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, ET AL.,

PETITIONERS

v.

EAGLE COUNTY, COLORADO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF ENERGY TRANSFER LP AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

WILLIAM S. SCHERMAN

Counsel of Record

JASON J. FLEISCHER

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6550

wscherman@velaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities ................................................... III

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

Introduction and Summary of Argument ................... 3

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

I.

Agencies Are Not Required to Analyze

Upstream and Downstream Impacts of

Activities They Do Not Regulate. ......................... 5

A. As Multiple Courts Have Held, the Army

Corps Is Not Required to Expand Its

NEPA Analysis Beyond the Proximate

Effects of the Activities It Regulates. ............ 6

B. The Same Reasoning Applicable to the

Army Corps Applies to the STB and

FERC, and the D.C. Circuit’s Contrary

Approach Is Wrong. ...................................... 12

II. The D.C. Circuit’s Misreading of Public Citizen

Hinders the Development of Energy

Infrastructure, Without Providing Any

Countervailing Benefits. ..................................... 18

A. Project

Opponents’

Demands

for

Unbounded NEPA Analysis Are Intended

to Create, and Already Have Created,

Serious Barriers to Energy Infrastructure

Development. ................................................ 18

B. Respondents’ Limitless Expansion of

NEPA Would Undermine the Statute’s

Purposes and Provide No Countervailing

Benefits. ........................................................ 27

(I)

II

Conclusion.................................................................. 32

III

TABLE OF AUTHORITIES

Cases:

Page(s)

Ala. Mun. Distrib. Grp. v. FERC,

100 F.4th 207 (D.C. Cir. 2024) .............................. 22

Allied-Signal, Inc. v. U.S. Nuclear Regul.

Comm’n, 988 F.2d 146 (D.C. Cir. 1993) ................ 25

Birckhead v. FERC,

925 F.3d 510 (D.C. Cir. 2019) .......................... 20, 22

Ctr. for Biological Diversity v. Bernhardt,

982 F.3d 723 (9th Cir. 2020) ............................ 20, 22

Ctr. for Biological Diversity v. FERC,

67 F.4th 1176 (D.C. Cir. 2023) .............................. 22

Ctr. for Biological Diversity v. U.S. Army Corps

of Eng’rs, 941 F.3d 1288

(11th Cir. 2019) .................................. 6, 9, 11, 21, 28

Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752 (2004) ................................ 3, 10-11, 15,

18, 26-28, 31

Food & Water Watch v. FERC,

104 F.4th 336 (D.C. Cir. 2024) .............................. 22

Food & Water Watch v. FERC,

28 F.4th 277 (D.C. Cir. 2022) ................................ 22

Kentuckians for the Commonwealth v. U.S.

Army Corps of Eng’rs, 746 F.3d 698

(6th Cir. 2014) ........................................ 6, 10, 18, 22

N.J. Conservation Found. v. FERC,

No. 23-1064, 2024 WL 3573637

(D.C. Cir. July 30, 2024) ........................................ 22

N.Y. Cent. Sec. Corp. v. United States,

287 U.S. 12 (1932) .................................................. 16

IV

Cases—Continued:

Page(s)

NAACP v. Fed. Power Comm’n,

425 U.S. 662 (1976) .......................................... 14, 16

Ohio Valley Env’t Coal. v. Aracoma Coal Co.,

556 F.3d 177 (4th Cir. 2009) .............. 6, 8, 10, 11, 22

Otsego 2000 v. FERC,

767 Fed. Appx. 19 (D.C. Cir. 2019)........................ 22

Pub. Utils. Comm’n v. FERC,

900 F.2d 269 (D.C. Cir. 1990) ................................ 14

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ................................................ 26

Sackett v. EPA,

143 S. Ct. 1322 (2023) .......................................... 7, 8

Sierra Club v. FERC,

827 F.3d 36 (D.C. Cir. 2016) .................................... 2

Sierra Club v. FERC,

867 F.3d 1357 (D.C. Cir. 2017) .......... 2, 4, 12-13, 15,

17, 22-24

Sierra Club v. U.S. Army Corps of Eng’rs,

803 F.3d 31 (D.C. Cir. 2015) .................................. 22

Sw. Airlines Co. v. Saxon,

142 S. Ct. 1783 (2022) ............................................ 13

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................ 16, 19, 27

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .................................................. 9

V

Statutes:

Page(s)

15 U.S.C. § 717(b) ...................................................... 15

15 U.S.C. § 717f(c) ..................................................... 13

15 U.S.C. § 717f(e) ..................................................... 13

15 U.S.C. § 717n ........................................................ 21

16 U.S.C. § 824(b)(1) .................................................. 15

33 U.S.C. § 1251(a) ...................................................... 7

33 U.S.C. § 1311(a) ...................................................... 7

33 U.S.C. § 1344........................................................... 6

33 U.S.C. § 1344(a) ...................................................... 8

33 U.S.C. § 1344(c)....................................................... 9

33 U.S.C. § 1344(e) ...................................................... 8

33 U.S.C. § 1362(12)(A) ............................................... 7

42 U.S.C. § 4336a(g)(2) .............................................. 30

42 U.S.C. § 4336a(e) .................................................. 30

49 U.S.C. § 10101....................................................... 28

49 U.S.C. § 10901(c)................................................... 12

49 U.S.C. § 10902(c)................................................... 12

Regulations:

33 C.F.R. pt. 325, app. B § 7(b)(1) ............................. 18

Administrative Materials:

Fla. Se. Connection, LLC,

162 FERC ¶ 61,233 (2018) ................... 14, 15, 19, 25

Mountain Valley Pipeline, LLC,

173 FERC ¶ 61,027 (2020) ..................................... 24

VI

Other Authorities:

Page(s)

Barth, Adam et al., The End of the Atlantic

Coast Pipeline: What Does It Mean for the

North American Natural Gas Industry?,

McKinsey & Co. (Sept. 2, 2020),

https://tinyurl.com/54jn6uwt ................................. 25

Corporate Average Fuel Economy (CAFE)

Standards, U.S. Dep’t of Transp.,

https://tinyurl.com/28xr9ec7 .................................. 19

Disavino, Scott, Equitrans Delays WV-VA

Mountain Valley Natgas Pipe Again, Boosts

Cost, Reuters (Feb. 20, 2024),

https://tinyurl.com/3jwn3zxn ................................. 25

Good, Allison & Corey Paul, Transmission

Trouble: Pipeline Woes Presage Obstacles for

Clean Energy Build-Out, S&P Glob. (Jan. 28,

2021), https://tinyurl.com/4r8k5t9z................. 20, 30

Mackenzie, Aidan & Santi Ruiz, No, NEPA

Really Is a Problem for Clean Energy, Inst. for

Progress (Aug. 17, 2023),

https://tinyurl.com/2ty8pars ...................... 22, 23, 29

N. Am. Elec. Reliability Corp., 2023 Long-Term

Reliability Assessment (Dec. 2023),

https://tinyurl.com/5cu6unx7 ................................ 19

O’Rourke, Colin P., Oil Pipeline Regulation: The

Current Patchwork Model and an Improved

National Solution, LSU J. Energy L. & Res.

(Feb. 2, 2016), https://tinyurl.com/2c5dkvvw ........ 11

VII

Other Authorities—Continued:

Page(s)

Rutzick, Mark C., A Long and Winding Road:

How the National Environmental Policy Act

Has Become the Most Expensive and Least

Effective Environmental Law in the History of

the United States, and How to Fix It, Regul.

Transparency Project (Oct. 16, 2018),

https://tinyurl.com/jtnvuux2 .................................. 29

Salzman, James & Barton H. Thompson, Jr.,

Environmental Law and Policy (5th ed. 2019) ..... 29

Tezak, Christine, A Policy Analyst’s View on

Litigation Risk Facing Natural Gas Pipelines,

40 Energy L.J. 209 (2019).......................... 20, 25, 26

U.S. Army Corps of Eng’rs, Decision Document:

Nationwide Permit 12 (Jan. 4, 2021),

https://tinyurl.com/57jxf4hh .................................... 8

U.S. Energy Info. Admin., Annual Energy

Outlook 2023 (Mar. 2023),

https://tinyurl.com/y6tjzm9v ................................. 18

INTEREST OF AMICUS CURIAE 1

Energy Transfer LP is one of the largest and most

diversified midstream energy companies in North

America, owning and operating through its subsidiaries over 125,000 miles of pipelines and associated energy infrastructure across 44 States, transporting the

oil and gas products that make modern life possible.

Energy Transfer has a direct and substantial interest

in the question presented in this case because Energy

Transfer and its subsidiaries regularly develop infrastructure projects that require federal permits and authorizations for which environmental analysis under

the National Environmental Policy Act (NEPA) is often required.

In particular, many of Energy Transfer’s pipelines

and related infrastructure are subject to permitting

requirements under statutes administered by the U.S.

Army Corps of Engineers (Army Corps) and the Federal Energy Regulatory Commission (FERC). When

evaluating whether to issue permits, those agencies

engage in NEPA review as a matter of course. And,

much as occurred following the Surface Transportation Board’s (STB) approval of the new rail line at issue here, project opponents routinely intervene at the

agency level and then seek judicial review and vacatur

of the granted permits on grounds that the government purportedly failed to engage in sufficiently wideranging NEPA analysis. Indeed, recent years have

1 No counsel for any party authored this brief in whole or in

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

contribution intended to fund the preparation or submission of

this brief. No entity or person aside from amicus curiae and its

counsel made any monetary contribution intended to fund the

preparation or submission of this brief.

(1)

2

seen opponents of energy infrastructure markedly increase their efforts to weaponize NEPA and transform

that procedural statute into a tool to force their preferred substantive outcomes—blocking the project or

at minimum delaying and increasing the costs of

much-needed projects that help deliver energy and energy products to American households and businesses.

Amicus accordingly has a strong interest in the outcome of this case. Amicus presents this brief not only

to explain why the majority of circuits are correct to

reject the D.C. Circuit’s near-limitless expansion of

NEPA,2 but to provide further context regarding the

negative real-world effects of unbounded NEPA review

that inevitably flow from the D.C. Circuit’s rationale.

As amicus explains, affirming the D.C. Circuit would

bless a strategy by which opponents of infrastructure

projects have transformed NEPA to demand that

agencies use it as a vehicle to analyze (and give weight

in their substantive decisionmaking to) causally attenuated environmental effects far beyond those agencies’

regulatory authority or expertise. The D.C. Circuit’s

approach has demonstrably harmed the development

of much-needed energy infrastructure, and usurps the

role of Congress and the States in making policy judgments regarding questions of national energy and environmental policy. As a leading midstream energy

company, amicus has a unique perspective on the

2 Indeed, the D.C. Circuit itself has adopted a more appropri-

ately limited understanding of NEPA’s scope in some prior cases,

leading to significant tension within that circuit’s own caselaw.

Compare Sierra Club v. FERC, 827 F.3d 36, 47 (D.C. Cir. 2016),

with Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357, 13731374 (D.C. Cir. 2017).

3

problematic consequences of the D.C. Circuit’s expansion of NEPA, as well as a critical stake in the question

presented.

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. The question presented is whether NEPA requires an agency to study environmental impacts beyond the proximate effects of the action over which the

agency has regulatory authority. The answer is no.

That conclusion directly follows from a straightforward application of NEPA and this Court’s precedents,

particularly Department of Transportation v. Public

Citizen, 541 U.S. 752 (2004). Courts have correctly

concluded that federal agencies are not required to analyze the effects of activities over which they do not

and cannot exercise regulatory authority. As explained further below, any other conclusion would undermine NEPA’s purposes and scramble the careful division of regulatory authority between Congress,

States, and different federal agencies. Instructive

here is the reasoning courts have applied to properly

limit the scope of the Army Corps’ NEPA review in circumstances similar to the STB’s review here. An examination of cases involving Army Corps permits under the Clean Water Act (CWA)—a regulatory context

amicus is intimately familiar with—confirms the

soundness of reasoning found in this Court’s decision

in Public Citizen and why it should apply to all agency

NEPA reviews.

2. The same reasoning courts have applied to

properly limit the scope of the Army Corps’ NEPA review is equally applicable here. The STB regulates

4

rail infrastructure; it does not regulate oil drilling and

oil refining, and it is not required to analyze the effects

of those activities under NEPA. The D.C. Circuit’s

contrary conclusion rested, among other things, on the

unexamined assumption that the STB’s authority to

evaluate whether a rail line is in the “public convenience and necessity” means it can make a decision

based on essentially any environmental impact of

third-party upstream or downstream activities, no

matter how tenuously related to the limited statutory

authority the STB exercises. That assumption simply

repeats and compounds the D.C. Circuit’s error in Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357 (D.C.

Cir. 2017), which made the same mistake with regard

to FERC. In fact, both Sabal Trail and the decision

below are wrong. Both decisions run directly contrary

to this Court’s precedent regarding both the scope of

NEPA (i.e., Public Citizen and prior precedents), and

the scope of broad “public interest” standards such as

the “public convenience and necessity” criteria applied

by the STB and FERC.

3. The decision below was not just legally wrong.

Its unsound reasoning, and that of Sabal Trail before

it, poses a significant threat to energy infrastructure

development in the United States. The D.C. Circuit’s

acceptance of Respondents’ limitless view of NEPA

plays into the hands of a cynical litigation strategy

that opponents of energy infrastructure have used to

impose their anti-development policy preferences on

the country. Such efforts to pursue endless, scorchedearth NEPA litigation against energy infrastructure

permits of all kinds—oil, gas, solar, wind, etc.—have

delayed and raised the costs of projects that Congress,

5

the States, and federal agencies have decided should

be approved and built. Congress never intended

NEPA to be weaponized in this manner. And Respondents’ legally erroneous understanding of NEPA

would, if accepted, amplify and incentivize this negative dynamic.

4. Respondents’ professed belief in the usefulness

of the additional NEPA analysis they have demanded

cannot withstand scrutiny. The STB has correctly

made clear that the additional analysis Respondents

demand will not be useful for its decisionmaking. The

failure of some courts to appropriately credit such reasonable judgments is precisely what has turned NEPA

into a tool to block needed infrastructure altogether or

severely delay its development, not uncommonly by as

much as 5-10 years. And it has transformed NEPA review from what it was intended to be—a useful, efficient procedural exercise—into a costly and largely

unproductive game in which agencies produce overlong NEPA documents in an effort to bulletproof their

decisions against inevitable lawsuits brought by development opponents. This Court can and should pare

back this unwarranted expansion of NEPA by reaffirming and amplifying Public Citizen.

ARGUMENT

I. Agencies Are Not Required to Analyze

Upstream and Downstream Impacts of

Activities They Do Not Regulate.

The question presented in this case is whether

NEPA requires an agency to study environmental impacts beyond the proximate effects of the action over

which the agency has regulatory authority.

A

6

straightforward application of NEPA’s text and purposes, as well as longstanding precedent, dictates the

answer: no. This Court already held as much in Public

Citizen. But, were any further confirmation needed,

the correctly decided appellate cases involving challenges to Army Corps authorizations under the CWA

provides it. An examination of the Army Corps’ role in

permitting energy projects provides an especially

stark illustration of why the D.C. Circuit’s contrary

approach is legally wrong and has unacceptable practical consequences.

A. As Multiple Courts Have Held, the Army

Corps Is Not Required to Expand Its NEPA

Analysis Beyond the Proximate Effects of

the Activities It Regulates.

1. A majority of circuits agree that NEPA does not

require agencies to engage in far-reaching analysis of

the environmental effects of third-party upstream and

downstream activities with no substantial relationship to the defendant agency’s statutory authority,

regulatory responsibilities, or expertise. See Pet. Br.

5-6; Pet. 14-17. At least three circuits have correctly

resolved this question in cases involving Army Corps

approvals under Section 404 of the CWA, 33 U.S.C.

§ 1344. See Ctr. for Biological Diversity v. U.S. Army

Corps of Eng’rs, 941 F.3d 1288 (11th Cir. 2019); Kentuckians for the Commonwealth v. U.S. Army Corps of

Eng’rs, 746 F.3d 698 (6th Cir. 2014); Ohio Valley Env’t

Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir.

2009). The D.C. Circuit’s decision below is an outlier.

As one of the largest and most diversified midstream energy companies in North America, Energy

7

Transfer has extensive experience with NEPA, including both the Army Corps and FERC permitting processes. Amicus is thus well-positioned to explain and

elaborate on why, in the context of Army Corps permitting, the Fourth, Sixth, and Eleventh Circuits were

correct to reject project opponents’ efforts to expand

the scope of the Corps’ NEPA reviews. As explained

further below, once the Army Corps’ statutory authority and its discrete role in infrastructure permitting is

properly understood, those decisions were clearly correct. This Court should reject the D.C. Circuit’s limitless understanding and application of NEPA for much

the same reasons the Fourth, Sixth, and Eleventh Circuits rejected the same basic attack on Public Citizen

in regard to Army Corps approvals.

2. In order to effectuate its purpose to “restore and

maintain * * * the Nation’s waters,” 33 U.S.C.

§ 1251(a), the Clean Water Act (CWA) prohibits discharging “pollutants” into “navigable waters” without

a permit. Id. §§ 1311(a), 1362(12)(A); see Sackett v.

EPA, 143 S. Ct. 1322, 1330 (2023). “Pollutant” and

“navigable waters” are defined so broadly as to respectively include dirt or sand being spilled into a small

stream. Sackett, 143 S. Ct. at 1330, 1336. As a result,

construction projects—particularly linear infrastructure like pipelines, which often must cross a number

of streams along their miles-long routes—commonly

require a permit for discharges of dredged or fill material into jurisdictional waters. The Army Corps is authorized to issue such permits under CWA Section

8

404. See 33 U.S.C. § 1344(a); Sackett, 143 S. Ct. at

1330-1331.3

The Army Corps is thus involved as one permitting

agency (typically among several others) for a huge

range of infrastructure projects. And it is true that

large projects often could not be built at all without

Army Corps permits, because they cannot feasibly be

constructed without “pollutants”—even dirt—entering

jurisdictional waters. But however “necessary” the

Army Corps’ regulatory role is, that role often remains

“small” in the greater scheme. Aracoma, 556 F.3d at

195. The Army Corps’ authority and duty under the

Clean Water Act is to protect water quality, not to act

as a panoptic arbiter of whether and when any infrastructure of any size should be built anywhere in the

United States, based on potential actions of other

agencies and third parties far distant up or down the

supply chain.

3 The Army Corps can also issue general permits to cover cate-

gories of similar activities, thereby avoiding the need for covered

projects to go through the full (and lengthy) individual-permit application process. See 33 U.S.C. § 1344(e). One of the Army

Corps’ general permits, Nationwide Permit 12, covers qualifying

oil and gas pipeline activities. See U.S. Army Corps of Eng’rs,

Decision Document: Nationwide Permit 12 (Jan. 4, 2021),

https://tinyurl.com/57jxf4hh. Tellingly, anti-pipeline litigants—

including some of the same organizations that are Respondents

here—have cited the D.C. Circuit’s decision in this case as ostensible support in an ongoing lawsuit seeking vacatur of Nationwide Permit 12. See Notice of Suppl. Authority, Ctr. for Biological Diversity v. Spellmon, No. 22-cv-2586 (D.D.C. Sept. 11, 2023).

Needless to say, vacatur of Nationwide Permit 12 would have

devastating consequences for oil and gas pipeline development in

the United States.

9

The Army Corps can deny permits if it determines

that “the discharge of * * * materials” into jurisdictional waters “will have an unacceptable adverse effect

on municipal water supplies, shellfish beds and fishery areas * * * , wildlife, or recreational areas.” Ctr.

for Biological Diversity, 941 F.3d at 1296 (quoting 33

U.S.C. § 1344(c)) (emphasis added). In other words,

the Army Corps can deny or condition permits to carry

out its regulatory responsibility to protect jurisdictional waters. But it cannot categorically refuse a permit for just any reason, including its dislike of some

broader undertaking for which a Section 404 permit is

one necessary condition, based on policy rationales

that lack a meaningful connection to the Army Corps’

specific statutory responsibilities. Ibid. Congress

does not “hide elephants in mouseholes,” Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001), and it

did not hide in the Clean Water Act a silent delegation

of czar-like powers to approve or scuttle construction

projects for any reason, such as a policy preference

against increased natural gas usage in downstream

markets.

Yet project opponents, realizing that vacatur of a

single Army Corps permit can stop construction in its

tracks, have sought to wield NEPA lawsuits to secure

their preferred policy outcomes, demanding that the

Army Corps engage in environmental analysis of activities at best tangentially related to the permitted

activities, the purposes of the Clean Water Act, or the

Army Corps’ distinct role as a regulator of discharges

into navigable waters. See, e.g., Ctr. for Biological Diversity, 941 F.3d at 1293-1294 (environmental consequences of fertilizer production using phosphate ore

10

sourced from the mine for which Army Corps discharge permit was needed); Kentuckians, 746 F.3d at

701 (environmental consequences of “surface [coal]

mining in general,” including various asserted “public

health impacts” therefrom, as opposed to effects of

“discharge of dredged or fill material” per se); Aracoma, 556 F.3d at 188 (environmental consequences of

“entire valley fill project” associated with coal mine,

not just discharges into jurisdictional waters). In

these litigants’ view, such remote consequences—however removed from the discharges at issue or the Army

Corps’ regulatory charge under the Clean Water Act—

should nonetheless be deemed “effects” of the permitted “discharges,” because without the Army Corps permits, the broader projects would not move forward, nor

might the economic activity those projects might in

turn enable.

3. The Fourth, Sixth, and Eleventh Circuits rightly

rejected such attempts to expand NEPA, which run

headlong into Public Citizen. The identified “effects”

were not effects, within NEPA’s meaning, of the discharges the Army Corps regulates—i.e., proximate effects of those discharges. Accord Pub. Citizen, 541

U.S. at 767. The disconnect between the Army Corps’

limited regulatory authority and these attenuated

phenomena (such as eventual downstream use of minerals sourced from a mine for which a Section 404 permit was needed) “breaks the chain” of proximate causation under NEPA and places such considerations beyond the scope of the analysis required of the Army

Corps.

Any other approach would not only consign Public

Citizen to the dustbin; it would run roughshod over

11

Congress’ deliberate choice not to give the Army Corps

(or other agencies) the powers of a comprehensive “environmental-policy czar.” Ctr. for Biological Diversity,

941 F.3d at 1299. Consider, for example, oil pipelines.

As discussed, sizable oil pipelines generally do require

Army Corps permits, as crossing some kind of “navigable water” is practically inevitable for lengthy linear

infrastructure. However, the Army Corps is not

tasked with judging whether there should be more or

fewer oil pipelines in the United States, whether those

pipelines should be sited to deliver commodities from

particular supply basins to users downstream, or

whether the activities oil pipelines facilitate (such as

upstream drilling and downstream refining) are good

or bad. On the contrary, oil pipeline siting decisions

fall to the States. See Colin P. O’Rourke, Oil Pipeline

Regulation: The Current Patchwork Model and an Improved National Solution, LSU J. Energy L. & Res.

(Feb. 2, 2016), https://tinyurl.com/2c5dkvvw.

The Clean Water Act cannot credibly be interpreted to override this federal-state balance. Nor can

NEPA—a purely procedural statute that does not alter

the scope of agencies’ underlying substantive regulatory powers, see Pub. Citizen, 541 U.S. at 756-757—

alter that division of authority. Yet Respondents’ view

of NEPA, by brushing past these limits, would effectively extend federal oversight into areas within the

ambit of the States. See, e.g., Aracoma, 556 F.3d at

189 (describing States’ exclusive jurisdiction to permit

and regulate surface coal mining).

12

B. The Same Reasoning Applicable to the

Army Corps Applies to the STB and FERC,

and the D.C. Circuit’s Contrary Approach

Is Wrong.

1. The same reasoning that prevailed in the Army

Corps cases applies here, and the D.C. Circuit’s superficial contrary reasoning must be rejected. For starters, the D.C. Circuit was wrong about the scope of the

STB’s regulatory authority. The D.C. Circuit asserted,

without any serious analysis, that the STB has authority to consider attenuated upstream and downstream

environmental effects stemming from highly indirect

“but-for” consequences of its permitting decisions—a

broader scope of authority than the Fourth, Sixth, and

Eleventh Circuits (correctly) held the Army Corps

wields under the CWA. But the D.C. Circuit’s cavalier

reasoning was mistaken. Just as the Army Corps

serves as a regulator and permitting authority for discharges into navigable waters (not oil pipelines or coal

mines), the STB serves as a regulator and permitting

authority for railroads (not oil drilling and oil refining). The cases are on all fours.

2. In reaching a contrary conclusion, the D.C. Circuit reasoned that because the STB applies a “public

convenience and necessity” standard when making

permitting decisions, it can consider even the highly

attenuated “but-for” consequences of a new rail line,

such as potentially facilitating oil drilling and oil refining by reducing transportation costs. Pet. App. 37a;

see 49 U.S.C. §§ 10901(c), 10902(c). But the only authority the D.C. Circuit cited for that surprising proposition was Sabal Trail. Pet. App. 37a (citing 867 F.3d

at 1373). And Sabal Trail, in turn, was dead wrong

13

about the breadth of the phrase “public convenience

and necessity.”

Sabal Trail addressed FERC’s authority to authorize interstate natural gas pipelines under the Natural

Gas Act (NGA)—another regulatory domain where

amicus, as a leading midstream oil and gas company,

has extensive experience. Section 7 of the NGA requires a certificate from FERC before an interstate

natural gas pipeline may be built, and codifies a “public convenience and necessity” standard for FERC to

apply when evaluating applications. See 15 U.S.C.

§ 717f(c), (e). In Sabal Trail, the D.C. Circuit reasoned

that the factors FERC may consider in deciding

whether to authorize a natural gas pipeline include

“adverse environmental effects.” 867 F.3d at 1373.

And it further assumed—without any analysis of the

NGA’s broader text, structure, or history—that the environmental effects FERC may consider include not

just the localized effects of the transportation infrastructure actually being permitted (i.e., the pipeline itself), but the knock-on effects of downstream use of

natural gas that might later be transported through

the pipeline, such as GHG emissions from downstream

combustion of gas in power plants. Id. at 1374.

But that analysis was wrong at the threshold. In

particular, it violates the cardinal rule that statutory

language must be “interpreted in * * * context, not in

isolation.” Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783,

1788 (2022) (internal quotation marks omitted). As

this Court has explained, when Congress authorizes

an agency to evaluate whether a project is in the “public convenience and necessity” or the “public interest,”

it does not confer “a broad license to promote the

14

general public welfare,” NAACP v. Fed. Power

Comm’n, 425 U.S. 662, 669 (1976). “Rather, the words

take meaning from the purposes of the regulatory legislation.” Ibid.; accord Pub. Utils. Comm’n v. FERC,

900 F.2d 269, 280-281 (D.C. Cir. 1990) (Williams, J.).

And, under the NGA, FERC’s charge is to “encourage

the orderly development of plentiful supplies of * * *

natural gas at reasonable prices.” NAACP, 425 U.S.

at 669-670 (rejecting proposition that FERC’s authority to regulate in the “public interest” under the NGA

encompasses efforts to prevent employment discrimination). The NGA is economic regulatory legislation

designed to increase access to affordable natural gas

and prevent abuses of market power. Indeed, nowhere

in the NGA’s text or voluminous legislative history is

there a single reference to any environmental considerations playing a role in FERC’s decisionmaking.

And while the localized environmental effects of pipeline construction and siting might qualify as “subsidiary” considerations FERC can permissibly consider in

its decisionmaking, id. at 670 & n.6, the same cannot

be said of distant upstream and downstream environmental effects with a tenuous-to-nonexistent relationship to FERC’s authority over interstate transportation facilities.

The D.C. Circuit’s contrary decisions ignore the

careful division of policymaking and regulatory responsibility between the federal government and

States, and between particular branches and agencies

of the federal government. As FERC observed on remand from Sabal Trail, “it is for Congress or the Executive Branch,” not FERC, “to decide national policy

on the use of natural gas.” Fla. Se. Connection, LLC,

15

162 FERC ¶ 61,233, P 29 (2018) (emphasis added).

And federal legislation specifically preserves state authority over both upstream natural gas production and

downstream electric power generation, such as the

power plants in Sabal Trail. See 15 U.S.C. § 717(b)

(upstream production); 16 U.S.C. § 824(b)(1) (downstream electric power generation); cf. Sabal Trail, 867

F.3d at 1381-1382 (Brown, J., concurring in part and

dissenting in part) (describing Florida’s “exclusive authority” over power plants).

FERC’s role is more limited: it regulates interstate

natural gas transportation facilities and pricing, to ensure ready access to supplies at reasonable prices.

FERC would overstep that regulatory role if it

“den[ied] a pipeline certificate on the basis of impacts

stemming from the end use of the gas transported,”

such as GHG emissions from combustion. Fla. Se.

Connection, 162 FERC ¶ 61,233, P 29. Thus, under

Public Citizen, the effects of downstream activities

outside FERC’s regulatory domain lack the requisite

“close causal relationship” to its pipeline approvals,

Pub. Citizen, 541 U.S. at 767 (citation omitted), and—

contrary to the D.C. Circuit’s erroneous decision in Sabal Trail—need not be analyzed under NEPA.

To sum up: Congress did not enact the Clean Water

Act or grant the Army Corps authority to issue permits

under that Act in order to transform the Army Corps

into a comprehensive regulator of pipelines or mines,

much less the downstream use of energy products, in

derogation of the historical powers of other federal and

state regulators. Nor did it enact the Natural Gas Act

or the Interstate Commerce Commission Termination

Act in order to turn FERC or the STB, respectively,

16

into energy- or climate-policy dictators, in derogation

of the historical powers of yet other state and federal

regulators (and, for that matter, Congress itself).

FERC and the STB regulate discrete instrumentalities

of transit—pipelines and railroads—and their duties

under NEPA are limited to considering the effects of

those instrumentalities of transit, not the products

that may be shipped or the downstream activities

those products may facilitate.

The D.C. Circuit’s contrary decisions—this case for

the STB and Sabal Trail for FERC—rely on an understanding of the term “public convenience and necessity” that is flatly contrary to this Court’s caselaw. See

NAACP, 425 U.S. at 669-670 (broadly worded “public

interest” standard in NGA limited to statute’s regulatory purposes); see also N.Y. Cent. Sec. Corp. v. United

States, 287 U.S. 12, 24-25 (1932) (cited in NAACP, 425

U.S. at 669) (same analysis as to facially broad “public

interest” language under Interstate Commerce Act).

The point is only further confirmed by this Court’s recent emphasis that the clearest statement of legislative intent is required to infer a delegation of the

sweeping, czar-like authority the D.C. Circuit has casually, and incorrectly, read into the words “public convenience and necessity.” See West Virginia v. EPA,

142 S. Ct. 2587, 2608 (2022).

3. But even if consideration of upstream and downstream environmental effects fell within the theoretical outer scope of the factors the STB might be permitted to consider in rendering a decision on Petitioners’

application, the decision below was still wrong. Respondents’ contrary arguments urge an implausibly

narrow reading of Public Citizen that would virtually

17

cabin that unanimous decision to its facts, and utterly

undermine NEPA’s “rule of reason.”

The STB reasonably explained that it is in no position to “control” activities like oil drilling and refining,

or “mitigate” the environmental effects thereof. Pet.

App. 108a. That would remain true even if the STB

were statutorily authorized, at least as a theoretical

matter, to consider the environmental effects of such

attenuated activities, including those far distant in

both time and space, in its analysis of the public convenience and necessity for rail lines. The reality is

that the STB, which has authority only over railroads,

cannot stop upstream oil drilling, or the development

of alternative mechanisms to transport oil to downstream markets (e.g., expanding road access for

trucks). Nor, on the downstream end, can it stop Gulf

Coast refineries from sourcing additional crude oil

from elsewhere. And it certainly cannot set broad energy, climate, or pollution policies; it simply evaluates

applications to build rail lines on a case-by-case, project-specific basis. Accord Sabal Trail, 867 F.3d at

1383 (Brown, J., concurring in part and dissenting in

part) (analogous observations with regard to FERC’s

ability to control natural gas usage); cf. Pet. Br. 18,

30-31.

In light of that practical and legal reality, the STB

reasonably concluded that the analysis of attenuated

activities Respondent Center for Biological Diversity

demanded was “neither required nor useful.” Pet.

App. 112a. In so doing, the STB chose a reasonable

stopping point for its NEPA review, in light of the limits of its regulatory authority—much like the Army

Corps has done in determining that attenuated effects

18

should be excluded when the Army Corps lacks “sufficient control and responsibility” over those effects.

Kentuckians, 746 F.3d at 707 (quoting 33 C.F.R. pt.

325, app. B § 7(b)(1)). That sound approach is consistent with, and indeed demanded by, the fundamental logic of Public Citizen: namely, that agencies are

allowed to determine the scope of NEPA analysis

“based on the usefulness of any new potential information to the decisionmaking process,” 541 U.S. at

767—a judgment that depends not just on the factual

foreseeability of effects, but also their relationship (or

lack thereof) to an agency’s regulatory authority and

the limits of that authority.

II. The D.C. Circuit’s Misreading of Public

Citizen Hinders the Development of Energy

Infrastructure, Without Providing Any

Countervailing Benefits.

The decision below was not just wrong. Its unsound reasoning, and that of Sabal Trail before it, seriously threatens energy infrastructure development

in the United States. Practical considerations, no less

than legal ones, accordingly support reversal.

A. Project

Opponents’

Demands

for

Unbounded NEPA Analysis Are Intended

to Create, and Already Have Created,

Serious Barriers to Energy Infrastructure

Development.

1. The undeniable reality is that demand for energy

is growing, and will continue to grow for the foreseeable future. See, e.g., U.S. Energy Info. Admin., Annual

Energy Outlook 2023 at 14-15 (Mar. 2023),

19

https://tinyurl.com/y6tjzm9v; N. Am. Elec. Reliability

Corp., 2023 Long-Term Reliability Assessment 16, 33

(Dec. 2023), https://tinyurl.com/5cu6unx7. Reasonable minds can differ regarding the best way to meet

that demand—for example, what mix of fuels should

be deployed for electricity generation, transportation,

heating, and other uses. But one thing is clear: such

decisions do not lie with agencies like the STB, the

Army Corps, or FERC, whose regulatory responsibilities are limited and generally exercised on a projectby-project basis. See supra Argument, Part I.B. Rather, broad issues of national energy policy lie principally with Congress and the States, cf. Fla. Se. Connection, 162 FERC ¶ 61,233, P 29, and in certain limited respects (e.g., vehicle fuel economy standards)

other agencies, see, e.g., Corporate Average Fuel Economy (CAFE) Standards, U.S. Dep’t of Transp.,

https://tinyurl.com/28xr9ec7 (last updated Aug. 11,

2014).

That division of policymaking authority appropriately reflects our system of government, under which

broad policy questions of “deep economic and political

significance” are generally decided by elected representatives in Congress or state legislatures. West Virginia, 142 S. Ct. at 2625-2626 (Gorsuch, J., concurring)

(citation omitted). However, some opponents of additional fossil-fuel development—dissatisfied with Congress’ and state legislatures’ judgment in this area—

have sought to employ NEPA litigation to force their

policy preferences on the nation. Recognizing that energy-related infrastructure projects require a host of

federal permits, they have sought to use an expansive

interpretation of NEPA to snarl the development of

20

such projects in interminable procedural litigation.

See Christine Tezak, A Policy Analyst’s View on Litigation Risk Facing Natural Gas Pipelines, 40 Energy

L.J. 209, 218 (2019) (describing fossil-fuel opponents’

recent strategy of “oppos[ing] midstream infrastructure” through litigation “in an apparent effort to disconnect upstream sources from downstream markets”); see also Allison Good & Corey Paul, Transmission Trouble: Pipeline Woes Presage Obstacles for

Clean Energy Build-Out, S&P Glob. (Jan. 28, 2021),

https://tinyurl.com/4r8k5t9z (similar).

A key part of that litigation strategy hinges on

bringing increasingly aggressive NEPA claims, demanding that permitting agencies—even those with

distinctly limited regulatory responsibilities—analyze

ever-more-distant effects, such as the localized effects

of upstream oil and gas production and greenhouse gas

emissions from future downstream energy consumption. See, e.g., Pet. App. 31a (demand that STB analyze “environmental effects of downline oil refining on

Gulf Coast communities [and] on greenhouse gases

from oil combustion”); Birckhead v. FERC, 925 F.3d

510, 517 (D.C. Cir. 2019) (per curiam) (demand that

FERC analyze environmental effects of theoretical future gas production wells when evaluating application

to build a single new natural gas compression facility).

These litigants’ demands for more NEPA analysis

are not just broad; they are limitless. For example,

project opponents have gone so far as to demand that

agencies with even limited authority over some small

component of the energy supply chain engage in economic projections of overseas energy markets and future emissions in foreign countries. See, e.g., Ctr. for

21

Biological Diversity v. Bernhardt, 982 F.3d 723, 736

(9th Cir. 2020) (demand that Bureau of Ocean Energy

Management (BOEM) “include emissions estimates

resulting from foreign oil consumption” in NEPA analysis for single offshore drilling and production facility).

Ultimately, these project opponents seek to transform NEPA—a procedural statute solely designed to

inform agency decisionmaking—into a tool for pushing

their substantive policy preferences. Effectively, the

goal is to force agencies like the STB, the Army Corps,

and FERC to wield their limited regulatory authority

as an indirect cudgel to block and disincentivize activities far beyond anything they have statutory authority to oversee or control (e.g., oil and gas production

and consumption). Accord Ctr. for Biological Diversity, 941 F.3d at 1299 (noting that challengers’ stance

would “appoint the [Army] Corps” as a “de facto environmental-policy czar”).

The playbook is straightforward: find a federal

agency charged with NEPA review in connection with

some necessary permit for a project, and demand limitless analysis of upstream and downstream effects

that might be viewed as stemming, in a “but for” sense,

from the overall project, including its potential indirect economic effects on distinct third-party activities.

For example, when challenging interstate natural gas

pipelines, project opponents tend to target FERC, because it is the designated “lead agency” that prepares

NEPA analyses for those projects. 15 U.S.C. § 717n.4

4 The result has been an attempt, with varying degrees of

success, to litigate broad issues of national climate policy in

22

When challenging oil pipelines (which lack a federal

siting authority akin to FERC’s under the NGA), project opponents often focus on Army Corps approvals.

See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 803

F.3d 31, 44 (D.C. Cir. 2015). Opponents of coal mining

also frequently sue the Army Corps. E.g., Aracoma,

556 F.3d 177; Kentuckians, 746 F.3d 698. Offshore oil

drilling opponents have used a similar strategy in

challenging BOEM approvals. Ctr. for Biological Diversity, 982 F.3d 723. And here, of course, the target

agency is the STB. But in all these cases, the same

basic legal strategy of expanding and weaponizing

NEPA can be found at work.

It bears noting, as well, that the tactical deployment of NEPA litigation to slow or stop energy infrastructure development is by no means limited to projects involving fossil fuels. Although the instant litigation is part of a campaign against fossil fuels in particular, opponents of renewable and zero-emission energy projects have similarly weaponized NEPA to

“block clean energy [developments] time and time

again.” Aidan Mackenzie & Santi Ruiz, No, NEPA

administrative proceedings and petitions for review of practically

every interstate natural gas transportation project approval—

even for relatively small projects, such as individual compressor

stations. See, e.g., Sabal Trail, 867 F.3d at 1371-1375; Otsego

2000 v. FERC, 767 Fed. Appx. 19, 21 (D.C. Cir. 2019) (per

curiam); Birckhead, 925 F.3d at 516-521; Food & Water Watch v.

FERC, 28 F.4th 277, 286-289 (D.C. Cir. 2022); Ctr. for Biological

Diversity v. FERC, 67 F.4th 1176, 1185-1186 (D.C. Cir. 2023);

Ala. Mun. Distrib. Grp. v. FERC, 100 F.4th 207, 213 (D.C. Cir.

2024); Food & Water Watch v. FERC, 104 F.4th 336, 342-347

(D.C. Cir. 2024); N.J. Conservation Found. v. FERC, No. 23-1064,

2024 WL 3573637, at *4-7 (D.C. Cir. July 30, 2024).

23

Really Is a Problem for Clean Energy, Inst. for Progress (Aug. 17, 2023), https://tinyurl.com/2ty8pars.

“NEPA proceedings have held up onshore wind, congestion pricing, offshore wind farms, solar farms, geothermal power plants, transmission lines, and mining

permits for lithium and copper, critical inputs for

clean energy.” Ibid.; cf. Pet. Br. 4 (discussing Cape

Wind offshore wind farm project).

To avoid expanding NEPA beyond its proper scope

in the face of such litigation campaigns—and to prevent a procedural law from being turned into a comprehensive anti-development weapon—it is imperative for courts to scrupulously guard the statute’s limiting principles. And to date, the majority of courts

have applied Public Citizen and this Court’s other

NEPA precedents correctly, rejecting improper attempts to broaden NEPA by requiring analysis of issues far outside the defendant agencies’ regulatory authority. See Pet. Br. 5-6; Pet. 14-17. In fact, even the

D.C. Circuit did so prior to Sabal Trail. See Sabal

Trail, 867 F.3d at 1382 (Brown, J., concurring in part

and dissenting in part) (describing the distinction between Sabal Trail and prior D.C. Circuit precedent,

which rejected near-identical arguments in challenges

to liquefied natural gas terminal approvals, as “doctrinally invisible”). The decision below, however, blessed

Respondents’ strategic attempt to expand NEPA beyond any rational bounds and use it as a weapon to

interfere with energy infrastructure development.

2. If the D.C. Circuit’s decision were affirmed, the

consequences would be grave. No matter how broad

an agency’s NEPA analysis is, project opponents can

always demand more. The D.C. Circuit’s approach,

24

with its disregard for NEPA’s limitations, encourages

them to do precisely that. Under that approach, NEPA

litigation—already ubiquitous enough—would proliferate even further. And the practical consequences of

such litigation for energy infrastructure development

would be serious.

Successful NEPA challenges can, and often do,

throw project development into chaos. When a court

grants relief in a NEPA lawsuit, the consequences are

not limited to giving the agency an additional procedural task (e.g., supplemental environmental analysis) on remand. Very often—as in Sabal Trail and this

case—the result is outright vacatur of the underlying

permits, in their entirety. See Sabal Trail, 867 F.3d

at 1379 (permits “vacated”); Pet. App. 69a-71a (granting vacatur and describing this as the “normal remedy”) (citation omitted). When that occurs, partially

constructed or operational projects can grind to a halt,

with developers and prospective customers forced to

wait for months or years while agencies work to (hopefully) reissue the necessary permits. See, e.g., Mountain Valley Pipeline, LLC, 173 FERC ¶ 61,027, PP 3-5

(2020) (describing multiple lengthy work stoppages for

natural gas pipeline due to judicial vacatur of permits). The potential consequences are even more

grave when already operational projects have their

permits vacated due to supposed flaws in a NEPA

study—threatening potential shutdown of projects

that are already serving current energy needs.5 And

5 Indeed, Sabal Trail itself vacated authorizations for inservice pipelines that were already providing natural gas

required for power generation in capacity-constrained Florida

25

even when courts grant the more modest remedy of remand without vacatur, cf. Allied-Signal, Inc. v. U.S.

Nuclear Regul. Comm’n, 988 F.2d 146, 150-151 (D.C.

Cir. 1993), it leads to lengthy and expensive follow-on

proceedings at the administrative level, during which

the project’s future may be thrown into doubt. This

raises costs and chills investment in the sector. Cf.

Tezak, supra, 40 Energy L.J. at 209, 220 (analyst describing concerns of “institutional investor clients” in

light of project opponents’ litigation campaigns).

Proof of the deleterious effects of such anti-infrastructure lawfare is ready in hand. Planned projects

can actually be canceled, leading to billions of dollars

in deadweight loss. See Adam Barth et al., The End of

the Atlantic Coast Pipeline: What Does It Mean for the

North American Natural Gas Industry?, McKinsey &

Co. (Sept. 2, 2020), https://tinyurl.com/54jn6uwt (describing cancellation of Atlantic Coast Pipeline “after

six years of debate and litigation”). And even for projects that finally prove victorious in court, are successfully built, and go into operation, such litigation campaigns can impose extreme cost overruns and long delays. See, e.g., Scott Disavino, Equitrans Delays WVVA Mountain Valley Natgas Pipe Again, Boosts Cost,

Reuters (Feb. 20, 2024), https://tinyurl.com/3jwn3zxn

markets. See Intervenor-Resp’ts’ Pet. for Reh’g 4-5, 11-15, Sabal

Trail, No. 16-1329 (D.C. Cir. Oct. 6, 2017). Interruptions in

service were prevented, however, because FERC successfully

secured a postponement of the court’s mandate, see Order, Sabal

Trail, No. 16-1329 (D.C. Cir. Mar. 7, 2018) (per curiam), and

FERC was able to take action to reaffirm the authorizations

before the mandate issued, Fla. Se. Connection, LLC, 162 FERC

¶ 61,233, P 2.

26

(describing increase in project costs from $3.5 billion

to $7.5 billion for natural gas pipeline due to “numerous regulatory and court fights that * * * stopped work

several times since construction began in 2018”).

These risks are magnified by the fact that projects

of this nature generally require multiple federal permits or authorizations, each of which is typically subject to challenge in court. Cf. Tezak, supra, 40 Energy

L.J. at 209 (noting instances where opponents of

FERC-jurisdictional projects successfully delayed development through litigation “not because the FERC

began to lose in court, but because pipeline project opponents succeeded in challenging permits issued by

other federal agencies,” such as the Army Corps). This

makes it possible for project opponents to file numerous lawsuits challenging different permits for the

same project, often in multiple forums, with each individual lawsuit potentially posing an existential threat

to the project. Where each of many required permits

is subject to judicial challenge and every permit is necessary for the overall project to move forward, the result is an asymmetric playing field in which project opponents need only be lucky once to secure their desired

outcome, whereas the government and project developers need to be lucky every time. Cf. Pet. Br. 50.

NEPA was never intended to be a weapon for antidevelopment litigants to block energy projects they oppose on policy grounds. On the contrary, it is designed

to be a purely procedural statute, see Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 350

(1989), governed by a rule of reason, Pub. Citizen, 541

U.S. at 767-768, and cabined by reasonable agency

judgments regarding the extent to which additional

27

environmental analysis would—or would not—be

helpful. Pub. Citizen, 541 U.S. at 767-768. But due to

misguided decisions like the D.C. Circuit’s below, it

has become a significant impediment to infrastructure

development, particularly in the energy sector.

Worse, this kind of litigation threatens to usurp the

role of Congress and the States in determining

whether and to what extent additional energy infrastructure is necessary or desirable. Cf. West Virginia,

142 S. Ct. at 2617 (Gorsuch, J., concurring) (emphasizing importance of retaining Congress’ policymaking

primacy “because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling

class of largely unaccountable ‘ministers’”). Such outcomes are inconsistent with NEPA’s purposes, inconsistent with Congress’ judgment regarding the division of authority between itself and different executive

or independent agencies, and ultimately inconsistent

with the development of urgently needed infrastructure on reasonable timelines, and at reasonable cost.

B. Respondents’ Limitless Expansion of

NEPA Would Undermine the Statute’s

Purposes and Provide No Countervailing

Benefits.

1. Respondents have suggested that analyzing attenuated upstream and downstream effects is necessary to inform the STB’s decision and apprise the public of environmental effects. See Eagle Cnty. BIO 14.

That is incorrect.

As explained, the activities Respondents have demanded the STB analyze—such as “the environmental

28

effects of downline oil refining on Gulf Coast communities” a thousand miles away, and “greenhouse gases

from * * * combustion” of oil from such distant refining

operations, Pet. App. 31a—fall far outside the STB’s

regulatory domain. They have nothing to do with the

subjects on which the STB has expertise, or on the basis of which the STB reasonably could deny or condition a railroad permit, such as the fairness of rates,

effective competition, and the localized environmental

effects of the actual rail infrastructure being permitted. See 49 U.S.C. § 10101 (describing federal policies

for railroad regulation).

The purpose of NEPA is to provide information that

is actually useful to the agency. Its goal is not to create

paperwork, or to lard the administrative record with

hundreds of pages of (often speculative) environmental analysis that is not materially relevant to the

agency’s actual decisionmaking process. Pub. Citizen,

541 U.S. at 768-769. Yet that is precisely what Respondents are demanding here. The STB has stated—

correctly, and in no uncertain terms—that it is not a

regulator of these distant activities. Pet. App. 112a.

As a railroad regulator, the STB will not, and lawfully

cannot, anoint itself a “de facto environmental-policy

czar,” Ctr. for Biological Diversity, 941 F.3d at 1299,

over activities such as Gulf Coast oil refining operations. Therefore, NEPA’s “informational purpose” is

not served by analyzing these distant activities. Pub.

Citizen, 541 U.S. at 768.

NEPA’s purpose certainly is not to create a strategic game for litigants seeking ever-broader environmental analyses, motivated by a desire to undermine

projects they oppose for policy reasons divorced from

29

anything over which the defendant agency has authority. Yet NEPA has demonstrably turned into just such

a game. Indeed, NEPA’s “seemingly innocuous requirement” of preparing an environmental impact

statement “has led to more lawsuits than any other

environmental statute.” James Salzman & Barton H.

Thompson, Jr., Environmental Law and Policy 340

(5th ed. 2019).

As a result, agencies have a strong incentive to

lengthen and expand their NEPA analyses as much as

possible, so as to insulate their decisions from ex post

litigation risk. Accord Pet. Br. 6-7, 49. The consequences of this dynamic have been stark. The Council

on Environmental Quality “anticipated in 1981 that

federal agencies should be able to complete most [environmental impact statements] in 12 months or less,”

but by 2016 “the average government-wide completion

time had grown to 5.1 years.” Mark C. Rutzick, A Long

and Winding Road: How the National Environmental

Policy Act Has Become the Most Expensive and Least

Effective Environmental Law in the History of the

United States, and How to Fix It 12, Regul. Transparency Project (Oct. 16, 2018), https://tinyurl.com/

jtnvuux2. Correspondingly, NEPA documents have

expanded “from a handful of pages in the early 1970s

to [a] current average of 1,626 pages.” Mackenzie &

Ruiz, supra, https://tinyurl.com/2ty8pars.

The problem is so severe and pervasive that even

among commentators sympathetic to an environmentalist policy agenda, NEPA is widely regarded as a failure, and such an impediment to new infrastructure development that it actually creates an affirmative barrier to environmental goals. See, e.g., Mackenzie &

30

Ruiz, supra, https://tinyurl.com/2ty8pars (concluding

that NEPA has become a “tax on building new things”

that has created an “invisible graveyard of clean energy infrastructure,” and urging NEPA reform “[i]f we

want to see a clean energy transition in our lifetimes”);

Good & Paul, supra, https://tinyurl.com/4r8k5t9z (explaining that “clean energy projects * * * fac[e] the

same headwinds” of NEPA litigation by determined

project opponents). Respondents implicitly ask this

Court not only to ignore, but to accelerate, this perverse dynamic.6

2. Finally, Respondents’ suggestion that reasonable foreseeability should be understood in a strictly

factual or predictive sense, and that their preferred

understanding of that limitation provides a sufficient

boundary line for the scope of NEPA review (Eagle

Cnty. BIO 26), is wrong. For starters, the 55-year history of NEPA provides no support for the proposition

that the watered-down approach to reasonable foreseeability Respondents urge is alone sufficient to keep

NEPA analysis appropriately contained. Decades of

consistent, order-of-magnitude growth in the size of

NEPA documents (and the delays involved in producing them) empirically prove otherwise. Regardless,

Public Citizen’s legal causation requirement serves

6 Recent NEPA amendments on page limits and deadlines, cf.

Pet. Br. 29, though helpful, are not a silver bullet. Notably, the

page limits do not apply to appendices, see 42 U.S.C. § 4336a(e),

which often run into thousands of pages. Open-ended extensions

of the deadlines are also available, id. § 4336a(g)(2); agencies and

project sponsors may be strongly tempted in many instances to

seek such extensions, given the threat of costly and disruptive

reversal if NEPA documents are not sufficiently “bullet-proofed”

in advance.

31

critical purposes in cabining NEPA analysis to an appropriate scope, above and beyond merely excluding

effects that are too speculative or uncertain in a purely

predictive sense. Accord Pub. Citizen, 541 U.S. at 765766, 769 (notwithstanding that entry of trucks from

Mexico was arguably a “foreseeable” effect of FMCSA

action, that action was nonetheless not a “legally relevant cause” of such entry).

To be sure, NEPA’s proximate causation requirement prevents agencies from engaging in speculation

about possible events that are sufficiently uncertain,

as a factual matter, to render any analysis unhelpful.

But it also prevents agencies from spending time and

resources analyzing matters beyond their regulatory

authority or expertise, drawing a line based on what

occurrences are or are not subject to sufficient control

and responsibility by the agency to render analysis

useful. Both limits are crucial, and this Court should

affirm and amplify Public Citizen and its other precedents regarding NEPA causation—not undermine

them, as Respondents implicitly urge.

32

CONCLUSION

The D.C. Circuit’s judgment should be reversed.

Respectfully submitted.

WILLIAM S. SCHERMAN

Counsel of Record

JASON J. FLEISCHER

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6550

wscherman@velaw.com

Counsel for Amicus Curiae

SEPTEMBER 2024