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

Supreme Court briefAug 28, 2024

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No. 23-975

In the Supreme Court of the United States

SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,

PETITIONERS

EAGLE COUNTY, COLORADO, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

SUPPORTING PETITIONERS

ANIKA SANDERS COOPER

General Counsel

BARBARA MILLER

Attorney

Surface Transportation

Board

Washington, D.C. 20423

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

COLLEEN E. ROH SINZDAK

Assistant to the Solicitor

General

ROBERT J. LUNDMAN

JUSTIN D. HEMINGER

ANDREW M. BERNIE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the National Environmental Policy Act, 42

U.S.C. 4321 et seq., requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions involved ...................................................... 2

Statement ...................................................................................... 2

Summary of argument ............................................................... 16

Argument:

The Surface Transportation Board reasonably limited

its consideration of the upstream and downstream

effects of petitioners’ proposed rail line .............................. 19

A. NEPA permits agencies to draw manageable,

context-specific lines in determining the scope of

their environmental impact statements ........................ 21

B. Petitioners err to the extent they suggest that an

agency may impose limits on its environmental

analysis that do not comport with NEPA’s text or

underlying policies .......................................................... 31

C. The Board reasonably declined to perform

additional analysis of the upstream and

downstream effects of oil and gas development........... 39

Conclusion ................................................................................... 46

Appendix — Statutory provisions........................................... 1a

TABLE OF AUTHORITIES

Cases:

Akron, Canton & Youngstown R.R. v. ICC,

611 F.2d 1162 (6th Cir. 1979),

cert. denied, 449 U.S. 830 (1980) ......................................... 4

Bank of Am. Corp. v. City of Miami,

581 U.S. 189 (2017)........................................................ 36, 37

CSX Transp., Inc. v. McBride, 564 U.S. 685 (2011) ..... 23, 36

Department of Transp. v. Public Citizen,

541 U.S. 752 (2004)........ 2, 9, 14, 17, 18, 20-28, 31, 33-36, 45

(III)

Cases—Continued:

Page

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ................... 28, 29

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) ..................................................... 36

Marsh v. Oregon Natural Res. Council,

490 U.S. 360 (1989)........................................................ 20, 28

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983)................................... 22, 23, 35

Riffin v. Surface Transp. Bd.,

733 F.3d 340 (D.C. Cir. 2013) ............................................... 4

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989).................................................... 2, 16, 20

Rocky Mountain Wild v. Bernhardt,

506 F. Supp. 3d 1169 (D. Utah 2020)................................. 43

Sierra Club v. FERC, 827 F.3d 36 (D.C. Cir. 2016) ........... 26

Southern Utah Wilderness Alliance v. United States

Dep’t of the Interior, No. 13-cv-1060,

2016 WL 6909036 (D. Utah Oct. 3, 2016) .......................... 43

WildEarth Guardians v. United States Forest Serv.,

No. 14-cv-349, 2021 WL 409827

(D. Utah Feb. 5, 2021) ........................................................ 43

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 706(a)(2) ............. 28

Fair Housing Act, 42 U.S.C. 3601 et seq. ............................ 36

Federal Employers’ Liability Act,

45 U.S.C. 51 et seq............................................................... 23

Fiscal Responsibility Act of 2023,

Pub. L. No. 118-5, Div. C, Tit. III, § 321(a)(3)(B),

137 Stat. 38 ................................................................ 3, 17, 22

ICC Termination Act of 1995, Pub. L. No. 104-88,

109 Stat. 803 (49 U.S.C. 10101 et seq.) ................................ 3

49 U.S.C. 10101 .................................................................. 5

49 U.S.C. 10501 ............................................................ 9, 42

Statutes and regulations—Continued:

Page

49 U.S.C. 10501(b)(2) .................................................. 4, 8a

49 U.S.C. 10501(c) ..................................................... 15, 8a

49 U.S.C. 10502 ................................................ 4, 5, 42, 10a

49 U.S.C. 10502(a) ................................................. 4, 5, 10a

49 U.S.C. 10502(a)(1) ................................................. 5, 10a

49 U.S.C. 10901 .......................................................... 4, 12a

49 U.S.C. 10901(b) ................................................... 15, 12a

49 U.S.C. 10901(c) ................................................. 4, 5, 12a

49 U.S.C. 11101 .................................................................. 4

Lanham Act, 15 U.S.C. 1051 et seq. ..................................... 36

National Environmental Policy Act of 1969,

Pub. L. No. 91-190, 83 Stat. 852

(42 U.S.C. 4321 et seq.) ......................................................... 2

§ 102(c)(i), 83 Stat. 853 ................................................ 3, 21

§ 102(c)(ii), 83 Stat. 853 ............................................... 3, 21

42 U.S.C. 4321 ........................................................ 2, 16, 34

42 U.S.C. 4331 .................................................................... 2

42 U.S.C. 4332 ............................................................ 33, 3a

42 U.S.C. 4332(2)(C) ...................................2, 17, 21, 32, 4a

42 U.S.C. 4332(2)(C)(i) (1970) ................................... 21, 1a

42 U.S.C. 4332(2)(C)(i) ...............................3, 22, 23, 38, 4a

42 U.S.C. 4332(2)(C)(ii) (1970).................................. 21, 2a

42 U.S.C. 4336 .................................................................. 38

42 U.S.C. 4336a ................................................................ 38

42 U.S.C. 4336a(a)(3) ....................................................... 32

42 U.S.C. 4336e(10) ......................................................... 38

42 U.S.C. 4342 .................................................................... 3

40 C.F.R.:

Section 1501.2 .................................................................. 32

Section 1501.3(b).............................................................. 30

Section 1501.9(b).............................................................. 30

Regulations—Continued:

Page

Section 1502.2(b).............................................................. 30

Section 1502.2(c) .............................................................. 30

Section 1502.4 .................................................................. 30

Section 1502.4(a) .............................................................. 30

Section 1502.4(d)(1) ................................................... 30, 32

Section 1508.1(i) ............................................................... 29

Section 1508.1(aa) (2021) ............................................ 3, 22

Section 1508.1(aa) .............................................................. 3

Section 1508.1(ii) (2024) .................................................. 22

Section 1508.8(b) (1979) .............................................. 3, 17

Section 1508.8(b) (2019) .................................................. 22

49 C.F.R. 1151.2 ....................................................................... 4

Miscellaneous:

Comm. on Interior and Insular Affs.,

National Environmental Policy Act of 1969,

S. Rep. No. 296, 91st Cong., 1st Sess. (1969) ............. 33, 38

43 Fed. Reg. 55,978 (Nov. 29, 1978) ................................. 3, 22

85 Fed. Reg. 43,304 (July 16, 2020) ............................ 3, 22, 29

87 Fed. Reg. 23,453 (Apr. 20, 2022) ................... 23, 24, 27, 30

In the Supreme Court of the United States

No. 23-975

SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,

PETITIONERS

EAGLE COUNTY, COLORADO, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

SUPPORTING PETITIONERS1

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-71a)

is reported at 82 F.4th 1152. The decisions of the Surface Transportation Board (Pet. App. 74a-189a, 190a230a) are available at 2021 WL 41926 and 2021 WL

5960905.

JURISDICTION

The judgment of the court of appeals was entered on

August 18, 2023. A petition for rehearing en banc was

The federal respondents supporting petitioners represented by

the Solicitor General in this brief include the Surface Transportation Board. Although the Board did not participate at the certiorari

stage (see Gov’t Br. in Opp. 2 n.1), it was a party before the court of

appeals and is therefore a respondent in this Court.

(1)

denied on December 4, 2023 (Pet. App. 72a-73a). The

petition for a writ of certiorari was filed on March 4,

2024, and granted on June 24, 2024. The jurisdiction of

this Court rests on 28 U.S.C. 1254(1) and 2350.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix to this brief. App., infra, 1a-14a.

STATEMENT

1. Enacted in 1970, the National Environmental Policy Act of 1969 (NEPA), Pub. L. No. 91-190, 83 Stat. 852

(42 U.S.C. 4321 et seq.), establishes a set of “ ‘actionforcing’ procedures that require” agencies to “take a

‘hard look’ at environmental consequences” before undertaking major federal actions that will affect the environment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (citation omitted). Congress

declared that the purpose of those procedural requirements is to encourage efforts to “prevent or eliminate

damage to the environment” and improve public health

and welfare, while also enhancing understanding of the

environment. 42 U.S.C. 4321; accord Department of

Transp. v. Public Citizen, 541 U.S. 752, 756 (2004)

(quoting 42 U.S.C. 4321); see 42 U.S.C. 4331 (describing

tenets of the “national environmental policy”) (emphasis omitted).

NEPA’s core procedural provision requires agencies

to prepare a “detailed statement” in connection with a

proposal for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C.

4332(2)(C). As originally enacted, the statute required

these environmental impact statements to include

analysis of (among other things) the “environmental impact of the proposed action” and any unavoidable “adverse environmental effects” of the proposal. NEPA

§ 102(c)(i) and (ii), 83 Stat. 853. The original statute also

established the Council on Environmental Quality (CEQ),

a new entity charged with overseeing the national environmental policy the statute pronounced. 42 U.S.C.

4342.

In a set of 2023 amendments enacted after the

agency decisions in this case, Congress clarified the appropriate scope of an environmental impact statement

by specifying that the statement should analyze the

“reasonably foreseeable environmental effects of the

proposed agency action.” 42 U.S.C. 4332(2)(C)(i); see

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

118-5, Div. C, Tit. III, § 321(a)(3)(B), 137 Stat. 38. Before that amendment, longstanding CEQ regulations

had similarly specified that agencies should consider

the “reasonably foreseeable” environmental effects of

their proposed actions. 43 Fed. Reg. 55,978, 56,004

(Nov. 29, 1978) (40 C.F.R. 1508.8(b) (1979)). In 2020,

CEQ had revised the regulations to define “[r]easonably foreseeable” to mean “sufficiently likely to occur

such that a person of ordinary prudence would take it

into account in reaching a decision.” 85 Fed. Reg.

43,304, 43,376 (July 16, 2020) (40 C.F.R. 1508.1(aa) (2021))

(emphasis omitted). That definition remains in place today. See 40 C.F.R. 1508.1(aa).

2. a. The Surface Transportation Board (Board) is

a federal agency that regulates rail carriers and railroads. Because the Board is the successor to the Interstate Commerce Commission, its authority is set out in

the ICC Termination Act of 1995 (the Interstate Commerce Act), Pub. L. No. 104-88, 109 Stat. 803 (49 U.S.C.

10101 et seq.).

The Interstate Commerce Act grants the Board “exclusive” federal jurisdiction over “transportation by rail

carrier[s]” and “the construction, acquisition, operation, abandonment, or discontinuance” of railway lines

and related facilities. 49 U.S.C. 10501(b)(2). The Act

also charges the Board with enforcing the statute’s

“[c]ommon-carrier” obligation, which requires railroads

to carry all commodities upon reasonable request—

including hazardous and other environmentally-sensitive

materials. See 49 U.S.C. 11101; Riffin v. Surface Transp.

Bd., 733 F.3d 340, 345-347 (D.C. Cir. 2013); accord Akron, Canton & Youngstown R.R. v. ICC, 611 F.2d 1162,

1166-1168 (6th Cir. 1979) (common-carrier railroad

must carry nuclear waste), cert. denied, 449 U.S. 830

(1980).

b. An entity that wishes to construct or operate a

new railroad line must generally seek a license from the

Board. 49 U.S.C. 10901. One way to obtain a license is

to file an application with the Board. See 49 U.S.C.

10901(c). This approach initiates a process that involves

public notice and a proceeding to evaluate the application, and the Board is required to “issue a certificate authorizing” the construction “unless the Board finds that

such activities are inconsistent with the public convenience and necessity.” Ibid.; see 49 C.F.R. 1151.2.

Alternatively, as in this case, an applicant may request Board authorization through a more summary

“exemption” process under 49 U.S.C. 10502. The Board

may grant an exemption when it finds that a full proceeding under Section 10901 “is not necessary to carry

out the rail transportation policy of [S]ection 10101” of

the Interstate Commerce Act, and that either the

“transaction or service is of limited scope” or full proceedings are “not needed to protect shippers from the

abuse of market power.” 49 U.S.C. 10502(a). Under the

exemption process, the Board does not apply the “public

convenience and necessity” standard from Section

10901(c); instead the Board assesses the transportation

merits of the construction or operation proposal based

on statutorily enumerated policies for “regulating the

railroad industry” set out in 49 U.S.C. 10101. See 49

U.S.C. 10502(a)(1). The Act provides that “the Board,

to the maximum extent consistent with [the Act],” shall

grant an exemption when it finds these criteria satisfied. 49 U.S.C. 10502(a). Under both the application

and exemption processes, there is a presumption in favor of approving rail construction projects.

3. a. Petitioners seek to construct an 85-mile-long

railway line in Utah connecting the Uinta Basin in

northeastern Utah to the existing interstate freight rail

network near Kyune, Utah. Pet. App. 190a-191a. Because the Basin is surrounded by high mountains and

plateaus with elevations up to 13,000 feet above sea

level, transportation options are limited. C.A. App. 259260, 822. Freight must currently be transported by

truck on two-lane highways. Pet. App. 7a. A new railway line would furnish an additional transportation option for moving goods into and out of the Basin. Ibid.

And because waxy crude oil is the main commodity currently transported by trucks in the Uinta Basin, that

would be the new line’s primary freight. Ibid.

In May 2020, petitioners sought the Board’s authorization for the railway line by invoking the Interstate

Commerce Act’s exemption process under Section

10502. Pet. App. 6a-7a. The Board conducted the exemption process in this case through bifurcated proceedings. Id. at 9a-11a. The Board issued a preliminary

decision in January 2021 addressing the transportation

merits of the proposed project before the Board’s environmental analysis was complete, id. at 9a, and then is-

sued a final decision taking account of the completed environmental analysis later that same year, id. at 10a11a.

b. The environmental analysis involved multiple

stages. In October 2020, the Board issued a draft environmental impact statement in connection with the project. Pet. App. 10a. The Board then opened a public comment process that continued until February 12, 2021.

During that process, the Board conducted six public

meetings and received over 1900 comments. Ibid. In

August 2021, the Board issued its final environmental

impact statement. Id. at 76a.

The Board’s final environmental impact statement

spanned more than 600 pages. It was supported by

more than 2200 pages of appendices containing technical analysis and other materials, as well as a separate

728-page document with the Board’s responses to public

comments—resulting in more than 3600 pages of analysis in total.2

The Board’s final environmental impact statement

identified and analyzed a series of “significant and adverse impacts that could occur as a result of the proposed rail line.” J.A. 121. Those impacts included the

disturbance of local “waters and wetlands” that would

occur due to the line’s construction, the “wayside noise”

that would be created by the trains newly running

through the area, J.A. 123-124, the alterations to land

use and recreation, J.A. 124, and the effects on “[t]ribal

[c]oncerns”—although the Board noted that the tribe

whose land is in the Basin supported the project, J.A.

125-126; see Ute Indian Tribe of the Uintah and Ouray

Reservation Amici Br. (filed Apr. 4, 2024). The environThe full statement and appendices are available at http://www.

uintabasinrailwayeis.com/DocumentsAndLinks.aspx.

mental impact statement also considered several “minor impacts” that “would not be significant” if certain

mitigation measures were adopted. J.A. 126. Those impacts included “air quality and greenhouse gas[]” emissions in the area of construction and the effect of the

new construction on local big game, fish, and wildlife.

J.A. 132 (capitalization and emphasis omitted); see J.A.

126-134. In addition, the statement considered the

“downline impacts” that the new railway line would create on existing lines by increasing the volume of traffic.

J.A. 134. And the statement considered the cumulative

impacts of the project, addressing the “relevant past,

present, and reasonably foreseeable projects and actions that could have impacts that coincide in time and

location with the potential impacts of the proposed rail

line.” J.A. 135; see J.A. 135-136.

Among the “cumulative impacts” the Board identified were the effects of increased oil production in the

Uinta Basin spurred by the increased transportation capacity for oil furnished by the new railroad line. J.A.

135. Although the Board found that there were many

unknowns and uncertainties in connection with the consequences of additional oil and gas development, the

agency nonetheless estimated the amount of oil and gas

that might be produced and the total amount of new oil

wells and other infrastructure that might be constructed in the Basin if the railway was built, using

“conservative” assumptions that “may overstate total

future oil production in the Basin.” J.A. 353; see J.A.

351-362. The Board also analyzed the environmental effects from that increased oil production on each relevant resource in the Basin to the extent it could without

any information regarding specific projects and plans.

See J.A. 365-474.

The Board specifically found that there were many

uncertainties regarding the downstream effects of refining the oil that would be transported over the line.

J.A. 420-423. The Board explained that it “generally

cannot restrict the types of products and commodities

that are transported on rail lines” and “that railroads

have a common carrier obligation to carry all commodities, including hazardous materials, upon reasonable request under 49 U.S.C. § 11101.” J.A. 421. The Board

recognized, however, that much of the oil transported

out of the Basin on the new line would likely go to refineries and end-users for combustion, which would produce emissions that contribute to “global warming and

climate change.” J.A. 420. The Board estimated the aggregate amount of greenhouse gas emissions from its

estimation of the potential increase in combustion, using a set of assumptions that the Board described as

“conservative” and that “may overstate” the potential

emissions. J.A. 423. The Board found that its high-end

estimate would represent approximately 0.8% of nationwide greenhouse gas emissions and 0.1% of global emissions. Ibid.

c. In an appendix to the final environmental impact

statement responding to public comments on the draft

statement, the Board addressed comments suggesting

that it should have given more detailed consideration to

the effects of upstream and downstream oil and gas development. J.A. 520-529. Some commenters had suggested that the Board “should have treated potential

environmental impacts that could result from potential

future, as yet unplanned, oil and gas development projects in the Basin as direct or indirect impacts of the

proposed rail line, rather than treating [such] projects

as reasonably foreseeable future actions that could contribute to cumulative impacts.” J.A. 520.

In responding to those comments, the Board explained that further analysis of the posited effects

“would not inform the Board’s decision on [petitioners’

proposal] to construct and operate” the new railroad

line. J.A. 521. The Board observed that a NEPA analysis has two purposes: (1) to ensure that, “in reaching

its decision,” the agency has available and may “carefully consider[] detailed information concerning significant environmental impacts,” and (2) to “guarantee[]

that the relevant information will be made available to

the larger audience that may also play a role” in the decision and its implementation. Ibid. (quoting Public

Citizen, 541 U.S. at 768) (citation omitted).

The Board described several reasons that more detailed information about particular oil and gas development that might occur would not serve either of those

purposes. J.A. 521-529. The Board observed that it

“has jurisdiction over rail transportation by rail carriers,” and that it had prepared the environmental impact

statement in connection with its decision “under 49

U.S.C. § 10502” as to whether to grant petitioners’ request “to construct and operate a new rail line” in the

Uinta Basin. J.A. 522; see ibid. (citing 49 U.S.C. 10501).

The decision before the Board was therefore “whether

to authorize, deny, or authorize with conditions” petitioners’ “proposal to construct and operate the proposed rail line.” Ibid. “Oil and gas development [was]

not part of ” the proposed agency action before the

Board and would be “subject to the approval processes

of other federal, state, local, and tribal agencies.” Ibid.

The Board also found that it “lack[ed] sufficient control over future oil and gas development projects to

make those projects part of the proposed action assessed in the [environmental impact statement].” J.A.

523. The Board acknowledged that “the availability of

a rail transportation option would benefit the oil and gas

industry” in the Basin, but it observed that the “industry is already well-established” and that the Board’s authority to prevent or minimize oil and gas development

is constrained because the Board “can only impose conditions that are consistent with its statutory authority

over rail transportation by rail carriers under the Interstate Commerce Act.” Ibid.

Further, the Board explained that the environmental

consequences of future oil and gas development in the

Uinta Basin were both “speculative” and attenuated.

J.A. 525; see J.A. 527-529. The Board observed that

many oil and gas development projects in the Basin had

“not yet been proposed or planned.” J.A. 528. It further

observed that the extent of future oil and gas development would involve “many separate and independent

projects” in the Basin that could vary in terms of the

federal, state, tribal, or private character of the land,

and the “scale” and nature of the projects themselves.

Ibid. The Board also noted that “it would not be possible to determine which of these as yet unproposed, unplanned, and unsponsored projects would or would not

proceed.” J.A. 528-529. For all these reasons, the

Board found that it was “not possible to” say that any

such projects were “proximately caused by the proposed rail line.” J.A. 529.

As to the downstream consequences of transporting

oil over the proposed line, the Board observed that

“crude oil produced in the Basin is currently transported to refiners in the Salt Lake City area” that have

“limitations on the volume of crude oil” they can accept.

J.A. 528. The Board found that “it is possible that additional capacity could be added at those refineries in the

future.” Ibid. But the Board observed that refining

might increase regardless of the Board’s actions “depend[ing] on future market conditions.” Ibid.

The Board’s response to the comments did not discuss particular refineries in other locations, such as the

Texas and Louisiana Gulf Coasts and Puget Sound, to

which oil from the Basin might ultimately be shipped.

But the environmental impact statement acknowledged

the possibility of increased refining in those areas. J.A.

477-482. The Board determined in the statement that

much of the oil would likely be transported to “markets

in other regions of the United States,” J.A. 477, and to

the Gulf Coast and Puget Sound areas in particular, J.A.

478, but the Board observed that “[t]he final destinations of the trains would depend on the ability and willingness of refineries in other markets to receive rail

cars carrying Uinta Basin crude oil and process the oil

in their refineries.” J.A. 477. Still, the Board prepared

estimates of how much potential oil development in the

Uinta Basin might increase transportation of oil to the

Gulf Coast and Puget Sound. J.A. 481-482.

d. Ultimately, the Board’s final decision authorized

construction and operation of the proposed railroad

line. Pet. App. 74a-123a. The Board’s final decision reviewed the environmental effects described in the final

environmental impact statement at length. See id. at

83a-117a.

In addressing the upstream and downstream consequences of oil and gas development, the Board reaffirmed its prior analysis. Pet. App. 105a-108a. The

Board explained that it had “estimated aggregate emissions from potential future oil and gas development

based on the best available information regarding emissions from oil and gas production in the Basin.” Id. at

106a. It further acknowledged that, “[t]o the extent

that” crude oil transported on the line “would be combusted to produce energy, emissions from the combustion of the fuels would produce” greenhouse gasses,

which could represent “up to approximately 0.8% of nationwide” emissions and 0.1% of global emissions. Ibid.

But the Board found that “the actual volumes of crude

oil that would move over the Line would depend on various independent variables and influences, including

general domestic and global economic conditions, commodity pricing, the strategic and capital investment decisions of oil producers, and future market demand for

crude oil from the Basin, * * * among other factors.”

Ibid.

The Board rejected the contention that it had given

insufficient consideration to the upstream and downstream effects of oil production and refining. Pet. App.

107a. The Board reiterated that it “has 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.” Id. at 108a. And it repeated

that “[o]il and gas development that may occur following authorization of [the new railroad line] would entail

many separate and independent projects that have not

yet been proposed or planned and that could occur on

private, state, tribal, or federal land and could range in

scale from a single vertical oil well to a large lease.”

Ibid.

In the end, the Board recognized that the new railroad line was “likely to produce unavoidable environmental impacts,” but it found that it could impose “extensive mitigation conditions” to “minimize those im-

pacts to the extent practicable.” Pet. App. 118a-119a.

It also determined that “construction and operation of”

the new line would “have substantial transportation and

economic benefits” that outweighed the environmental

concerns. Id. at 119a.

4. Eagle County, Colorado and several environmental organizations (collectively, the “non-federal respondents”) filed petitions for review of the Board’s decision that were consolidated into a single proceeding

before the court of appeals. See Pet. App. 9a, 13a. The

court granted the petitions in part and denied them in

part. Id. at 1a-71a.

As relevant here, the court of appeals held that the

Board’s environmental impact statement improperly

excluded further analysis of the upstream environmental effects of increased oil production in the Basin and

the localized downstream effects of ultimately processing some of that oil in refineries in Texas and Louisiana. Pet. App. 28a-37a. The court first rejected the

argument that the Board’s NEPA analysis was invalid

because the Board classified the upstream and downstream consequences of oil and gas development as “cumulative” rather than “indirect” effects. Id. at 28a-29a.

The court reasoned that “[e]ven if the Board erroneously characterized the impacts,” the challengers had

“identif[ied] no way in which this decision materially affected the Board’s analysis under NEPA.” Ibid. The

Board had both “acknowledged the impact of increased

oil extraction in the Basin and explained [that] ‘[t]he impacts and the analysis of those impacts would be the

same no matter which label [it] used.’ ” Id. at 29a (quoting id. at 108a & n.15 (Final Exemption Decision)) (first

set of brackets in original). The court therefore concluded that the purported misclassification of the ef-

fects could not “be said ‘to undermine informed public

comment and informed decisionmaking.’ ” Id. at 29a30a (citation omitted).

The court of appeals agreed, however, with the nonfederal respondents’ argument that the Board had

failed to justify the absence of further analysis of the

alleged upstream and downstream consequences of oil

and gas development in the environmental impact statement. Pet. App. 30a-37a. The court concluded that the

Board’s limited discussion of those harms could not be

justified either on the ground that the upstream and

downstream consequences were not “reasonably foreseeable,” or on the ground that the Board lacked the

statutory authority to prevent those consequences. Id.

at 30a-31a (citation omitted).

As to reasonable foreseeability, the court of appeals

held that the agency could not rely on its “ ‘lack of information about the’ location of future oil production sites”

in the Basin and the “ ‘destination and end use of the

[oil]’ ” after it was transported over the proposed line

and entered onto existing lines. Pet. App. 32a (citation

omitted; brackets in original). The court stated that,

while “great ‘deference [is] owed to [the Board’s] technical judgments,’ ” the Board had “fail[ed] to adequately

explain why it could not employ ‘some degree of forecasting’ to identify the aforementioned upstream and

downstream impacts.” Id. at 35a (citation omitted; first

and second set of brackets in original).

The court of appeals then rejected the contention

that, under this Court’s decision in Public Citizen, supra, the Board was not required to “identify and describe the environmental effects of increased oil drilling

and refining” because of the Board’s view that it “lack[ed]

authority to prevent, control, or mitigate those develop-

ments.” Pet. App. 36a. The court reasoned that the

Board had the authority to prevent those effects because the Board has “exclusive jurisdiction over the

construction and operation of the railway, including authority to deny the exemption petition if the environmental harm caused by the railway outweighs its transportation benefits.” Ibid. (citing 49 U.S.C. 10501(c),

10901(b)). The court also reasoned that the Board “is

authorized to license railroad construction and operation based on the ‘public convenience and necessity,’

which encompasses reasonably foreseeable environmental harms.” Id. at 37a (citation omitted). Based on

that analysis, the court decided that “the Board’s argument that it need not consider effects it cannot prevent”

was “simply inapplicable.” Ibid.

The court of appeals found a number of other flaws

in the Board’s NEPA analysis, including a failure to

take a hard look at the increased risk of rail accidents

downline of the 85 miles of new line, Pet. App. 40a-42a,

the risk and impacts of wildfires downline caused by

sparks from the operation of additional trains, id. at

42a-45a, and the railway’s impacts on water resources

downline on the Colorado River, id. at 46a-47a. The

court rejected or declined to reach multiple other challenges under NEPA and the National Historic Preservation Act. Id. at 29a, 37a-39a, 47a-50a, 55a-57a. And

the court found that there were flaws in the biological

opinion that the Fish and Wildlife Service had provided

in connection with the project under the Endangered

Species Act, id. at 50a-55a, and in the Board’s exemption decision under the Interstate Commerce Act, id. at

57a-69a. Petitioners did not seek review of those other

issues.

Based on the errors the court of appeals found in the

NEPA analysis and the biological opinion, the “fail[ure]

to conduct a reasoned application” of the Interstate

Commerce Act, and the Board’s “fail[ure] to weigh the

[railway’s] uncertain financial viability and the full potential for environmental harm against the transportation benefits,” the court vacated the Board’s exemption

order as arbitrary and capricious, and partially vacated

the environmental impact statement and biological

opinion. Pet. App. 70a; see id. at 70a-71a.

5. Petitioners sought rehearing en banc, which the

court of appeals denied. Pet. App. 72a-73a.

SUMMARY OF ARGUMENT

NEPA did not require the Board to undertake additional analysis of the upstream and downstream consequences of oil and gas development in determining

whether to authorize the construction and operation of

the proposed railroad line in this case. The court of appeals’ contrary decision on that issue should be reversed.

A. “NEPA declares a broad national commitment to

protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

348 (1989). But it is “well settled that NEPA itself does

not mandate particular results.” Id. at 350. Rather, the

statute realizes its environmental policy goals—i.e.,

“encourag[ing] productive and enjoyable harmony between man and his environment,” “promot[ing] efforts

which will prevent or eliminate damage to the environment,” and “enrich[ing] the understanding of the ecological systems and natural resources important to

the Nation,” 42 U.S.C. 4321—through “a set of ‘actionforcing’ procedures that require” agencies to “take a

‘hard look’ at environmental consequences,” Robertson,

490 U.S. at 350 (citation omitted). At the heart of

NEPA’s procedural mandates is the requirement that

agencies must prepare a “detailed statement” analyzing

“environmental effects” before undertaking “major

Federal actions significantly affecting the quality of the

human environment.” 42 U.S.C. 4332(2)(C).

NEPA’s core procedural mandate is subject to certain limits. Longstanding CEQ regulations, now codified in the statute, provide that an agency need only examine the “reasonably foreseeable” effects of a proposed action. See 2023 Act, § 321(a)(3)(B), 137 Stat. 38;

40 C.F.R. 1508.8(b) (1979). In addition, this Court has

stressed that NEPA does not rely on a “but-for” standard of causation; rather, an agency is only required to

examine the effects for which the agency’s action is the

“legally relevant cause.” Department of Transp. v.

Public Citizen, 541 U.S. 752, 769 (2004). That causal

limit permits an agency to exclude from its analysis any

effects the agency “has no ability to prevent * * * due

to its limited statutory authority over the relevant actions.” Id. at 770.

Moreover, even where an agency’s statutory authority is not so strictly limited, the agency may take account of a variety of context-specific factors in determining whether and to what extent the proposed agency

action is the “legally relevant cause” of a particular

harm. Public Citizen, 541 U.S. at 769. Thus, an agency

may reasonably determine that—based on the scope of

the proposed action and the nature and reach of the

agency’s organic statutes—a harm is so attenuated,

speculative, contingent, or otherwise insufficiently material to the agency’s decisionmaking that the necessary

causal connection is absent or diminished. Id. at 767.

And the fact that other governmental entities authorize,

fund, or carry out the specific conduct that gives rise to

the environmental issues may likewise inform an agency’s determination that the requisite “reasonably close

causal relationship” between its own actions and particular harms is missing or less robust. Ibid. (citation

omitted). In these various circumstances, the agency

may draw a “manageable line” that excludes any analysis of a harm if a “reasonably close causal relationship”

is absent or that minimizes the analysis of a harm where

the causal connection is less robust. Ibid. (citation omitted).

B. That does not mean that an agency may impose

artificial restrictions on its NEPA analysis. An agency

may not, for example, exclude consideration of an effect

merely because the agency does not directly regulate it

or because other agencies share regulatory authority in

the relevant arena. Nor may an agency impose arbitrary bright-line limits based on rigid measures of geographic distance, the timing of an effect, or the number

of other actors that may contribute to it. And agencies

cannot apply the same tort-law standards of proximate

cause given NEPA’s different purposes and framework.

Agencies must instead draw context-specific causal

lines that accord with “the underlying policies behind

NEPA and Congress’ intent, as informed by the ‘rule of

reason.’ ” Public Citizen, 541 U.S. at 768.

C. In this case, the Board drew a reasonable line in

declining to undertake more detailed analysis of the upstream and downstream effects of oil and gas development in its environmental impact statement supporting

the authorization of a new railroad line from the Uinta

Basin. The Board authorizes railroad construction and

operation, not the development and use of the commodities that travel over those lines. Indeed, the Board is

required to enforce a common-carrier obligation that

generally prohibits carriers from declining to provide

transport based on the nature of the commodity. And

other entities, including in some instances other federal

agencies, have the authority to approve oil and gas development projects in the Uinta Basin and to regulate

the localized effects of refining at the place where oil

from the Basin might ultimately be transported.

Given this statutory framework, the Board explained

that the scope of the proposed action was properly characterized as a decision to permit the construction of a

new railroad line providing common carrier service, rather than a decision to approve new oil and gas development. The Board also cited many factors that established that the “environmental impacts that could potentially result from potential future oil and gas development projects” were speculative, contingent, and attenuated from the Board’s proposed action. J.A. 529.

The Board therefore made a reasonable determination not to undertake additional or more detailed analysis of the upstream and downstream consequences of oil

and gas development. J.A. 520-529. Because that determination was not arbitrary or capricious, the court of

appeals erred in setting it aside, and the court’s decision

on this issue should be reversed.

ARGUMENT

THE SURFACE TRANSPORTATION BOARD REASONABLY LIMITED ITS CONSIDERATION OF THE UPSTREAM

AND DOWNSTREAM EFFECTS OF PETITIONERS’ PROPOSED RAIL LINE

NEPA embodies a “national commitment to protecting and promoting environmental quality,” implemented primarily through a procedural requirement for

agencies to analyze the significant environmental ef-

fects of their major actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). Agencies

must adhere to NEPA’s procedural command, but the

statutory text, this Court’s precedents, and CEQ’s regulations all recognize that, in preparing its environmental impact statement, an agency has considerable latitude and may draw manageable, context-specific lines

that take into account whether and to what extent

harms have a reasonably close causal relationship to the

agency’s action and are sufficiently material to the

agency’s decisionmaking to further NEPA’s purposes.

The agency’s factual findings and exercise of its expert

judgment and discretion in determining the scope of its

environmental impact statement may be set aside only

if they are arbitrary and capricious. See, e.g., Department of Transp. v. Public Citizen, 541 U.S. 752, 763

(2004); Marsh v. Oregon Natural Res. Council, 490 U.S.

360, 375-376 (1989).

In determining the scope of their environmental

analyses, agencies may not impose categorical or artificial limits that exclude information about environmental harms that have a reasonably close causal connection

and would materially assist the agency in its decisionmaking or the public in providing meaningful input. But

in this case, the Board did not rely on any such arbitrary

limits. Rather, the Board relied on several contextspecific factors to conclude that the upstream and

downstream consequences of oil and gas development

were too attenuated, speculative, contingent, and otherwise insufficiently material to the Board’s decisionmaking to warrant additional consideration in the environmental impact statement. The Board’s decision was not

arbitrary and capricious, and the court of appeals erred

in holding otherwise.

A. NEPA Permits Agencies To Draw Manageable, ContextSpecific Lines In Determining The Scope of Their Environmental Impact Statements

When Congress first enacted NEPA in 1970, it required agencies to prepare “detailed statement[s]” analyzing “the environmental impact of ” a proposed major

federal action, as well as (among other things) “any adverse environmental effects which c[ould not] be avoided

should the proposal be implemented.” §102(c)(i) and

(ii); 83 Stat. 853 (42 U.S.C. 4332(2)(C)(i) and (ii) (1970)).

Congress did not define the terms “environmental impact” or “environmental effect[].” Ibid. But this Court’s

precedents, longstanding practice, and recent NEPA

amendments establish that agencies need only consider

the reasonably foreseeable environmental consequences

for which the agency action is a “legally relevant cause.”

Public Citizen, 541 U.S. at 769; see 42 U.S.C. 4332(2)(C)

(requiring a “detailed statement by the responsible official on—(i) reasonably foreseeable environmental effects of the proposed agency action”). Moreover, an

agency’s determination regarding the scope of its environmental analysis is necessarily informed by NEPA’s

purposes and its “rule of reason,” as well as the nature

and scope of the agency’s substantive authority. And

the determination is reviewed under the APA’s deferential “arbitrary and capricious” standard.

Under those principles, an agency may draw a manageable, context-specific line that differentiates between (1) the significant environmental harms for which

the agency’s action is the legally relevant cause and

which will inform the agency’s decisionmaking and the

public’s input, and (2) the potential harms that are more

attenuated, speculative, contingent, or otherwise insufficiently material to the agency’s decisionmaking, such

that their consideration is less likely to serve NEPA’s

purposes or satisfy its rule of reason. For harms in the

latter category, the reasonably close causal connection

may be missing entirely, such that the agency need not

consider the harm at all, or the connection may be sufficiently removed that the agency may give the harm

only limited consideration.

1. NEPA plainly requires that an effect be “reasonably foreseeable” in order to necessitate inclusion in an

environmental impact statement. CEQ regulations have

long provided that agencies should consider the “reasonably foreseeable” environmental effects of their proposed actions. 43 Fed. Reg. at 56,004; 40 C.F.R. 1508.8(b)

(2019). In 2020, CEQ amended its regulations to clarify

that “[r]easonably foreseeable” means “sufficiently

likely to occur such that a person of ordinary prudence

would take it into account in reaching a decision.” 85

Fed. Reg. 43,304, 43,376 (July 16, 2020) (40 C.F.R.

1508.1(aa) (2021)) (emphasis omitted); see 40 C.F.R.

1508.1(ii) (2024) (same). And in 2023, Congress codified

this requirement by amending NEPA to specify that

an agency must examine the “reasonably foreseeable

environmental effects of the proposed agency action.”

42 U.S.C. 4332(2)(C)(i); see 2023 Act §321(a)(3)(B), 137

Stat. 38.

NEPA also permits agencies to refrain from analyzing an effect for which the agency’s action is not the “legally relevant cause.” Public Citizen, 541 U.S. at 769.

Thus, in Metropolitan Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766 (1983), the Court held

that NEPA does not incorporate a standard of “ ‘but for’

causation.” Id. at 774. Rather, the term “ ‘environmental effect’ ” must “be read to include a requirement of a

reasonably close causal relationship between a change

in the physical environment and the effect at issue.”

Ibid. The Court reiterated that principle in Public Citizen, holding that “a ‘but for’ causal relationship is insufficient to make an agency responsible for a particular

effect under NEPA and the relevant regulations.” 541

U.S. at 767. And the Court explained that it is necessary to look at NEPA’s “underlying policies or legislative intent in order to draw a manageable line between

those causal changes that may make an actor responsible for an effect and those that do not.” Ibid. (quoting

Metropolitan Edison, 460 U.S. at 774 n.7).

There is considerable overlap among these principles. Reasonable foreseeability plays an important role

in many statutory causation standards. See, e.g., CSX

Transp., Inc. v. McBride, 564 U.S. 685, 703 (2011) (discussing the role of reasonable foreseeability for determining causation under the Federal Employers’ Liability Act, 45 U.S.C. 51 et seq.). And Congress’s recent

amendments to NEPA confirm that agencies must look

to whether a consequence is “reasonably foreseeable,”

42 U.S.C. 4332(2)(C)(i), in drawing the “manageable

line” that Metropolitan Edison and Public Citizen contemplate, Public Citizen, 541 U.S. at 767.3 But the reThe overlap is also reflected in CEQ’s 2022 amendments removing the term “reasonably close causal connection” from its NEPA

regulations. CEQ had added that term, drawn from the Court’s

opinions in Metropolitan Edison and Public Citizen, for the first

time in 2020 to clarify that agencies may look to the attenuated nature of an effect in determining the appropriate scope of their

NEPA analyses. See 85 Fed. Reg. at 43,343-43,344. When CEQ

subsequently removed that term from the regulations in 2022, it explained that it was not disregarding “an agency’s ability to exclude

effects too attenuated from its actions.” 87 Fed. Reg. 23, 453, 23,465

(Apr. 20, 2022). Rather, CEQ indicated that the requirement of a

quirements of reasonable foreseeability and causation

are not identical. For example, Public Citizen recognized that, even when an environmental harm is “reasonably foreseeable” in the abstract or as a factual matter, id. at 766 (citation omitted), NEPA’s causation

standard is not met if the agency “has no ability to prevent” the harm “due to its limited statutory authority

over the relevant actions,” id. at 770.

In Public Citizen, the Court considered whether an

agency had permissibly excluded certain environmental

effects from its NEPA analysis based on the agency’s

limited statutory mandate. 541 U.S. at 767. The case

involved a NEPA challenge to safety regulations for

Mexican trucks that the Federal Motor Carrier Safety

Administration (FMCSA) promulgated after the President decided to lift a moratorium on the entry of Mexican trucks. Id. at 756, 760. The agency’s NEPA analysis considered the environmental consequences of the

roadside inspections of the Mexican trucks required by

the agency’s new safety rules. Id. at 761. But the analysis did not consider the consequences of the increased

presence of Mexican trucks in the United States because FMCSA determined that the increased presence

was due to the President’s decision to lift the moratorium rather than the agency’s new regulations. Ibid.

Several challengers asserted that limiting the NEPA

analysis in that way was improper because the trucks

“reasonably close causal connection” was already captured by the

pre-2020 regulation’s longstanding principle of “reasonable foreseeability,” ibid., and the requirement that effects must be caused by

the agency. Deleting the phrase that had been added by the 2020

regulations did not affect the courts’ ability to consider whether

there is a “reasonably close causal connection” between the agency’s

action and a particular harm in reviewing whether an agency acted

arbitrarily and capriciously in declining to assess that harm.

could not enter the United States until the agency

promulgated its regulations. Public Citizen, 541 U.S.

at 765-766. In the challengers’ view, that made FMSCA

the “cause ” of the entry of Mexican trucks. Id. at 766.

Because the President’s lifting of the moratorium and

the entry of the trucks were also “reasonably foreseeable,” the challengers argued that NEPA required the

agency to consider the environmental consequences of

the trucks’ entry. Ibid. (citation omitted).

The Court rejected that argument, holding that

NEPA does not require the “unyielding variation of ‘but

for’ causation” the challengers had proposed. Public

Citizen, 541 U.S. at 767. Instead, agencies may draw

causal lines based on “the underlying policies behind

NEPA and Congress’ intent, as informed by the ‘rule of

reason’ ” inherent in the statute. Id. at 768. That “ ‘rule

of reason,’ ” the Court explained, “ensures that agencies

determine whether and to what extent to prepare an

[environmental impact statement] based on the usefulness of any new potential information to the decisionmaking process.” Id. at 767. And the “rule of reason” is not satisfied where consideration of a particular

environmental harm would not serve NEPA’s goals of

providing information to the agency to assist in its decisional process and to the public to enable it to offer

meaningful input. Ibid.

Applying those principles in Public Citizen, the

Court held that FMSCA could not be considered the “legally relevant cause” of the increased presence of Mexican trucks and their attendant emissions in the United

States. 541 U.S. at 769. The Court explained that

FMSCA had no “ability to countermand the President’s

lifting of the moratorium or otherwise categorically to

exclude Mexican motor carriers from operating within

the United States.” Id. at 766. To the contrary, the

Court explained, it would “violate” the agency’s statutory mandate for FMCSA to refuse to authorize operations by a Mexican motor carrier that was “willing and

able to comply with” FMCSA’s safety regulations based

on concerns about the trucks’ emissions, and thus to

preclude the trucks’ entry altogether. Ibid. In those

circumstances, the Court determined that FMSCA’s actions were not the “legally relevant cause” of any increased emissions from the trucks, and explained that

requiring the agency to consider information about any

increase in emissions would not satisfy NEPA’s “rule of

reason” or its statutory purposes because the agency

was powerless to act on that information. Id. at 767-769.

2. Public Citizen establishes that, even when an environmental harm might be “reasonably foreseeable,” it

may still be excluded from an environmental impact

statement where the agency lacks the ability to prevent

the harm. In those instances, the requisite “causal connection” is missing, and the environmental harm cannot

be considered an “impact” or “effect” of the agency’s action for purposes of NEPA. Public Citizen, 541 U.S. at

768. That is clearly the case where, as in Public Citizen,

the governing statutes prohibit the agency from taking

the action necessary to stop the relevant harm from occurring. Id. at 769-770. And it is also the case where

the decisions that give rise to the relevant effect are

committed to the exclusive control of another agency.

See Sierra Club v. FERC, 827 F.3d 36, 47 (D.C. Cir.

2016) (finding that the Federal Energy Regulatory

Commission was not required “to address the indirect

effects of the anticipated export of natural gas” as part

of its NEPA analysis of the authorization of new natural

gas facilities because “the Department of Energy, not

the Commission, has sole authority to license the export

of any natural gas going through the [new] facilities”)

(emphasis omitted).4

But Public Citizen’s reasoning indicates that an

agency may also find that the requisite causal connection is absent or diminished where the scope of the

agency action and the nature and requirements of the

governing statutes render a particular harm too attenuated, speculative, contingent, or otherwise insufficiently material to the agency decision under consideration. Where an agency makes such a reasonable,

context-specific determination, the agency is entitled to

“draw a manageable line” that excludes any consideration of harms where a “reasonably close causal connection” is absent, or that appropriately limits the analysis

of harms where the causal connection is simply less robust. Public Citizen, 541 U.S. at 767 (citations omitted).

NEPA’s “underlying policies” are not served by additional analysis of a harm that is too attenuated, speculative, or contingent to influence the agency’s decisionmaking or to provide “ ‘a springboard’ ” for meaningful public comments. Id. at 768 (citation omitted).

And it would not “satisfy NEPA’s ‘rule of reason’ to reIn their certiorari-stage briefing, petitioners asserted (Pet. 2425) that CEQ’s recent amendments to its NEPA regulations have

inappropriately narrowed the scope of Public Citizen by disregarding the proposition that an agency may exclude environmental effects that it has no power to prevent. In fact, in the preamble to its

2022 revisions to the NEPA regulations, CEQ merely explained that

the Court’s description of the causation issue in Public Citizen was

necessarily informed by the particular context of the case, in which

the agency was affirmatively barred by statute from acting on the

basis of the alleged environmental harm. CEQ’s discussion was not

intended to place limits on an agency’s discretion beyond those imposed by the statute itself. See 87 Fed. Reg. at 23,464-23,465.

quire an agency to” analyze a harm when it has concluded that the harm is too far afield from the agency’s

action to make “any new potential information” useful

to the agency’s “decisionmaking process.” Id. at 767,

769.

3. This Court’s cases regarding the standard of judicial review of the scope of an environmental impact

statement further establish that agencies are afforded

considerable latitude and discretion in determining the

bounds of their NEPA analyses based on these considerations. The Court has repeatedly recognized that an

agency’s decision about whether and how to prepare an

environmental impact statement “can be set aside only

upon a showing that it was ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.’ ” Public Citizen, 541 U.S. at 763 (quoting 5 U.S.C.

706(2)(A)); see, e.g., Marsh, 490 U.S. at 375. The Court

has also stressed that a reviewing court should not treat

an agency’s factual determination regarding whether

an environmental effect requires additional analysis as

a “legal question” subject to searching review. Marsh,

490 U.S. at 376. A “court need only decide whether the

agency decision was ‘arbitrary and capricious.’ ” Id. at

375. And under that standard, a court should not reject

an agency’s decision unless the agency has made a

“ ‘clear error of judgment,’ ” even if the court believes

that “another decisionmaker might have reached a contrary result.” Id. at 385.

In Kleppe v. Sierra Club, 427 U.S. 390 (1976), for example, the Court held that “[a]bsent a showing of arbitrary action,” a reviewing court “must assume” that the

agency has “exercised [its] discretion appropriately” in

deciding the scope of its environmental impact statement. Id. at 412. In considering the environmental im-

pacts at issue in that case, including the “[d]iminished

availability of water, air and water pollution, increases

in population and industrial densities, and perhaps even

climatic changes,” the Court held that the “determination of the extent and effect of these factors, and particularly identification of the geographic area within which

they may occur, is a task assigned to the special competency of the appropriate agencies.” Id. at 413-414. The

Court therefore recognized that the proper scope of a

NEPA analysis calls for a context-specific determination that depends on the nature of the decision before

the agency and its assessment of the facts on the

ground.

4. CEQ’s current regulations reinforce the principle

that an agency may reasonably determine the scope of

its NEPA analysis by assessing the extent to which environmental harms may be too attenuated, speculative,

or otherwise insufficiently material to inform the agency’s decisionmaking and to assist the public in providing

meaningful input into that decisionmaking.

CEQ regulations provide that an agency must consider the “reasonably foreseeable” “direct,” “indirect,”

and “cumulative” effects of its actions, and the definitions of those terms make clear that agencies cannot arbitrarily limit their analysis based on rigid measures of

geographic distance, timing, or the number of other

contributors to the effect. 40 C.F.R. 1508.1(i) (capitalization omitted).5 But the regulations also expressly

In preparing the environmental impact statement in this case,

the Board applied CEQ’s pre-2020 regulations, Pet. App. 26a, which

are substantially similar to the current regulations. In 2020, CEQ

amended its regulations to eliminate the distinction among cumulative, indirect, and direct effects. See 85 Fed. Reg. at 43,343. But in

contemplate that agencies will engage in a “scoping”

process at the outset of any environmental review to ensure that the agency focuses its attention on the effects

that are most important to the agency’s decisionmaking

with respect to the project at hand. See 40 C.F.R.

1501.3(b), 1501.9(b), 1502.4. As part of the scoping process, the agency is required to “identify[] the important

issues and eliminat[e] from further study unimportant

issues,” 40 C.F.R. 1502.4(a), as well as issues that “have

been covered by prior environmental review(s),”

40 C.F.R. 1502.4(d)(1). Similarly, CEQ’s regulations

provide that “[e]nvironmental impact statements shall

discuss effects in proportion to their significance,”

providing “only brief discussion of other than important

issues.” 40 C.F.R. 1502.2(b). And the regulations provide that the length of environmental impact statements

“should be proportional to potential environmental effects and the scope and complexity of the action.”

40 C.F.R. 1502.2(c).

* * * * *

In short, NEPA and its implementing regulations, as

well as this Court’s NEPA precedents, establish that an

agency is not required to consider every environmental

harm that the agency can reasonably foresee. Rather,

the agency may draw a manageable causal line that excludes the harms that the agency lacks the statutory authority to prevent, and that takes account of whether

and to what extent particular harms are too attenuated,

speculative, or otherwise insufficiently material to the

agency’s decisionmaking to serve NEPA’s purposes and

satisfy its rule of reason, given the scope and nature of

the agency action and the governing statutes.

2022, CEQ reestablished those longstanding categories. See 87

Fed. Reg. at 23,462-23,463.

B. Petitioners Err To The Extent They Suggest That An

Agency May Impose Limits On Its Environmental Analysis That Do Not Comport With NEPA’s Text Or Underlying Policies

Although NEPA and its implementing regulations

permit an agency to refrain from analyzing environmental effects under the principles described above, an

agency may not impose limits on the scope of its analysis that conflict with the statutory text or “the underlying policies behind NEPA and Congress’ intent.” Public Citizen, 541 U.S. at 768. In their certiorari-stage

briefing, petitioners appeared to endorse three such unsupported, extra-textual limits: (1) that agencies may

restrict their analysis to the effects they directly regulate, rather than relying on the nature of their statutory

authority to inform a context-specific inquiry regarding

the appropriate scope of the agency’s environmental impact statement; (2) that agencies should base their analysis of causation on substantive standards from tort

law, rather than treating the “ ‘familiar doctrine of proximate cause from tort law’ ” as an “analog[y]” and looking to NEPA’s underlying policies and rule of reason in

drawing their causal lines, id. at 767 (citation omitted);

and (3) that agencies may eschew the context-specific

inquiry NEPA requires in favor of broad and bright-line

rules based on geography, timing, or the specific number of contributors to the particular harm. Each of

those arguments lacks merit.

1. At the certiorari stage, petitioners repeatedly asserted that “agencies need not study environmental effects that they do not regulate.” Pet. 14 (emphasis omitted); see, e.g., Pet. 4, 21. To the extent petitioners mean

to suggest that agencies are not required to consider effects if they have no statutory power to prevent those

effects, that is nothing more than a restatement of Public Citizen’s holding. But if petitioners instead mean

that agencies never have to consider environmental effects they do not directly regulate—that is, that they

may ignore effects they are not expressly charged with

overseeing under their organic statutes—then petitioners’ argument is contradicted by NEPA’s text.

NEPA contains an express requirement that agencies “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.” 42 U.S.C. 4332(2)(C); see 42 U.S.C. 4336a(a)(3)

(permitting a lead agency to “designate any Federal,

State, Tribal, or local agency that has jurisdiction by

law or special expertise with respect to any environmental impact involved in a proposal to serve as a cooperating agency”). That provision tells an agency what it

should do when the environmental consequences of its

proposed action implicate another agency’s regulatory

jurisdiction, rather than (or in addition to) its own. The

agency preparing the environmental impact statement

must “consult” with the other agency, 42 U.S.C.

4332(2)(C), and it may also make the other agency a “cooperating agency,” 42 U.S.C. 4336a(a)(3). Moreover, if

the other agency has analyzed or will analyze the effect,

that analysis can be incorporated by reference, thereby

avoiding inefficiencies. See 40 C.F.R. 1501.2, 1502.4(d)(1).

What the agency may not do is disregard an effect entirely based solely on the fact that another agency has

more direct “jurisdiction by law” over the effect. 42

U.S.C. 4336a(a)(3).

Moreover, confining agencies’ NEPA obligations to

the consideration of environmental effects they already

directly regulate would contravene Congress’s com-

mand that “all agencies of the Federal Government”

shall “to the fullest extent possible” comply with the obligation to prepare an environmental impact statement

in connection with their major actions that have significant environmental effects. 42 U.S.C. 4332 (emphasis

added). If agencies were to exclude environmental effects that are not within their direct regulatory jurisdiction, the many federal agencies that have no direct jurisdiction over environmental issues under their organic statutes would have no NEPA obligations at all,

and the obligations of other agencies would shrink drastically. That is the opposite of what Congress required.

Interpreting NEPA to permit agencies to ignore any

effect they do not directly regulate would also render

the statute’s procedural commands largely nugatory.

NEPA was enacted to ensure that agencies “will have

available, and will carefully consider, detailed information concerning significant environmental impacts.”

Public Citizen, 541 U.S. at 768 (citation omitted). If the

agency already directly regulates the environmental effects in question, it does not need NEPA to ensure that

it has relevant information in front of it. That cannot be

what Congress intended when it enacted its landmark

statute establishing a “national policy [to] encourage

productive and enjoyable harmony between man and

his environment,” and to promote better environmental

decisionmaking while enriching the understanding of

the Nation’s important natural resources. 42 U.S.C.

4321.6

See Comm. on Interior and Insular Affairs, National Environmental Policy Act of 1969, S. Rep. No. 296, 91st Cong., 1st Sess. 8

(1969) (Senate Report) (noting “rising public concern over the manner in which Federal policies and activities have contributed to en6

2. a. Petitioners also repeatedly suggest (e.g., Pet.

4, 16, 23) that NEPA requires the application of the

same proximate cause standards from tort law. Again,

petitioners are correct to the extent they merely mean

to assert that NEPA does not require an agency to assess all effects under a standard of “but-for” causation

and instead permits agencies to exclude harms for

which their actions are not the “legally relevant cause”;

indeed, that is simply a restatement of the Court’s holdings in Public Citizen. 541 U.S. at 767, 769. But recognizing that the agency’s action must be the “legally relevant cause” of an environmental harm does not equate

to a holding that NEPA incorporates the same proximate cause standards from tort law or require agencies

to turn to tort law as the basis of analysis.

To the contrary, this Court has expressly rejected

the proposition that “any cause-effect relation too attenuated to merit damages in a tort suit would also be

too attenuated to merit notice in an” environmental impact statement. Metropolitan Edison, 460 U.S. at 774

n.7. Thus, while both Metropolitan Edison and Public

Citizen “analogized” NEPA’s requirement of a “reasonably close causal relationship” to “the ‘familiar doctrine

vironmental decay and degradation,” and citing examples such as

“the Santa Barbara oil well blowout,” “the proliferation of pesticides

and other chemicals,” “the indiscriminate siting of * * * heavy industry,” “the pollution of the Nation’s rivers, bays, lakes, and estuaries,” “the loss of publicly owned * * * open spaces * * * to industry, commercial users, and developers,” and “rising levels of air pollution.”); see id. at 4 (discussing “[t]he inadequacy of present knowledge, policies, and institutions,” as reflected in problems such as

“critical air and water pollution problems,” “diminishing recreational

opportunity,” “rising levels of noise,” “an increasingly ugly landscape

cluttered with billboards, powerlines, and junkyards,” and “many,

many other environmental quality problems”).

of proximate cause from tort law,’ ” the comparison was

intended to illustrate that NEPA causation turns on the

responsibility of the federal agency; it was not intended

to suggest that tort law itself should be used to define

the scope of an agency’s NEPA analysis. Public Citizen, 541 U.S. at 767 (citation omitted). Rather, in drawing causal lines in the two cases, the Court looked to the

“underlying policies behind NEPA and Congress’ intent.” Id. at 768.

That is readily apparent in Public Citizen, where the

Court relied on an analysis of NEPA’s purposes and its

“rule of reason” in concluding that the agency did not

need to consider the effects of the increased presence of

Mexican trucks in the United States. 541 U.S. 767; see

pp. 24-25, supra. But it is equally true of Metropolitan

Edison. In that case, the Court looked to NEPA’s underlying purposes to determine whether the Nuclear

Regulatory Commission was required to consider the

psychological harms caused by the fear of nuclear accidents before authorizing a nuclear power plant to resume operations. Metropolitan Edison, 460 U.S. at

770-771. The Court determined that the agency was not

required to consider those harms because NEPA’s

“central concern” is whether a project’s “gains are

worth a given level of alteration of our physical environment or depletion of our natural resources,” not

whether a project’s gains are “worth its attendant

risks.” Id. at 775-776. The causal analysis was therefore focused on the extent to which the effect in question

was one that Congress would have intended to cover.

b. Further, NEPA is distinct from the federal statutes that this Court has held incorporate a proximate

cause standard borrowed from tort law. Those statutes

typically permit the award of damages against private

parties found liable for specific harms, making the analogy to the common law of torts relatively close. See,

e.g., Bank of Am. Corp. v. City of Miami, 581 U.S. 189,

201 (2017) (Fair Housing Act, 42 U.S.C. 3601 et seq.,

damages suit); Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 133 (2014) (damages

under the Lanham Act, 15 U.S.C. 1051 et seq.). By contrast, NEPA does not allocate responsibility for a particular harm or impose monetary damages. Instead,

NEPA seeks to “reduce or eliminate environmental”

harms by ensuring that federal agencies consider the

environmental consequences of their actions. Public

Citizen, 541 U.S. at 756 (citation omitted). There is no

reason to think that, in enacting a statute designed to

“reduce or eliminate environmental” harm, Congress

intended to draw the same causal lines that the tort system uses to allocate blame among private parties for

harms that have already occurred. Nor is it plausible

that, in imposing NEPA’s purely “procedural requirements,” ibid., Congress intended to require the precise

kind of causal connection that is necessary to justify

monetary damages.

c. Simply engrafting the same proximate cause

standard from tort law onto NEPA would also introduce

unnecessary confusion into the statutory scheme.

“ ‘[P]roximate cause’ ” is a term that has been used to

refer to a variety of different things, including “the ‘immediate’ or ‘nearest’ antecedent test; the ‘efficient, producing cause’ test; the ‘substantial factor’ test; and the

‘probable,’ or ‘natural and probable,’ or ‘foreseeable’

consequence test.” CSX Transp., 564 U.S. at 701.

Agencies and courts attempting to make sense of the

term would be likely to come to diverging results about

what must be included in an environmental impact

statement. And that is all the more likely because the

Court has emphasized that, even when a federal statute

incorporates tort principles of proximate cause, the contours of the analysis must nonetheless be drawn to reflect “the nature of the statutory cause of action.” Bank

of Am. Corp., 581 U.S. at 201; see id. at 203 (remanding

to the court of appeals to draw the “precise boundaries

of proximate cause under the” Fair Housing Act). Accordingly, if the Court were to conclude that NEPA incorporates tort law governing proximate cause, that approach would still raise questions about what exactly

the standard means in this context.

3. It would be similarly erroneous to impose rigid

bright-line rules that woodenly exclude harms based

solely on their geographic or temporal distance from

the agency action or based on the number of intervening

steps or the number of entities contributing to the

harm. As explained, see pp. 27-30, supra, an agency

may make a context-specific determination that, given

the nature of the proposed action and the governing

statutes, a particular harm is too attenuated, speculative, contingent, or otherwise insufficiently material to

the agency’s decisionmaking. But that does not mean

that an agency can refuse to consider effects for which

its actions are the legally relevant cause and which

would inform the agency’s decisionmaking merely because those effects are geographically or temporally removed or because other entities also play a role in

bringing them about.

Indeed, many significant environmental harms—including some of the very effects that prompted NEPA’s

enactment, like water contamination and smog—are

caused by many parties that are geographically and

temporally removed from the location where the harm

is most keenly felt. Senate Report 8. If agencies woodenly applied bright-line rules based on geography, timing, or the specific number of other contributing actors,

some of these significant effects might be disregarded

entirely by agencies whose actions make material contributions to the harms.

4. All of these arguments seemingly boil down to a

request to impose new limits on NEPA’s established

framework. The proper branch of government to address such requests is Congress. And in this case, the

request is particularly misplaced because Congress itself recently amended NEPA without overriding this

Court’s precedents or making any of the changes that

petitioners now seek from this Court.

Moreover, many of Congress’s recent amendments

were intended to address the process of developing an

environmental impact statement. In addition to codifying the reasonable foreseeability requirement, 42

U.S.C. 4332(2)(C)(i), Congress adopted new timing requirements and page limits, as well as new procedures

for inter-agency cooperation, see 42 U.S.C. 4336a. Congress also made alterations to the conditions under

which environmental impact statements are required,

e.g., 42 U.S.C. 4336, and established a set of new statutory definitions, including a new definition of the “major

Federal action[s]” to which NEPA applies, e.g., 42

U.S.C. 4336e(10). Nor is this list comprehensive. But

Congress did not choose to make any changes that

would dramatically limit NEPA’s reach in the way petitioners appear to advocate.

C. The Board Reasonably Declined To Perform Additional

Analysis Of The Upstream And Downstream Effects Of

Oil And Gas Development

The court of appeals also erred in interpreting and

applying NEPA’s statutory requirements. The court

held that the agency was required to perform additional

and more detailed analysis of the upstream and downstream effects of oil and gas development because the

effects were “reasonably foreseeable” and the Board’s

statutory authority was broad enough to permit their

consideration. Pet. App. 30a-37a. But the court failed

to recognize that, even in those circumstances, an agency may decline to perform additional analysis when it

reasonably determines that the harms in question are

too attenuated, speculative, contingent, or otherwise insufficiently material to the agency’s decisionmaking in

light of the nature of the proposed action and the statutes under which the agency is operating. The Board

made such a reasonable determination here.

1. As a threshold matter, the certiorari-stage briefing has narrowed the scope of the court of appeals’ decision that is properly before this Court. In their certiorari petition, petitioners focused their challenge exclusively on the court of appeals’ assertedly erroneous interpretation of the NEPA causation standard articulated in Public Citizen. See Pet. i. Petitioners did not

allege legal errors with respect to any other aspects of

the court’s decision. They did not challenge any of the

court’s findings that the Board erred in applying statutes other than NEPA. And they did not focus their

challenge on aspects of the court’s application of NEPA

beyond the court’s determination that the Board could

not rely on Public Citizen to justify limiting its consideration of the upstream and downstream effects of oil

and gas development in its environmental impact statement. Pet. App. 36a-39a.

Moreover, in challenging the court of appeals’ determination that the Board’s treatment of the upstream

and downstream effects of oil and gas development was

inadequate, petitioners did not address the court’s finding that the effects were reasonably foreseeable. And

petitioners appeared to concede that the Board has the

power to deny an exemption based on environmental effects that it concludes are material to its decision. See

Pet. 23.

When respondents described the limited nature of

petitioners’ challenge in their briefs in opposition (e.g.,

Gov’t Br. in Opp. 17-18), petitioners briefly asserted

(Cert. Reply Br. 10) that they had somehow preserved

an argument regarding the validity of the court of appeals’ application of NEPA to certain “downline impacts” and that a ruling on their behalf would “vindicate

every part of the Board’s NEPA review.” But the only

citations to the petition that they offered in support

were to descriptions of the facts in the background section. See id. at 9-10 (citing Pet. 10, 12). And petitioners

again failed to contest (id. at 11) the court’s determination that the oil and gas development effects were “reasonably foreseeable,” while expressly conceding (ibid.)

that “the Board has authority to weigh environmental

effects in its decisions.”

Accordingly, the only aspect of the court of appeals’

decision that is properly before this Court is the holding

that Public Citizen did not permit the Board to forgo

additional and more detailed analysis of the upstream

and downstream consequences of oil and gas development in its environmental impact statement.

2. The court of appeals’ decision on that issue was

incorrect. The court of appeals concluded that the upstream and downstream consequences of oil and gas development were reasonably foreseeable and that the

Board’s organic statutes afforded it the authority to

prevent those consequences from occurring by refusing

to authorize the new railroad line.7 Even assuming

those conclusions were correct, the Board did not act

arbitrarily and capriciously in declining to conduct further analysis of the consequences in its environmental

impact statement. Rather, the Board reasonably determined that, based on the scope of the proposed action

and the provisions of the Board’s governing statutes,

the upstream and downstream consequences of oil and

gas development were too attenuated, speculative, and

otherwise insufficiently material to the Board’s decisionmaking to require additional consideration under

NEPA. Because the statute permits agencies to draw

such a manageable causal line, the court of appeals

erred in setting aside this aspect of the Board’s decision.

a. To begin, this is not a case in which the agency

failed to identify potentially relevant effects, omitting

them from its environmental impact statement altogether. To the contrary, the Board spent over 50 pages

of its final environmental impact statement and its final

decision on the rail project discussing the environmental consequences that might result from new oil and gas

drilling and refining occurring after completion of the

railway line. Those discussions included both a qualitative analysis of the potential for new oil and gas develIn its briefing before the court of appeals, the Board argued that

neither conclusion was correct, but as explained, petitioners did not

seek certiorari on those issues.

opment in the Basin, and quantitative estimates that the

Board found were likely to exaggerate the aggregate

amount of new crude oil that might be transported to

refineries and the resulting greenhouse gas emissions.

See, e.g., J.A. 351-362, 365-474.

The discussions also included detailed explanations

of why additional environmental analysis was not necessary. See J.A. 421, 477-482, 520-529; Pet. App. 107a109a. The Board did not rely on bright-line rules to arbitrarily exclude environmental information that might

have been useful to the agency in its decisionmaking

process or to the public in commenting during the process. Instead, the Board explained the various contextspecific factors that prompted it to conclude that additional analysis of the upstream and downstream consequences of oil and gas development would not “inform”

its decisionmaking. J.A. 521; see J.A. 520-529.

Specifically, the Board relied on its governing statutes to determine the appropriate scope of the agency

action before it. J.A. 522; see J.A. 421. The Board explained that it “has jurisdiction over rail transportation

by rail carriers,” citing 49 U.S.C. 10501 and 49 U.S.C.

10502’s mandate to grant exemptions based on the

transportation merits of a particular project. J.A. 522.

The Board also cited the Interstate Commerce Act’s

common-carrier mandate, under which “railroads have

a common carrier obligation to carry all commodities,

including hazardous materials, upon reasonable request

under 49 U.S.C. § 11101,” explaining that it “therefore

cannot restrict the types of products and commodities

that are transported on rail lines.” J.A. 421. And the

Board observed that oil and gas development was “sub-

ject to the approval processes of other federal, state, local, and tribal agencies.” J.A. 522.8

Based on this statutory framework, the Board found

that it “lack[ed] sufficient control over future oil and gas

development projects to make those projects part of the

proposed action assessed in the [environmental impact

statement].” J.A. 523. Further, drawing on the Interstate Commerce Act’s common-carrier mandate, the

Board explained that—while petitioners had proposed

the new railroad line to fill a need for better transportation for crude oil—petitioners’ request for Board authorization was properly understood as a request to

provide “common carrier rail service connecting the Basin to the interstate common carrier rail network,” rather than a request to approve new oil and gas development. J.A. 527.

In addition, the Board listed a number of factors that

led it to conclude that the environmental harms from

any “potential future” oil and gas development were too

speculative and attenuated from the proposed action of

authorizing the new railroad line to warrant more detailed consideration in the environmental impact statement. J.A. 527; see J.A. 527-528. The Board observed,

for example, that any future oil and gas development in

the Basin would involve “many separate and independFor instance, the Bureau of Land Management administers public lands in the Uinta Basin on which some of the oil and gas production would take place, and the Bureau has conducted NEPA analysis

of the effects of various proposed oil and gas exploration and production projects in the Basin. See Rocky Mountain Wild v. Bernhardt, 506 F. Supp. 3d 1169, 1177-1185 (D. Utah 2020); Southern

Utah Wilderness All. v. United States Dep’t of the Interior, No. 13cv-1060, 2016 WL 6909036, at *3-*13 (D. Utah Oct. 3, 2016);

WildEarth Guardians v. United States Forest Serv., No. 14-cv-349,

2021 WL 409827 (D. Utah Feb. 5, 2012).

ent projects that have not yet been proposed or

planned,” and that might vary according to the land on

which they are situated and the scale of the drilling operations. JA. 528. The Board also found that, while it

“is possible that” increased oil production could lead to

increased oil refining by the Salt Lake City refineries

that currently accept Uinta Basin crude oil, that refining might increase regardless of the Board’s actions

“depend[ing] on future market conditions.” Ibid. The

Board separately explained that it anticipated that most

oil would be shipped to refineries on the Gulf Coast and

Puget Sound, but it noted that “[t]he final destinations

of the trains would depend on the ability and willingness

of refineries in other markets to receive rail cars carrying Uinta Basin crude oil and process the oil in their refineries.” J.A. 477.

Further, in its final decision authorizing construction

of the new line, the Board reiterated its determinations

regarding the scope of the proposed action, the limits of

the Board’s authority, and the attenuated and speculative nature of the harms from oil and gas development

and refining. Pet. App. 105a-108a. The Board repeated

that it was authorizing the construction of a new railroad line and that the Board lacked the “authority to

control or mitigate” oil and gas development. Id. at

108a. And the Board also repeated its finding that any

new oil and gas development in the Basin that “may occur following authorization of [the new railroad line]

would entail many separate and independent projects

that have not yet been proposed or planned and that

could occur on private, state, tribal, or federal land and

could range in scale from a single vertical oil well to a

large lease.” Ibid. The Board also found that “the actual volumes of crude oil that would move over the [new

line] would depend on various independent variables

and influences, including general domestic and global

economic conditions, commodity pricing, the strategic

and capital investment decisions of oil producers, and

future market demand for crude oil from the Basin.” Id.

at 106a.

b. The Board thus relied on the scope of the agency

action and the Interstate Commerce Act’s relevant statutory provisions to come to the reasonable conclusion

that it was appropriate to forgo additional or more detailed analysis of harms that the Board found too attenuated and speculative to inform its decisionmaking.

Public Citizen, 541 U.S. at 767-768. That determination

accords with the principles of causation articulated in

Public Citizen, as well as longstanding NEPA precedents and CEQ regulations, all of which establish that

an agency has the discretion to make context-specific

determinations regarding the scope of its environmental impact statement. The court of appeals therefore

had no basis for finding that the Board’s determination

was arbitrary and capricious or otherwise contrary to

applicable law.

Accordingly, the portion of the court of appeals’ decision holding that the Board erred in declining to undertake additional analysis of the upstream and downstream effects of oil and gas development should be reversed.

CONCLUSION

The judgment of the court of appeals should be reversed in relevant part, and the case should be remanded to the court of appeals for further proceedings

consistent with the Court’s opinion.

Respectfully submitted.

ANIKA SANDERS COOPER

General Counsel

BARBARA MILLER

Attorney

Surface Transportation

Board

AUGUST 2024

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

COLLEEN E. ROH SINZDAK

Assistant to the Solicitor

General

ROBERT J. LUNDMAN

JUSTIN D. HEMINGER

ANDREW M. BERNIE

Attorneys

Department of Justice

APPENDIX

TABLE OF CONTENTS

Page

Appendix

—

Statutory provisions:

42 U.S.C. 4332 (1970) .......................... 1a

42 U.S.C. 4332 ..................................... 3a

49 U.S.C. 10501 ................................... 7a

49 U.S.C. 10502 ................................. 10a

49 U.S.C. 10901 ................................. 12a

49 U.S.C. 11101(a) ............................. 13a

(I)

APPENDIX

42 U.S.C. 4332 (1970) provides:

Cooperation of agencies; reports; availability of information; recommendations; international and national

coordination of efforts.

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—

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the

natural and social sciences and the environmental design arts in planning and in decisionmaking which

may have an impact on man’s environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this

chapter, which will insure that presently unquantified environmental amenities and values may be

given appropriate consideration in decisionmaking

along with economic and technical considerations;

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—

(i) the environmental impact of the proposed

action,

(1a)

(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 the 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 by section 552 of Title 5, and shall accompany the proposal through the existing agency

review processes;

(D) study, develop, and describe appropriate alternatives to recommended courses of action in any

proposal which involves unresolved conflicts concerning alternative uses of available resources;

(E) recognize the worldwide and long-range

character of environmental problems and, where consistent with the foreign policy of the United States,

lend appropriate support to initiatives, resolutions,

and programs designed to maximize international co-

operation in anticipating and preventing a decline in

the quality of mankind’s world environment;

(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(G) initiate and utilize ecological information in

the planning and development of resource-oriented

projects; and

(H) assist the Council on Environmental Quality

established by subchapter II of this chapter.

42 U.S.C. 4332 provides:

Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts

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—

(A) utilize a systematic, interdisciplinary approach which will ensure the integrated use of the

natural and social sciences and the environmental design arts in planning and in decisionmaking which

may have an impact on man’s environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this

chapter, which will ensure that presently unquantified environmental amenities and values may be

given appropriate consideration in decisionmaking

along with economic and technical considerations;

(C) consistent with the provisions of this chapter and except where compliance would be inconsistent with other statutory requirements, 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—

(i) reasonably foreseeable environmental effects of the proposed agency action;

(ii) any reasonably foreseeable adverse environmental effects which cannot be avoided should

the proposal be implemented;

(iii) a reasonable range of alternatives to the

proposed agency action, including an analysis of

any negative environmental impacts of not implementing the proposed agency action in the case of

a no action alternative, that are technically and

economically feasible, and meet the purpose and

need of the proposal;

(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 Federal resources which would be involved in the proposed agency action should it be

implemented.

Prior to making any detailed statement, the head

of the lead agency 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 the

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 by section

552 of title 5, and shall accompany the proposal

through the existing agency review processes;

(D) ensure the professional integrity, including

scientific integrity, of the discussion and analysis in

an environmental document;

(E) make use of reliable data and resources in

carrying out this chapter;

(F) consistent with the provisions of this chapter, study, develop, and describe technically and economically feasible alternatives;

(G) any detailed statement required under subparagraph (C) after January 1, 1970, for any major

Federal action funded under a program of grants to

States shall not be deemed to be legally insufficient

solely by reason of having been prepared by a State

agency or official, if:

(i) the State agency or official has statewide

jurisdiction and has the responsibility for such action,

(ii) the responsible Federal official furnishes

guidance and participates in such preparation,

(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and

(iv) after January 1, 1976, the responsible

Federal official provides early notification to, and

solicits the views of, any other State or any Federal land management entity of any action or any

alternative thereto which may have significant impacts upon such State or affected Federal land

management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation

into such detailed statement. The procedures in

this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any

other responsibility under this chapter; and further, this subparagraph does not affect the legal

sufficiency of statements prepared by State agencies with less than statewide jurisdiction.1

(H) study, develop, and describe appropriate alternatives to recommended courses of action in any

proposal which involves unresolved conflicts concerning alternative uses of available resources;

(I)

consistent with the provisions of this chapter, recognize the worldwide and long-range character of environmental problems and, where consistent

with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international coopera-

So in original.

The period probably should be a semicolon.

tion in anticipating and preventing a decline in the

quality of mankind’s world environment;

(J) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(K) initiate and utilize ecological information in

the planning and development of resource-oriented

projects; and

(L) assist the Council on Environmental Quality

established by subchapter II of this chapter.

49 U.S.C. 10501 provides:

General jurisdiction

(a)(1) Subject to this chapter, the Board has jurisdiction over transportation by rail carrier that is—

(A)

only by railroad; or

(B) by railroad and water, when the transportation is under common control, management, or arrangement for a continuous carriage or shipment.

(2) Jurisdiction under paragraph (1) applies only to

transportation in the United States between a place in—

(A) a State and a place in the same or another

State as part of the interstate rail network;

(B) a State and a place in a territory or possession of the United States;

States and a place in another such territory or possession;

(D) a territory or possession of the United

States and another place in the same territory or possession;

(E) the United States and another place in the

United States through a foreign country; or

(F) the United States and a place in a foreign

country.

(b) The jurisdiction of the Board over—

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange,

and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team,

switching, or side tracks, or facilities, even if the tracks

are located, or intended to be located, entirely in one

State,

is exclusive. Except as otherwise provided in this part,

the remedies provided under this part with respect to

regulation of rail transportation are exclusive and

preempt the remedies provided under Federal or State

law.

(c)(1)

(A)

In this subsection—

the term “local governmental authority”—

(i) has the same meaning given that term by

section 5302 of this title; and

(ii) includes a person or entity that contracts

with the local governmental authority to provide

transportation services; and

(B) the term “public transportation” means

transportation services described in section 5302 of

this title that are provided by rail.

(2) Except as provided in paragraph (3), the Board

does not have jurisdiction under this part over—

(A) public transportation provided by a local

government authority; or

(B) a solid waste rail transfer facility as defined

in section 10908 of this title, except as provided under

sections 10908 and 10909 of this title.

(3)(A) Notwithstanding paragraph (2) of this subsection, a local governmental authority, described in

paragraph (2), is subject to applicable laws of the United

States related to—

(i)

safety;

(ii) the representation of employees for collective bargaining; and

(iii) employment, retirement, annuity, and unemployment systems or other provisions related to

dealings between employees and employers.

(B) The Board has jurisdiction under sections 11102

and 11103 of this title over transportation provided by a

local governmental authority only if the Board finds that

such governmental authority meets all of the standards

and requirements for being a rail carrier providing

transportation subject to the jurisdiction of the Interstate Commerce Commission that were in effect immediately before January 1, 1996. The enactment of the

ICC Termination Act of 1995 shall neither expand nor

contract coverage of employees and employers by the

Railway Labor Act, the Railroad Retirement Act of

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1974, the Railroad Retirement Tax Act, and the Railroad

Unemployment Insurance Act.

49 U.S.C. 10502 provides:

Authority to exempt rail carrier transportation

(a) In a matter related to a rail carrier providing

transportation subject to the jurisdiction of the Board

under this part, the Board, to the maximum extent consistent with this part, shall exempt a person, class of

persons, or a transaction or service whenever the Board

finds that the application in whole or in part of a provision of this part—

(1) is not necessary to carry out the transportation policy of section 10101 of this title; and

(2)

either—

(A) the transaction or service is of limited

scope; or

(B) the application in whole or in part of the

provision is not needed to protect shippers from

the abuse of market power.

(b) The Board may, where appropriate, begin a proceeding under this section on its own initiative or on application by the Secretary of Transportation or an interested party. The Board shall, within 90 days after receipt of any such application, determine whether to

begin an appropriate proceeding. If the Board decides

not to begin a class exemption proceeding, the reasons

for the decision shall be published in the Federal Register. Any proceeding begun as a result of an application

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under this subsection shall be completed within 9

months after it is begun.

which an exemption granted under this section is effective.

(d) The Board may revoke an exemption, to the extent it specifies, when it finds that application in whole

or in part of a provision of this part to the person, class,

or transportation is necessary to carry out the transportation policy of section 10101 of this title. The Board

shall, within 90 days after receipt of a request for revocation under this subsection, determine whether to

begin an appropriate proceeding. If the Board decides

not to begin a proceeding to revoke a class exemption,

the reasons for the decision shall be published in the

Federal Register. Any proceeding begun as a result of

a request under this subsection shall be completed

within 9 months after it is begun.

(e) No exemption order issued pursuant to this section shall operate to relieve any rail carrier from an obligation to provide contractual terms for liability and

claims which are consistent with the provisions of section 11706 of this title. Nothing in this subsection or

section 11706 of this title shall prevent rail carriers from

offering alternative terms nor give the Board the authority to require any specific level of rates or services

based upon the provisions of section 11706 of this title.

(f ) The Board may exercise its authority under this

section to exempt transportation that is provided by a

rail carrier as part of a continuous intermodal movement.

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(g) The Board may not exercise its authority under

this section to relieve a rail carrier of its obligation to

protect the interests of employees as required by this

part.

49 U.S.C. 10901 provides:

Authorizing construction and operation of railroad lines

(a) A person may—

(1)

lines;

(2)

construct an extension to any of its railroad

construct an additional railroad line;

(3) provide transportation over, or by means of,

an extended or additional railroad line; or

(4) in the case of a person other than a rail carrier, acquire a railroad line or acquire or operate an

extended or additional railroad line,

only if the Board issues a certificate authorizing such activity under subsection (c).

(b) A proceeding to grant authority under subsection (a) of this section begins when an application is filed.

On receiving the application, the Board shall give reasonable public notice, including notice to the Governor

of any affected State, of the beginning of such proceeding.

activities for which such authority is requested in an application filed under subsection (b) unless the Board

finds that such activities are inconsistent with the public

convenience and necessity. Such certificate may ap-

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prove the application as filed, or with modifications, and

may require compliance with conditions (other than labor protection conditions) the Board finds necessary in

the public interest.

(d)(1) When a certificate has been issued by the

Board under this section authorizing the construction or

extension of a railroad line, no other rail carrier may

block any construction or extension authorized by such

certificate by refusing to permit the carrier to cross its

property if—

(A) the construction does not unreasonably interfere with the operation of the crossed line;

(B) the operation does not materially interfere

with the operation of the crossed line; and

the owner of the crossed line.

(2) If the parties are unable to agree on the terms of

operation or the amount of payment for purposes of paragraph (1) of this subsection, either party may submit

the matters in dispute to the Board for determination.

The Board shall make a determination under this paragraph within 120 days after the dispute is submitted for

determination.

49 U.S.C. 11101(a) provides:

Common carrier transportation, service, and rates

(a) A rail carrier providing transportation or service

subject to the jurisdiction of the Board under this part

shall provide the transportation or service on reasonable request. A rail carrier shall not be found to have

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violated this section because it fulfills its reasonable

commitments under contracts authorized under section

10709 of this title before responding to reasonable requests for service. Commitments which deprive a carrier of its ability to respond to reasonable requests for

common carrier service are not reasonable.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.