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

No. 23-975

In The

Supreme Court of the United States

____________________

SEVEN COUNTY INFRASTRUCTURE COALITION and

UINTA BASIN RAILWAY, LLC,

Petitioners,

v.

EAGLE COUNTY, COLORADO, et al.,

Respondents.

____________________

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

____________________

BRIEF AMICUS CURIAE OF THE PROPERTY

AND ENVIRONMENT RESEARCH CENTER

IN SUPPORT OF PETITIONERS

____________________

JONATHAN WOOD

Counsel of Record

DYLAN P. SOARES

Property and Environment

Research Center

2048 Analysis Dr. Ste. A

Bozeman, MT 59718

Telephone: (406) 587-9591

Jonathan@perc.org

Counsel for Amicus Curiae

i

Table of Contents

Table of Contents ......................................................... i

Table of Authorities .................................................... ii

Interest of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 1

Argument .................................................................... 5

I.

NEPA

affects

many

environmentally

beneficial activities and its workability is a critical

conservation issue ................................................... 5

II.

NEPA requires agencies to analyze only

reasonably foreseeable effects for which the

agency’s action is the legally relevant cause ........ 11

III. The environmental effects at issue in this

case are serious but do not merit undermining

NEPA’s workability ............................................... 18

Conclusion ................................................................. 20

ii

Table of Authorities

Page(s)

Cases

350 Mont. v. Haaland, 50 F.4th 1254 (9th Cir. 2022)

................................................................................ 18

Am. Elec. Power Co., Inc. v. Conn., 564 U.S. 410

(2011) ....................................................................... 5

Am. Wild Horse Pres. Campaign v. Zinke, No. 1:16CV-00001-EJL, 2017 WL 4349012 (D. Idaho Sept.

29, 2017) .................................................................. 3

BP P.L.C. v. Mayor and City Council of Baltimore,

593 U.S. 230 (2021) ................................................. 5

Cnty. of Mohave v. Bureau of Reclamation, No. CV2208246-PCT-MTL, 2024 WL 3818611 (D. Ariz.

Aug. 13, 2024) .......................................................... 3

Cnty. of Mohave v. Bureau of Reclamation, No. CV2208246-PCT-MTL, 2024 WL 706962 (D. Ariz. Feb.

21, 2024) .................................................................. 3

Dept. of Transp. v. Pub. Citizen, 541 U.S. 752 (2004)

............................................................ 2, 4, 12, 17, 20

Eagle Cnty., Colo. v. Surface Transp. Bd., 82 F.4th

1152 (D.C. Cir. 2023)............................. 2, 12, 17, 18

Mass. v. Env’t Prot. Agency, 549 U.S. 497 (2007). ..... 5

N. Cascades Conservation Council v. Forest Serv.,

No. 2:22-CV-00293-SAB, 2024 WL 188374 (E.D.

Wash. 2024) ........................................................... 10

Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120

(9th Cir. 2007) ........................................... 2, 3, 4, 13

Robertson v. Methow Valley Citizens Council, 490

U.S. 332 (1989) .................................................. 1, 14

San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581 (9th Cir. 2014) ................................... 6

Sierra Club v. Fed. Energy Regul. Comm’n, 867 F.3d

1357 (D.C. Cir. 2017)............................................... 2

iii

U.S. v. N.M, 438 U.S. 696 (1978) ............................. 16

Util. Air Regul. Grp. v. Env’t Prot. Agency, 573 U.S.

302 (2014) ................................................................ 5

W. Va. v. Env’t Prot. Agency, 597 U.S. 697 (2022) ..... 5

Statutes

42 U.S.C. § 4321 ...................................................... 2, 5

42 U.S.C. § 4332(C) ............................................... 6, 12

42 U.S.C. § 4336a ...................................................... 20

43 U.S.C. § 1732(a) ................................................... 17

43 U.S.C. § 1733(a) ................................................... 17

Other Authorities

Bryan Leonard et al., Stranded land constrains

public land management and contributes to larger

fires, 16 Env’t Rsch. Letters 114014 (2021) ......... 13

Bureau of Land Mgmt., Environmental Assessment

for American Prairie Reserve Bison Change of Use

(2022) ..................................................................... 14

Bureau of Land Mgmt., Record of Decision (2022) .. 14

Bureau of Reclamation, The Central Arizona Project

(2000) ..................................................................... 16

Cal. Air Res. Bd., Draft Report: Greenhouse Gas

Emissions of Contemporary Wildfire, Prescribed

Fire, and Forest Management Activities (Dec. 2020)

.................................................................................. 9

Carol Vincent et al., Cong. Rsch. Serv., R42346,

Federal Land Ownership: Overview and Data

(2020) ....................................................................... 8

Env’t Prot. Agency, Environmental Impact Statement

(EIS) Database. ....................................................... 6

Eric Edwards & Sara Sutherland, Does

Environmental Review Worsen the Wildfire Crisis?

How environmental analysis delays fuel treatment

projects (2022). ................................. 6, 7, 8, 9, 10, 11

iv

Forest Serv., Confronting the Wildfire Crisis: A

Strategy for Protecting Communities and

Improving Resilience in America’s Forests (2022). 8,

9

Forest Serv., The Process Predicament: How

Statutory, Regulatory, and Administrative Factors

Affect National Forest Mgmt. (2002) ...................... 8

Holly Fretwell & Jonathan Wood, Fix America’s

Forests: Reforms to Restore National Forests and

Tackle the Wildfire Crisis (2021) ............................ 9

James L. Huffman, American Prairie Reserve:

Protecting Wildlife Habitat on a Grand Scale, 59

Nat. Res. J. 35 (2019) ............................................ 14

James T.B. Tripp & Nathan G. Alley, Streamlining

NEPA’s Environmental Review Process:

Suggestions of Agency Reform, 12 N.Y.U. Env’t L.J.

74 (2003) ............................................................ 4, 10

Jim Robbins, To Protect Giant Sequoias, They Lit a

Fire, N.Y. Times (July 9, 2024) ............................... 9

Michael J. Mortimer et al., Environmental and

Social Risks: Defensive National Environmental

Policy Act in the US Forest Service, 109 J. of

Forestry 27 (2011) ................................................. 11

Nikki Chiappa et al., Understanding NEPA

Litigation: A Systematic Review of Recent NEPARelated Appellate Court Cases (2024) .. 4, 5, 7, 8, 19

Notice of Appeal, Statement of Reasons, and Petition

for Stay, State of Mont. v. Bureau of Land Mgmt.,

MT-010-22-02 (Dept. of Interior Office of Hearings

and Appeals filed Aug. 25, 2022) ...................... 3, 15

Shawn Regan & Tate Watkins, A Different Shade of

Green, 39 PERC Reports 30 (2020) ......................... 1

Tate Watkins & Bryan Leonard, Arizona Water

Reform (2023) ........................................................ 16

v

Terry L. Anderson & Donald R. Leal, Free Market

Environmentalism (rev’d ed. 2001)......................... 1

Terry L. Anderson & Gary Libecap, Environmental

Markets: A Property Rights Approach (2014) ......... 1

The Nature Conservancy, Statement on Sen. Carper’s

Draft PEER Act (May 18, 2023)............................ 19

1

Interest of Amicus Curiae1

The Property and Environment Research Center

(PERC) is dedicated to advancing conservation

through markets, incentives, property rights, and

partnerships. As the national leader in market

solutions for conservation, PERC has over 40 years of

research and a network of respected scholars and

practitioners. Through research, law and policy, and

innovative field conservation programs, PERC

explores how aligning incentives for environmental

stewardship produces sustainable outcomes for land,

water, and wildlife.2 Founded in 1980, PERC is

nonprofit, nonpartisan, and proudly based in

Bozeman, Montana.

Summary of Argument

The National Environmental Policy Act (NEPA)

serves an important and laudable goal of ensuring

that government agencies consider the environmental

consequences of their proposed actions. See Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 349

(1989). Implemented correctly, it also facilitates

public participation in the decision-making process.

Id. However, its misapplication threatens to

1 PERC affirms that no counsel for any party authored this brief

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

contribution intended to fund the preparation or submission of

this brief. No person other than PERC, its members, or its

counsel made a monetary contribution to its preparation or

submission.

2 See Shawn Regan & Tate Watkins, A Different Shade of Green,

39 PERC Reports 30 (2020), https://www.perc.org/2020/07/06/adifferent-shade-of-green/; Terry L. Anderson & Gary Libecap,

Environmental Markets: A Property Rights Approach (2014);

Terry L. Anderson & Donald R. Leal, Free Market

Environmentalism (rev’d ed. 2001).

2

undermine the statute’s purpose “to promote” federal

agency efforts that “prevent or eliminate damage to

the environment[,]” by making the process

unworkable even for these efforts. 42 U.S.C. § 4321.

The D.C. Circuit’s rule applied below, along with

the substantively similar rule in the Ninth Circuit,

disrupts even environmentally beneficial agency

actions by demanding costly and time-consuming

examination of effects for which the agency’s action is

not the legally relevant cause and that the agency

“lacks authority to prevent, control, or mitigate[.]”

Eagle Cnty., Colo. v. Surface Transp. Bd., 82 F.4th

1152, 1177, 1180 (D.C. Cir. 2023); see also Sierra Club

v. Fed. Energy Regul. Comm’n, 867 F.3d 1357, 1371–

75 (D.C. Cir. 2017); Or. Nat. Res. Council Fund v.

Brong, 492 F.3d 1120, 1123–24 (9th Cir. 2007). Under

this interpretation, NEPA litigation is limited only by

a plaintiff’s imagination, creating fraught litigation

risks that force agencies to prepare environmental

analyses so long, dense, and conjectural that they

undermine rather than advance NEPA’s goals to

facilitate public participation and ensure informed

agency decision-making. See Dept. of Transp. v. Pub.

Citizen, 541 U.S. 752, 768–70 (2004).

While the facts of this case (construction of a rail

line and its potential effects on energy development

and climate change) are far removed from PERC’s

conservation interests, we file this brief to draw the

Court’s attention to the environmental consequences

of undermining NEPA’s workability. NEPA does not

apply only to federal infrastructure or development

projects but to any major agency action that has

environmental effects, regardless of whether those

effects are a net negative or positive. The D.C. and

3

Ninth Circuits’ rule has been used to challenge many

conservation efforts, including restoring degraded

forest ecosystems,3 markets for voluntary water

conservation,4 mitigating the effects of wild horses on

native wildlife,5 restoring native rangelands by

reintroducing bison,6 and renewable energy

development.7

3 Or. Nat. Res. Council Fund, 492 F.3d. 1120 (holding that an

agency’s NEPA analysis for a forest restoration project was

deficient because the agency did not also consider the effects of

private activities on adjacent land).

4 Cnty. of Mohave v. Bureau of Reclamation, No. CV-2208246PCT-MTL, 2024 WL 706962, (D. Ariz. Feb. 21, 2024) (Mohave I)

(holding that an agency’s NEPA analysis of transferred water

moving through federal infrastructure was deficient because the

agency did not consider the effects of private landowners’ sale of

water, of a state’s decision to approve that sale, and private land

use changes due to future sales). The district court recently

narrowed its prior remedy, recognizing that vacating past and

ongoing water trades would be unduly disruptive. Cnty. of

Mohave v. Bureau of Reclamation, No. CV-2208246-PCT-MTL,

2024 WL 3818611, (D. Ariz. Aug. 13, 2024).

5 Am. Wild Horse Pres. Campaign v. Zinke, No. 1:16-CV-00001EJL, 2017 WL 4349012, (D. Idaho Sept. 29, 2017) (Plaintiff

argues that whenever a project saves an agency money, NEPA

requires it to consider not only the effects of the project but the

effects of any potential alternative uses of the money saved by

the project).

6 Notice of Appeal, Statement of Reasons, and Petition for Stay,

State of Mont. v. Bureau of Land Mgmt., MT-010-22-02 (Dept. of

Interior Off. of Hearings and Appeals filed Aug. 25, 2022),

available at https://governor.mt.gov/_docs/Notice_of_Appeal_

Statement_of_Reasons_Petiton_for_Stay_signed. pdf (Plaintiff

argues that agency’s analysis of a conservation organization

changing the type of livestock that graze federal land was

deficient because the agency did not consider the effects of all the

organization’s private conservation activities, including effects

on local agricultural businesses.).

7 Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562 (9th Cir. 2016).

4

And this misuse of NEPA is only increasing, with

NEPA lawsuits becoming more frequent and more

likely to target environmentally beneficial activities.

Nikki Chiappa et al., Understanding NEPA

Litigation: A Systematic Review of Recent NEPARelated Appellate Court Cases 3 (2024) (noting that

circuit courts have heard 56% more NEPA appeals

over the last decade and that cases disproportionally

target forest restoration efforts).8 Often, as here, this

standard is being used to bootstrap review of private

activities, including private conservation efforts, onto

a NEPA challenge concerning a tangential agency

activity. See, e.g., Or. Nat. Res. Council Fund, 492

F.3d at 1133–34; Mohave I, 2024 WL 706962 at *9–11.

To avoid these adverse consequences, the Court

should reaffirm its holding in Public Citizen that a

“‘but for’ causal relationship is insufficient to make an

agency responsible for a particular effect under

NEPA,” and clarify that an agency is not required to

analyze under NEPA the environmental effects of

actions not its own and outside its regulatory

authority. See 541 U.S. at 767–68. This results in a

manageable standard for agencies to determine what

they are required to examine and avoids the analysisparalysis risk posed by the decision below. Id. at 767;

see James T.B. Tripp & Nathan G. Alley, Streamlining

NEPA’s Environmental Review Process: Suggestions

of Agency Reform, 12 N.Y.U. Env’t L.J. 74, 83 (2003).

As discussed below, such analysis-paralysis too often

threatens environmentally beneficial projects,

8 https://thebreakthrough.imgix.net/Understanding-NEPA-

Litigation_v4.pdf.

5

precisely those that NEPA was intended to promote.

42 U.S.C. § 4321.

Argument

I.

NEPA affects many environmentally

beneficial activities and its workability

is a critical conservation issue

Petitioners present this case as a conflict between

environmental

bureaucracy

and

economic

development,9 but the consequences of the Court’s

decision will extend far beyond infrastructure and

energy projects. And, although this Court’s recent

environmental law cases have tended to involve fossil

fuel development and climate change,10 that too is not

representative of the typical NEPA conflict or

litigation. Instead, the typical case is over less

sensational stuff, such as forest restoration, federalland management, and water conservation. See Nikki

Chiappa et al., supra, at 10; see also Eric Edwards &

Sara Sutherland, Does Environmental Review Worsen

See, e.g., Pet’r’s Br. at 2 (describing the decision below as

converting NEPA into “an anti-development treadmill”); id. at 7

(describing NEPA as having a “bloated, anti-development form”);

id. at 18–19 (criticizing the decision below as erecting “a

substantive roadblock to development”); id. at 48 (describing

environmental groups as “opponents of progress”); id. at 49

(asking the Court to “unshackle agencies and infrastructuredevelopment projects from NEPA-litigation purgatory”).

10 See W. Va. v. Env’t Prot. Agency, 597 U.S. 697 (2022); BP P.L.C.

v. Mayor and City Council of Baltimore, 593 U.S. 230 (2021); Util.

Air Regul. Grp. v. Env’t Prot. Agency, 573 U.S. 302 (2014); Am.

Elec. Power Co., Inc. v. Conn., 564 U.S. 410 (2011); Mass. v. Env’t

Prot. Agency, 549 U.S. 497 (2007).

9

6

the Wildfire Crisis? How environmental analysis

delays fuel treatment projects 3–10 (2022).11 This is

because NEPA does not target infrastructure or

development but covers any “major Federal actions

significantly affecting the quality of the human

environment,” including conservation activities

intended to and expected to be environmentally

beneficial. 42 U.S.C. § 4332(C); see San Luis & DeltaMendota Water Auth. v. Jewell, 747 F.3d 581, 652 n.52

(9th Cir. 2014) (suggesting that NEPA applies to

projects that have only beneficial environmental

impacts).

The strongest evidence of where the consequences

of this Court’s decision will fall is provided by a

database the Environmental Protection Agency

maintains of every environmental impact statement

(the most demanding level of review under NEPA)

issued since 1987. See Env’t Prot. Agency,

Environmental Impact Statement (EIS) Database.12

According to that database, the Forest Service

prepared 254 final environmental impact statements

between August 2014 and July 2024, the most of any

agency. Id. That exceeded the second-place agency,

the Bureau of Land Management (BLM), by more

than 50%. Id. The agency at the center of this case,

the Surface Transportation Board, in contrast,

11 https://www.perc.org/wp-content/uploads/2022/06/PERC-

PolicyBrief-NEPA-Web.pdf.

12 https://cdxapps.epa.gov/cdx-enepa-II/public/action/eis/search.

7

finalized only three environmental impact statements

over the same period. Id.13

NEPA’s disproportionate burden on the federal

land management agencies is also reflected in

litigation, which has noticeably increased in the last

decade. According to the Breakthrough Institute, an

environmental research center, 59% more NEPA

cases have been appealed to circuit courts in the last

decade, compared to the prior one. Nikki Chiappa et

al., supra, at 2. The most common subject of this

litigation was federal-land management, especially

the Forest Service’s efforts to restore unhealthy

forests. Id. at 6, 10–11. And, while less common,

nearly a third of NEPA energy cases sought to stop

clean energy production. Id. at 13.

This process and litigation have taken a toll on

agencies’ ability to fulfill their core functions. The

Forest Service, for instance, takes an average of 19

months to complete an environmental assessment for

a forest restoration project, and an average of 34

months to complete an environmental impact

statement. See Edwards & Sutherland, supra, at 6. In

addition to these up-front delays, NEPA legal

challenges take about 4.2 years from the date of

13 While

the Surface Transportation Board produced very few

environmental impact statements, other energy and

transportation related agencies produced more, although still far

less than the federal land management agencies. See id.

(reporting that the Federal Highway Administration and Federal

Energy Regulatory Commission finalized 84 and 79

environmental impact statements, respectively).

8

publication of the final environmental analysis to the

conclusion of the appeal. Nikki Chiappa et al., supra,

at 2. But the average litigation delay is longest for

federal land management projects (4.8 years). Id. at 6.

Because the consequences of NEPA conflict fall

disproportionately on federal land management

agencies, whether NEPA is efficient and effective is a

critical issue in the West. More than 90% of federal

land is in Western states, where it makes up 50% of

land in these states. Carol Vincent et al., Cong. Rsch.

Serv., R42346, Federal Land Ownership: Overview

and Data 6–8, 19 (2020).14 An efficient and effective

NEPA process is especially important to the Forest

Service’s ability to restore unhealthy Western forests

and, thereby, protect wildlife habitat, water quality,

and other environmental values threatened by the

wildfire crisis. See Forest Serv., Confronting the

Wildfire Crisis: A Strategy for Protecting Communities

and Improving Resilience in America’s Forests

(2022);15 Edwards & Sutherland, supra, at 3–10;

Forest Serv., The Process Predicament: How

Statutory, Regulatory, and Administrative Factors

Affect National Forest Mgmt. (2002).16

There are about 80 million acres of federal forests

that need restoration but, due to NEPA and other

14 https://sgp.fas.org/crs/misc/R42346.pdf.

15 https://www.fs.usda.gov/sites/default/files/fs_media/fs_

document/Confronting-the-Wildfire-Crisis.pdf.

16 https://www.fs.usda.gov/projects-policies/documents/ProcessPredicament.pdf.

9

factors, only 2 million acres are being treated

annually. Edwards & Sutherland, supra, at 2. This

forest restoration backlog fuels larger and more

destructive wildfires that harm forest health, wildlife

habitat, air and water quality, and outdoor recreation.

Holly Fretwell & Jonathan Wood, Fix America’s

Forests: Reforms to Restore National Forests and

Tackle the Wildfire Crisis 4 (2021).17 For instance, in

2020 in California alone, wildfires released 112

million tons of carbon dioxide, the equivalent of

adding 25 million cars to the road. Cal. Air Res. Bd.,

Draft Report: Greenhouse Gas Emissions of

Contemporary Wildfire, Prescribed Fire, and Forest

Management Activities (Dec. 2020).18 And, since 2020,

between 15 and 20% of Giant Sequoias have been

killed by wildfire because, while the species is adapted

to wildfire, it is not adapted to the catastrophic blazes

that occur frequently today. See Jim Robbins, To

Protect Giant Sequoias, They Lit a Fire, N.Y. Times

(July 9, 2024).19

Forest restoration, including mechanical thinning

and prescribed fire, is urgently needed to address this

environmental crisis. See Confronting the Wildfire

Crisis, supra. Where these treatments are applied,

fires are easier to suppress, less likely to burn

17 https://www.perc.org/wp-content/uploads/2021/04/fix-americas

-forests-restore-national-forests-tackle-wildfire-crisis.pdf.

18 https://ww3.arb.ca.gov/cc/inventory/pubs/ca_ghg_wildfire_

forestmanagement.pdf.

19 https://www.nytimes.com/2024/07/09/science/redwoodswildfires-indigenous-tribes-california.html.

10

intensely, and less likely to threaten forest health,

wildlife, and water quality. In Oregon’s 400,000-acre

Bootleg Fire, for instance, areas thinned and treated

with prescribed fire had lower fire intensity and

avoided the crown-fire that threatens old-growth and

large trees. Edwards & Sutherland, supra, at 2. When

such treatments are delayed or discouraged by an

inefficient NEPA process or litigation, however, forest

health and the environment too often pay the price.

See, e.g., N. Cascades Conservation Council v. Forest

Serv., No. 2:22-CV-00293-SAB, 2024 WL 188374,

(E.D. Wash. 2024) (acknowledging that a substantial

part of the area intended for a forest restoration

project was severely burned during the two years that

the project was being reviewed under NEPA).

As Petitioners note in their brief, a lawsuit need

not be filed to have these effects. Without clear legal

sideboards on agencies’ obligations, the mere threat of

litigation may be enough to spur an agency to

“produc[e] piles of paperwork that exhaustively

discuss every potential impact of the proposed action”

in the hopes of mitigating litigation risk. Tripp &

Alley, supra, at 83. There is strong evidence that this

phenomenon has already affected the Forest Service’s

ability to restore forests. Surveys of agency personnel

find that decisions about the level of NEPA review and

the time devoted to that review are influenced more

by litigation risks than the significance of any

environmental impacts. Michael J. Mortimer et al.,

Environmental and Social Risks: Defensive National

11

Environmental Policy Act in the US Forest Service,

109 J. of Forestry 27 (2011).20 And this is reflected in

the time it takes the agency to implement a project,

with projects that are later litigated spending more

time on the NEPA process at the front end. Edwards

& Sutherland, supra, at 10 (finding that

environmental impact statements for forest

restoration projects that are later litigated take

almost a year and a half longer to prepare than

environmental impact statements for non-litigated

projects).

In deciding this case, PERC urges the Court not to

limit its focus to the (relatively uncommon) energy

and climate change facts presented here but to

consider the broader range of agency activities

implicated by its decision, especially federal agencies’

ability to restore struggling forests in the West. An

efficient and effective NEPA process is critically

important to that conservation work.

II.

NEPA requires agencies to analyze

only reasonably foreseeable effects for

which the agency’s action is the legally

relevant cause

PERC agrees with the United States that NEPA

requires an agency to analyze only those

environmental effects that (1) its proposed action is

the “legally relevant ‘cause’” of and (2) are “reasonably

20 https://www.fs.usda.gov/pnw/pubs/journals/pnw_2011

_mortimer001.pdf.

12

foreseeable.” Fed. Resp’s Br. at 17 (citing Pub. Citizen,

541 U.S. at 769–770). Reasonable foreseeability, in

other words, is an additional restraint on the effects

that must be analyzed under NEPA, not a substitute

for drawing the line on what effects may be lawfully

attributed to the agency’s action. 42 U.S.C. § 4332(C)

(limiting NEPA analyses to “reasonably foreseeable

environmental effects of the proposed agency action”

(emphasis added)).

And on that latter question, this Court has made

clear that a “‘but for’ causal relationship is

insufficient[.]” Pub. Citizen, 541 U.S. at 767. This is

derived not only from the statute’s text but also the

“rule of reason” that guides interpretation of the

statute. Id. The purpose of that “rule of reason” is to

ensure that NEPA remains an efficient and effective

process for understanding the environmental impacts

of an agency’s activities without grinding those

activities to a halt. Id.

The D.C. and Ninth Circuits’ rule requires

agencies to examine the effects of any public or private

activities that are likely affected by the agency’s

decision, even if the agency has no authority over

those activities and their effects are far removed from

the agency’s own action. See Eagle Cnty., 82 F.4th at

1180. This rule has led to a bootstrapping problem,

subjecting public and private activities to NEPA that

would otherwise not be, simply because a federal

agency plays some tangential role in them. This case

is an example of this issue, with a federal agency’s role

13

in approving an 88-mile rail line being leveraged for

an analysis of private activities hundreds of miles

away and far removed from that decision and the

agency’s authority.

Of greater concern to PERC, however, are

examples like Oregon Natural Resources Council

Fund, in which a BLM project to restore a forest in the

wake of fire was challenged. 492 F.3d at 1123–24. The

agency analyzed the environmental effects of the

logging and other activities authorized on federal land

by that project. Id. at 1137–40 (O’Scannlain, J.,

dissenting). But the Ninth Circuit held that this was

not enough. Instead, it also required the agency to

analyze the effects of private forest management

activities on neighboring private land that were not at

issue in the project, citing the private landowner’s use

of public roads as sufficient to pull their activities into

the BLM’s NEPA analysis. See id. at 1134 n.20. With

millions of acres in the West checkerboarded, meaning

access to private land depends on crossing adjacent

public land and vice versa, such reasoning greatly

expands agency’s NEPA obligations. See Bryan

Leonard et al., Stranded land constrains public land

management and contributes to larger fires, 16 Env’t

Rsch. Letters 114014 (2021) (discussing the extent of

the checkerboarding problem and its consequences for

land management and wildfires).21 As in Robertson,

“it would be incongruous” to require the agency to

21 https://iopscience.iop.org/article/10.1088/1748-9326/ac2e39/

pdf.

14

analyze in detail such private activities outside of its

jurisdiction, even if those activities are on private land

adjacent to federal land. See 490 U.S. at 333.

Another recent example concerns American

Prairie, a nonprofit conservation group that aims to

voluntarily restore a grassland ecosystem in Eastern

Montana through bison reintroduction and other

restoration activities. See James L. Huffman,

American Prairie Reserve: Protecting Wildlife Habitat

on a Grand Scale, 59 Nat. Res. J. 35, 45–51 (2019).

Because the area the organization is restoring is a

checkerboard of public and private land, the BLM

plays a tangential role in the organization’s efforts.

See id. When American Prairie acquires from a willing

seller private land with associated rights to graze

adjacent federal land, it must seek the agency’s

permission to switch from one type of livestock (cattle)

to another (bison). See Bureau of Land Mgmt.,

Environmental Assessment for American Prairie

Reserve Bison Change of Use (2022).22 When the

agency recently gave such permission, it analyzed

under NEPA any significant environmental effects of

that switch on the land, and found them to be only

beneficial. Id.; Bureau of Land Mgmt., Record of

Decision (2022).23 Nonetheless, this decision is being

22 https://eplanning.blm.gov/public_projects/103543/200243903/

20056712/250062894/2022_03_24_APR_EA%20with%20Apps_5

08.pdf.

23 https://eplanning.blm.gov/public_projects/103543/200243903

/20064856/250071038/APR%20Final%20Decision%20(Drft_v3_

7.23.22)%20Fmttd_Cmpld_signed_508.pdf.

15

challenged under NEPA. Using the D.C. and Ninth

Circuit’s rule, the plaintiffs in that case argue that it

is not enough for the agency to consider the effects of

its decision; the agency must also consider the effects

of all the group’s private activities, especially the

effect of its conservation activities on the local

agricultural economy. Notice of Appeal, supra n. 6, at

13.

Taken to its logical conclusion, the D.C. and Ninth

Circuit’s rule means that any time a government

agency acts as a gatekeeper, even if only

coincidentally, for larger state or private activities, its

NEPA obligations could balloon as widely as the most

creative plaintiff demands. Imagine, for instance, if a

federal agency operated a toll booth and was lifting

the gate to allow a vehicle through. The effect of that

action, properly understood, would be minimal, such

as marginally increased traffic on so much of the road

as the agency controls. But under the decision below,

the agency’s lifting of the gate would be treated as the

cause of any foreseeable effects the vehicle, its

passengers, or its cargo might produce long after they

leave that road—all because the vehicle happened to

move through the agency’s toll gate.

That might seem like hyperbole, but it is not far

removed from a recent case in Arizona, Mohave I, 2024

WL 706962. As in many parts of the West, the federal

government controls critical water infrastructure in

Arizona. See Bureau of Reclamation, The Central

16

Arizona Project (2000).24 Whenever the state or

private parties exchange water rights to conserve

water or reallocate it to a higher-value use, the

Bureau of Reclamation is often implicated because the

water will pass through its infrastructure. See

Mohave I, 2024 WL 706962, at *1–2. Such trades are

critically important to water conservation in the West

and are governed by state, not federal, law. See Tate

Watkins & Bryan Leonard, Arizona Water Reform

(2023);25 see also U.S. v. N.M, 438 U.S. 696, 701

(1978). The federal government’s role is purely

tangential to the trade. For a recent transfer, the

Bureau considered the environmental effects of traded

water moving through the federal infrastructure,

which it found were not significant. Mohave I, 2024

WL 706962, at *2. But a district court deemed this

insufficient, relying on the D.C. and Ninth Circuits’

rule to hold that the agency also had to consider the

effects of a private landowner’s decision to transfer

water rights, the state’s decision to approve the

transfer, any future transfers that might occur, and

any activities or economic development those

transfers might facilitate. See id. at *9–13. In that

case, the bootstrapping problem also raised a

significant federalism concern, by bringing the effect

of state law and state water rights administration

24 https://www.usbr.gov/projects/pdf.php?id=94.

25 https://www.perc.org/wp-content/uploads/2023/03/Arizona-

Water-Reform-FINAL.pdf

17

within a federal agency’s NEPA analysis based on

that agency’s mere facilitation role.

As these cases show, the D.C. and Ninth Circuits’

rule often devolve into “but for” causation: an agency

decision plays a tangential but practically significant

role in larger state or private activities, yet the

environmental effects of those state and private

activities are attributed to the agency action. The

decision below conflates NEPA’s narrow role

(analyzing the environmental effects of an agency’s

own actions) with the wide range of policy factors an

agency may consider under a broadly written statute.

Under it, an agency must consider any activities made

more likely by the agency’s action and the effects of

those activities so long as the agency can prevent them

by declining to move forward with the action and the

relevant statute is written broadly enough that the

agency could do so for that reason. Eagle Cnty., 82

F.4th at 1180. Consider the effect of such a rule on the

federal land management agencies, which may

consider virtually any factor under the broad statutes

governing their management of federal land. See, e.g.,

43 U.S.C. §§ 1732(a), 1733(a). Under the D.C. Circuit’s

rationale, these statutes would impose no additional

limit beyond “but for” causation. Because the D.C.

and Ninth Circuits’ rule cannot be applied consistent

with this Court’s admonition against using “but for”

causation, the decision below should be reversed as

contrary to NEPA and its rule of reason. Pub. Citizen,

541 U.S. at 767.

18

III.

The environmental effects at issue in

this case are serious but do not merit

undermining NEPA’s workability

The environmental effects identified by the

Respondents, including greenhouse gas emissions and

air pollution near refineries are serious. But that does

not mean that a NEPA review of a modest rail line can

or should be stretched to reach them and the private

activities that cause them. Instead, the proper avenue

for addressing those effects lies through the federal,

state, or local agency with direct control over them.

Allowing these other regulatory agencies to

analyze the environmental effects when they are

better known, more concrete and less hypothetical,

and under direct regulatory control provides for better

outcomes. In this case, the D.C. Circuit faulted the

agency for not analyzing effects of oil and gas

development and refining that is currently

unplanned, would occur on “unidentified private,

state, tribal, or federal” land, and which the agency

has no authority to regulate. Eagle Cnty., 82 F.4th at

1177; see 350 Mont. v. Haaland, 50 F.4th 1254, 1288

(9th Cir. 2022) (R. Nelson, J., dissenting) (arguing

that the agency need not analyze emissions from a

foreign countries use of U.S. produced fuel where the

agency has no ability to prevent that use nor the

countries from acquiring alternative supply).

Nor is this additional analysis and litigation over

it likely to produce real-world benefits. For all the

19

delay and expense, NEPA lawsuits rarely succeed.

Nikki Chiappi, et al., supra, at 2 (finding that agencies

won 80% of NEPA cases on appeal). And when they

do, they often only force the agency to produce

additional analysis before reaffirming its prior

decision. The only entities that gain in such cases are

the small number of litigious groups responsible for

most of these cases. Id. at 7. Indeed, more than a third

of NEPA cases litigated before appellate courts in the

last decade were brought by just ten organizations,

the top three of which are Respondents. Id. at 8

(identifying Sierra Club, Center for Biological

Diversity, and WildEarth Guardians as the three

most frequent NEPA litigants).26 For forest

restoration projects, this concentration is even more

extreme, with ten groups responsible for two-thirds of

cases, again with several Respondents represented

among the top ten. Id. at 10. Affirming the D.C. and

Ninth Circuit rule would not bring about better

environmental outcomes, it would just foster

obstruction and delay by encouraging litigation to

26 Given these groups’ unusually intense interest in litigation,

they should not be assumed to represent the perspective of

environmental and conservation groups generally. Other groups,

like PERC, have expressed the importance of a workable and

efficient NEPA process to environmental progress. See, e.g., The

Nature Conservancy, Statement on Sen. Carper’s Draft PEER Act

(May 18, 2023) (expressing support for proposed NEPA reform

because it would “improv[e] the efficiency of federal permitting”

and “accelerate[] the approval of critical projects that boost the

production of clean energy).

20

force agencies to analyze effects further and further

removed from their actions.

The kind of analysis the D.C. Circuit’s decision

demands would also not facilitate public participation.

In this case, the agency’s NEPA analysis already

spans 3,600 pages, making it inaccessible to anyone

except the most sophisticated and well-heeled parties

like Respondents. Often NEPA conflicts are driven by

the interests of such parties, rather than the common

concerns of the public. The Breakthrough Institute

analysis of NEPA litigation referenced above, for

instance, found that only 2.8% of cases raised the kind

of local community concerns often described as

“environmental justice” issues. See id. at 9.

Adding hundreds more pages to NEPA documents

will only exacerbate the problem of those documents

being too long, dense, and technical to facilitate

meaningful public participation. Congress, for its

part, has tried to address this problem by imposing

manageable page limits. See 42 U.S.C. § 4336a. The

D.C. Circuit’s demand for conjectural analysis of

private activities and effects several steps removed

from the agency’s action are not only at odds with

those limits but contrary to NEPA’s purpose of

facilitating public participation. See Pub. Citizen, 541

U.S. at 768–69.

Conclusion

NEPA is intended to ensure informed decisionmaking by agencies, not to grind their core functions

21

to a halt. More NEPA analysis is not an unqualified

good but can come at a significant environmental cost.

Therefore, it is imperative that the process be efficient

and effective to allow agencies to do their work,

especially the forest restoration projects that are

disproportionately affected by NEPA. The Court

should reject the rule adopted by the D.C. and Ninth

Circuit conflating the effects of an agency action with

the factors an agency can consider under a broadly

written statute, a standard indistinguishable from

“but for” causation.

DATED: September 2024.

Respectfully submitted,

JONATHAN WOOD

Counsel of Record

DYLAN P. SOARES

Property and Environment

Research Center

2048 Analysis Dr. Ste. A.

Bozeman, MT 59718

Telephone: (406) 587-9591

Jonathan@perc.org

Counsel for Amicus Curiae