the agency’s power to block a project that “would be

too harmful to the environment.” Sierra Club v. FERC

(Sabal Trail), 867 F.3d 1357, 1373 (D.C. Cir. 2017).

On this view, agencies must consider even those distant environmental effects that are another agency’s

5

responsibility: “[T]he existence of permit requirements overseen by another federal agency or state

permitting authority cannot substitute for a proper

NEPA analysis.” Id. at 1375.

The Eleventh Circuit has expressly rejected the

D.C. Circuit’s “outlier” view, criticizing its sister circuit for “failing to take seriously the rule in Public Citizen” and ignoring “the untenable consequences of its

decision.” Ctr. for Biological Diversity v. U.S. Army

Corps of Eng’rs, 941 F.3d 1288, 1299–1300 (11th Cir.

2019). Like the Third, Fourth, Sixth, and Seventh Circuits, the Eleventh Circuit holds that when an agency

“lacks the authority to regulate” an effect “wholesale,”

Public Citizen does not require the agency to consider

that effect. Id. at 1294. The Eleventh Circuit also rejected the D.C. Circuit’s NEPA-based dismissal of

other agencies’ oversight, holding instead that an environmental review may exclude “distantly caused effects” that are subject to “independent regulatory

schemes.” Id. at 1292.

The decision here shows why the D.C. Circuit is on

the wrong side of this conflict. Petitioners want to

build a new 88-mile common carrier rail line that

would link an isolated part of Utah to the national rail

network. They sought and received the Surface Transportation Board’s approval to do so. But when opponents of Petitioners’ project challenged it in the D.C.

Circuit, they said nothing about the proximate effects

of the 88-mile line that the Board had approved. Instead, they argued that the Board should have done

more to study the distant effects of the main commodity that the rail line would carry—waxy crude oil.

In approving the rail line, the Board had explained

that it lacked “authority or jurisdiction over development of oil and gas” and could not “control or mitigate

6

the impacts of any such development.” Pet.App.108a.

Thus, the Board reasoned, those impacts were not indirect effects of the rail line under Public Citizen.

Pet.App.108a. The D.C. Circuit held otherwise: “The

Board [] cannot avoid its responsibility under NEPA

to identify and describe the environmental effects of

increased oil drilling and refining on the ground that

it lacks authority to prevent, control, or mitigate those

developments.” Pet.App.36a. Under this rule, the

Board had to consider not only the effects of the new

rail line it was permitting in Utah, but also the hypothetical, localized effects of processing the oil carried

on the line at separately regulated Gulf Coast refineries a thousand miles away. Pet.App.36a–37a.

By requiring an agency to consider any environmental effect that it has the power to prevent, no matter the limits of its regulatory authority, the D.C. Circuit’s rule turns each agency into a “de facto environmental-policy czar.” Ctr. for Biological Diversity, 941

F.3d at 1299. To avoid that outcome, the last administration adopted new NEPA rules that relied on Public Citizen to limit the scope of agency environmental

review. See 85 Fed. Reg. 43304, 43344 (July 16, 2020).

But just two years later, a new administration reversed course, abandoned the majority reading of

Public Citizen, and reinstated the old NEPA rules. See

87 Fed. Reg. 23453, 23464 (Apr. 20, 2022). These dueling White House interpretations of Public Citizen

underscore the reasons for review here. Agencies need

a manageable line to guide their NEPA studies, and

this Court is now the only place to find one.

7

STATEMENT OF THE CASE

The National Environmental Policy Act makes “a

broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). To fulfill that commitment, NEPA requires agencies to prepare a report that “take[s] a ‘hard look’ at the environmental consequences” of their actions. Baltimore Gas

& Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97

(1983). But “NEPA itself does not mandate particular

results,” only “the necessary process” for considering

the environmental effects of agency action. Robertson,

490 U.S. at 350. Because this environmental review

process can become an end in itself, the Court from

time-to-time has had to step in to draw “[c]ommon

sense” boundaries. Vermont Yankee Nuclear Power

Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 551

(1978). This case should be another one of those times.

A. Legal Background

Public Citizen illustrates how this Court has imposed common sense on the NEPA process. The

Court’s decision started by emphasizing that NEPA’s

“procedural requirements” have “a particular focus on

requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” 541

U.S. at 756–57. The Court then turned to the facts before it, which involved the President’s decision to lift

a longstanding moratorium on Mexican motor carriers

operating in the United States. Id. 759. Before that

decision could take effect, the Federal Motor Carrier

Safety Administration had to promulgate new safety

rules for the Mexican carriers. Id. at 760. But that was

all FMCSA could do. It had “no statutory authority to

impose or enforce emissions controls or to establish

8

environmental requirements unrelated to motor carrier safety.” Id. at 759.

Because FMCSA’s role was limited to enforcing motor carrier safety, its NEPA review “did not consider

any environmental impact that might be caused by

the increased presence of Mexican trucks within the

United States.” Id. at 761. Yet when FMCSA’s safety

rules were challenged, the court of appeals found that

the agency’s NEPA review had “failed to give adequate consideration to the overall environmental impact of lifting the moratorium” on Mexican trucks. Id.

at 762.

This Court unanimously reversed. In so doing, the

Court recognized that it would be “impossible” for

Mexican trucks to operate in the United States until

FMCSA issued its rules. Id. at 765. Still, it found that

those rules were not the “cause” of the trucks’ overall

impact. Id. at 765–67. The Court based this finding on

the principle that “NEPA requires ‘a reasonably close

causal relationship’ between the environmental effect

and the alleged cause.” Id. at 767 (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S.

766, 774 (1983)). “But for” causation was not enough.

Id. And since FMCSA lacked the “ability categorically

to prevent” trucks from entering the country, it did not

cause the environmental effects of those trucks’

“cross-border operations.” Id. at 768. The Court summarized its holding this way: “[W]here an agency has

no ability to prevent a certain effect due to its limited

statutory authority over the relevant actions, the

agency cannot be considered the legally relevant

‘cause’ of the effect.” Id. at 770.

9

B. Factual Background

Public Citizen was central to the Surface Transportation Board’s decision to authorize construction and

operation of the new rail line here—the Uinta Basin

Railway. That railway will serve the Uinta Basin, a

12,000-square-mile area in northeast Utah and northwest Colorado that is isolated by the mountain ranges

and plateaus of the western Rockies. Though the basin is about the same size as Maryland, the only way

to reach it today is over two-lane roads that cross high

mountain passes. This inaccessibility makes it hard

for people living in the basin to participate in the

broader economy.

If the basin were less isolated, it would change people’s lives. The basin is filled with untapped natural

resources, including valuable minerals, natural gas,

and waxy crude oil. The basin’s farmers and ranchers

grow alfalfa, corn, and cattle. But without better infrastructure, these products can never reach the rest

of the country. At the same time, products from the

rest of the country cannot easily reach the people living in the basin. These chokepoints raise costs for everyone, blocking diverse trade and throttling the basin’s economy.

The Uinta Basin Railway could unlock the basin’s

potential. By building 88 miles of railroad track from

the heart of the basin to a new connection with the

national rail network, the project would bridge the

transportation gap that stops farmers, ranchers, manufacturers, and oil producers from selling to wider

markets. This railway would carry diverse commodities, improving lives by boosting the basin’s economy.

But its initial success depends on its ability to

transport the basin’s environmentally superior waxy

crude oil to refineries in other parts of the country.

10

Of course, success is not guaranteed. The Uinta Basin Railway is an economic development project sponsored by a unit of state government, Petitioner Seven

County Infrastructure Coalition. To facilitate the Surface Transportation Board’s environmental review of

its project, Seven County made high and low estimates of the oil production that the project could support, and thus the number of trains that might travel

on the new rail line. It also told the Board about refineries around the country where that oil could be delivered, displacing oil from other sources. But Seven

County did not have contracts with any of those downstream refineries or with any upstream oil developers.

So it had no way of knowing which shippers would use

the new rail line, much less where the oil would go.

C. Administrative and Judicial Proceedings

The Surface Transportation Board started its environmental review of the Uinta Basin Railway in June

2019. After more than a year of study, the Board published a draft environmental impact statement describing the environmental effects of three alternative

rail alignments. The Board then revised that draft

based on public and agency input, leading to a 3,600page final statement in August 2021—more than two

years after the review began.

The Board’s environmental review confirmed the

separateness of any oil development. New oil wells

would involve “projects that have not yet been proposed or planned,” and which could occur on private,

state, tribal, or federal land, where they would be

studied and regulated by the appropriate agencies.

JA1238. The Board similarly found that “it is not possible to identify specific refineries”—also separately

regulated—“that would receive shipments” of oil from

the Uinta Basin. Pet.App.111a. Some of those

11

refineries could be in Louisiana; others could be in

Texas, Kentucky, Oklahoma, or Washington. JA1189.

As for the effects of transporting Uinta Basin oil after

it leaves the new 88-mile rail line, the Board found

that the Uinta Basin Railway would connect with Union Pacific’s line. Pet.App.77a. Safety on those lines is

regulated by the Federal Railroad Administration, not

the Board. See 49 C.F.R. Parts 200–299 (FRA safety

rules).

While the Board prepared its environmental review, Petitioner Seven County sought an exemption

from the Board’s usual regulatory requirements for

new rail construction. See 49 U.S.C. § 10502 (describing the exemption process). Since the environmental

review had by then been underway for nearly a year,

Seven County also asked the Board to preliminarily

address the transportation merits of the new rail line.

In January 2021, the Board agreed that the Uinta Basin Railway qualified for an exemption, subject to

completion of the still-ongoing environmental review.

Pet.App.206a–210a.

Once the environmental review was done, the

Board made a final decision approving the project.

The bulk of that decision was devoted to an analysis

of the new rail line’s environmental effects. As part of

that analysis, the Board explained that under Public

Citizen, “when an agency ‘has no ability to prevent a

certain effect due to its limited statutory authority

over the relevant actions, the agency cannot be considered the legally relevant ‘cause’ of the effect’ for

NEPA purposes.” Pet.App.107a–108a (quoting Public

Citizen, 541 U.S. at 767–68). Because the Board had

“no authority or jurisdiction over development of oil

and gas in the Basin nor any authority to control or

mitigate the impacts of any such development,” it

12

concluded that the effects of oil and gas development

were not indirect effects of the new rail line.

Pet.App.108a. Similarly, because the Board lacked

power to “regulate or mitigate impacts caused by”

other rail carriers’ operations in other states, it declined to treat those carriers’ operations as indirect effects of the new rail line in the Uinta Basin.

Pet.App.112a.

Having concluded that its environmental review

met NEPA’s requirements under Public Citizen and

otherwise, the Board approved construction and operation of the new rail line. Pet.App.122a. Board Chairman Oberman dissented. Pet.App.123a–147a.

Respondents—Eagle County, Colorado and a collection of environmental groups led by the Center for Biological Diversity—separately petitioned for review of

the Board’s decision in the D.C. Circuit, which had jurisdiction under 28 U.S.C. §§ 2342(5) and 2321(a). Petitioners Seven County Infrastructure Coalition and

proposed rail line operator Uinta Basin Railway, LLC

intervened in both cases to defend the Board’s decision. Since the two petitions raised some of the same

issues, the court consolidated them. After briefing and

argument, the court vacated and remanded the

Board’s decision.

The D.C. Circuit recognized that the Board had relied on Public Citizen to set the scope of its environmental review. Pet.App.36a. But the court rejected

the Board’s reading of that case. It explained that the

Board “cannot avoid its responsibility under NEPA to

identify and describe the environmental effects of increased oil drilling and refining on the ground that it

lacks authority to prevent, control, or mitigate those

developments.” Pet.App.36a. To the contrary, the

court held, the Board’s mere “authority to deny” a new

13

rail project “on the ground that the railway’s anticipated environmental and other costs outweigh its expected benefits” meant that “the Board’s argument

that it need not consider effects it cannot prevent is

simply inapplicable.” Pet.App.36a–37a (citing Sabal

Trail, 867 F.3d at 1373).

The D.C. Circuit’s decision also found inadequate

the Board’s review under the Endangered Species Act

and its analysis under the ICC Termination Act. And

it affirmed some aspects of the Board’s environmental

review. None of those holdings is at issue here. The

court of appeals remanded this case to the Board “for

further proceedings,” Pet.App.71a, and the Board

must prepare a new NEPA document before it can address any other issue.

Petitioners timely sought en banc rehearing of the

D.C. Circuit’s decision. The court denied their petition

on December 4, 2023. Pet.App.72a–73a.

14

REASONS FOR GRANTING THE PETITION

Faced with NEPA’s general requirement to report

on the environmental effects of major federal actions,

42 U.S.C. § 4332(C), agencies need a “manageable line

between those causal changes that may make an actor

responsible for an effect and those that do not.” Public

Citizen, 541 U.S. at 767 (quoting Metro. Edison, 460

U.S. at 774 n.7). This Court tried to draw such a line

in Public Citizen when it held that an agency’s “limited statutory authority” over an action could break

the causal chain. Most circuits have embraced this

line. But the two circuits that handle the most NEPA

cases—the D.C. Circuit and the Ninth Circuit—have

not. This case squarely presents the D.C. Circuit’s

parsimonious reading of Public Citizen, which the

Eleventh Circuit has expressly rejected, and which

four other circuits reject in principle. By hearing the

case, the Court can make sure that the line it drew in

Public Citizen stays manageable.

I. The circuits are split over what Public

Citizen’s “limited statutory authority”

holding means.

A. Five circuits hold that agencies need not

study environmental effects that they do

not regulate.

The Eleventh Circuit’s decision in Center for Biological Diversity dives deepest into the meaning of

Public Citizen. In that case, the Corps of Engineers

was permitting wetland discharges required for the

expansion of a phosphate mine in Florida. Ctr. for Biological Diversity, 941 F.3d at 1292. The Corps’ NEPA

review addressed the direct and indirect effects of

those discharges. Id. at 1293. But the Corps did not

study the effects of refining the phosphate ore into

15

fertilizer or the effects of storing a radioactive refining

byproduct called phosphogypsum—even though the

processing and waste storage would be done by the

same company in the same state. Id. at 1293–94.

Relying on Public Citizen, the Eleventh Circuit upheld the Corps’ focused environmental review. The

court began by pointing out that “[t]he Corps did not

issue a mining permit, nor a permit to produce fertilizer or store phosphogypsum—it has no jurisdiction

to regulate or authorize any of that.” Id. at 1294. It

went on to note that “EPA and the [Florida Department of Environmental Protection]—not the Corps—

directly regulate fertilizer plants and phosphogypsum.” Id. at 1295. “[I]t was sensible,” the court explained, “for the Corps to draw the line at the reaches

of its own jurisdiction, leaving the effects of phosphogypsum to phosphogypsum’s regulators” and “respecting the jurisdictional boundaries set by Congress

and inherent in state-federal cooperation.” Id. at

1295–96. Any other reading of Public Citizen would

turn the Corps into a “de facto environmental-policy

czar” that could deny a permit based on “its dislike of

the applicant’s business or downstream effects not

sufficiently caused by” the activity the Corps was permitting. Id. at 1296, 1299.

The Sixth Circuit has likewise read Public Citizen

as limiting an agency’s environmental review obligations to actions over which the agency has regulatory

authority. Kentuckians, 746 F.3d at 706, 708–10. That

case involved a coal mine that was permitted by the

state, but which also required a permit from the Corps

of Engineers. Id. at 701–02. Despite public comments

urging it to weigh the significant health effects of mining, the Corps concluded that its permit to fill streams

16

with spoil from the mine—once mitigated—would not

significantly affect the environment. Id. at 704 & n.1.

The Sixth Circuit agreed with the Corps’ decision

not to study the broader effects of the mine. Citing

Public Citizen, it held that “in the context of a complete regulatory scheme, agencies may reasonably

limit their NEPA review to only those effects proximately caused by the actions over which they have

regulatory responsibility.” Id. at 710. The “complete

regulatory scheme” at issue in Kentuckians was the

Surface Mining Control and Reclamation Act, which

allowed states that met federal minimum standards

to regulate coal mining. Id. at 701–02. And as the

court pointed out, “[t]here are good reasons” for Congress to avoid “a regulatory system in which each regulatory actor involved in a large operation, even in a

comparatively minor way, is required to consider all

of the effects of the overall project.” Id. at 709.

Both the Eleventh and the Sixth Circuits’ decisions

drew on the Fourth Circuit’s opinion in Ohio Valley

Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir.

2009). Ohio Valley also involved a Corps of Engineers

permit issued in connection with a state-permitted

coal mine. Id. at 189–91. But the mine opponents’ argument in Ohio Valley was narrower. They asked only

that the Corps consider the effects of spoil disposal

outside jurisdictional waters, not that it study the entire mine. Id. 188, 193. Still, the court of appeals ruled

against them. Noting that “the Corps has no legal authority to prevent the placement of fill material in areas outside of the waters of the United States,” the

court held that under Public Citizen, the Corps did not

have to study effects over which it lacked “control and

responsibility.” Id. at 196–97. And, like the Eleventh

and Sixth Circuits, the Fourth Circuit pointed out

17

that any other NEPA rule would render the state’s

regulatory scheme “at best duplicative, and, at worst,

meaningless.” Id. at 196.

The Corps of Engineers is far from the only agency

to have faced these issues. In a Third Circuit case, project opponents questioned the Nuclear Regulatory

Commission’s decision not to study the potential effects of an airborne terrorist attack on a New Jersey

nuclear power plant. N.J. Dep’t of Env’t Protection,

561 F.3d at 135. The court of appeals responded by

looking to Public Citizen. Following this Court’s direction to “draw a manageable line” to assess causation,

the Third Circuit concluded that “this line appears to

approximate the limits of an agency’s area of control.”

Id. at 139. Because the Nuclear Regulatory Commission had “no authority over the airspace above its facilities,” it did not have to study the potential environmental effects of an airplane crashing into a nuclear

power plant. Id.

Finally and most recently, the Seventh Circuit relied on Public Citizen in rejecting a NEPA challenge

to the Obama Presidential Center. It explained that

NEPA “does not require agencies to waste time and

resources evaluating environmental effects that those

agencies neither caused nor have the authority to

change.” Protect Our Parks, 39 F.4th at 393. And

while building the center at the preferred site required National Park Service approval, the Service

lacked control over the site-selection process. Id. 399.

Because Public Citizen put the Service “on the hook

only for the decisions that it has the authority to

make,” the Service could “confine” its NEPA analysis

“to the portions of the project that are subject to federal review.” Id. at 399–400.

18

B. Two Circuits require agencies to review

effects they do not regulate, despite

Public Citizen.

The D.C. Circuit takes a starkly different view of

Public Citizen. That view emerged in the court’s Sabal

Trail decision, which held that the Federal Energy

Regulatory Commission’s environmental review of a

natural gas pipeline should have considered the effects of burning the gas in power plants. 867 F.3d at

1371–72. To reach that holding, the court limited Public Citizen to cases in which an agency was barred

from even considering the relevant environmental effects when making its decision. See id. at 1373. By

narrowing Public Citizen, the D.C. Circuit expanded

agencies’ environmental review duties to cover any effect “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching

a decision.” Id. at 1371 (brackets omitted). In this way,

the D.C. Circuit dropped Public Citizen’s focus on an

agency’s regulatory authority in favor of an agency’s

capacity to speculate about foreseeable effects.

The D.C. Circuit in Sabal Trail seemed to know

that it was departing from other circuits’ reading of

Public Citizen. Without citing those other circuits’ decisions, Sabal Trail expressly rejected the idea that

Public Citizen turned “on the question ‘What activities

does FERC regulate?’” (id. at 1373)—exactly the idea

that the Third, Fourth, and Sixth Circuits had already

endorsed. The D.C. Circuit also held that “the existence of permit requirements overseen by another federal agency or state permitting authority cannot substitute for a proper NEPA analysis.” Id. at 1375.

Again, the Third, Fourth, and Sixth Circuits had held

the opposite.

19

The Eleventh Circuit saw this conflict. And while it

pointed out some superficial factual differences between Sabal Trail and the situation it was facing in

Center for Biological Diversity, it emphasized that

“the legal analysis in Sabal Trail is questionable at

best.” 941 F.3d at 1300. That analysis, the Eleventh

Circuit said, “fails to take seriously the rule of reason

announced in Public Citizen or to account for the untenable consequences of [the court’s] decision.” Id.

The Ninth Circuit, unlike the Eleventh, has relied

on Sabal Trail’s analysis. In Center for Biological Diversity v. Bernhardt, the Ninth Circuit repeatedly

cited Sabal Trail in holding that the Bureau of Ocean

Energy Management should have estimated emissions from foreign oil consumption when preparing its

NEPA review for an offshore oil drilling and production facility. 982 F.3d 723, 731, 736–40 (9th Cir. 2020).

Like the D.C. Circuit in Sabal Trail, the Ninth Circuit

reached this conclusion despite the Bureau’s inability

to regulate—or even estimate the change in—foreign

nations’ oil consumption. Id. at 738. Public Citizen,

meanwhile, appears only as a “cf.” cite after the penultimate sentence in the Ninth Circuit’s analysis.

That leaves the court of appeals in this case. The

Surface Transportation Board here approved an 88mile rail line that links the Uinta Basin with the national rail network. That new rail line would carry

crude oil, but the Board reasoned that Public Citizen

did not require it to study the distant effects of the oil’s

extraction, transportation on other rail lines, or refinement—effects over which it had “no authority or

jurisdiction.” Pet.App.108a. The D.C. Circuit, citing

Sabal Trail, called the Board’s logic “simply inapplicable.” Pet.App.37a. In the court of appeals’ view, the

Board’s lack of “authority to prevent, control, or

20

mitigate” distant effects did not “excuse[]” it from

studying them under NEPA. Pet.App.36a–37a.

Finally, it does not matter that the “public convenience and necessity” permitting standard that applied

here and in Sabal Trail differs from the Corps of Engineers’ permitting standard. NEPA addresses the environmental effects of agency actions, not the agency’s

permitting standard. In any case, as the Sixth Circuit

noted in Kentuckians, the Corps’ rules require “a public interest review for all permit decisions.” 746 F.3d

at 712 (citing 33 C.F.R. § 320.4(a)). Such a public interest review gave the Corps just as much power to

deny the permits in Center for Biological Diversity,

Kentuckians, and Ohio Valley as FERC had in Sabal

Trail or the Surface Transportation Board had here.

Thus, the agencies’ substantive decision-making rules

cannot account for the circuits’ conflicting interpretations of Public Citizen.

*

*

*

The sharp split between the D.C. Circuit’s reading

of Public Citizen and the reading employed by the

Third, Fourth, Sixth, Seventh, and Eleventh Circuits

is ready for this Court to resolve. As a legal matter,

the D.C. Circuit’s approach “fails to take seriously”

the logic of Public Citizen. Ctr. for Biological Diversity,

941 F.3d at 1300. As a practical matter, the two approaches cannot be reconciled. It makes no sense that

a Corps permit essential to a coal mine does not trigger a study of the mine’s effects, while a rail line that

merely carries crude oil requires a study of oil extraction and refinement. Compare Kentuckians, 746 F.3d

at 708–10 with Pet.App.36a–37a. And the 5–2 split

among the circuits (with the Ninth Circuit mimicking

the D.C. Circuit’s approach) is deep enough to warrant

this Court’s immediate attention.

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II. The D.C. Circuit’s cramped reading of

Public Citizen is not just wrong; it turns

agencies into environmental-policy czars.

The D.C. Circuit’s approach to Public Citizen not

only diverges from the path followed by five other circuits, it undercuts Public Citizen itself.

In Public Citizen, the Court saw that the argument

for broadly scoped NEPA review rested “on a particularly unyielding variation of ‘but for’ causation, where

an agency’s action is considered a cause of an environmental effect even when the agency has no authority

to prevent the effect.” 541 U.S. at 767. The key question here is what the Court meant by “no authority to

prevent the effect.” The answer hinges on the Court’s

observation that it was “impossible for any Mexican

motor carrier to receive authorization to operate

within the United States until FMCSA issued” its new

rules. Id. at 765. In that sense, the agency did have

the “authority”—i.e., the raw power—“to prevent”

Mexican trucks from entering the country. What it

lacked was any regulatory authority over the effects of

those trucks’ entry. So when the Court said that

FMCSA had “no authority to prevent the effect[s]” of

Mexican trucks entering the country, it was talking

about the agency’s lack of regulatory authority.

The D.C. Circuit “breez[es] past” this Court’s reasoning, as the Eleventh Circuit has pointed out, focusing instead on the “reasonable foreseeability” of distant effects, “as understood colloquially.” Ctr. for Biological Diversity, 941 F.3d at 1300. This misguided focus is clear in Sabal Trail. The D.C. Circuit’s analysis

in that case started from the premise that “[t]he

phrase ‘reasonably foreseeable’ is the key here.” Sabal

Trail, 867 F.3d at 1371. The court then required a review of distant environmental effects that are

22

regulated by other agencies because they were reasonably foreseeable. Id. at 1372. Only after finding the

effects reasonably foreseeable did the court in Sabal

Trail confront Public Citizen. That analysis is backwards. Instead of first considering the scope of the

agency’s regulatory authority, Sabal Trail simply

asked whether the agency had “legal power to prevent” an effect. Id. (emphasis omitted). Because that

question goes to “but for” causation, not regulatory authority, it misses Public Citizen’s point.

The court of appeals made the same mistake here.

Expressly relying on Sabal Trail, the court focused on

reasonable foreseeability, ultimately concluding that

the Surface Transportation Board should have “engage[d] in ‘reasonable forecasting and speculation’” to

“quantify the environmental effects” of oil wells located somewhere in the 12,000-square mile Uinta Basin. Pet.App.32a, 34a. Similarly, the court held that

the Board should have “estimate[d] the emissions or

other environmental impacts” of refining oil a thousand miles away from the new rail line’s endpoint.

Pet.App.34a. As in Sabal Trail, the court waited to address Public Citizen, then rejected the Board’s use of

that decision as an effort to “avoid its responsibility

under NEPA . . . on the ground that it lacks authority

to prevent, control, or mitigate” distant environmental effects. Pet.App.36a. This approach effectively confines Public Citizen to its facts and requires agencies

to study any environmental effect that their decisions

can “prevent.” Pet.App.37a. Such repackaging of the

“but for” causation analysis that Public Citizen rejected cannot be reconciled with this Court’s ruling.

The D.C. Circuit’s cramped reading of Public Citizen has another, bigger problem that the Eleventh

Circuit also flagged. If NEPA required agencies to

23

assess distant effects over which they have no regulatory responsibility, it would turn those agencies into

“environmental-policy czar[s].” Ctr. for Biological Diversity, 941 F.3d at 1299. Such czars, rather than focusing on the effects of their own actions, could deny

permits based on issues that lie outside both their authority and their expertise. See id. And that is just

what the D.C. Circuit asked the agency here to do.

The court of appeals was right that the Surface

Transportation Board had “exclusive jurisdiction over

the construction and operation of” the Uinta Basin

Railway, and that the Board could decline the project

“if the environmental harm caused by the railway outweigh[ed] its transportation benefits.” Pet.App.36a.

But it did not follow that the Board’s NEPA analysis

had to cover all “reasonably foreseeable environmental harms”—including a cradle-to-grave review of the

oil that the new rail line would carry from the basin

to the national rail network. Pet.App.37a. The Board

does not set oil extraction and refining policy. Nor is

it positioned to judge whether the local effects of refining oil in Louisiana—or any other state—are more

important than the benefits of a new rail line in Utah.

The Board authorizes the construction and operation

of new rail lines, and Public Citizen wisely confines its

environmental review to the proximate effects of that

action. 541 U.S. at 767. The court of appeals’ contrary

decision was wrong.

24

III. The scope of NEPA review is a vital issue

for agencies, project proponents, and the

public.

A. Recent, conflicting changes to the NEPA

rules highlight the active dispute over

Public Citizen.

The courts of appeals are not the only forum for disagreement over Public Citizen’s “limited statutory authority” holding. The White House Council on Environmental Quality, in amending the rules that implement NEPA, has also taken conflicting positions on

Public Citizen. In 2020, CEQ published a rule meant

to “codify a key holding of Public Citizen” and “make

clear that effects” under NEPA “do not include effects

that the agency has no authority to prevent . . . .” 85

Fed. Reg. 43304, 43344 (July 16, 2020). That rule

matched the circuit-majority rule. See, e.g., Kentuckians, 746 F.3d at 710 (holding that “agencies may reasonably limit their NEPA review to only those effects

proximately caused by the actions over which they

have regulatory responsibility”).

But a new Presidential administration interpreted

Public Citizen differently. So CEQ proposed a new

rule in 2021 that explicitly rejected the 2020 rule’s attempt “to exclude ‘effects that the agency had no ability to prevent due to its limited statutory authority’”

over the relevant actions. 86 Fed. Reg. 55757, 55766

(Oct. 7, 2021) (quoting 40 C.F.R. § 1508.1(g)(2) (2020)

(defining “effects” under NEPA)). The new administration’s proposed rule said that a narrower definition of effects “unduly limit[ed] agency discretion.” Id.

And, to defend its reversal, the proposed rule offered

a conflicting take on Public Citizen. See id.

25

When the new administration finalized its NEPA

rules, its Federal Register notice devoted an entire

section to the debate over Public Citizen. See 87 Fed.

Reg. 23453, 23464–65 (Apr. 20, 2022) (addressing

“Comments on Department of Transportation v. Public Citizen”). That section claimed that CEQ had

“reexamined its interpretation of and reliance on the

Public Citizen decision in the 2020 rule.” Id. at 23464.

But its reading of Public Citizen was policy-driven.

The 2020 rule, CEQ argued, was “not compelled by the

opinion itself” and did not “comport with” the new administration’s “view of the proper scope of effects analysis . . . .” Id. Instead, CEQ—like the D.C. Circuit—

elevated the “principle of reasonable foreseeability”

above Public Citizen’s definition of effect. Id. at 23465.

B. The reasonable foreseeability standard is

an unmanageable line.

CEQ’s rival readings of Public Citizen have one

thing in common: They rest on a consensus that NEPA

review too often creates more burdens than benefits.

See 85 Fed. Reg. 1684, 1691 (Jan. 10, 2020) (noting

that “numerous commenters” wanted rule changes to

“reduce unnecessary burdens and costs”); 86 Fed. Reg.

at 55759 (describing the new administration’s review

of the 2020 rules as ensuring a “sound and efficient”

NEPA process). That imbalance is why policymakers

for decades have been trying to streamline NEPA. See

Tripp, J. & Alley, N., Streamlining NEPA’s Env’t Review Process: Suggestions for Agency Reform, 12

N.Y.U. Env’t L.J. 74, 77–78 (2003). In practice, NEPA

encourages agencies to “cover every bullet point in

[their] plan with a paper shield,” leading to “an unwieldy document that is of little help in practical planning because useful details become lost amid the clutter.” Id. at 87. Yet CEQ’s 2022 rule reinstated the

26

same definition of effects that had applied since 1978.

See 86 Fed. Reg. at 55766.

NEPA’s inefficiency has also been the subject of recent legislative action. Recognizing that the environmental impact statement process takes an average of

4.5 years, Exec. Office of the Pres., Council on Env’t

Quality, Env’t Impact Statement Timelines (2010–

2018) (June 12, 2020), Congress amended NEPA to

impose time and page limits. See Pub. L. 118-5 § 321.

After those changes, agencies must complete an environmental impact statement within two years and in

fewer than 150 pages (or 300 pages for actions “of extraordinary complexity”). Id. § 321(b).

But these statutory changes do not alter the scope

of an agency’s environmental review. On that front,

the new legislation merely codifies the old NEPA

rules: Agencies must study any “reasonably foreseeable adverse environmental effects which cannot be

avoided should the proposal be implemented.” Id.

§ 321(a) (emphasis added); see 40 C.F.R. § 1508.8(b)

(2019) (defining “indirect effects” to include effects

that are “reasonably foreseeable”). Thus, NEPA still

does not address the problem presented by this case.

An agency following the D.C. Circuit’s reasonable

foreseeability rule will find it hard—if not impossible—to write an impact statement in two years and

150 pages. The scope of its review is just too broad.

That this burdensome NEPA review rule applies in

the Ninth and D.C. Circuits creates special problems.

The bulk of all NEPA litigation plays out in those two

circuits. See Nat’l Ass’n of Env’t Professionals, 2022

Annual NEPA Report 26 (July 2022) (showing that

the Ninth and D.C. Circuit Courts of Appeals have

27

decided more than 65% of NEPA cases since 2006).1

And because many agencies make their policy decisions at D.C.-based headquarters, projects from

around the country may be challenged in the D.C. Circuit. See Aracely v. Nielson, 319 F. Supp. 3d 110, 128–

29 (D.D.C. 2019) (finding that “application of a purported policy that supposedly emanated from an

agency located in the District of Columbia” favored

venue in D.C.). This jurisdictional rule makes NEPAbased forum-shopping inevitable.

Boundless NEPA review hurts project proponents

and the public too. The time and expense of environmental review is a barrier to all kinds of new projects—including clean energy projects—that prevents

some of them from ever getting off the ground. See

Mackenzie, A. & Ruiz, S., No, NEPA Really Is a Problem for Clean Energy, Institute for Progress (Aug. 17,

2023).2 More subtly, a costly environmental review

process gives existing businesses “a competitive advantage,” thereby “undermin[ing] innovation” and

leaving in place “existing facilities that have more significant adverse environmental impacts.” J. Wood,

Speeding Up Environmental Reviews Is Good for the

Economy and the Environment, The Hill (Feb. 6

2020). These costs hurt the public as much as they do

the project proponent trying to win agency approval

for a new idea.

In the end, the only way to stop runaway scoping

from overwhelming the NEPA process is to consistently apply this Court’s holding in Public Citizen.

1 Available at https://naep.memberclicks.net/assets/annual-re-

port/NEPA_Annual_Report_2022.pdf.

2 Available at https://ifp.org/no-nepa-really-is-a-problem-forclean-energy/.

28

Under that holding, each agency must consider the

proximate effects of the actions over which it has regulatory authority. 541 U.S. at 767, 770. The mere ability to prevent an effect—“but for” causation—is not

enough to expand the scope of the agency’s NEPA review. Id. at 767. Because the D.C. Circuit’s decision

erases this vital “manageable line,” id. at 767, this

Court’s review is needed now.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JAY C. JOHNSON

Counsel of Record

FRED R. WAGNER

VENABLE LLP

600 Massachusetts Ave. NW

Washington, DC 20001

202.344.4000

jcjohnson@venable.com

JONATHAN A. STEARMER

625 South 400 West

Vernal, UT 84078

435.219.1390

jonathan@stearmerlaw.com

March 4, 2024