Amicus Curiae Brief — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.

No. 23-975

IN 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

Court of Appeals for the District of Columbia

____________________________________

BRIEF OF THE

INTERSTATE NATURAL GAS ASSOCIATION OF

AMERICA, THE LIQUID ENERGY PIPELINE

ASSOCIATION, THE CENTER FOR LNG, THE

NATURAL GAS SUPPLY ASSOCIATION, AND THE

AMERICAN GAS ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

____________________________________

DONALD P. SALZMAN

Counsel of Record

JAMES P. DANLY

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

202-371-7000

donald.salzman@skadden.com

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF THE AMICI ....................................... 1

SUMMARY OF THE ARGUMENT ............................ 7

ARGUMENT.............................................................. 10

I.

This Court Should Grant Certiorari to

Resolve the Circuit Split Created by Sabal

Trail. ............................................................... 10

II.

This Court Should Grant Certiorari Because

the Expanded Scope of NEPA and the Sabal

Trail Circuit Split Impede Critical

Infrastructure Development. ......................... 14

III.

Certiorari Should be Granted Because Eagle

County was Decided Contrary to RecentlyEnacted Statute in Force at the Time of the

Decision. .......................................................... 21

CONCLUSION .......................................................... 26

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Birckhead v. FERC,

925 F.3d 510 (D.C. Cir. 2019) ................ 11, 12

Calvert Cliffs’ Coordinating Committee, Inc.

v. U.S. Atomic Energy Commission,

449 F.2d 1109 (D.C. Cir. 1971) .................... 12

Center for Biological Diversity v. Bernhardt,

982 F.3d 723 (9th Cir. 2020) ....................... 11

Center for Biological Diversity v. U.S. Army

Corps of Engineers,

941 F.3d 1288 (11th Cir. 2019) ....... 12, 13, 14

City of North Miami v. Federal Aviation

Administration,

47 F.4th 1257 (11th Cir. 2022) ................... 15

Department of Transportation v. Public

Citizen,

541 U.S. 752 (2004)...............................passim

Eagle County, Colorado v. Surface

Transportation Board,

82 F.4th 1152 (D.C. Cir. 2023) .............passim

Food & Water Watch v. FERC,

28 F.4th 277 (D.C. Cir. 2022) ...................... 11

iii

Neighbors of Cuddy Mountain v. Alexander,

303 F.3d 1059 (9th Cir. 2002) ..................... 15

New England Power Generators Ass’n, Inc. v.

FERC,

757 F.3d 283 (D.C. Cir. 2014) ..................... 22

Oregon Natural Desert Ass’n v. Jewell,

840 F.3d 562 (9th Cir. 2016) ....................... 15

Sierra Club v. FERC (Sabal Trail),

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

Solar Energy Industries Ass’n v. FERC,

80 F.4th 956 (9th Cir. 2023) ........................ 11

Stone v. INS,

514 U.S. 386 (1995).................................. 9, 22

TRW Inc. v. Andrews,

534 U.S. 19 (2001)........................................ 22

Statutes

5 U.S.C. § 706(2)(A) .................................................. 3

15 U.S.C. § 717f ...................................................... 22

15 U.S.C. § 717r.................................................. 2, 13

Fiscal Responsibility Act of 2023, Pub. L. No.

118-5, 137 Stat. 10.............................................. 9, 21

iv

National Environmental Policy Act, 42

U.S.C. §§ 4321–4347. ......................................passim

National Environmental Policy Act of 1969,

Pub. L. No. 91-190, 83 Stat. 852 (1970) ................. 21

NEPA § 102(2)(C) ............................................... 9, 21

Regulations

40 C.F.R. § 1501.5 .................................................. 21

40 C.F.R. §§ 1502.1–1502.24 .................................. 21

85 Fed. Reg. 43,304 (July 16, 2020) ....................... 24

Other Authorities

169 Cong. Rec. H2681

(daily ed. May 31, 2023) .............................. 23

Alyson C. Flournoy et al., Harnessing the

Power of Information to Protect Our

Public Natural Resource Legacy,

86 Tex. L. Rev. 1575 (2008) ..................... 3, 16

Cong. Rsch. Serv., IF11932, National

Environmental Policy Act: Judicial

Review and Remedies (Sept. 22, 2021),

https://crsreports.congress.gov/product/

pdf/IF/IF11932 ............................................. 14

v

Council on Environmental Quality,

Environmental Impact Statement

Timelines (2010–2018) (June 12, 2020),

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

tice/CEQ_EIS_Timeline_Report_20206-12.pdf. ....................................................... 16

Council on Environmental Quality,

Length of Environmental Impact

Statements (2013–2018) (June 12,

2020), https://ceq.doe.gov/docs/nepapractice/CEQ_EIS_

Length_Report_2020-6-12.pdf. .................... 15

Daniel A. Dreyfus, NEPA: The Original

Intent of the Law, 109 J. Prof. Issues in

Eng’g Educ. & Prac. 249 (1983)................... 15

FERC, The February 2021 Cold Weather

Outages in Texas and the South

Central United States (Nov. 16, 2021),

https://www.ferc.gov/media/february2021-cold-weather-outages-texas-andsouth-central-united-states-ferc-nercand ................................................................ 19

FERC, Winter Energy Market and Reliability

Assessment 2021–2022 (Oct. 21, 2021),

https://www.ferc.gov/media/winter-en

ergy-market-and-reliability-assess

ment-2021-2022-report ................................ 18

vi

Fitch Ratings, US Pipeline Cancellation,

Delays Underscore Regulatory

Challenges, Fitch Wire (July 31, 2020,

3:46 PM), https://www.fitchrat

ings.com/research/corporate-fi

nance/us-pipeline-cancellation-delaysunderscore-regulatory-challenges-3107-2020 ......................................................... 20

H.R. Rep. No. 118-28, pt. 1 (2023) ................... 23, 24

JPMorgan Chase & Co. Annual Report 2022,

Jamie Dimon Letter to Shareholders,

Apr. 4, 2023, https://reports.jpmor

ganchase.com/investor-rela

tions/2022/ar-ceo-letters.htm ...................... 20

Michael Bennon & Devon Wilson,

NEPA Litigation Over Large Energy

and Transport Infrastructure Projects,

Environmental Law Reporter, Oct. 2,

2023 .............................................................. 14

NEPA Litigation Surveys: 2001–2013,

https://ceq.doe.gov/ceq-reports/litiga

tion.html....................................................... 14

NERC, 2021 Long-Term Reliability

Assessment 5 (Dec. 2021),

https://www.nerc.com/pa/RAPA/

ra/Reliability%20Assess

ments%20DL/NERC_LTRA_2021.pdf ........ 18

vii

Strategies for Enhanced Gas-Electric

Coordination: A Blueprint for National

Progress (Feb. 20, 2024),

https://www.iso-ne.com/static-assets/

documents/100008/20240220_

joint_rtos-gas-electric-coordinationwhite-paper.pdf ............................................ 20

U.S. Energy Information Administration,

Natural Gas Consumption by End Use,

https://www.eia.gov/

dnav/ng/ng_cons_sum_dcu_nus_a.htm

(release date Mar. 29, 2024) .................... 4, 19

U.S. Energy Information Administration,

Natural Gas Intrastate Pipeline

Capacity Additions Outpaced

Interstate Additions in 2023

(Mar. 20, 2024),

https://www.eia.gov/todayinenergy/de

tail.php?%20id=61623 ........................... 17, 19

U.S. Energy Information Administration,

United States Produces More Crude

Oil than Any Country Ever (Mar. 11,

2024), https://www.eia.gov/to

dayinenergy/detail.php?id=61545 ............... 18

U.S. Energy Information Administration,

What Are the Energy Impacts from the

Port of Baltimore Closure? (Mar. 28,

2024), https://www.eia.gov/to

dayinenergy/detail.php?id=61663 ............... 18

BRIEF OF THE INTERSTATE NATURAL GAS

ASSOCIATION OF AMERICA, THE LIQUID

ENERGY PIPELINE ASSOCIATION, THE

CENTER FOR LNG, THE NATURAL GAS

SUPPLY ASSOCIATION, AND THE AMERICAN

GAS ASSOCIATION IN SUPPORT OF

PETITIONER

The Interstate Natural Gas Association of

America, the Liquid Energy Pipeline Association, the

Center for LNG, the Natural Gas Supply Association,

and the American Gas Association respectfully submit

this brief as amici curiae in support of petitioners

Seven County Infrastructure Coalition and Uinta Basin Railway, LLC.1

INTEREST OF THE AMICI

American infrastructure is in peril. The holding in Eagle County, Colorado v. Surface Transportation Board, 82 F.4th 1152 (D.C. Cir. 2023) (Eagle

County) threatens to greatly amplify the impediments

to project development caused by an already cumbersome federal permitting process. This case is the improvident culmination of a line of cases beginning

with Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357, 1363 (D.C. Cir. 2017) (Sabal

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae

states that no counsel for a party authored this brief in whole or

in part, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity other than amici curiae or its counsel has made a monetary contribution to the preparation or submission of this brief. Counsel for amici curiae provided timely

notice of the intent to file this brief.

2

Trail), which caused a circuit split by abandoning the

“legally relevant cause” standard by which this Court

articulated the scope of mandatory environmental review under the National Environmental Policy Act

(NEPA), 42 U.S.C. §§ 4321–4347, when it decided Department of Transportation v. Public Citizen, 541 U.S.

752 (2004) (Public Citizen).

While Sabal Trail and its immediate progeny

have held that agencies are responsible for reviewing

the downstream environmental effects that they have

no authority to prevent, Eagle County completes the

expansion of agencies’ NEPA obligations by holding

that NEPA review must also encompass similarly

non-jurisdictional upstream environmental effects.

Sabal Trail, 867 F.3d at 1374; Eagle Cnty., 82 F.4th

at 1179. Eagle County removes the last discernable

limits on an agency’s NEPA obligations, which now

encompass every conceivable effect of a proposed action, no matter how remote, including those effects

over which the agency has no jurisdiction.

The resulting circuit split is profoundly injurious to the development of critical energy infrastructure in the United States. The uncertainty as to which

rule will apply on appeal, particularly since many

agencies’ appeal provisions allow a choice of venue,

and the boundless scope of effects that must be considered under Sabal Trail and Eagle County, have left

agencies (and project developers) unable to anticipate

how extensive a NEPA review will be necessary to satisfy the courts on appeal. See, e.g., 15 U.S.C. § 717r.

Since NEPA documents are reviewed under the Administrative Procedure Act’s (APA) arbitrary and capricious standard, the broader the NEPA review, the

greater the likelihood an agency will fail to satisfy a

3

reviewing court that it sufficiently considered every

potential subject. 5 U.S.C. § 706(2)(A).

For project developers, investors, and lenders,

this makes the assessment of regulatory and litigation

risk more challenging with the inevitable result that

the availability of capital is reduced and the cost of

capital increases. For permitting agencies, this

means a greater likelihood of being overturned on appeal, with the inevitable result that they will resort to

yet longer study times in the hopes of producing

longer, more durable NEPA documents. See Alyson

C. Flournoy et. al., Harnessing the Power of Information to Protect Our Public Natural Resource Legacy, 86 Tex. L. Rev. 1575, 1582–83 (2008) (noting that

critics of NEPA procedures state that concerns over

omissions “encourage agencies to gold-plate their

EISs [(environmental impact statements)] by including every conceivably relevant piece of information to

avoid reversal”).

The amici are trade associations representing

members that invest billions of dollars of private equity to develop and operate interstate natural gas and

oil pipelines, natural gas distribution systems, liquified natural gas (LNG) facilities, and natural gas production. They submit this brief to offer the Court the

benefit of hearing directly from those who have experienced the investment-chilling effects of expanded

NEPA review. Without regulatory and legal certainty, highly regulated, capital-intensive industries

cannot build infrastructure needed to meet our nation’s energy demand. The effects of this uncertainty

are already being felt. Despite seeing the greatest demand for natural gas in history, in the middle of a dramatic shift in the geographic regions from which it is

4

sourced, the last two years also saw the lowest quantity of interstate natural gas pipeline capacity added

to the interstate natural gas pipeline system in three

decades. U.S. Energy Information Administration,

Natural Gas Consumption by End Use, https://www.

eia.gov/dnav/ng/ng_cons_sum_dcu_nus_a.htm

(release date Mar. 29, 2024).

During times of record demand and changing

supply basins, more energy infrastructure is needed

to ensure sufficient supply, and if that infrastructure

cannot be built, the consequences can be dire. The

transportation system relies upon oil pipelines. Millions of Americans, both at work and at home, are

completely dependent upon natural gas for heating in

the winter. The electric system relies upon natural

gas pipelines. As long as this regulatory and legal uncertainty persists, the private sector companies upon

whom we rely to develop our critical infrastructure

will be hampered in their ability to invest in project

development. Failure to invest will certainly lead to

higher prices for fundamental commodities and cause

attendant economic harms, but should the situation

persist, the United States will ultimately face catastrophic shortages of pipeline capacity that could temporarily halt home heating and cause the electric system to fail. It must be remedied.

The Interstate Natural Gas Association of

America (INGAA) is a trade association that represents the majority of interstate natural gas pipeline

companies operating in North America. INGAA and

its individual members have a substantial interest in

infrastructure development and the predictable, consistent, rational, and fair law and policy that makes

such development possible.

5

The Liquid Energy Pipeline Association

(LEPA) is a trade association that represents the interests of liquid energy pipeline owners and operators.

Together, LEPA’s members operate pipelines carrying

nearly 97 percent of the crude oil and petroleum products moved by pipeline in the United States.

The Natural Gas Supply Association (NGSA)

represents integrated and independent energy companies that produce, transport and market domestic natural gas. NGSA is the only national trade association

that solely focuses on producer-marketer issues related to the downstream natural gas industry. NGSA

members transport and/or supply billions of cubic feet

of natural gas per day on interstate pipelines, and

trade, transact and invest in the U.S. natural gas market.

The Center for LNG (CLNG) advocates for public policies that advance the use of LNG in the United

States, and its export internationally. A committee of

the NGSA, CLNG represents the full value chain, including LNG producers, shippers, terminal operators,

and developers.

The American Gas Association (AGA) represents national gas distribution companies that deliver

natural gas to residences and businesses. AGA represents more than 200 local energy companies that deliver natural gas throughout the United States, supplying over 78 million residential, commercial, and industrial natural gas customers nationwide, of which

95 percent receive their gas from AGA members.

INGAA, LEPA, CLNG, NGSA, and AGA urge

the Court to grant certiorari to address the circuit

split created by Sabal Trail and expanded by Eagle

County and to restore the Court’s holding in Public

6

Citizen in order to return predictability and regulatory and legal certainty to the heavily-regulated and

capital-intensive industries upon which we rely to develop needed infrastructure without which modern

life is impossible.

7

SUMMARY OF THE ARGUMENT

Granting certiorari will afford this Court the

opportunity to resolve a fundamental disagreement

among the circuit courts regarding the implementation of this Court’s decision in Public Citizen. This

circuit split, which revolves around the required scope

of an agency’s NEPA analysis, began with Sabal Trail

and culminated in this case, Eagle County. An

agency’s NEPA documents are usually the source of

the greatest legal vulnerability to federal infrastructure permits. The uncertainty as to the required scope

of NEPA review has resulted in paralyzing legal uncertainty among infrastructure developers, and their

permitting agencies, neither of whom can now predict

how wide-ranging their NEPA review must be to satisfy the courts on review. In the absence of some regulatory and legal predictability, it is impossible for

project developers in capital-intensive industries to

develop the infrastructure that is required for the continued welfare and prosperity of the United States.

In Public Citizen, this Court established sensible, administrable boundaries around the scope of an

agency’s required NEPA analysis. That case held that

NEPA does not require agencies to evaluate environmental effects of a proposed action that they have no

statutory authority to prevent and for which their action is not the “legally relevant cause.” 541 U.S. at

767, 770. Most circuits follow the reasoning in Public

Citizen. However, a line of cases in the D.C. and Ninth

Circuits—beginning with Sabal Trail and culminating in Eagle County—have undermined Public Citizen

by requiring agencies to evaluate in their NEPA documents both downstream (Sabal Trail) and upstream

(Eagle County) environmental effects that the

8

agencies cannot prevent and are beyond their statutory authority. The result is a circuit split that encourages opponents of infrastructure development to

forum shop and bring their NEPA challenges to the

circuits with the broadest view of the scope of required

environmental review. This incentive for forum shopping is particularly harmful because legal challenges

under NEPA are overwhelmingly filed by infrastructure project opponents, which biases the development

of further caselaw in favor of a more expansive view

of NEPA.

Legal uncertainty regarding the scope of the required NEPA analysis magnifies litigation risks and

presents a major impediment to infrastructure development. It has led to a sharp decline in the amount of

additional pipeline capacity added to the interstate

natural gas pipeline system. Between 2018 and 2023,

there was a 93 percent decrease in new interstate natural gas pipeline capacity. And this decline is occurring at the worst possible time, as the need for, and

supply of, oil and natural gas has never been greater.

In fact, it is telling that the proportion of intrastate

gas pipeline capacity—which is generally not subject

to NEPA review—has dramatically increased over

this same time period.

The timely development of oil and natural gas

infrastructure is critical. Oil and natural gas provide

domestic heating, are an essential input to industry

and manufacturing, and are absolutely critical to

maintaining the stable operation of the bulk electric

system. As long as the legal uncertainty created by

Sabal Trail and exacerbated by Eagle County persists, it is unlikely that the United States will be able

to develop the critical infrastructure it urgently needs.

9

This Court should grant certiorari in order to

reaffirm the holding of Public Citizen or, in the alternative, grant, vacate and remand, to allow consideration of a recent statutory change—the first amendment to NEPA since its enactment in 1969—that narrows the scope of required NEPA analysis. In June

2023—after Eagle County was argued but before the

decision issued—Congress amended the NEPA provision most critical to this case. Section 102(C)(i) of

NEPA originally provided that an agency’s environmental analysis must include “the environmental impact of the proposed action.” That language was

changed to “reasonably foreseeable environmental effects of the proposed agency action.” Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, 137 Stat. 10, 38

(emphasis added). This amendment narrows the

scope of mandatory NEPA review. By inserting the

word “agency” before “action,” Congress expressly tied

the required analysis to actions by the agency itself—

consistent with Public Citizen’s holding that an

agency should not consider effects beyond its statutory authority. This Court presumes that “[w]hen

Congress acts to amend a statute, . . . it intends its

amendment to have real and substantial effect.”

Stone v. INS, 514 U.S. 386, 397 (1995). This statutory

amendment highlights the need for this Court to reaffirm Public Citizen and the sensible limit it imposed

on the scope of required NEPA review.

Amici respectfully submit that this Court

should grant certiorari to reaffirm Public Citizen or,

in the alternative, grant, vacate, and remand to the

lower court to consider its decision in light of recent

statutory amendments to NEPA.

10

ARGUMENT

I.

This Court Should Grant Certiorari to Resolve the Circuit Split Created by Sabal

Trail.

Twenty years ago, this Court decided Public

Citizen. That case addressed whether NEPA required

the Federal Motor Carrier Safety Administration

(FMCSA) to evaluate the environmental effects of the

cross-border operation of trucks from Mexico when

promulgating motor vehicle safety regulations. The

FMCSA issued an environmental assessment (EA) focusing on the environmental consequences of increased road-side inspections (including driver safety,

increased emissions, and noise). It found these effects

to be minimal and remediable. Public Citizen successfully challenged that decision and when the case came

before this Court, Public Citizen argued that NEPA

required the FMCSA to evaluate the overall environmental consequences of increased cross-border trucking traffic from Mexico.

This Court rejected Public Citizen’s argument.

Because the FMCSA had no authority to prohibit

trucks from entering the country, NEPA did not require it to evaluate the environmental effects of increased traffic from Mexico. This Court described

Public Citizen’s position as “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.” Public Citizen, 541 U.S. at 767. This Court

ruled that “where an agency has no ability to prevent

a certain effect due to its limited statutory authority

over the relevant actions, the agency cannot be

11

considered a legally relevant ‘cause’ of the effect.” Id.

at 770.

In 2017, the D.C. Circuit decided Sabal Trail.

There, FERC issued a certificate of public convenience

and necessity for construction and operation of an interstate natural gas pipeline to serve gas-fired power

plants in Florida. Sierra Club petitioned for review,

arguing that FERC violated NEPA by failing to examine the environmental effects of emissions created by

power plant combustion. In response, it was argued

that, because FERC does not license or regulate power

plants (that is a power reserved to the states), it could

not be the legally relevant cause of power plant emissions and therefore, under Public Citizen, it had no

obligation to consider them. The D.C. Circuit disagreed, finding Public Citizen to be inapplicable. “Because FERC could deny a pipeline certificate on the

ground that the pipeline would be too harmful to the

environment, the agency is a ‘legally relevant cause’

of the direct and indirect environmental effects of the

pipelines it approves.” Sabal Trail, 867 F.3d at 1373.

Sabal Trail established for the first time that downstream effects, which an agency had no authority to

prevent, had to be considered in an agency’s NEPA review.

In rapid succession, a number of cases in the

D.C. Circuit and the Ninth Circuit either reaffirmed

the holding in Sabal Trail, or expanded its application. See, e.g., Birckhead v. FERC, 925 F.3d 510, 516

(D.C. Cir. 2019); Food & Water Watch v. FERC, 28

F.4th 277, 289 (D.C. Cir. 2022); Ctr. for Biological Diversity v. Bernhardt, 982 F.3d 723, 737 (9th Cir. 2020);

Solar Energy Indus. Ass’n v. FERC, 80 F.4th 956, 995

(9th Cir. 2023).

12

Eagle County builds on Sabal Trail and expands the explicit requirements of the cases above to

include the mandatory evaluation of upstream environmental effects. While this may appear to be the

logical consequence of the holding of Sabal Trail, until

Eagle County specified that upstream effects had to be

considered, it had yet to be announced by the courts.

Now, under Sabal Trail and Eagle County, all

environmental effects, including upstream and downstream effects beyond an agency’s statutory authority,

are potentially within the compass of an agency’s

NEPA obligation. Agencies will now find it exceedingly difficult to anticipate the exact extent of NEPA

review that will be required—a difficulty made worse,

not better, by statements from the courts that there is

no hard-and-fast rule, that every NEPA process is

based on the facts at hand, and that every decision

must be made on a case-by-case basis. See, e.g., Birckhead, 925 F.3d at 519 (“NEPA compels a case-by-case

examination . . . of discrete factors.” (citing Calvert

Cliffs’ Coordinating Committee, Inc. v. U.S. Atomic

Energy Comm’n, 449 F.2d 1109, 1122 (D.C. Cir.

1971))). Under this paradigm, no principled limits to

an agency’s NEPA obligations can be ascertained with

certainty. Agencies are not so much chasing a moving

target, as aiming at a target with no defined dimensions.

Sabal Trail has resulted in a circuit split.

While the majority of circuit courts still follow Public

Citizen, the Ninth Circuit and D.C. Circuit mandate

expanded NEPA review. The Eleventh Circuit has

roundly rejected Sabal Trail, declaring its legal analysis “questionable at best” and incompatible with Public Citizen. Ctr. for Biological Diversity v. U.S. Army

13

Corps of Eng’rs, 941 F.3d 1288, 1300 (11th Cir. 2019).

The Eleventh Circuit was unsparing in its criticism:

It fails to take seriously the rule of reason announced in Public Citizen or to account for the

untenable consequences of its decision. The Sabal Trail court narrowly focused on the reasonable foreseeability of the downstream effects, as

understood colloquially, while breezing past

other statutory limits and precedents—such as

. . . Public Citizen . . . . Under the rule of reason,

agencies are not required to consider effects

that they lack the statutory authority categorically to prevent.

Id.

Agencies and project developers alike must now

cross their fingers and hope that their case is assigned

to the right circuit. Moreover, many agencies’ organic

statutes provide aggrieved parties a choice of venue to

petition for review. See, e.g., 15 U.S.C. § 717r(b)

(providing for petitioners to obtain review before the

D.C. Circuit or “any circuit wherein the natural-gas

company . . . is located or has its principal place of

business”). In regimes with such choice-of-venue provisions, forum shopping is all but inevitable. Because

legal challenges under NEPA are necessarily brought

against projects that have been approved, petitions for

review are overwhelmingly filed by opponents of infrastructure, biasing the further development of this

caselaw in favor of those courts advancing a more expansive view of NEPA. Even when losing at the appellate stage, most project developers are unlikely to

seek certiorari, preferring instead to suffer the burden

and expense of remand (particularly if unaccompanied by vacatur) in order to allow them to continue

14

developing their projects pending the agency’s compliance with the Court’s decision.

Given the muddle Sabal Trail has made of the

law, the incentives created for forum shopping, and

the inadministrability of Sabal Trail’s boundless

scope—which the Eleventh Circuit aptly called its

“untenable consequences,” Ctr. for Biological Diversity, 941 F.3d at 1300—the amici respectfully submit

that this Court should grant certiorari to reaffirm

Public Citizen.

II.

This Court Should Grant Certiorari Because the Expanded Scope of NEPA and

the Sabal Trail Circuit Split Impede Critical Infrastructure Development.

NEPA is the most litigated environmental statute in the United States, with well over 100 NEPA

cases heard annually in federal courts. See Cong.

Rsch. Serv., IF11932, National Environmental Policy

Act: Judicial Review and Remedies 1 (Sept. 22, 2021),

https://crsreports.congress.gov/product/pdf/IF/IF11

932. About one quarter of final agency decisions on

major infrastructure projects that required a NEPA

document were challenged in court. See NEPA Litigation Surveys: 2001–2013, https://ceq.doe.gov/ceq-reports/litigation.html. No doubt that percentage has

grown since 2013, the last year in which the NEPA

litigation survey was conducted. At FERC, the agency

that issued the order from which the Sabal Trail circuit split arose, NEPA challenges to energy infrastructure projects have become routine. See Michael

Bennon & Devon Wilson, NEPA Litigation Over Large

Energy and Transport Infrastructure Projects, Environmental Law Reporter, Oct. 2, 2023 at 1 (stating

15

that FERC-jurisdictional pipeline projects are challenged under NEPA at a rate of 50 percent).

As “a purely procedural statute,” NEPA does

not itself provide for judicial review. Neighbors of

Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070

(9th Cir. 2002). “NEPA challenges are reviewed under

the Administrative Procedure Act . . . .” Oregon Nat.

Desert Ass’n v. Jewell, 840 F.3d 562, 568 (9th Cir.

2016). Reviewing courts set aside an agency’s NEPA

determinations if they find them arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law. Id. Usually, the arbitrary and capricious

standard of review “is exceedingly deferential” because a reviewing court “may not substitute its own

judgment for that of the agency.” City of N. Miami v.

Fed. Aviation Admin., 47 F.4th 1257, 1266 (11th Cir.

2022) (cleaned up). In NEPA cases, however, litigants

challenge not only the agency’s ultimate decision but

also individual elements of the supporting NEPA document. If a litigant convinces a reviewing court that

any part of the agency’s inquiry under NEPA is insufficient, that case will be remanded and possibly vacated. Thus, every statement (or omission) in a NEPA

document is a source of potential litigation risk.

In the 1970s, NEPA documents were short and

rarely challenged in their own right. See Daniel A.

Dreyfus, NEPA: The Original Intent of the Law, 109

J. Prof. Issues in Eng’g Educ. & Prac. 249, 253 (1983).

As of 2018, the average length of an Environmental

Impact Statement (EIS) was 575 pages, with appendices averaging over 1,000 pages. See Council on Environmental Quality, Length of Environmental Impact Statements (2013–2018) 1 (June 12, 2020),

https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_

16

Length_Report_2020-6-12.pdf. This expansion was

foreseeable: to reduce litigation risk, agencies have

sought to immunize their NEPA analyses by covering

as much material as thoroughly as possible, adding

new material with each adverse court decision. See

Harnessing the Power of Information, 86 Tex. L. Rev.

at 1582–83 (noting that critics of NEPA procedure

state that concerns over omissions “encourage agencies to gold-plate their [environmental impact statements] by including every conceivably relevant piece

of information to avoid reversal”).

Longer documents take more time to complete.

As of 2018, it took agencies on average four and a half

years to complete an EIS and issue a Record of Decision. See Council on Environmental Quality, Environmental Impact Statement Timelines (2010–2018)

(June 12, 2020), https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf. This

delay stifles infrastructure development. The prices

of commodities, cost of materials and labor, all change

over time. Longer permitting timelines require a

greater assumption of up-front risk. This leads to

higher costs to developers and less infrastructure being built. The economy can change a great deal in the

course of four-and-a-half years.

Sabal Trail has increased litigation risk, which

will lead to a corresponding increase in page length

and duration of environmental reviews as it is now

necessary to consider remote, downstream effects in

the NEPA analysis. Eagle County has effectively doubled the scope of NEPA review, by requiring agencies

to consider remote, upstream effects as well. Absent

a reaffirmation of Public Citizen, which limits an

agency’s obligation to review only those effects for

17

which its action is the legal proximate cause, it will be

nearly impossible for agencies to accurately predict

the extent of their NEPA obligations, even in the

courts that have announced a broader scope of NEPA

review. This expansion of NEPA will also expand the

predicates for litigation because it will encourage entrepreneurial project opponents to push the boundaries of cognizable effects that the agency did not know

should have been reviewed in greater detail or reviewed at all.

This regulatory uncertainty creates impediments to energy infrastructure development. As litigation risk increases, regulatory certainty disappears.

In capital-intensive industries—like the oil, natural

gas, LNG, and gas production businesses—uncertainty chills investment and reduces the number of

projects that are proposed, much less developed.

Since 2018, the quantity of additional pipeline

capacity added to the interstate natural gas transportation system has declined sharply. In 2018, more

than 13 Bcf per day of interstate natural gas pipeline

capacity was added, but that figure dropped to below

.900 Bcf per day in both 2022 and 2023—a 93 percent

decrease in the course of five years. See U.S. Energy

Information Administration, Natural Gas Intrastate

Pipeline Capacity Additions Outpaced Interstate Additions in 2023 (Mar. 20, 2024), https://www.eia.gov/

todayinenergy/detail.php?%20id=61623 (hereinafter

U.S. Energy Mar. 20, 2024). In fact, 2022 and 2023

saw the lowest incremental increase in pipeline capacity in at least three decades.

The reduction in added capacity is not due to a

lack of demand. The need for, and supply of, oil and

natural gas has never been greater. Last year saw the

18

highest total consumption of natural gas nation-wide

since the EIA began tracking the statistics in 1994.

U.S. Energy Information Administration, What Are

the Energy Impacts from the Port of Baltimore Closure? (Mar. 28, 2024), https://www.eia.gov/todayinenergy/detail. php?id=61663. Last year also saw

the United States produce the most crude oil in global

history. See U.S. Energy Information Administration,

United States Produces More Crude Oil than Any

Country Ever (Mar. 11, 2024), https://www.eia.gov/todayinenergy/detail.php?id=61545.

Oil and natural gas are essential for residential

heating, transportation, and industrial uses and it is

absolutely critical to maintaining the stability of the

bulk electric system. Absent sufficient access to supplies of natural gas and oil, the electric system will fail

and widespread blackouts will follow. See NERC,

2021 Long-Term Reliability Assessment 5 (Dec. 2021),

https://www.nerc.com/pa/RAPA/ra/Reliability%

20Assessments%20DL/NERC_LTRA_2021.pdf (“Natural gas is the reliability ‘fuel that keeps the lights on,’

and natural gas policy must reflect this reality.”);

FERC, Winter Energy Market and Reliability Assessment 2021–2022, at 19 (Oct. 21, 2021), https://www.

ferc.gov/media/winter-energy-market-and-reliabilityassessment-2021-2022-report (“ISO-NE has relied on

oil-based dual-fuel [oil and natural gas] generation

when extreme cold weather events have occurred

. . . .”).

Beyond the general economic effects of high

prices, natural gas scarcity due to insufficient transportation infrastructure, when acute, leads to unheated houses and electric system failures at times of

the greatest system strain (i.e., the winter), which can

19

have catastrophic results, including loss of life. Some

regions are desperate for additional natural gas transportation capacity. New England, for example, has

consumed more natural gas every year since at least

2001, but no significant new natural gas transportation capacity has been added since then. See U.S. Energy Information Administration, Natural Gas Consumption by End Use, https://www.eia.gov/dnav/ng/

ng_cons_sum_dcu_nus_a.htm.

Uncertainty in the federal permitting process,

particularly the litigation risk posed by NEPA, is a

primary cause of declining incremental capacity in the

interstate natural gas pipeline system. This is easily

demonstrated: at the same time that interstate natural gas pipeline development has come to a virtual

standstill, the proportion of additional capacity in the

intrastate natural gas pipeline system—which generally is not subject to NEPA review—has dramatically

increased. See U.S. Energy Mar. 20, 2024 (showing

that interstate pipeline capacity made up 14 percent

of all additional pipeline capacity in 2023, a marked

deviation from historical trends).

Potential investors in heavily regulated industries like LNG export terminals and interstate natural gas and oil pipelines cannot accurately assess development risk amidst regulatory uncertainty, and

the credit required to develop capital-intensive projects becomes significantly more expensive for project

developers. See Fitch Ratings, US Pipeline Cancellation, Delays Underscore Regulatory Challenges, Fitch

Wire (July 31, 2020, 3:46 PM), https://www.fitchratings.com/research/corporate-finance/us-pipeline-cancellation-delays-underscore-regulatory-challenges31-07-2020 (stating that “regulatory and legal risks”

20

facing pipeline developers have “broad implications to

credit quality”). The Joint RTOs, a group of operators

of FERC-jurisdictional electric markets serving the

majority of Americans, recognized that “in certain regions, expanding natural gas infrastructure . . . is imperative to support reliability” and that “the natural

gas industry faces formidable challenges” due to,

among other things “permitting complexities.” See

Strategies for Enhanced Gas-Electric Coordination: A

Blueprint for National Progress 5 (Feb. 20, 2024),

https://www.iso-ne.com/static-assets/documents/

100008/20240220_joint_rtos-gas-electric-coordination-white-paper.pdf; see also JPMorgan Chase & Co.

Annual Report 2022, Jamie Dimon Letter to Shareholders, Apr. 4, 2023, https:// reports.jpmorganchase.

com/investor-relations/2022/ar-ceo-letters.htm (“permitting reforms are desperately needed to allow investment to be done in any kind of timely way . . . we

simply are not getting the adequate investments fast

enough”).

NEPA litigation is a primary source of this crippling regulatory risk. As long as the circuit split that

began with Sabal Trail—and escalated in Eagle

County— continues to sow uncertainty, investors will

remain hesitant and the United States will be unable

to build the energy infrastructure that is critical to the

health, welfare, and prosperity of the American people. This Court should grant certiorari to reaffirm its

holding in Public Citizen and return NEPA review to

the rule of reason.

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III.

Certiorari Should be Granted Because Eagle County was Decided Contrary to Recently-Enacted Statute in Force at the

Time of the Decision.

NEPA review has become so notorious an obstacle to infrastructure development that, last year,

Congress amended the substantive provisions of

NEPA for the first time since the statute’s passage in

1969. On June 3, 2023, one month after Eagle County

was heard at oral argument, and six weeks before the

D.C. Circuit issued the underlying opinion, President

Biden signed into law the Fiscal Responsibility Act of

2023, Pub. L. No. 118-5, 137 Stat. 10 (FRA), section

321 of which amended NEPA.

Among other reforms, the FRA amended the

NEPA provision most critical to this case, effective on

the date of enactment. Section 102(2)(C) of NEPA establishes the obligation of “all agencies” to publish a

“detailed statement” when undertaking a major federal action significantly affecting the human environment. NEPA § 102(2)(C). This “detailed statement”

is what has come to be known as an Environmental

Assessment (EA) or EIS. See 40 C.F.R. §§ 1501.5,

1502.1–1502.24. Prior to the FRA, NEPA’s text directed agencies to include “the environmental impact

of the proposed action” in the detailed statement.

NEPA of 1969 § 102(2)(C)(i) (1970). The FRA

amended that language so that agencies are now directed to provide a detailed statement including the

“reasonably foreseeable environmental effects of the

proposed agency action.” NEPA § 102(2)(C)(i) (emphasis added).

“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so

22

construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(cleaned up). It is a court’s “duty to give effect, if possible, to every clause and word of a statute.” Id.

(cleaned up). The duty is that much greater when a

statute has been amended clause by clause and word

by word, just as NEPA was amended by the FRA.

“When Congress acts to amend a statute, we presume

it intends its amendment to have real and substantial

effect.” Stone, 514 U.S. at 397.

These amendments restrict the scope of NEPA

review. Changing “proposed action” to “proposed

agency action” expressly tethers the required NEPA

analysis to actions of the agency itself. The only way

to read the new phrase is for “agency” to limit the

reach of the word “action.” For example, consider a

request for FERC to approve a natural gas pipeline

that may transmit gas to gas-fired power plants.

When FERC approves a pipeline, it makes a determination under its statutory authority whether the proposed pipeline is in the public convenience and necessity. See 15 U.S.C. § 717f(e). The “action” thus taken

by FERC is that of weighing the public convenience

and necessity and determining whether to issue a certificate to the project developer. The effect of FERC’s

action is that the project developer is allowed to construct and operate the pipeline. Even though the

pipeline may serve gas-fired power plants, the effect

of FERC’s action is not to also regulate and license the

power plants—the operation of which will release

combustion emissions. New England Power Generators Ass’n, Inc. v. FERC, 757 F.3d 283, 285 (D.C. Cir.

2014) (stating that “states retain the right to regulate

the facilities responsible for the generation of electric

23

energy”), but see Sabal Trail, 867 F.3d at 1374. The

power plant emissions are outside the scope of effects

of FERC’s action, and thus beyond the scope of

NEPA’s required review.

This amendment extinguishes the judiciallymandated obligation imposed by Sabal Trail and now,

Eagle County, to examine every but-for consequence

of its action or to review consequences for which a

third party is responsible. In short, the FRA codifies

the very holding in Public Citizen.

The legislative history supports this reading.

Congressman Westerman, a primary proponent of an

earlier version of what became section 321 of the FRA,

stated that the bill’s “intent” is “to narrow the scope”

of NEPA review “from ‘any environmental impact,’

which can be broadly construed, to only those ‘environmental effects’ that would be a ‘reasonably foreseeable’ result of ‘the proposed agency action.’” 169 Cong.

Rec. H2681, H2704 (daily ed. May 31, 2023). A House

Report accompanying an earlier introduction of what

later became the operative provision of the FRA 2

stated that one of its goals was “clarifying the scope of

[NEPA] reviews.” H.R. Rep. No. 118-28, pt 1, at 33

(2023). The original bill, upon its introduction, was

contentious, with some Members of Congress either

praising or condemning the bill as an attempt to codify

2 In the press of business that attended the passage of FRA, Con-

gress dispensed with many of the ordinary legislative procedures

that are a matter of routine, including the preparation of committee and conference reports. Accordingly, we must rely on the

next best thing: legislative history that accompanied prior versions of the bill (known in earlier form as the “Builder Act”) that

was ultimately passed (in modified form) as section 321 of the

FRA.

24

the Trump Administration’s NEPA regulations. See

id. at 33, 80 (“The bill would also codify the Trump

Administration’s NEPA regulations . . . .”), (“H.R.

1335 would codify former President Trump’s extreme

2020 NEPA implementing regulations . . . .”). They

had a point. The Trump administration’s implementing regulations were designed to bring the scope of

NEPA review back in line with Public Citizen. The

preamble to those regulations specifically stated that

it sought to codify “a key holding of Public Citizen . . .

to make it clear that effects do not include effects that

the agency has no authority to prevent.” Update to

the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85

Fed. Reg. 43,304, 43,344 (July 16, 2020).

The FRA’s NEPA amendments were in place at

the time Eagle County was issued and, had this case

been decided according to the amended version of

NEPA, the outcome might well have been different.

The Surface Transportation Board’s (STB) decision to

decline to review the speculative environmental consequences of possibly induced upstream oil well development and the downstream effects of oil refineries

thousands of miles away (neither of which the STB as

a rail regulator has the power to prevent), likely would

have been found to be consistent with—if not required

by—the amendments to NEPA.

Petitioners raised FRA’s NEPA amendments

both on rehearing en banc and again at certiorari, although they do not discuss the reading of the statute

offered above. See petition for rehearing en banc at

18; Pet’r’s Br. 26. Regardless, amici respectfully submit that the Court’s decision to grant certiorari should

be informed by the congressional intent demonstrated

25

by the FRA’s recent amendments to NEPA which were

in force at the time of the lower court’s decision.

Should the Court choose not to take this opportunity

to reaffirm Public Citizen, amici respectfully submit

that the Court instead grant, vacate and remand this

proceeding to the D.C. Circuit for further proceedings

to consider the proper scope of NEPA review in light

of the FRA’s NEPA amendments.

26

CONCLUSION

For the reasons stated above, amici urge this

Court to grant the petition for a writ of certiorari or,

in the alternative, to grant, vacate and remand to the

lower court to consider its decision in light of the recent amendments to NEPA.

Respectfully submitted,

DONALD P. SALZMAN

Counsel of Record

JAMES P. DANLY

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

202-371-7000

donald.salzman@skadden.com