Amicus Curiae Brief — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.
Supreme Court briefSep 4, 2024
Ask Donna
What actually matters in this document.
Text
No. 23-975
In the Supreme Court of the United States
_______________
SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,
Petitioners,
v.
EAGLE COUNTY, COLORADO, ET AL.,
Respondents.
_________________________
On Writ of Certiorari to the
United States Court of Appeals for the District of Columbia
___________________
BRIEF FOR THE AMERICAN EXPLORATION & MINING
ASSOCIATION, ALASKA MINERS ASSOCIATION, ARIZONA MINING
ASSOCIATION, COLORADO MINING ASSOCIATION, IDAHO
MINING ASSOCIATION, MINNESOTA EXPLORATION
ASSOCIATION, INC. DBA MININGMINNESOTA, MONTANA MINING
ASSOCIATION, NEVADA MINING ASSOCIATION, NEW MEXICO
MINING ASSOCIATION, SOUTH DAKOTA MINERAL INDUSTRIES
ASSOCIATION, UTAH MINING ASSOCIATION, WOMEN’S MINING
COALITION, AND WYOMING MINING ASSOCIATION
AS AMICI CURIAE IN SUPPORT OF P ETITIONERS
___________________
Michael R. Huston
Counsel of Record
Christopher D. Thomas
Andrea J. Driggs
Benjamin A. Longbottom
PERKINS COIE LLP
2525 E. Camelback Road,
Suite 500
Phoenix, AZ 85016-4227
(202) 434-1630
MHuston@perkinscoie.com
(i)
TABLE OF CONTENTS
Interests of Amici Curiae.............................................. 1
Summary of Argument.................................................. 3
Argument ....................................................................... 4
A. Increasing NEPA efficiency is essential to
developing critical minerals and materials at
the pace and scale necessary to meet national
demand. .................................................................... 5
1. The United States’ development of critical
minerals and materials is insufficient to
meet national demands. ..................................... 5
2. Overly expansive NEPA analyses are a
major obstacle to the approval of critical
minerals and materials development. ............... 9
3. Congress’s 2023 NEPA amendments
highlight the importance of right-sizing
NEPA review.................................................... 16
B. The D.C. Circuit’s decision is irreconcilable
with this Court’s NEPA precedent. ...................... 19
C. The Court should clarify the applicable
standard in line with NEPA’s text and purpose. . 20
1. Lower courts must adhere to NEPA’s
hallmark “rule of reason.”................................ 20
2. NEPA review should focus on the
actionable information needs of agencies,
calibrated to their statutory authority. ........... 23
Conclusion .................................................................... 26
(ii)
TABLE OF AUTHORITIES
Page(s)
CASES
Apache Stronghold v. United States,
No. 21-cv-50 (D. Ariz.) ................................................. 16
Center for Biological Diversity v. U.S. Army Corps
of Engineers,
941 F.3d 1288 (11th Cir. 2019) .................................... 24
Center for Biological Diversity v. U.S. Dep’t of the
Interior,
623 F.3d 633 (9th Cir. 2010) ........................................ 13
Department of Transportation v. Public Citizen,
541 U.S. 752 (2004) ............................. 3–4, 19–20, 24–25
Federal Commc’ns Comm’n v. Prometheus Radio
Project,
592 U.S. 414 (2021) ....................................................... 25
Loper Bright Enters. v. Raimondo,
144 S.Ct. 2244, 2273 (2024) .......................................... 21
Metropolitan Edison Co. v. People Against
Nuclear Energy,
460 U.S. 766 (1983) ................................................. 20–22
Public Emps. for Env’t Resp. v. Hopper,
827 F.3d 1077 (D.C. Cir. 2016) .................................... 12
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ....................................................... 23
Sierra Club v. Marsh,
976 F.2d 763 (1st Cir. 1992) ................................... 17–18
Utahns for Better Transp. v. U.S. Dep’t of Transp.,
305 F.3d 1152 (10th Cir. 2002), as modified on
reh’g, 319 F.3d 1207 (10th Cir. 2003) .......................... 22
(iii)
Vermont Yankee Nuclear Power Corp. v. Natural
Res. Def. Council, Inc.,
435 U.S. 519 (1978) ................................................. 23–24
West Virginia v. Environmental Prot. Agency,
597 U.S. 697 (2022) ....................................................... 21
Wild Virginia v. United States Forest Serv.,
24 F.4th 915 (4th Cir. 2022) ......................................... 12
STATUTES
16 U.S.C. § 539p.................................................................. 15
30 U.S.C. § 1606 .................................................................... 7
National Environmental Policy Act of 1970,
42 U.S.C. §§ 4321 et seq. ................................................ 3
42 U.S.C. § 4331 .................................................................. 18
42 U.S.C. § 4332 ........................................................ 9, 17, 20
42 U.S.C. § 4336a .......................................................... 10, 18
42 U.S.C. § 4336e ................................................................ 17
50 U.S.C. § 4533 .................................................................... 7
Fiscal Responsibility Act,
Pub. L. No. 118-5, 137 Stat. 10 (2023) ........................ 17
Infrastructure Investment and Jobs Act,
Pub. L. No. 117-58, 135 Stat. 429 (2021) ...................... 6
REGULATIONS
43 Fed. Reg. 55978 (Nov. 29, 1978) .................................. 10
81 Fed. Reg. 14829-02 (Mar. 23, 2017) ............................. 16
84 Fed. Reg. 33284-01 (July 12, 2019) .............................. 14
85 Fed. Reg. 43304-01 (July 16, 2020) ........................ 10, 17
(iv)
86 Fed Reg. 12943-01 (Mar. 5, 2021) ................................ 16
87 Fed. Reg. 10381 (Feb. 24, 2022) ................................... 15
87 Fed. Reg. 19775 (Mar. 31, 2022) .................................... 7
88 Fed. Reg. 51792 (Aug. 4, 2023) .................................... 14
OTHER AUTHORITIES
About Us, RESOLUTION COPPER,
https://tinyurl.com/mr2f8b7a (last visited Sept.
3, 2024) ........................................................................... 14
Alyson C. Flournoy et al.,
Harnessing the Power of Information to Protect
Our Public Natural Resource Legacy, 86 TEX.
L. REV. 1575 (2008) ...................................................... 10
Bradley C. Karkkainen,
Toward a Smarter NEPA: Monitoring and
Managing Government’s Environmental
Performance, 102 COLUM. L. REV. 903 (2002) .......... 11
CONGRESSIONAL RSCH. SERV.,
NATIONAL ENVIRONMENTAL POLICY ACT:
JUDICIAL REVIEWS AND REMEDIES (Sept. 22,
2021), https://tinyurl.com/mrha23tu ........................... 11
Department of Defense Awards $14.7 Million to
Enhance North American Cobalt and Graphite
Supply Chain (May 16, 2024),
U.S. DEP’T OF DEFENSE,
https://tinyurl.com/yp7ebhvw ....................................... 7
DEP’T OF ENERGY,
NATIONAL TRANSMISSION NEEDS STUDY (Oct.
2023), https://tinyurl.com/dn3kpv9h ............................. 6
(v)
EBP & AM. SOC’Y CIVIL ENG’RS,
FAILURE TO ACT: ELECTRIC INFRASTRUCTURE
INVESTMENT GAPS IN A RAPIDLY CHANGING
ENVIRONMENT (2020),
https://tinyurl.com/shakpfyh ......................................... 5
EXEC. OFF. OF THE PRESIDENT, CEQ,
ENVIRONMENTAL IMPACT STATEMENT
TIMELINES (2010–2018) (June 12, 2020),
https://tinyurl.com/5h7jj3wz ......................................... 9
Fact Sheet: Biden-Harris Administration Kicks
Off Infrastructure Week by Highlighting
Historic Results Spurred by President Biden’s
Investing in America Agenda (May 13, 2024),
THE WHITE HOUSE,
https://tinyurl.com/375p2s3y; ........................................ 6
Fact Sheet: The Bipartisan Infrastructure Deal
(Nov. 6, 2021), THE WHITE HOUSE,
https://tinyurl.com/4h26wy27 ........................................ 6
Full Committee Hearing on Domestic Critical
Mineral Supply Chains (Mar. 31, 2022),
SEN. COMM. ON ENERGY & NAT. RES.,
https://tinyurl.com/5d54n5rm; ...................................... 8
Full Committee Hearing to Examine
Opportunities for Congress to Reform the
Permitting Process for Energy and Mineral
Projects (May 11, 2023),
SEN. COMM. ON ENERGY & NAT. RES.,
https://tinyurl.com/5dehcnw9........................................ 8
IHS MARKIT, THE FUTURE OF COPPER: WILL THE
LOOMING SUPPLY GAP SHORT-CIRCUIT THE
ENERGY TRANSITION? (July 2022),
https://tinyurl.com/bdd5beue .................................. 8, 14
(vi)
J.B. Ruhl & James Salzman,
The Greens’ Dilemma: Building Tomorrow’s
Climate Infrastructure Today, 73 EMORY L.J. 1
(2023) ....................................................................... 12, 23
Joseph Rand et al.,
Queued Up: Characteristics of Power Plants
Seeking Transmission Interconnection As of
the End of 2022, LAWRENCE BERKELEY NAT’L
LAB’Y (Apr. 2023), https://emp.lbl.gov/queues .. 6–7, 11
Michael B. Gerrard,
A Time for Triage, 39(6) ENV’T F. 38 (2022) ............. 13
Michael B. Gerrard,
Legal Pathways for a Massive Increase in
Utility-Scale Renewable Generation Capacity,
47 ENV’T L. REP. 10591 (2017) .................................... 13
MOHSEN BONAKDARPOUR ET AL., S&P GLOBAL,
MINE DEVELOPMENT TIMES: THE US IN
PERSPECTIVE (June 2024),
https://tinyurl.com/bde8t9hv ....................................... 10
NAT’L ASSOC. OF ENV’T PROFS.,
2022 ANNUAL NEPA REPORT (July 2022),
https://tinyurl.com/yeys784h ....................................... 10
Project Overview, RESOLUTION COPPER,
https://tinyurl.com/yenpeznb (last visited Sept.
3, 2024) ........................................................................... 15
Remarks by President Trump on the Rebuilding of
America’s Infrastructure: Faster, Better,
Stronger | Atlanta, GA (July 15, 2020),
THE NATIONAL ARCHIVES (Trump White
House), https://tinyurl.com/43k88wun ......................... 6
(vii)
S&P GLOBAL, INFLATION REDUCTION ACT: IMPACT
ON NORTH AMERICA METALS AND MINERALS
MARKET (Aug. 2023),
https://tinyurl.com/3a8t6zee .......................................... 8
SNL METALS & MINING, PERMITTING, ECONOMIC
VALUE AND MINING IN THE UNITED STATES
(2015), https://tinyurl.com/yeys92kh .......................... 14
Strategic Minerals, RESOLUTION COPPER,
https://tinyurl.com/2bwxvxy6 (last visited Sept.
3, 2024) ........................................................................... 14
Ted Boling & Kerensa Gimre, Evidence-Based
Recommendations for Overcoming Barriers to
Federal Transmission Permitting,
NISKANEN CENTER & CLEAN AIR TASK FORCE
(Apr. 2024), https://tinyurl.com/2hppvhhv................. 13
Unleashing America’s Energy and Mineral
Potential | Full Committee Oversight Hearing
(Feb. 8, 2023), HOUSE COMM. ON NAT. RES.,
https://tinyurl.com/kmfpxs6b;....................................... 8
U.S. DEP’T OF AGRIC.,
FINAL ENVIRONMENTAL IMPACT STATEMENT:
RESOLUTION COPPER PROJECT AND LAND
EXCHANGE (Jan. 15, 2021),
https://tinyurl.com/detdnz58 ....................................... 16
U.S. GEOLOGICAL SURVEY, MINERAL COMMODITY
SUMMARIES 2024 (Jan. 31, 2024),
https://tinyurl.com/mvvatysf ......................................... 2
In the Supreme Court of the United States
_______________
No. 23-975
SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,
Petitioners,
v.
EAGLE COUNTY, COLORADO, ET AL.,
Respondents
_________________________
On Writ of Certiorari to the
United States Court of Appeals for the District of Columbia
___________________
BRIEF FOR THE AMERICAN EXPLORATION & MINING
ASSOCIATION, ALASKA MINERS ASSOCIATION, ARIZONA MINING
ASSOCIATION, COLORADO MINING ASSOCIATION, IDAHO
MINING ASSOCIATION, MINNESOTA EXPLORATION
ASSOCIATION, INC. DBA MININGMINNESOTA, MONTANA MINING
ASSOCIATION, NEVADA MINING ASSOCIATION, NEW MEXICO
MINING ASSOCIATION, SOUTH DAKOTA MINERAL INDUSTRIES
ASSOCIATION, UTAH MINING ASSOCIATION, WOMEN’S MINING
COALITION, AND WYOMING MINING ASSOCIATION
AS AMICI CURIAE IN SUPPORT OF P ETITIONERS
____________
INTERESTS OF AMICI CURIAE 1
Amici curiae are a diverse group of organizations
involved in developing and mining various metals and
non-fuel minerals that are critical to life in the twentyfirst century. Amici and the communities in which they
live and work all suffer from a protracted environmentalPursuant to this Court’s Rule 37.6, counsel for amici curiae state
that no party or counsel for a party, or any other person other than
amici curiae and their counsel, made a monetary contribution to fund
the preparation or submission of this brief.
1
2
review process that hampers development of critical mineral and materials projects at the pace and scale required
to meet national demand.
The American Exploration and Mining Association
(“AEMA”) is a 129-year-old organization with 1,800 members in forty-six states. AEMA’s members have been
active since the 19th century in the entire mining life
cycle, beginning with prospecting and exploration,
advancing through development and mineral extraction
and processing, and concluding with mine reclamation
and closure. More than eighty percent of AEMA’s members are small businesses or work for them.
The Alaska Miners Association, Arizona Mining Association, Colorado Mining Association, Idaho Mining Association, MiningMinnesota, Montana Mining Association,
Nevada Mining Association, New Mexico Mining Association, South Dakota Mineral Industries Association, Utah
Mining Association, and Wyoming Mining Association
represent the mining industries in eleven states that collectively produced $41.61 billion worth of non-fuel minerals in 2023. 2
The Women’s Mining Coalition is a grassroots organization whose members work in all sectors of the mining
industry, including the hardrock and industrial minerals,
coal, energy generation, manufacturing, transportation,
and service industries.
Amici’s mining projects are essential to all facets of
modern American life, including renewable-energy generation and transmission, transportation, technology and
computing, and more.
U.S. GEOLOGICAL SURVEY, MINERAL COMMODITY SUMMARIES
2024, at 10–11, tbl. 3 (Jan. 31, 2024), https://tinyurl.com/mvvatysf.
2
3
SUMMARY OF ARGUMENT
Fifty years of agency practice and flawed judicial
decisions have turned the National Environmental Policy
Act of 1970 (“NEPA”), 42 U.S.C. §§ 4321 et seq., into a tool
of obstruction. Congress called for reasonably informed
decisionmaking—not an endless quest for perfect information. At the agency level, NEPA has become a vehicle
for avoiding decisions, rather than for making reasonably
informed ones. And in the courts, NEPA has become a
vehicle for endless technical second-guessing.
Amici are uniquely situated to provide this Court with
insight into the broken NEPA process. Amici and their
members regularly engage with federal decisionmakers
to obtain authorization for projects requiring federal
approval. Amici are thus, in addition to being developers
of critical minerals and materials, active collaborating
partners with agencies and diverse stakeholders nationwide. As such, amici offer three points to inform the
Court’s decision in this case.
First, dramatically reducing current NEPA delays—
beyond being compelled by the statute itself—is essential
to developing critical minerals and materials sufficient to
meet national demand. Unfortunately, slow and overly
expansive NEPA analysis (beyond that called for by statute) inhibits the development of critical minerals and
materials in the United States. This Court’s input is
needed to right-size NEPA review.
Second, the D.C. Circuit erred in this case when it
required the Surface Transportation Board to analyze
environmental effects far beyond the Board’s authority to
regulate. The D.C. Circuit’s decision is irreconcilable with
this Court’s NEPA jurisprudence, especially Department
of Transportation v. Public Citizen, 541 U.S. 752 (2004).
See id. at 770 (“[W]here an agency has no ability to pre-
4
vent a certain effect due to its limited statutory authority,” the agency “need not consider” that effect).
Third, and most importantly, this case presents an
important opportunity for this Court to provide lower
courts and agencies with straightforward, actionable
instructions on how to halt the seemingly endless NEPA
carousel. NEPA review should once again be limited to
the actionable information needs of agencies and the reasonably foreseeable effects of proposed actions. Any other
approach will continue leaving agencies and project proponents unable to predict their NEPA obligations and will
hamstring the efficient development of critical minerals
and materials.
The Court should reverse the judgment below and
reorient NEPA review to its original design.
ARGUMENT
Both the text of NEPA and this Court’s earliest cases
interpreting it strove for efficient, coordinated, and timely
environmental reviews. But NEPA as implemented today
produces nothing of the sort. Instead, environmental
reviews today routinely prevent or create serious delays
for critical mineral and infrastructure projects. Protracted environmental impact analysis—often featuring
thousands of pages and years of drafting—seriously hampers the predictability and timeliness of federal decisionmaking, frustrates public participation, and discourages investment in critical minerals and other infrastructure. NEPA has thus become a near-insurmountable
impediment to major infrastructure projects, to the detriment of the American economy and national security. This
Court’s intervention is needed to halt the ever-evolving
“Calvinball” NEPA jurisprudence of some circuit courts.
5
Amici encourage this Court to return NEPA to its fundamental “rule of reason.” The Court should correct the
D.C. Circuit’s erroneous holding that agencies must consider potential environmental impacts far outside their
regulatory domain. And more broadly, this case presents
an important opportunity for this Court to make the
NEPA process cleaner, clearer, and altogether more
effective.
A. Increasing NEPA efficiency is essential to developing
critical minerals and materials at the pace and scale
necessary to meet national demand.
The United States is currently failing to meet essential
infrastructure needs across multiple economic sectors.
Amici, as developers of critical mineral and material projects, have valuable insights into the reasons why. In particular, extensive NEPA review—beyond the information
reasonably useful to decisionmakers or the public—has
created delays, increased costs, and prevented the successful buildout of essential projects.
1. The United States’ development of critical
minerals and materials is insufficient to meet
national demands.
Across all sectors of the U.S. economy, there is substantial demand for new and improved infrastructure and
greater domestic production of natural resources, especially metals and non-fuel minerals. Yet investment in and
development of these critical projects—including mining
and energy production and transmission—is severely lagging. 3 The immense difficulties that currently plague the
See, e.g., EBP & AM. SOC’Y CIVIL ENG’RS, FAILURE TO ACT:
ELECTRIC INFRASTRUCTURE INVESTMENT GAPS IN A RAPIDLY
CHANGING ENVIRONMENT 3 (2020), https://tinyurl.com/shakpfyh
(observing that the United States is facing a $208 billion shortfall by
3
6
NEPA review process are a primary reason why: those
delays and difficulties discourage critical investment.
Multiple presidential administrations (across both
major political parties) have highlighted the need to invest
in critical infrastructure. 4 Congress has similarly raised
the alarm, most recently through passage of the bipartisan Infrastructure Investment and Jobs Act, which provides funding for clean water, shores up supply chains,
and supports infrastructure resiliency. 5
Despite this apparent commitment to infrastructure
development, investment and buildout have fallen well
behind demand. The Department of Energy’s 2023
National Transmission Needs Study has reported, for
example, that from 2010 to 2020, annual investment in
large electric transmission projects actually decreased,
despite steadily increasing demand. 6 A related 2023 study
from Lawrence Berkeley National Laboratory found that
there are more than 1,000 gigawatts of clean energy stuck
in “interconnection queues” due to transmission con-
2029 and a $338 billion shortfall by 2039 in investment to ensure a
reliable energy system).
See, e.g., Fact Sheet: Biden-Harris Administration Kicks Off
Infrastructure Week by Highlighting Historic Results Spurred by
President Biden’s Investing in America Agenda (May 13, 2024), THE
WHITE HOUSE, https://tinyurl.com/375p2s3y; Remarks by President
Trump on the Rebuilding of America’s Infrastructure: Faster, Better, Stronger | Atlanta, GA (July 15, 2020), THE NATIONAL
ARCHIVES (Trump White House), https://tinyurl.com/43k88wun.
4
Infrastructure Investment and Jobs Act, Pub. L. No. 117-58,
135 Stat. 429 (2021); see also Fact Sheet: The Bipartisan InfrastrucWHITE
HOUSE,
ture
Deal
(Nov.
6,
2021),
THE
https://tinyurl.com/4h26wy27.
5
DEP’T OF ENERGY, NATIONAL TRANSMISSION NEEDS STUDY
21–24 (Oct. 2023), https://tinyurl.com/dn3kpv9h.
6
7
straints, among other reasons. 7 Because transmission is
not being built, clean energy projects are unable to come
online.
As another example, President Biden in March 2022
exercised his authority under the Defense Production Act,
50 U.S.C. § 4533, and ordered the Department of Defense
to expand domestic production of “the strategic and critical materials necessary for the clean energy transition—
such as lithium, nickel, cobalt, graphite, and manganese
for large-capacity batteries.” 8 Failing to do so, President
Biden declared, would “severely impair the national
defense capability.” 9 In response, the Department of
Defense has directly invested hundreds of millions of
dollars in mineral and other projects. In May 2024, for
instance, with domestic production capacity lagging, the
Department announced a nearly $15 million investment in
privately owned cobalt and graphite mines in Canada. 10
Such investments must be “essential to the national
defense” and directed at development that is otherwise
not expected to occur domestically “in a timely manner.”
50 U.S.C. § 4533. In other words, the Department has
Joseph Rand et al., Queued Up: Characteristics of Power Plants
Seeking Transmission Interconnection As of the End of 2022,
BERKELEY
NAT’L
LAB’Y
(Apr.
2023),
LAWRENCE
https://emp.lbl.gov/queues.
7
Presidential Determination Pursuant to Section 303 of the
Defense Production Act of 1950, as Amended, 87 Fed. Reg. 19775,
19775 (Mar. 31, 2022). Critical materials are those that are essential
to the economic and national security of the United States yet are
exposed to vulnerable supply chains. See 30 U.S.C. § 1606(a)(3).
8
9
87 Fed. Reg. at 19776.
Department of Defense Awards $14.7 Million to Enhance
North American Cobalt and Graphite Supply Chain (May 16, 2024),
U.S. DEP’T OF DEFENSE, https://tinyurl.com/yp7ebhvw.
10
8
determined it must invest in foreign mineral projects
because the process in the United States is failing.
Congress likewise has stressed the importance of
secure mineral and material supply chains for economic
and national security. Committees in the House and Senate have detailed the fragility of mineral supply chains
and the exploding global demand for critical minerals and
materials. 11 A pair of studies by S&P Global recently
found that “energy transition-related U.S. demand for the
critical minerals lithium, nickel, and cobalt, taken
together, will be 23 times higher in 2035 than it was in
2021.” 12 Just to achieve net-zero carbon emissions goals
by 2050, global copper production must double within the
next decade—“an expansion that current exploration
trends or projects in the feasibility stage of development
are incapable of meeting.” 13 Today, the United States can
meet just half of its copper demand through domestic
sources. 14
E.g., Full Committee Hearing on Domestic Critical Mineral
Supply Chains (Mar. 31, 2022), SEN. COMM. ON ENERGY & NAT. RES.,
https://tinyurl.com/5d54n5rm; Unleashing America’s Energy and
Mineral Potential | Full Committee Oversight Hearing (Feb. 8,
2023), HOUSE COMM. ON NAT. RES., https://tinyurl.com/kmfpxs6b;
Full Committee Hearing to Examine Opportunities for Congress to
Reform the Permitting Process for Energy and Mineral Projects
(May 11, 2023), SEN. COMM. ON ENERGY & NAT. RES.,
https://tinyurl.com/5dehcnw9.
11
S&P GLOBAL, INFLATION REDUCTION ACT: IMPACT ON NORTH
AMERICA METALS AND MINERALS MARKET 11 (Aug. 2023),
https://tinyurl.com/3a8t6zee.
12
IHS MARKIT, THE FUTURE OF COPPER: WILL THE LOOMING
SUPPLY GAP SHORT-CIRCUIT THE ENERGY TRANSITION? 11–12 (July
2022), https://tinyurl.com/bdd5beue.
13
14
Id. at 59–62.
9
To meet these identified needs across the economy,
America needs to build much more infrastructure, more
quickly. Amici are among those answering the call. But
the unnecessarily expansive and inefficient NEPA review
process frequently stands in the way.
2. Overly expansive NEPA analyses are a major obstacle
to the approval of critical minerals and materials
development.
a. Amici have substantial experience with NEPA’s
simple mandate that federal agencies provide a “detailed
statement” regarding the “reasonably foreseeable environmental effects” of “major federal actions.” 42 U.S.C.
§ 4332(2)(C)(i). In reality, the implementation of NEPA is
anything but simple. Amici have regularly been forced to
wait years, to watch investments dwindle and costs rise,
and to be bogged down by litigation as agencies try to satisfy NEPA’s ever-shifting requirements.
The problem is well documented: Expansive and
lengthy NEPA reviews have plagued major infrastructure projects for decades, including important energy and
mineral projects. In 2020, a Council on Environmental
Quality (“CEQ”) study determined that the median time
to complete an environmental impact statement is over
three years. The study also found that fewer than a quarter are completed in less than two years, not counting the
additional delays that are likely to arise in connection with
litigation challenging the sufficiency of the final statement. 15 Complex, multi-jurisdictional infrastructure projects often take much longer. The National Association of
Environmental Professionals has similarly reported that,
EXEC. OFF. OF THE PRESIDENT, CEQ, ENVIRONMENTAL
IMPACT STATEMENT TIMELINES (2010–2018) 1, 4 (June 12, 2020),
https://tinyurl.com/5h7jj3wz.
15
10
from notice of intent to final publication, most environmental impact statements take between three to four
years to complete. 16 And despite decades of agency-led
attempts to streamline the process, these delays persist.17
In fact, one recent study concluded that it takes longer to
develop a mining project in the United States (about
twenty-nine years from first discovery to first production)
than any other country except for Zambia (at thirty-four
years). 18
Delays are attributable to a variety of factors, including public consultation, technical study, and the interests
of agencies in protecting their decisions from potential litigation. 19 For example, the more environmental effects
that agencies must review, the longer the review process
NAT’L ASSOC. OF ENV’T PROFS., 2022 ANNUAL NEPA REPORT
(July 2022), https://tinyurl.com/yeys784h.
16
Even in 1978, CEQ lamented that “the environmental impact
statement has tended to become an end in itself, rather than a means
to making better decisions.” National Environmental Policy Act –
Regulations, 43 Fed. Reg. 55978 (Nov. 29, 1978). In 2020, CEQ suggested that environmental impact statements should generally be
completed within two years, a requirement later codified by the Fiscal Responsibility Act amendments to NEPA. See Update to the Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act, 85 Fed. Reg. 43304-01, 43308-13 (July 16,
2020); 42 U.S.C. § 4336a(e).
17
See MOHSEN BONAKDARPOUR ET AL., S&P GLOBAL, MINE
DEVELOPMENT TIMES: THE US IN PERSPECTIVE 20 (June 2024),
https://tinyurl.com/bde8t9hv.
18
Alyson C. Flournoy et al., Harnessing the Power of Information to Protect Our Public Natural Resource Legacy, 86 TEX. L.
REV. 1575, 1582–1583 (2008) (“Another consequence of the emphasis
on comprehensiveness is that it delays completion of [environmental
impact statements], therefore delaying the agency’s consideration of
the information in the document as part of its underlying decisionmaking process.”).
19
11
will take—and the longer the environmental impact statements themselves, with corresponding increases in the
time that it takes to prepare them. Moreover, in part
because of the wide array of interests affected by major
federal actions, NEPA is the most litigated federal environmental statute, with an average of over one hundred
cases filed annually. 20 Delays arising from such litigation
add to the difficulties associated with NEPA review.
Long and unpredictable NEPA timelines, together
with high litigation risks, contribute to extremely slow
development and discourage investment. Developers may
choose not to undertake significant projects altogether,
for risk of falling prey to the “paralysis by analysis” that
is too often a feature of NEPA. 21 And indeterminate permitting horizons mandate greater assumption of upfront
risk, a decidedly unattractive prospect to investors
already facing potentially distant returns. The effects are
far-reaching. As amici know well, delays in authorization
for critical infrastructure projects reverberate throughout the national economy, from technology and healthcare
to energy and transportation to national security. 22
Amici’s mineral development projects serve critical
needs. Exploration and development of domestic sources
of critical minerals and materials is a key component of
See CONGRESSIONAL RSCH. SERV., NATIONAL ENVIRONMENTAL POLICY ACT: JUDICIAL REVIEW AND REMEDIES 1 (Sept. 22,
20
2021), https://tinyurl.com/mrha23tu.
See Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance,
102 COLUM. L. REV. 903, 929 (2002) (“The rigors of EIS production,
coupled with the risk of judicial reversal, may induce the agency to
delay any action until ‘all the facts are in’—the familiar problem of
‘paralysis by analysis.’”).
21
22
See, e.g., Rand et al., supra note 7.
12
America’s transition to clean, renewable energy. Congress and the Executive Branch have each recognized the
important role that domestic metals and other minerals
mining will play in the expansion of clean energy, including solar power, wind energy, and battery storage. And
expanding the nation’s supply of affordable, reliable, and
renewable sources of power is crucial for a sustainable
energy future nationwide. Amici also supply metals and
minerals necessary for expanded public transportation,
enhanced computing, and the cell phones in Americans’
pockets.
b. A few examples illustrate why the average environmental review time can be so long—and so problematic—for projects like amici’s.
For one, NEPA delays frequently obstruct renewable
energy and transmission projects. 23 Law professors J.B.
Ruhl and James Salzman recently published an exhaustive analysis of NEPA and other impediments to timely
development of clean energy. 24 Among other projects
studied, they found that the largest land-based wind farm
in the United States, proposed in 2008 for federal land in
Wyoming, will not be completed until 2026—assuming no
further delays from litigation. 25 Another study found that
See, e.g., Wild Virginia v. United States Forest Serv., 24 F.4th
915, 925 n.6 (4th Cir. 2022) (describing how vacatur of “several decisions of state and federal agencies approving” a natural gas transportation project led to “ongoing delays[,] increas[ed] cost uncertainty,”
and, ultimately, project cancellation); Public Emps. for Env’t Resp. v.
Hopper, 827 F.3d 1077, 1084 (D.C. Cir. 2016) (observing that the Cape
Wind offshore wind project “slogged through state and federal courts
and agencies for more than a decade”).
23
J.B. Ruhl & James Salzman, The Greens’ Dilemma: Building
Tomorrow’s Climate Infrastructure Today, 73 EMORY L.J. 1 (2023).
24
25
Id. at 38.
13
nearly half of all new electric transmission lines face
opposition or NEPA litigation that slows development. 26
In 2017, Columbia Professor Michael Gerard noted
that reaching the government’s climate goals “will require
a program of building onshore wind, offshore wind, utilityscale solar, and associated transmission that will exceed
what has been done before in the United States by many
times, every year out to 2050.” 27 Mentioning NEPA delays
specifically, Professor Gerard pleaded in 2022 that America “not just plod along with business-as-usual environmental regulation toward a world of killing heat and mass
human migration and species extinction.”28
The success of renewable energy projects is further
hampered by delays in mining for critical minerals and
materials. Environmental impact analysis for the
ASARCO LLC Ray Mine land exchange in Arizona, for
example, took decades to complete. In June 1999, BLM
released a final environmental impact statement evaluating the impacts of a land exchange proposed by ASARCO
to consolidate its copper mine holdings. More than eleven
years later, the U.S. Court of Appeals for the Ninth Circuit ruled that BLM needed to supplement the analysis.29
See Ted Boling & Kerensa Gimre, Evidence-Based Recommendations for Overcoming Barriers to Federal Transmission Permitting, NISKANEN CENTER & CLEAN AIR TASK FORCE 20 (Apr. 2024),
https://tinyurl.com/2hppvhhv.
26
Michael B. Gerrard, Legal Pathways for a Massive Increase in
Utility-Scale Renewable Generation Capacity, 47 ENV’T L. REP.
10591, 10591 (2017).
27
Michael B. Gerrard, A Time for Triage, 39(6) ENV’T F. 38, 44
(2022).
28
Center for Biological Diversity v. U.S. Dep’t of the Interior, 623
F.3d 633 (9th Cir. 2010).
29
14
It took BLM almost nine years to do so. 30 Including litigation delays, the NEPA process stretched over 20 years. 31
Another example is the Resolution Copper project: a
brownfield expansion in Arizona’s historic copper belt, the
development of which Congress has enacted specific legislation to support, that could meet twenty-five percent of
America’s demand for copper in coming decades—if it can
ever start production. 32 The transition to clean energy will
require enormous amounts of copper, which is partly why
copper is designated by the Department of Energy as a
critical material. 33 Besides copper, the Resolution project
would produce a variety of other critical and strategic
minerals, including indium, tellurium, and bismuth. 34 All
Notice of Availability of the Ray Land Exchange Final Supplemental Environmental Impact Statement/Proposed Resolution Management Plan Amendments, Arizona, 84 Fed. Reg. 33284-01 (July 12,
2019).
30
The Coeur Kensington Gold Mine in Alaska similarly experienced a 17-year freeze in production because of NEPA delays and litigation. See SNL METALS & MINING, PERMITTING, ECONOMIC
VALUE AND MINING IN THE UNITED STATES 16–17 (2015),
https://tinyurl.com/yeys92kh.
31
About Us, RESOLUTION COPPER, https://tinyurl.com/mr2f8b7a
(last visited Sept. 3, 2024). See Southeast Arizona Land Exchange and
Conservation Act, 16 U.S.C. § 539p(a).
32
See IHS MARKIT, supra note 13, at 9 (“Unless massive new supply comes online in a timely way, the goal of Net-Zero Emissions by
2050 will be short-circuited and remain out of reach”); Notice of Final
Determination on 2023 DOE Critical Materials List, 88 Fed. Reg.
51792, 51792 (Aug. 4, 2023).
33
Strategic Minerals, RESOLUTION COPPER,
https://tinyurl.com/2bwxvxy6 (last visited Sept. 3, 2024).
34
15
three are designated as critical minerals because of their
valuable technology and pharmaceutical uses. 35
Resolution submitted a mine plan of operations to the
United States Forest Service in 2013, and the Forest Service deemed the plan to be administratively complete the
following year. 36 To facilitate Resolution’s access to the
ore beneath surrounding federal lands not already owned
by Resolution, Congress in 2014 enacted and President
Obama signed the Southeast Arizona Land Exchange and
Conservation Act, the express purpose of which was to
“expedite” completion of an environmental impact statement analyzing the likely effects of a proposed land
swap—federal lands overlying the mining claims for Resolution-owned lands near federal properties elsewhere in
Arizona—as well as the land exchange itself. 37 (The publication of the environmental impact statement and the land
exchange are each mandated by the statute. 38)
In 2015, the Forest Service hired a third-party contractor to help prepare the environmental impact statement and set a schedule of approximately four-and-a-half
years to complete and publish the document. The agency
officially began the process in early 2016 and released the
2022 Final List of Critical Minerals, 87 Fed. Reg. 10381, 10381–
10382 (Feb. 24, 2022). There is no current American source of indium
or bismuth, and the United States produces only one percent of the
world’s tellurium, far less than it consumes. The mine’s co-products
would also include rhenium—used for fighter jets and turbine
blades—and molybdenum, a steel alloy. United States production of
these minerals is far below the country’s needs.
35
Project Overview, RESOLUTION COPPER,
https://tinyurl.com/yenpeznb (last visited Sept. 3, 2024).
36
16 U.S.C. § 539p(a) (“The purpose of this section is to authorize,
direct, facilitate, and expedite the exchange of land between Resolution Copper and the United States.”).
37
38
16 U.S.C. § 539p(c)(1), (c)(9).
16
final statement just short of five years later in January
2021 (already a year behind schedule). 39 But soon after, in
March 2021, the Forest Service withdrew the statement
for further evaluation, leaving the land exchange on hold
and the mine project in limbo. 40 More than three years
later in August 2024, the government reported in related
litigation that it still has no target date for republishing
the environmental impact statement. 41 Thus, nearly a decade after Congress ordered the government to “expedite”
a land exchange to facilitate development of a critical copper resource, with a host of critical mineral and material
co-products, the government still does not know when it
will complete its statutorily mandated NEPA review.
*
Amici support NEPA’s goals, including transparency
in federal decisionmaking. But the national interest
demands that decisions actually be made in a reasonable
way and on a reasonable timeframe.
3. Congress’s 2023 NEPA amendments highlight the
importance of right-sizing NEPA review.
Recognizing the high costs of NEPA-related paralysis
in critical infrastructure development, Congress recently
passed the most comprehensive amendments to NEPA
since it was enacted more than fifty years ago.
Tonto National Forest; Pinal County, AZ; Resolution Copper
Project and Land Exchange Environmental Impact Statement, 81
Fed. Reg. 14829-02 (Mar. 23, 2017); U.S. DEP’T OF AGRIC., FINAL
ENVIRONMENTAL IMPACT STATEMENT: RESOLUTION COPPER
PROJECT
AND
LAND
EXCHANGE
(Jan.
15,
2021),
https://tinyurl.com/detdnz58.
39
National Environmental Justice Advisory Council; Notification
of Virtual Public Meetings, 86 Fed Reg. 12943-01 (Mar. 5, 2021).
40
Joint Status Report at 2, Apache Stronghold v. United States,
No. 21-cv-50 (D. Ariz. Aug. 5, 2024), ECF No. 136.
41
17
The Fiscal Responsibility Act (“FRA”) of 2023, Pub.
L. No. 118-5, 137 Stat. 10, passed by Congress and signed
by President Biden, codifies many of the updated regulations that CEQ had promulgated in 2020 to increase the
efficiency of NEPA review. 42
In a new section 111, Congress for the first time
defined a “major federal action” triggering NEPA review
as “an action that the agency carrying out such action
determines is subject to substantial Federal control and
responsibility.” 42 U.S.C. § 4336e(10). Previously, NEPA
contemplated that agencies would self-police the contours
of the terms “major,” “federal,” and “action,” with the
courts available as a backstop. While the FRA amendments leave a role for the agencies (to “determine[ ]”
whether an action “is subject to substantial Federal control and responsibility”), they provide useful clarity in
defining what it means for a federal action to be “major.”
For major federal actions to which NEPA applies, the
FRA amendments also clarify the basic requirements for
an environmental impact statement in section 102(2)(C).
42 U.S.C. § 4332(2)(C). The law now provides that an
agency must consider the “reasonably foreseeable environmental effects of the proposed agency action,” including by analyzing a “reasonable range” of alternatives that
are “technically and economically feasible” and meet the
purpose and need of the proposed action. Ibid. (emphases
added). 43
See Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 Fed. Reg.
43304-01 (July 16, 2020).
42
See also 40 C.F.R. § 1508.1(ii) (“Reasonably foreseeable means
sufficiently likely to occur such that a person of ordinary prudence
would take it into account in reaching a decision.”); Sierra Club v.
43
18
Finally, the FRA codifies presumptive deadlines and
page limits for environmental reviews under NEPA,
including a judicially enforceable two-year limit for environmental impact analyses. See 42 U.S.C. § 4336a(e).
Congress’s emphasis on foreseeability, reasonableness, and timeliness reflects the concern—shared by
amici based on their experience—that the current application of NEPA fails to meet its goals, including to “fulfill
the social, economic, and other requirements of present
and future generations of Americans,” 42 U.S.C.
§ 4331(a), and to “achieve a balance between population
and resource use which will permit high standards of living and a wide sharing of life’s amenities,” id. § 4331(b)(5).
The FRA amendments are critical to moving the needle.
For one thing, Congress chose enforceable deadlines and
page limits for NEPA reviews that are significantly
stricter than current practice. And Congress’s choice of
the word “substantial” to describe the sort of federal ties
required to trigger NEPA indicates its resolve to place
reasonable limits on not only which agency actions trigger
NEPA but also the scope of the review required.
The FRA amendments emphasize the need for rightsized, informative, and actionable analyses for decisionmakers, in line with NEPA’s original intent. But there
is still more important work to do, especially in light of
court decisions like the D.C. Circuit’s in this case.
Marsh, 976 F.2d 763, 767 (1st Cir. 1992) (“[T]he terms ‘likely’ and
‘foreseeable,’ as applied to a type of environmental impact, are
properly interpreted as meaning that the impact is sufficiently likely
to occur that a person of ordinary prudence would take it into account
in reaching a decision.”) (citing Barber Lines A/S v. M/V Donau
Maru, 764 F.2d 50 (1st Cir. 1985) (Breyer, J.) (explaining the meaning
of “likely” and “foreseeable” as applied to tort liability for “financial
losses” not associated with physical harm)).
19
B. The D.C. Circuit’s decision is irreconcilable with this
Court’s NEPA precedent.
In Department of Transportation v. Public Citizen,
541 U.S. 752 (2003), this Court unanimously reaffirmed
the fundamental “rule of reason” governing NEPA:
“where an agency has no ability to prevent a certain effect
due to its limited statutory authority,” the agency “need
not consider” that effect. Id. at 770. The Court explained
that NEPA’s language requires analysis only of environmental effects that bear “a reasonably close causal relationship” with the agency action that is subject to NEPA
review. Id. at 767. Mere “but for” causation between the
agency action and a given effect is “insufficient” to require
that the agency review that effect under NEPA. Ibid.
The D.C. Circuit’s decision below, by contrast, has
asserted that where an agency nominally can prevent an
environmental effect by simply withholding altogether its
approval for a project, the agency must analyze that
effect. See Pet. App. 37a (“[G]iven that the Board has
authority to deny an exemption to a railway project on the
ground that the railway’s anticipated environmental and
other costs outweigh its expected benefits, the Board’s
argument that it need not consider effects it cannot prevent is simply inapplicable.”).
Setting aside the concerning policy implications of that
view—including that it would seem to sanction halting or
further delaying essentially all beneficial development of
critical infrastructure—this case should have been an
easy one under Public Citizen. There, as here, requiring
the agency to review distant effects over which it has no
authority “would serve no purpose in light of NEPA’s regulatory scheme as a whole … .” 541 U.S. at 767 n.4 (quotation marks omitted). The Surface Transportation Board
has no authority to mitigate or prevent so-called “down-
20
line” or “upline” effects of the new Uintah Basin Railway.
Cf. Pet. App. 36a–37a. At most, the Board’s authorization
for the Railway is a “but for” cause of such effects. This
Court has already decided that case.
The D.C. Circuit’s decision indicates a misunderstanding of NEPA’s purposes. The court erred by secondguessing the Board’s reasoned decisionmaking regarding
the appropriate scope of its regulatory review. And the
court neglected NEPA’s emphasis on procedures for
informed decisions rather than environmentally preferable outcomes. Agencies and stakeholders interested in the
efficient development of critical infrastructure thus need
this Court’s assistance to clarify the proper scope of
NEPA and to reduce the risk of unnecessary and overly
burdensome reviews on critical projects.
C. The Court should clarify the applicable standard in
line with NEPA’s text and purpose.
This Court should reverse the decision below and hold
that the D.C. Circuit’s reading of Public Citizen was
incorrect. More broadly, amici’s NEPA experiences
demonstrate that the Court should return NEPA to the
basic “rule of reason” that animated Congress first in
1969, see Public Citizen, 541 U.S. at 767, and again in
2023, see 42 U.S.C. § 4332(2)(C)(i). This case presents an
important opportunity for this Court to provide lower
courts and agencies with straightforward, actionable
instructions regarding the scope of NEPA review.
1. Lower courts must adhere to NEPA’s hallmark “rule
of reason.”
Amici are witnesses to how NEPA review can be
meandering and time-consuming, even as demand for
critical minerals and clean energy is at an all-time high.
As this Court put it in Metropolitan Edison Co. v. People
21
Against Nuclear Energy, 460 U.S. 766 (1983), “[t]ime and
resources are simply too limited … to believe that Congress intended to extend NEPA as far as the Court of
Appeals has taken it” here and in other cases. Id. at 776.
This Court has repeatedly affirmed in recent years
that the scope of agency authority is a question for the
courts, not the agencies. See, e.g., West Virginia v. Environmental Prot. Agency, 597 U.S. 697, 723 (2022) (“Agencies have only those powers given to them by Congress,
and enabling legislation is generally not an open book to
which the agency may add pages and change the plot
line.” (cleaned up)). The D.C. Circuit, on the other hand,
would have agencies do anything and everything necessary to satisfy NEPA, regardless of the reach of their
statutory responsibility. Cf. Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244, 2273 (2024) (“[W]hen a particular
statute delegates authority to an agency consistent with
constitutional limits, courts must respect the delegation,
while ensuring that the agency acts within it.”).
Interpreting NEPA as the D.C. Circuit did below creates an untenable situation for agencies and developers
alike. If any environmental effect that results indirectly
from an agency’s action must be part of the agency’s
NEPA analysis—regardless of the agency’s ability to regulate or prevent that effect—then the agency would need
to “expend considerable resources developing … expertise that is not otherwise relevant to [its] congressionally
assigned functions.” Metropolitan Edison, 460 U.S. at
776. This case is an instructive example. The D.C. Circuit
faulted the Surface Transportation Board’s analysis of
(among other things) greenhouse gas emissions that may
result from increased oil refining on the Gulf Coast, risks
of wildfires, and effects on Colorado River wildlife. See
Pet. App. 30a–37a, 42a–47a.
22
The court of appeals rejected the Board’s argument
that it could not reasonably predict the greenhouse gas
emissions that might result from increased refining on the
Gulf Coast because it lacked sufficient information to do
so. See Pet. App. 30a–37a. According to the court, the
Board should “employ some degree of forecasting” to
quantify the impacts of increased oil production, id. at 35a
(quotation marks omitted), even though such forecasting
would require developing expertise that otherwise has
nothing to do with the Board’s statutory transportationrelated duties, see Metropolitan Edison, 460 U.S. at 776.
Regarding the risk of wildfires, the Board concluded that
the risk from the Uintah Basin Railway would be low. See
Pet. App. 42a. The D.C. Circuit simply disagreed about
what the available data meant, even while recognizing the
rigor of the Board’s expert analysis. See id. at 44a–45a.
For water resources and wildlife, the court’s disagreement was even more pedantic: the Board did consider
effects on “all water resources” adjacent to the project,
but because it did not say the words “Colorado River,” its
analysis was deemed deficient. Id. at 46a–47a. Such
“mere[ ] flyspecks” should not be the basis for delaying
the Uintah Basin Railway or other critical United States
infrastructure projects. Utahns for Better Transp. v. U.S.
Dep’t of Transp., 305 F.3d 1152, 1163 (10th Cir. 2002), as
modified on reh’g, 319 F.3d 1207 (10th Cir. 2003).
For amici, whose efforts to develop mining projects
critical to national interests are already stifled by overly
expansive and indiscriminate environmental review processes, the D.C. Circuit’s butterfly-effect approach will
only exacerbate delays and all the problems that come
23
with them. 44 That result could be fatal to a multitude of
projects critical to life in the twenty-first century. This
Court should use its decision here to reorient the lower
courts toward the time-tested NEPA “rule of reason.”
2. NEPA review should focus on the actionable
information needs of agencies, calibrated to
their statutory authority.
Amici urge the Court to give the FRA amendments
their full force and return NEPA to first principles. That
includes focusing environmental review on the discrete,
actionable information needs of each reviewing agency.
For decades, it has been “well settled that NEPA itself
does not mandate particular results, but simply prescribes the necessary process. … Other statutes may
impose substantive obligations on federal agencies, but
NEPA merely prohibits uninformed—rather than
unwise—agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–351 (1989) (footnote
omitted). The NEPA requirement of environmentalimpact analysis serves two purposes. First, it “ensures
that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Id. at 349.
Second, it guarantees relevant information is accessible to
stakeholders with interests in the agency’s decision. Id. at
349–350.
In line with these purposes, this Court has long recognized that NEPA review is not unlimited: “To make an
impact statement something more than an exercise in
frivolous boilerplate[,] the concept of alternatives must be
See, e.g., Ruhl & Salzman, supra note 24, at 34 (“More litigation,
lengthier environmental reviews, and agency actions to avoid conflict
work in tandem to increase costs.”).
44
24
bounded by some notion of feasibility.” Vermont Yankee
Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 551 (1978). “Common sense also teaches us
that the ‘detailed statement of alternatives’ cannot be
found wanting simply because the agency failed to include
every alternative device and thought conceivable by the
mind of man.” Ibid. “Time and resources are simply too
limited to hold that an impact statement fails because the
agency failed to ferret out every possible alternative,
regardless of how uncommon or unknown that alternative
may have been at the time the project was approved.”
Ibid.
Congress envisioned that NEPA would focus environmental analysis on information that has real, practical
value to decisionmakers. Information that an agency cannot act on has no real value other than to complicate matters and prolong the process. See Public Citizen, 541 U.S.
at 768. The D.C. Circuit, by contrast, would require an
agency to perform an essentially unlimited analysis
which, in the end, may still be second-guessed by litigants
or judges who can creatively hypothesize some other
effect the agency did not initially consider. Agencies and
project proponents would be left unable to predict the
extent of their NEPA obligations, while the courts would
take on the improper role of “environmental-policy czar,”
Center for Biological Diversity v. U.S. Army Corps of
Engineers, 941 F.3d 1288, 1299 (11th Cir. 2019). The D.C.
Circuit’s approach exceeds the proper scope of judicial
review under NEPA.
For NEPA to meet its goals, the required scope of
environmental impact analysis cannot hinge on the creativity of imagination. See Vermont Yankee, 435 U.S. at 551
(“every alternative device and thought conceivable by the
mind of man”). Rather, it must focus on the reasonably
25
foreseeable effects of proposed actions—the proper analysis of which must be constrained by the scope of the
agency’s delegated powers. For it is analysis of those
effects, not cascading consequences far away from a project site, beyond the agency’s regulatory authority or
experience, that supports the kind of reasoned decisionmaking that Congress intended.
In short, the courts’ role is to decide whether agency
actions are “reasonable and reasonably explained.” Federal Commc’ns Comm’n v. Prometheus Radio Project,
592 U.S. 414, 423 (2021). And where an agency cannot prevent some environmental effect, it “need not consider”
that effect under NEPA for its decision to be reasonable
and reasonably explained. Public Citizen, 541 U.S. at 770.
This Court’s reaffirmation of these basic principles in
this case, and its endorsement of the FRA’s focus on “reasonable” foreseeability, will help ensure that amici can responsibly and efficiently develop the critical infrastructure that the Nation needs to respond to modern
challenges.
26
CONCLUSION
The judgment of the D.C. Circuit should be reversed.
Respectfully submitted,
Michael R. Huston
Counsel of Record
Christopher D. Thomas
Andrea J. Driggs
Benjamin A. Longbottom
PERKINS COIE LLP
2525 E. Camelback Road,
Suite 500
Phoenix, AZ 85016-4227
(202) 434-1630
MHuston@perkinscoie.com
September 4, 2024
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.