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

Supreme Court briefApr 5, 2024

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Text

No. 23-975

In the

Supreme Court of the United States

♦

SEVEN COUNTY INFRASTRUCTURE COALITION

AND UINTA BASIN RAILWAY, LLC,

Petitioners,

EAGLE COUNTY, COLORADO AND

CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,

Respondents

♦

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

♦

BRIEF OF AMICUS CURIAE AMERICAN FOREST

RESOURCE COUNCIL IN SUPPORT OF

PETITION FOR CERTIORARI

♦

Ivan L. London

Counsel of Record

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

April 5, 2024

Attorney for Amicus Curiae

QUESTION PRESENTED

As said by Petitioners, 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.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ...............................

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

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

IDENTITY AND INTEREST

OF AMICUS CURIAE ........................................

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

ARGUMENT .......................................................

Congress has decided that building rail

lines is in the public interest. ..................

II.

Congress conditioned the public interest

on a requirement to take a “hard look”

at potential environmental

consequences. ...........................................

The lower court misapplied

Public Citizen’s “proximate

cause” analysis. ..............................

Public Citizen reinforces that

federal regulators and courts

should not put their interests

above the public interest. ..............

iii

III.

The Court can stop lower courts

elevating their priorities over the public

interest, and that would help AFRC’s

members. ..................................................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

PAGE(S)

Ctr. for Biological Diversity v. U.S. Forest

Serv.,

2023 WL 5310633 (D. Mont., 2023) ............

Department of Transportation v. Public

Citizen,

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

3, 13, 15, 16, 17

FCC v. Prometheus Radio Project,

592 U.S. 414 (2021) ..................................... 4, 12

Kleppe v. Sierra Club,

427 U.S. 390 (1976) .....................................

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) .....................................

Marsh v. Oregon Nat. Res. Council,

490 U.S. 360 (1989) .....................................

Mid States Coal. for Progress v. Surface

Transp. Bd.,

345 F.3d 520 (8th Cir. 2003) ....................... 9, 14

Murphy Co. v. Biden,

65 F.4th 1122 (9th Cir. 2023) ..................... 6, 21

N. Plains Res. Council v. Surface Transp. Bd.,

668 F.3d 1067 (9th Cir. 2011) ..................... 9, 14

Nevada v. Dep’t of Energy,

457 F.3d 78 (D.C. Cir. 2006) .......................

Robertson v. Methow Valley Citizens Council,

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

Scenic Hudson Pres. Conf. v. Fed. Power

Comm’n,

407 U.S. 926 (1972) .....................................

Utahns for Better Transp. v. U.S. Dep’t of

Transp.,

305 F.3d 1152 (10th Cir. 2002) ...................

Statutes

16 U.S.C. § 528 ....................................................

16 U.S.C. § 531 ....................................................

16 U.S.C. § 1601 ..................................................

42 U.S.C. § 4331(a)..............................................

2, 3

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

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

42 U.S.C. § 4332(C)(ii) ........................................

43 U.S.C. § 1701(a)(12) .......................................

43 U.S.C. § 1702(l) ..............................................

49 U.S.C. § 10901(c) ............................................

49 U.S.C. § 10901 ................................................

49 U.S.C. § 10903 ................................................

49 U.S.C. § 10922 ................................................

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

The American Forest Resource Council (AFRC)

is an Oregon-based nonprofit and a regional trade

association whose purpose is to advocate for

sustained-yield timber harvests on public timberlands

and to enhance forest health and resistance to fire,

insects, and disease throughout the West. AFRC

represents more than 50 forest product businesses

and

forest

landowners

throughout

Oregon,

Washington, California, Nevada, Idaho and Montana.

It promotes active management to attain productive

public forests, protect the value and integrity of

adjoining private forests, and support the economic

and social foundations of local communities. And it

works to improve federal and state laws, regulations,

policies and decisions regarding access to and

management of public forest lands and protection of

all forest lands.

This case crystallizes an issue that has

frustrated AFRC and its members for years. AFRC

and its members understand that in the National

Environmental Policy Act (NEPA), Congress required

federal regulators to pause and think critically about

what effects the regulators’ decisions would have on

1 Per Supreme Court Rule 37.6, the undersigned affirms that no

counsel for a party authored this brief in whole or in part, and no

such counsel or party made a monetary contribution intended to

fund the preparation or submission of the brief. And as required

by Rule 37.2, amicus’s counsel notified counsel of record for all

parties of amicus’s intention to file this brief at least 10 days

prior to the due date for the brief.

the “human environment,” specifically “to create and

maintain conditions under which man and nature can

exist in productive harmony, and fulfill the social,

economic, and other requirements of present and

future generations of Americans.” 42 U.S.C. § 4331(a)

(emphasis added); see also id. § 4332(C) (clarifying

that the focus is not on the “environment” for the

environment’s own sake, but on the “human

environment”).

Congress has required federal regulators “to

take environmental consequences into account in

their decisionmaking . . . eliminating the excuse . . .

offered by bureaucrats that their statutory authority

did not authorize consideration of such factors in their

policy decisions.” Scenic Hudson Pres. Conf. v. Fed.

Power Comm’n, 407 U.S. 926, 927 (1972) (Douglas, J.,

dissenting from denial of certiorari).

AFRC and its members know, just as the

Surface Transportation Board clearly knows, that the

Board and other federal regulators must take

environmental consequences into account when

making decisions. They also know that Congress

required proof that the federal regulators paused to

consider

and

explain

what

environmental

consequences they had considered, and how they had

done so. 42 U.S.C. § 4332(C).

But that is all Congress demanded. Yet as the

lone dissenter at the Board and the lower court here

have shown, many judges reviewing federal

regulators’ actions have evidently considered

Congress’s requirement as a point of departure—

preferring instead to read their own environmentalpolicy preferences into their duties to assess whether

federal regulators considered and explained the

environmental consequences of their actions.

Take what has happened here: Congress has

created a presumption that constructing rail lines is

in the public interest; the Surface Transportation

Board received an application to construct a rail line

that would be in the public interest—including the

interest of communities that have been and would

otherwise continue to be left behind by successive

Presidential Administrations; and then the Board

spent years and many pages examining and

explaining the potential environmental consequences

of constructing and operating the rail line. In this

case, the federal regulators did what Congress

required.

But for decades, the lower federal courts have

let “anti-use” groups who disregard Congress’s role in

expressing the public interest—like the plaintiffs who

sued here—use NEPA as a weapon to prevent any

federal approvals of projects that would “create and

maintain conditions under which man and nature can

exist in productive harmony, and fulfill the social,

economic, and other requirements of present and

future generations of Americans.”

42 U.S.C.

§ 4331(a). Rather than be satisfied that the federal

regulators have done their jobs and the public interest

can be realized, these groups and the federal courts

that enable them now “flyspeck” environmental

explanations, inventing supposed errors so they can

promote their preferred outcomes.

Congress does not allow the anti-use groups

and lower courts to do that—the courts’ task is not to

“flyspeck an agency’s environmental analysis, looking

for any deficiency no matter how minor.” Nevada v.

Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006). The

courts can only “apply a rule of reason standard

(essentially an abuse of discretion standard) in

deciding whether claimed deficiencies in [an

environmental-consequences explanation] are merely

flyspecks, or are significant enough to defeat the goals

of informed decisionmaking and informed public

comment.” Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152, 1163 (10th Cir. 2002). An

agency like the Board must be reasonable in

considering and explaining the environmental

consequences of approving construction of a rail line

that is in the public interest; the federal regulators do

not have to be perfect. FCC v. Prometheus Radio

Project, 592 U.S. 414, 423 (2021); Marsh v. Oregon

Nat. Res. Council, 490 U.S. 360, 377 (1989).

The way the lower courts and other unelected

persons have weaponized NEPA as an “anti-use”

authority ignores—or rejects—the public interest.

And that practice is detrimental to AFRC and its

members. As an analogy to the rail line at issue here,

Congress has declared in multiple statutes, such as

the Federal Land Policy and Management Act, that

active forest management, including timber

harvesting, is in the public interest. Yet when federal

regulators approve timber-harvesting and related

projects and examine and explain the environmental

consequences of those approvals, the anti-use groups

and many lower courts have weaponized NEPA to

flyspeck the regulators’ explanations and promote

their own substantive results, which are often to

cancel or at least greatly delay projects. That is what

the plaintiffs, the lone dissenter at the Board, and the

lower court did here. But it must stop.

AFRC is determined to stop this practice.

AFRC has publicly commented that the NEPA process

has “unnecessarily slowed forest management and

fire prevention projects on public lands [because] the

lengthy timeframes required to complete an EIS and

issue a Record of Decision [now] average . . . 4.5 years,

and one quarter of EISs took more than 6 years.” See

AFRC CEQ Comment 4. 2 The ever-growing urgency

to address forest health shows how the misguided—

and unlawful—weaponization of NEPA continues to

harm groups across many industries and the Country

by preventing the realization of the public interest.

Which begs the question in the light as AFRC

sees it: how will the public’s interest in active forest

management be realized in the face of the “thousands

of NEPA lawsuits, many of which delay or kill federal

projects” like the rail line in this case? See AFRC CEQ

Comment 4. Unfortunately, the anti-use groups like

2 AFRC submitted the cited comment in response to the Council

on Environmental Quality’s notice of proposed rulemaking to

revise NEPA regulations, which was published in the Federal

docket number CEQ-2021-0002.

AFRC’s comment is located in the regulatory docket at docketidentification number CEQ-2021-0002-39296, and it can be

accessed online at https://www.regulations.gov/comment/CEQ2021-0002-39296 (last visited Apr. 4, 2024).

the plaintiffs here, the lone dissenter at the Board,

and the lower court have decided that their interests

are superior to the public interest, and they have no

problem leaving the rest of the Country behind.

AFRC’s members are no strangers to being “left

behind” by federal actors even though Congress has

given clear instructions about the public interest. See

generally American Forest Resource Council v. United

States, 77 F.4th 787 (D.C. Cir. 2023), cert. denied,

2024 WL 1241466 (U.S. Mar. 25, 2024) (“Justice

Gorsuch and Justice Kavanaugh would grant the

petitions for writs of certiorari.”); accord Murphy Co.

v. Biden, 65 F.4th 1122, 1143 (9th Cir. 2023)

(Tallman, J., dissenting in part), cert. denied, 2024

WL 1241467 (U.S. Mar. 25, 2024) (describing how the

President had “left behind” the people of southern

Oregon when he used the Antiquities Act to take away

their ability to engage in active forest management).

AFRC and its members stand for the public interest

and work to realize it, just like the people who live and

work in the Uinta Basin and the counties who

proposed the rail line represent the public interest.

Nevertheless, the lower courts have wandered.

Here, the federal agency—the Surface

Transportation Board—did what Congress asked it to

do.

It evaluated the potential environmental

consequences potentially related to authorizing

construction and operation of a rail line. It explained

all those issues in a detailed statement. Yet the lower

court ignored Congress and imposed its own priorities

as superior to the public interest.

This madness of requiring more—weaponizing

NEPA—to prevent any uses of public lands must end.

And AFRC respectfully submits this brief asking the

Court to step in, review this case, and correct the

undemocratic, unlawful path that many federal

regulators and lower courts have taken.

♦

SUMMARY OF THE ARGUMENT

When it comes to building rail lines, Congress

has been clear about the public interest: there is a

rebuttable presumption that building a rail line is in

the public interest as long as the federal agency

reviewing the proposal to build the line—the Surface

Transportation Board—takes a “hard look” at the

potential environmental consequences of building it.

That’s what the Board did here.

In contrast, the court below and the lone

dissenter at the Board would reverse the order,

supposedly because their shared idea of “what is in

the public interest” is superior to Congress’s clear

statement of that interest. The lone dissenter went

further, asserting that he alone knows that

“Decarbonization is national policy” and that is

the public interest, Pet.App.146a (emphasis in

original)—never mind what Congress says.

There is a troubling trend in which the lower

courts are using NEPA to put their interests or other

anti-use groups’ interests over the public interest.

But at least with respect to building rail lines, two

circuit courts have been clear that building them is

presumptively in the public interest. The fact that the

lower court here got the public’s interest backward, in

conflict with other circuit courts, is sufficient reason

for this Court to review the lower court’s decision. See

Rule 10(a).

To make the matter worse, the lower court

disregarded this Court’s explanation in Department of

Transportation v. Public Citizen, 541 U.S. 752 (2004),

of how an agency takes a “hard look” at the potential

environmental consequences of an action when the

agency cannot directly regulate those environmental

consequences, further justifying the Court’s review of

the lower court’s decision. See Rule 10(c).

The lower court prevented construction of a

much-needed rail line based on an overreaching

conclusion that the Surface Transportation Board did

not perform an adequate analysis of the

environmental consequences that building and

operating the rail line might, potentially, maybe could

have, and even though the Board could do nothing to

regulate those consequences. But the lower court

went so far down the path of looking for things to

criticize that it lost the forest for the trees.

The lower court’s confusion (or, less charitably,

its desire to prevent the rail line) misses the point: the

Board followed NEPA because it made the detailed

statement that Congress required it to make about

environmental consequences.

The Board acted

reasonably and otherwise lawfully. The lower court’s

contrary approach to NEPA hurts not only those

relying on the rail line but also AFRC and its members

who are trying to realize the public’s interest in active

forest management.

ARGUMENT

Congress has decided that building rail

lines is in the public interest.

Congress has spoken clearly: the presumption

is that building rail lines is in the public interest, and

the Surface Transportation Board should approve

such construction accordingly. As Congress said it,

“The Board shall issue a certificate authorizing

activities for which such authority is requested in an

application . . . unless the Board finds that such

activities are inconsistent with the public convenience

and necessity. Such certificate may approve the

application as filed, or with modifications, and may

require compliance with conditions . . . the Board finds

necessary in the public interest.” 49 U.S.C. § 10901(c)

(emphasis added).

At least two circuit courts agree that “there is a

statutory presumption that rail construction is to be

approved.” Mid States Coal. for Progress v. Surface

Transp. Bd., 345 F.3d 520, 552 (8th Cir. 2003)

(emphasis added); N. Plains Res. Council v. Surface

Transp. Bd., 668 F.3d 1067, 1092 (9th Cir. 2011); see

also Lebron v. Nat’l R.R. Passenger Corp., 513 U.S.

374, 383–84 (1995) (“Congress established Amtrak in

order to avert the threatened extinction of passenger

trains in the United States. The statute that created

it begins with the congressional finding, redolent of

provisions of the Interstate Commerce Act, see, e.g.,

49 U.S.C. §§ 10901, 10903, 10922 . . . that ‘the public

convenience and necessity require the continuance

and improvement’ of railroad passenger service.”).

This congressional preference is important to

AFRC because Congress has also spoken clearly that

active forest management, which includes timber

harvesting and is vital to AFRC’s members, is in the

public interest. For example, we know from Congress

that it is in the public interest that federal agencies

manage “public lands” “in a manner which recognizes

the Nation’s need for domestic sources of . . . timber .

. . from the public lands.” 43 U.S.C. § 1701(a)(12)

(emphasis added). And Congress emphasized that

federal agencies must explain themselves to Congress

when they try to eliminate “timber production” from

federal lands.

43 U.S.C. §§ 1702(l) (“timber

production” is a “principal or major use” of federal

lands), 1712(e)(1)–(2) (heightened scrutiny given to

federal management decisions that eliminate a

“principal or major use” of federal lands).

Along similar lines, Congress has required

detailed planning for and protection of timber

harvesting “[i]n recognition of the vital importance

of America’s renewable resources of the forest . . . to

the Nation’s social and economic well-being.”

16 U.S.C. § 1601(a) (emphasis added). 3 So AFRC is

And when Congress created a multiple-use policy for the

national forests, it included timber harvesting as an important

use, rather than exclude timber harvesting in favor of anti-use

(or, pristine preservation) purposes. 16 U.S.C. §§ 528, 531.

very troubled by the approach that the Surface

Transportation Board’s lone dissenter and the lower

court took in this case. At best, they disregarded the

public interest in favor of their own goals. Worse, they

used NEPA as a weapon against the public interest.

But that is not what Congress intended in NEPA.

II.

Congress conditioned the public interest

on a requirement to take a “hard look” at

potential environmental consequences.

In NEPA, Congress did not contemplate that a

federal court or an unelected bureaucrat would be able

to cancel (either directly or by indefinite delay) federal

approvals of the projects that serve the public

interest. Instead, when a federal agency decides that

its proposed action—here, approving construction of a

rail line—will “significantly affect[] the quality of the

human environment,” then it must describe in detail

the “environmental impact of the proposed action” and

“any adverse environmental effects which cannot be

avoided should the proposal be implemented.”

42 U.S.C. § 4332(C)(i)–(ii).

The role for the court is to ensure that the

agency has taken a “hard look” at the environmental

consequences. Kleppe v. Sierra Club, 427 U.S. 390,

410 n.21 (1976). A court cannot interject itself within

the agency’s discretion as to the choice of the action.

Id. At most, Congress put the courts in the position of

deciding whether agency actions are “reasonable and

reasonably explained.” Prometheus Radio Project, 592

U.S. at 423.

That is where the lower court went wrong here.

It took the question of “what is reasonable,” and it

used that question as a point of departure. To its

credit, the lower court did mention the point that

when an agency—here, the Surface Transportation

Board—is trying to look at and explain environmental

consequences of a proposed action, then “reasonable”

is “the operative word.” Pet.App.32a. But then the

lower court got off-track.

The concept of what is “reasonable” is one that

comes up often and which this Court has addressed in

many contexts, including in cases arising (ultimately,

as this one does) under the Administrative Procedure

Act. 4 E.g., Prometheus Radio Project, 592 U.S. at 427–

28 (“In light of the sparse record on minority and

female ownership and the FCC’s findings with respect

to competition, localism, and viewpoint diversity, we

cannot say that the agency’s decision to repeal or

modify the ownership rules fell outside the zone of

reasonableness for purposes of the APA.”). But the

lower courts are not listening to this Court. On the

surface, they acknowledge that “reasonable” is the

requirement, but then they go way further so that

they can prevent projects that they do not like.

Using this case as an example, the lower court

acknowledged “reasonable” as its lodestar, see

Pet.App.32a, but then the court went off the rails.

4 Prometheus Radio Project might be especially on point for its

role in working through a case about what is reasonable for an

agency to do when Congress has explained what is in the public

interest. See id.

The lower court misapplied Public

Citizen’s

“proximate

cause”

analysis.

There are many ways the lower court could

have found some outer limit of what would have been

“reasonable” for the Surface Transportation Board to

do in this case. Petitioners have focused on one,

Pet. 14, and that one is sufficient for the Court’s

review of this case.

In Department of Transportation v. Public

Citizen, 541 U.S. 752, 767 (2004), the Court rejected

“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.” As

particularly relevant to this case, the Court examined

whether NEPA required a federal agency to evaluate

the environmental effects of cross-border operations of

Mexican-domiciled motor carriers, where the agency’s

promulgation of certain regulations would allow such

cross-border operations to occur. Id. at 756.

The answer was “no,” NEPA did not require the

agency to evaluate those effects because they were out

of the agency’s control, even though the agency’s

action “would allow” the activities that could result

in environmental consequences. Id. at 756, 767–68

(emphasis added). Why? Because lacking the ability

to directly regulate the activities—less speculative

there than in this case—that would have

environmental consequences, the agency properly

realized that those consequences simply were not

relevant to its decision whether to act. The agency

“simply lack[ed] the power to act on whatever

information” it allegedly should have considered and

explained to the public. Id. at 768. 5

The same principle applies here: lacking the

ability to directly regulate any future “upstream” oil

and gas production from federal, private, or state

minerals in the Uinta Basin and lacking the ability to

directly regulate any future “downstream” processing

of oil and gas at refineries (whether in any of various

regions of the Country or, potentially, somewhere else

in the world), the Surface Transportation Board

properly realized that those entirely speculative

environmental consequences were not relevant to its

decision whether to approve construction of the rail

line—even, as was true in Public Citizen, if the

5 Contra Mid States Coal. for Progress, 345 F.3d at 548–51 (8th

Cir. 2003)—while AFRC agrees with the circuit court’s

explanation in Mid States Coal. for Progress that rail

construction presumptively is in the public interest, supra p. 9,

AFRC disagrees with the court’s conclusion that the Surface

Transportation Board erred in that case by refusing to speculate

whether construction of the rail line might, potentially, maybe

lead to increased demand for coal (or supply of coal) and even

more speculative increases in air pollutants.

As the circuit court acknowledged, “the Board did a highly

commendable and professional job in evaluating an enormously

complex proposal.” Id. at 556. Yet the court disregarded the

public interest, instead demanding that the Board document its

guesses about non-existent environmental consequences. The

circuit court there also got the analysis wrong. A similar thing

happened in N. Plains Res. Council, Inc., 668 F.3d at 1077–79.

The circuit courts are completely backward on NEPA when

Congress has spoken about the public interest, emphasizing the

point that the Court here should accept this case.

Board’s approval would allow such future oil and gas

production and such future refining to occur. See

Pet.App.107a–109a, 112a; Public Citizen, 541 U.S. at

767–68. The Board’s decision was fully consistent

with Public Citizen.

The lower court brushed off the Court’s Public

Citizen analysis, Pet.App.36a; but the lower court’s

explanation shows that the court got lost in the woods.

The lower court could not get past the point that the

Board’s approval might, potentially, maybe could

result in future “upstream” and “downstream” air

pollution. Pet.App.33a–37a. The lower court suggests

that distinguishes this case from Public Citizen, see

Pet.App.36a, but not so.

The agency action in Public Citizen was much

more “proximate” to the threatened environmental

consequences than the complete guesswork that the

Board faced in this case.

And Public Citizen

established the point that the Board did not have to

engage in or explain such attenuated guesswork about

what might happen “upstream” and “downstream” as

a “but for” cause of allowing construction and

operation of a rail line in the Uinta Basin. See Public

Citizen, 541 U.S. at 767–68.

The lower court either misunderstood or

otherwise misapplied Public Citizen, Pet.App.36a,

and either way the lower court’s decision conflicts

with this Court’s relevant decision. Under Rule 10(c),

that is among “the character of the reasons” making

the lower court’s decision suitable for review.

Public Citizen reinforces that

federal regulators and courts should

not put their interests above the

public interest.

The lower court’s application of Public Citizen

deserves deeper treatment specifically addressing

how the lower courts have used (or, misused) NEPA

to defy the public interest.

To start with a basic premise: “NEPA itself does

not mandate particular results in order to accomplish

[its] ends. Rather, NEPA imposes only procedural

requirements on federal agencies with a particular

focus on requiring agencies to undertake analyses of

the environmental impact of their proposals and

actions.” Public Citizen, 541 U.S. at 756–57 (quoting

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 350 (1989)).

The thrust of Public Citizen was that we should

expect agencies to be reasonable in considering the

environmental consequences of the actions they took

to serve the public interest, but nothing more than

that. See 541 U.S. at 764–70. Agencies must be

reasonable about considering and explaining

environmental consequences of their actions where

there is “a reasonably close causal relationship

between the environmental effect and the alleged

cause.” Id. at 767. And as in common law, there are

circumstances that cut off what is “reasonable” in

context, such as whether the agency could directly

regulate the actions that would have known

environmental consequences. See id. at 768.

Here, as the Board and Petitioners explained,

the Board’s inability to do anything either way about

future oil and gas drilling in the Uinta Basin or

processing of Uinta Basin oil wherever that oil ended

up was a sufficient reason for the Board to not go

beyond its detailed statement of the environmental

consequences of approving the construction of the rail

line. See Public Citizen, 541 U.S. at 756–57.

But to AFRC, this case means more than about

whether the Board could pick which refinery the oil

would go to—the lower court’s approach to NEPA is

backward, and that hurts AFRC and its members.

The Board gave a detailed statement about all the

potential environmental consequences; it discussed

them in detail, including a discussion about how and

why it would have to at some point cut off its analysis.

See, e.g., Pet.App.107a–112a. That is enough.

After this explanation, the Board did not reach

the substantive conclusion (rejecting construction of

the rail line) that the plaintiffs, the lone dissenter at

the Board, or the lower court wanted. Of course they

want more explanation! They want to force the Board

to explain and explain for years and years until they

get an explanation against building the rail line.

But that results-focused approach does not

serve NEPA’s “informational purpose.” See Public

Citizen, 541 U.S. at 768–69. The Board “indeed

considered

environmental

concerns

its

decisionmaking process,” see id., and that is all the

Board had to do.

The importance of review in this case is that,

like Petitioners, AFRC and its members need the

Court to step forward and tell the lower courts and the

federal regulators that Congress did not codify

NEPA to subvert the public interest. But if the

Court decides not to review this case, then that is the

message the Court will send to those who think their

priorities are superior to the public interest.

III.

The Court can stop lower courts elevating

their priorities over the public interest,

and that would help AFRC’s members.

The phenomenon shown by the lower court in

this case goes beyond questions of shipping fossil fuels

in pipelines and on trains. As AFRC and its members

know well, courts and federal regulators have often

elevated their substantive anti-use priorities over the

public’s interest in active forest management,

including timber harvesting, resulting in devastated

communities.

Take, for example, the “Black Ram” project,

which is currently at a circuit court. 6 There, the

Forest Service spent many years analyzing a project

that would involve vegetation management including

commercial timber harvest and other fire-mitigation

measures. The whole point of the project was to

promote the public’s interests in resilient vegetation,

healthy watersheds, big-game ranges, forage

opportunities, recreational opportunities, reducing

6 See Ctr. for Biological Diversity v. U.S. Forest Serv., 2023 WL

5310633 (D. Mont. Aug. 17, 2023). The Ninth Circuit Court of

Appeals has docketed the appeal as No. 23-2886.

high-intensity wildfires, and supplying forest

products that contribute to the sustainable supply of

timber products. These are things that Congress has

said are in the public interest. See, e.g., 16 U.S.C.

§§ 528, 531.

The Forest Service began developing the

project in 2017 and spent five years analyzing the

environmental consequences of the project before

approving it. The agency prepared a 435-page

environmental assessment. And among many topics,

the Forest Service considered and explained

environmental consequences on grizzly bears, and

ultimately approved a version of the project.

In particular, the Forest Service went to great

lengths to calculate and otherwise estimate the

“baseline” number of bears that lived in the 95,000acre project-area so that it could explain the potential

environmental consequences of the project on those

bears. The Forest Service went way beyond what was

reasonable to figure out the potential environmental

consequences on bears, and it explained its process

and conclusions at length. But never mind the

public’s interest in realizing all of the public-interest

purposes that the Black Ram project would promote;

a few persons and a federal court did not like the

potential substantive result of the project on grizzly

bears, and they used NEPA as weapon to defeat the

public in favor of their own interests. See Ctr. for

Biological Diversity, 2023 WL 5310633, at *3–7.

Why did these few know better about the public

interest than the public knew? Well, as they tell it,

because all those purposes that would serve the public

interest could not measure up to a difference of

opinion between the Forest Service and the plaintiffs

as to exactly how to estimate the “baseline” population

of grizzly bears in the 95,000-acre area. It did not

matter what was reasonable; it did not matter

whether the few were “flyspecking”; it did not matter

whether the Forest Service gave a “hard look” to

environmental consequences.

The district court

decided that answering the question whether there

were 60 bears in the area—or a few more bears or a

few fewer bears—served NEPA without regard to the

public interest.

Put another way, the district court decided that

its desire to know how many grizzly bears lived in the

project area was more important than all the public

purposes that the project would serve. And it did so

despite the many pages and years—recited at length

by the district court—devoted to examining and

explaining the environmental consequences of the

proposed project. In the context of the Black Ram

project, Public Citizen is important for the limit to

“but-for causation” on what is reasonable, but it is

even more important for explaining that such myopic,

self-serving motivations that harm the public interest

are both unlawful (by the regulators) and wrong (by

the lower courts).

And the district court went further, turning its

sight on the types of environmental consequences the

Surface Transportation Board’s lone dissenter focused

on in the case at this Court. See id. at *8–11. With

respect to “climate impacts,” the district court went

way beyond what Congress and even regulators

require. Id. at *8 (“Although NEPA’s implementing

regulations somewhat cabin broader environmental

analyses[.]”) (emphasis added). The main “climate”

issue was whether potential forest management—

including timber harvesting—would have meaningful

“climate impacts” because the act of harvesting a tree

(of course, without consideration of the benefits of

active forest management) might result in one less

way to remove carbon from ambient air. Id. at *9–10.

The district court then went through analyses,

including qualitative and quantitative analyses, and

concluded, “Federal Defendants and the Tribe counter

that the USFS properly analyzed environmental

impacts in a manner proportionate to their

significance, which they insist are localized,

infinitesimal, and minor. Ultimately, Plaintiffs are

correct because although the USFS took steps to

explain how the Project could impact carbon

emissions, it did so only in general terms, which does

not meet NEPA’s ‘hard look’ standard.” Id. at *10.

The district court had quantitative analyses in

front of it. For example: “The Project Carbon Report

notes that the Project would decrease these potential

threats by increasing the long-term productivity of the

forest, leading to higher future carbon sequestration.

FS-020743. And it further notes that: ‘The total

carbon stored on the Kootenai National Forest is

approximately 174 Tg, or about thirty-nine one

hundredths of one percent (0.0039) of approximately

44,931 Tg of carbon stored in forests of the

coterminous United States.’ FS-020743. Although it

does not provide hard numbers explaining how much

carbon would be released if the Project were

implemented . . . .” (emphasis added). Id. at *9. In

the court’s logic, if you do not like the result of a

federal action, then you can keep demanding more

and more explanation taking years and years until

you get the substantive result you want. The district

court was determined to find a NEPA violation despite

the public interest, no matter how “localized,

infinitesimal, [or] minor,” see id. at *10, the alleged

lack-of-explanation was.

Here, by agreeing to review the lower court’s

decision and erroneous elevation of NEPA above the

public interest, the Court would be able to send a

message to lower courts that, for example, they should

not set aside a Forest Service project that would

support many purposes that are in the public interest

just because a few people want more clarity on exactly

how many grizzly bears live in a 95,000-acre area.

Those people and that judge do not get to decide what

is in the public interest.

For AFRC and its members, there are many

examples of lower courts wielding NEPA as a weapon

to defeat the public interest, including the public

interest in active forest management. In this case, the

lower court recognized that elevating its desired

substantive anti-use outcomes over the public interest

would harm the people of the Uinta Basin, a roughly

12,000-square-mile area in the West that is generally

cut off from the rest of the world. See Pet.App.7a; Pet.

9. The Tribe members and others who rely on the

Basin, including their elected representatives, spoke

out to the Surface Transportation Board, urging

approval of this helpful project. See, e.g., Pet.App.78a

n.2; Pet.App.194a.

Congress was not alone in

professing that construction of the rail line was in the

public interest, the public said so too. Id.

The lower court and the lone dissenter at the

Board decided they knew better about the public

interest than the public did. But as Judge Tallman of

the Ninth Circuit recently warned, “the unfortunate

back-end cost” of that approach “is that small, local

communities reliant on the cultivation of natural

resources to generate revenue to sustain them are

often left behind.” Murphy Co. v. Biden, 65 F.4th

1122, 1143 (9th Cir. 2023) (Tallman, J., dissenting in

part), cert. denied, 2024 WL 1241467 (U.S. Mar. 25,

2024) (“Justice Gorsuch and Justice Kavanaugh

would grant the petitions for writs of certiorari.”).

Unfortunately, the lower court—like the lone

dissenter at the Board—decided that it knew better

about the public interest than did Congress and the

public itself. Congress did not intend for NEPA to be

“weaponized” in this way, creating a platform for

“anti-use” initiatives to succeed despite the public

interest.

Accordingly, for the sake of Petitioners in this

case, the people who live in or rely on the Uinta Basin,

and AFRC and its members, AFRC respectfully asks

the Court to review this case and ultimately rule in

the Petitioners’ favor.

♦

CONCLUSION

For the foregoing reasons, AFRC respectfully

asks this Court to grant the petition for writ of

certiorari.

Respectfully submitted,