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 AND CENTER FOR

BIOLOGICAL DIVERSITY, ET AL.,

Respondents.

________________________

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

________________________

BRIEF OF NACCO NATURAL RESOURCES

CORPORATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

_______________________

JEFFERY D. UBERSAX

CHARLES T. WEHLAND

BRANDON MORDUE

COUNSEL OF RECORD

KUSHNER & HAMED

JONES DAY

CO., LPA

110 N. Wacker Drive

1375 East Ninth St.

Suite 4800

Suite 1930

Chicago, IL 60606

Cleveland, OH 44114

312.269.4388

216.696.6700

ctwehland@jonesday.com

jdubersax@kushnerhamed.com

bmordue@kushnerhamed.com

Counsel for Amicus

September 4, 2024

i

TABLE OF CONTENTS

Table of Authorities ................................................... iii

Interests of Amicus Curiae ......................................... 1

Introduction and Summary of the Argument............ 2

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

I. The Majority View Among the Circuits

Correctly Interprets Public Citizen ...................... 5

II. The D.C. Circuit’s Outlier Interpretation of

Public Citizen Makes for Bad National Policy and

Forces Agencies to Act Outside Their Jurisdiction

and Expertise ........................................................ 8

A. Project Delay Can Cause Project Death,

and That Is the Goal of Much Environmental

Litigation ........................................................ 8

B. Expansive NEPA Review Converts Vague

Enabling Statutes Into Limitless Fonts of

Veto Power.................................................... 10

C. The Resulting Problem Is Many Agency

Czars With Overlapping Vetoes, Regardless

of Expertise................................................... 15

III.Unlimited Consideration of Upstream and

Downstream Effects Creates an Unworkable

Standard for NEPA ............................................. 17

A. NEPA Review Beyond the Proximate Cause

of an Agency’s Action Has No Logical

Stopping Point .............................................. 17

B. New Regulations Will Exacerbate the

Problem and Turn U.S. Federal Agencies

Into Global Environmental Monitors .......... 22

ii

C. Limitless NEPA Review Is Bad for

Everyone ....................................................... 26

IV.NACCO’s Own Experiences Provide a Case

Study of the Negative Consequences of

Downstream Review ........................................... 28

Conclusion .................................................................. 33

iii

TABLE OF AUTHORITIES

Cases

Ctr. for Biological Diversity, Manasota-88, Inc.

v. United States Army Corps of Eng’rs,

941 F.3d 1288 (11th Cir. 2019) ........ 6, 16, 20, 21, 27

Dep't of Transp. v. Public Citizen,

541 U.S. 752 (2004) ...................... 2, 3, 5, 6, 7, 11, 17

Eagle Cty. v. Surface Transp. Bd.,

82 F.4th 1152 (D.C. Cir. 2023) ..... 2, 7, 11, 13, 16, 28

EarthReports, Inc. v. FERC,

828 F.3d 949 (D.C. Cir. 2016) ................................... 7

Kentuckians for the Commonwealth

v. U.S. Army Corps of Eng’rs,

746 F.3d 698 (6th Cir. 2014) .............................. 6, 17

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244, 2272 (2024)............................... 3, 23

Metro. Edison Co. v. People Against Nuclear Energy,

460 U.S. 766 (1983) ...................................... 5, 14, 17

Protect Our Parks, Inc. v. Buttigieg,

39 F.4th 389 (7th Cir. 2022) ............................. 6, 8, 9

Ravulapalli v. Napolitano,

773 F. Supp. 2d 41 (D.D.C. 2011)............................. 8

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ................................................ 10

iv

Sierra Club v. FERC (“Sabal Trail”),

867 F.3d 1357 (D.C. Cir. 2017) ..................... 7, 15, 30

Sierra Club v. FERC,

827 F.3d 36 (D.C. Cir. 2016)..................................... 7

Sierra Club v. FERC,

827 F.3d 59 (D.C. Cir. 2016)..................................... 7

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ...................... 3, 15, 16, 27, 32

Statutes

30 U.S.C. § 1202(f) ..................................................... 28

30 U.S.C. § 201(a)(1) .................................................. 28

42 U.S.C. § 4332(C)(i) ................................................ 23

49 U.S.C. § 10101 ...................................................... 12

49 U.S.C. § 10101(1) .................................................. 12

49 U.S.C. § 10101(2) .................................................. 12

49 U.S.C. § 10101(5) .................................................. 13

49 U.S.C. § 10901(c) ............................................ 11, 12

Regulations

40 C.F.R. § 1501.3(b)(1) (2023).................................. 23

40 C.F.R. § 1501.3(d)(1) (2024).................................. 23

40 C.F.R. § 1508.1(i)(4) .............................................. 23

v

National Environmental Policy Act Implementing

Regulations Revisions,

87 FR 23453 (April 20, 2022)

(codified at 40 C.F.R. § 1508.1) ................................. 22

Other Authorities

James W. Coleman, Beyond the Pipeline Wars:

Reforming Environmental Assessment of Energy

Transport Infrastructure,

2018 UTAH L. REV. 119 (2018) .......................... 18, 19

James Coleman, Pipelines & Power-Lines: Building

the Energy Transport Future,

80 OHIO ST. L.J. 263 (2019) .............................. 26, 27

Amended Complaint, The Falkirk Mining Co. v. Dep’t

of the Interior, No. 1:24-cv-00040-DLH-CRH

(D.N.D. Apr. 4, 2024) ........................................ 29, 30

Sarah Imhoff, A Streamlined Approach to Renewable

Energy Development: Bringing the United States

Into a Greener Energy Future,

26 GEO. INT’L ENVTL. L. REV. 69 (2013) ................... 9

Sam Kalen, Mining Our Future Critical Minerals:

Does Darkness Await Us?,

51 ENVTL. L. REP. 11006 (2021).............................. 25

NORTH AMERICAN COAL CORPORATION, COMMENTS ON

THE DRAFT RESOURCE MANAGEMENT

PLAN/ENVIRONMENTAL IMPACT STATEMENT FOR THE

BUREAU OF LAND MANAGEMENT NORTH DAKOTA

Field Office (May 17, 2023),

available at https://perma.cc/G85J-6CK8. ............. 31

vi

J.B. Ruhl & James Salzman, What Happens When

the Green New Deal Meets the Old Green Laws?,

44 VT. L. REV. 693 (2020).................................. 10, 26

Benjamin K. Sovacool et al., Sustainable Minerals

and Metals for a Low-Carbon Future,

367 SCIENCE 30 (2020) ...................................... 24, 25

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

NEPA’s Environmental Review Process:

Suggestions for Agency Reform,

12 N.Y.U. ENVTL. L.J. 74 (2003) ............................... 8



1

INTERESTS OF AMICUS CURIAE

Amicus1 NACCO Natural Resources Corporation

(“NACCO”) is the parent corporation of a number of

mining and reclamation entities. NACCO mines coal,

lithium, and industrial minerals, and has interests in

oil and gas. NACCO’s coal mines supply over 25

million tons a year to lignite-fired electrical

generating units. NACCO’s business involves regular

interaction with regulatory agencies, including, as

part of permitting and leasing, the preparation of

environmental

assessments

(“EAs”)

and

environmental impact statements (“EISs”) under the

National Environmental Policy Act (“NEPA”).

NACCO subsidiaries operate more than thirty mines

across the country, including in Arkansas, Florida,

Mississippi, Nevada, North Dakota, Texas, and

Virginia, in the jurisdiction of multiple circuit courts.

In addition, NACCO subsidiary Catapult Mineral

Partners recently executed a purchase agreement to

acquire oil and gas interests in Utah’s Uinta Basin. If

developed, these oil and gas interests would greatly

benefit from completion of the rail line in this case.

Environmental reviews under NEPA cause

significant delay, and projects requiring an EIS are

frequent targets of litigation. A key reason for both is

that the bounds of NEPA review have become

uncertain because of different circuit court

interpretations of the statute. This promotes

sprawling EISs, results in costly or even project1 Pursuant to Rule 37.6,

amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

or entity other than amicus or its counsel made a monetary

contribution to its preparation or submission.

2

killing delay, and opens more avenues for attack in

litigation.

Ignoring the decision of this Court in Department

of Transportation v. Public Citizen, 541 U.S. 752

(2004), the decision of the D.C. Circuit below

exacerbates this uncertainty by requiring agencies to

analyze upstream and downstream environmental

impacts along the full supply chain of a project—

regardless of whether those other effects are within

the reviewing agency’s jurisdiction. This approach

sets no workable limits on the environmental analysis

under NEPA and subjects those seeking governmental

approval, like NACCO, to increased delay and cost, at

least, and conflicting agency determinations, at worst.

NACCO respectfully requests that the Court

reverse the D.C. Circuit.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The D.C. Circuit’s opinion below analyzed an

authorization of the Surface Transportation Board

(“STB”) regarding the construction of an 88-mile

railroad in Utah. The D.C. Circuit found the project’s

EIS insufficient for failing to analyze upstream

development of oil and gas wells that had not been

constructed and downstream greenhouse gas

emissions from refining that same oil and gas,

presumed to later occur in Louisiana and Texas. Eagle

Cty. v. Surface Transp. Bd., 82 F.4th 1152, 1179-80

(D.C. Cir. 2023). That STB lacked any regulatory

authority over either the upstream or downstream

effects did not matter. Id. at 1180.

3

The D.C. Circuit’s approach conflicts with this

Court’s decision in Public Citizen, which made clear

that, under NEPA, an agency “cannot be considered a

legally relevant ‘cause’ of an effect that it cannot

prevent ‘due to its limited statutory authority.” 541

U.S. at 770.

The view of NEPA advanced by the D.C. Circuit

prolongs and adds uncertainty to environmental

review, delays project approval, and needlessly

creates opportunities for strategic litigation aimed at

halting development projects. Those are the most

immediate effects. More importantly, the D.C.

Circuit’s approach gives every governmental agency

vast veto power over disfavored projects based on

vague statutes allowing agencies to act based on, for

example, “public convenience and necessity”—even in

areas outside their expertise, even based on effects

outside their jurisdiction, and even when other

agencies are responsible for permitting and approving

those upstream and downstream impacts.

This view of the law effectively results in a

transformation of NEPA into a broad enabling statute,

authorizing any agency to halt a development project

based on alleged environmental effects occurring

anywhere in the causal chain. It enlarges the grasp of

the regulatory state in a manner this Court has

adjudged unlawful in recent decisions. E.g., Loper

Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024);

West Virginia v. EPA, 142 S. Ct. 2587 (2022). The D.C.

Circuit’s approach gives federal agencies with no

regulatory authority over, for instance, greenhouse

gas emissions, the ability to obstruct and delay

projects by mandating costly and protracted studies of

4

possible future CO2 emissions. This amounts to an

environmental veto castable by any agency with any

level of responsibility for approval of a federal project,

and is particularly troublesome when that agency does

not have the expertise to analyze potential CO2

emissions.

This problem will become even worse in light of the

recently promulgated NEPA regulations requiring

agencies to consider “global” environmental effects.

Historically, most NEPA suits have been aimed at

hindering fossil fuel development, but the law applies

to all major federal actions, including solar and wind

construction. Many of the minerals and metals for

wind and solar projects are sourced almost exclusively

abroad. Following the logic of Eagle County, agencies

under the new regulations would be required to

consider, for example, the upstream environmental

impacts of notoriously pollutive rare earth elements

extraction in China. China, of course, is not within the

jurisdiction of STB, but neither is oil refining.

No one benefits from this approach to NEPA,

except those seeking to delay projects with the aim of

killing them through increased costs and the passage

of time. Under this approach, agencies are tasked

with studying the effects of actions they do not

regulate in areas where they have no expertise.

Companies face conflicting rules across the circuits

and increased project costs from NEPA review and

litigation. The country as a whole—currently lacking

sufficient energy infrastructure, such as electricity

transmission assets—loses the ability to construct

energy infrastructure in anything resembling a

remotely timely manner.

5

For these reasons, the Court should reverse the

D.C. Circuit and clarify the meaning of Public Citizen

to place defined and manageable limits on NEPA

review. In doing so it should reject the Federal

Respondents’ position that agencies have discretion to

draw their own “context-specific causal lines” under

NEPA, Fed. Br. at 18, and make clear that NEPA

review should be limited to environmental effects

within an agency’s jurisdiction and proximately

caused by the agency’s action.

ARGUMENT

I.

The Majority View Among the Circuits

Correctly Interprets Public Citizen

In Public Citizen, this Court held that “where an

agency has no ability to prevent a certain effect due to

its limited statutory authority over the relevant

actions, the agency cannot be considered a legally

relevant ‘cause’ of the effect” for purposes of NEPA.

541 U.S. at 770. That holding drew upon the Court’s

earlier decision in Metropolitan Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 774 (1983),

where the Court explained that the terms

“environmental effect” and “environmental impact” in

NEPA “include a requirement of a reasonably close

causal relationship between a change in the physical

environment and the effect at issue,” which the Court

equated to “the familiar doctrine of proximate cause

from tort law.”

Public Citizen elaborated that “inherent in NEPA

and its implementing regulations is a ‘rule of reason,’

which ensures that agencies determine whether and

6

to what extent to prepare an EIS based on the

usefulness of any new potential information to the

decisionmaking process.” 541 U.S. at 767. As a result,

when the environmental effects at issue fall outside an

agency’s scope of authority, “the agency need not

consider these effects in its EA.” Id. at 770.

Most circuits faithfully follow Public Citizen, but

the D.C. Circuit and the Ninth Circuit do not. For

example, in the Seventh Circuit, “an agency is on the

hook only for the decisions that it has the authority to

make.” Protect Our Parks, Inc. v. Buttigieg, 39 F.4th

389, 400 (7th Cir. 2022). The Sixth Circuit follows the

same rule. Kentuckians for the Commonwealth v. U.S.

Army Corps of Eng’rs, 746 F.3d 698, 710 (6th Cir.

2014) (“It stands to reason that, in the context of a

complete regulatory scheme, agencies may reasonably

limit their NEPA review to only those effects

proximately caused by the actions over which they

have regulatory responsibility.”). Likewise, in the

Eleventh Circuit, an agency performing a NEPA

review is permitted “to draw the line at the reaches of

its own jurisdiction.” Ctr. for Biological Diversity,

Manasota-88, Inc. v. United States Army Corps of

Eng’rs, 941 F.3d 1288, 1295 (11th Cir. 2019). To hold

otherwise, the Eleventh Circuit explained, would turn

NEPA review into a limitless analysis, much of it

premised on uncertain, hypothetical impacts. See id.

at 1297 (“If the Corps were required to consider all

effects that it might indirectly police—even those far

from its proper sphere of regulatory authority—its

NEPA review would have to account for every

conceivable environmental effect of fertilizer’s use.”).

7

Things are different in the D.C. Circuit.2 In the

D.C. Circuit, an agency “cannot avoid its responsibility

under NEPA to identify and describe the

environmental effects of increased oil drilling and

refining on the ground that it lacks authority to

prevent, control, or mitigate those developments.”

Eagle Cty., 82 F.4th at 1180. See also Sierra Club v.

FERC (“Sabal Trail”), 867 F.3d 1357, 1375 (D.C. Cir.

2017) (“[T]he existence of permit requirements

overseen by another federal agency or state permitting

authority cannot substitute for a proper NEPA

analysis”).

That approach runs contrary to Public Citizen,

which expressly rejected the “particularly unyielding

variation of ‘but for’ causation, where an agency’s

action is considered a cause of an environmental effect

even when the agency has no authority to prevent the

effect.” 541 U.S. at 767.

2 They were not always so. Before its Sabal Trail decision, the

D.C. Circuit faithfully adhered to Public Citizen. In a trio of 2016

decisions, for example, it ruled that FERC did not have to

consider in its NEPA review of natural gas pipelines the

upstream or downstream effects of gas production, transmission

or consumption, such as “additional greenhouse gas emissions,”

because FERC had no regulatory authority over such activities—

just as STB has none here. EarthReports, Inc. v. FERC, 828 F.3d

949, 955 (D.C. Cir. 2016); see also Sierra Club v. FERC, 827 F.3d

36 (D.C. Cir. 2016); Sierra Club v. FERC, 827 F.3d 59 (D.C. Cir.

2016).

8

II.

The D.C. Circuit’s Outlier Interpretation

of Public Citizen Makes for Bad National

Policy and Forces Agencies to Act Outside

Their Jurisdiction and Expertise

Despite being out of line with most other circuits,

the D.C. Circuit’s interpretation of Public Citizen has

outsized importance nationally. Venue for challenging

administrative actions often exists in the D.C. Circuit

because most agencies are headquartered there. See,

e.g., Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 56

(D.D.C. 2011). As a result, agencies across the country

face a dilemma: they must either risk the possibility

of litigation and remand by the D.C. Circuit, with its

onerous NEPA requirements, or else preemptively try

to follow those requirements because they might be

sued in D.C. rather than one of the other circuits.

A. Project Delay Can Cause Project Death,

and That Is the Goal of Much

Environmental Litigation

Commentators have observed for many years that

“[a]gencies will seek to protect EISs from legal

challenges by producing piles of paperwork that

exhaustively discuss every potential impact of the

proposed action—creating a ‘bullet-proof’ EIS.

Agencies may experience prolonged delays in the

production of a bullet-proof EIS.” James T.B. Tripp &

Nathan

G.

Alley,

Streamlining

NEPA’s

Environmental Review Process: Suggestions for

Agency Reform, 12 N.Y.U. ENVTL. L.J. 74, 83 (2003).

When upstream and downstream impacts are added,

there is even more to “bullet proof.” See Protect Our

Parks, 39 F.4th at 397 (“Preparing an EIS is expensive

9

and time-consuming . . . .”). And when an agency

cannot control the impacts being studied, the process

becomes a wasteful academic exercise. See id. at 400

(“It would be unreasonable to require agencies to

spend time and taxpayer dollars exploring

alternatives that would be impossible for the agency

to implement.”).

Litigation over NEPA is common. Delay and

increased costs are the primary goals of these

lawsuits, because “NEPA is a procedural statute, not

a substantive one.” Id. at 397. “NEPA suits are often

used by environmental and industry groups to take

financial resources away from developers and create

such delay as to completely impede the progress of a

project.” Sarah Imhoff, A Streamlined Approach to

Renewable Energy Development: Bringing the United

States Into a Greener Energy Future, 26 GEO. INT’L

ENVTL. L. REV. 69, 91 (2013).

The power to delay can be the power to destroy.

Energy development projects are major targets. This

case involves a rail line, but the real target of dilatory

litigation is oil and gas development that the line is

expected to facilitate.

Wind and solar projects likewise face aggressive

litigation under environmental statutes. Perhaps the

most infamous contemporary example is the Cape

Wind offshore wind farm project, which involved “a

staggering cast of well-funded opponents who used an

array of federal, state, and local siting and

environmental compliance laws to grind the project

into oblivion after a fight lasting over 16 years and

costing the developers $100 million.” J.B. Ruhl &

James Salzman, What Happens When the Green New

10

Deal Meets the Old Green Laws?, 44 VT. L. REV. 693,

716 (2020).

The D.C. Circuit’s approach increases litigation

risk, because including upstream and downstream

effects provides a virtually limitless array of targets.

This case provides a good example: the EIS for a small

railroad line located entirely in Utah was deemed

inadequate because it did not project emissions

related to possible oil and gas refining in Louisiana

and Texas. Under this approach, unqualified agencies

could pile speculation upon speculation to reach

untenable conclusions outside their area of

understanding, let alone expertise.

B. Expansive NEPA Review Converts

Vague Enabling Statutes Into Limitless

Fonts of Veto Power

The D.C. Circuit’s Eagle County and earlier Sabal

Trail decisions effect an unauthorized and unwise

expansion of administrative power to prevent

development and encourage agencies to act outside of

their authority.

NEPA is procedural, not substantive.

E.g.,

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

332, 351 (1989) (“Other statutes may impose

substantive environmental obligations on federal

agencies, but NEPA merely prohibits uninformed—

rather than unwise—agency action.”). Yet the D.C.

Circuit’s approach uses NEPA to graft onto agencyenabling statutes regulatory powers not given to those

agencies.

11

STB has the power to authorize the construction of

rail lines based on “public convenience and necessity.”

49 U.S.C. § 10901(c). It does not have any jurisdiction,

expertise, or power over oil drilling and refining. The

D.C. Circuit acknowledged that, but found it

irrelevant. Eagle Cty., 82 F.4th at 1180 (holding that

“the agency is not excused from considering the

environmental impacts of a railway it approves even

where it lacks jurisdiction over the producer or

distributor of the [oil] transported by that railway”

(citation omitted; alteration original)).

That holding flies in the face of Public Citizen’s

proclamation that agencies need not consider under

NEPA effects that “an agency has no ability to

prevent.” 541 U.S. at 770. The D.C. Circuit, however,

tried to square the circle by pointing to STB’s ability

to consider “public convenience and necessity.” Eagle

Cty., 82 F.4th at 1180. As a result, the D.C. Circuit’s

approach allows any agency with discretionary

language like that—which is nearly every agency—to

disapprove a project based on any environmental

effect, real or imagined, at any point upstream or

downstream from the project, including where the

agency’s action is not the proximate cause of those

effects. The court of appeals thus held that NEPA

required analysis of downstream effects even though

STB “lacks authority to prevent, control, or mitigate

those developments,” because STB could deny the

permit based on “anticipated environmental and other

costs.” Id.

Under the D.C. Circuit’s decision, if STB thinks

that the costs of oil and gas development outweigh the

benefits, STB can deny a permit to build a railroad

12

facilitating that development.

Reaching that

conclusion requires using NEPA to supercharge

catchall language like “public convenience and

necessity” in a way that destroys the overarching

regulatory structure. As STB points out in its brief in

support of Petitioners, STB must enforce common

carrier obligations, which require “railroads to carry

all commodities upon reasonable request.” Fed. Br. at

4. The D.C. Circuit ruling prevents STB from carrying

out its statutory mandate.

Consider, first, that STB’s authorizing statute

directs that STB “shall issue a certificate” for building

a railroad “unless the Board finds that such activities

are inconsistent with the public convenience and

necessity.” 49 U.S.C. § 10901(c) (emphasis added). The

statutory language starts with a presumption in favor

of issuing a certificate to build.

The statute then describes, in fifteen subparts, “the

policy of the United States Government” with respect

to “regulating the railroad industry.” 49 U.S.C. §

10101. First on the list of policies is “to allow, to the

maximum extent possible, competition and the

demand for services to establish reasonable rates for

transportation by rail.” Id., § 10101(1). Second on the

list is “to minimize the need for Federal regulatory

control over the rail transportation system and to

require fair and expeditious regulatory decisions when

regulation is required.” Id., § 10101(2). Nowhere on

the list does one find “hinder the development and

shipment of disfavored commodities.”3

One does, however, find a policy “to foster sound economic

conditions in transportation and to ensure effective competition

3

13

Nevertheless, according to the D.C. Circuit,

because STB can act for “public convenience and

necessity,” any environmental effect can be a

justification to deny a permit, even if STB does not

oversee that effect; as a result, NEPA requires

analyzing that effect. Eagle Cty., 82 F.4th at 1180.

In reaching that conclusion, one must stack

hypotheticals atop counterfactuals and then work

backwards to the application at issue. First, STB

must imagine a world in which the rail line is built.

Second, STB must forecast upstream oil and gas

development after construction, including at various

price points for the end product and various costs

levels for initial development, all of which are affected

by a multitude of factors and can change rapidly.

Third, STB must conclude that these upstream

drilling projects will be approved by the relevant

regulators. Fourth, STB must conclude that the

subsequent refining of the oil generated upstream will

be approved by other downstream regulators. Fifth,

STB must analyze the emissions from the full lifecycle

of these approved projects, from extraction through

refining, years into the future. Sixth, STB must

conclude that the environmental costs of those

emissions outweigh the benefits, even though the

agencies overseeing the permitting of the

(hypothetical) upstream projects and downstream

refining of the output of those (hypothetical) projects

concluded otherwise. Effectively, STB must conclude

and coordination between rail carriers and other modes.” Id., §

10101(5). In this case, the entire purpose of the proposed rail line

is to allow more efficient transport because of the difficulties of

shipping by truck on the limited nearby roads. Eagle County, 82

F.4th at 1166.

14

in advance that the upstream and downstream

permitting agencies will make what STB deems to be

the wrong decision. As a result, STB chooses not to

authorize the railroad at all, premising its decision on

“public convenience”—contrary to true public

convenience, which is to be able to engage in interstate

commerce and, for Utah citizens, to be able to sell their

goods in a profitable manner.

Thus, from a statute explicitly prioritizing rail

development to maximize competition among carriers

and expressly seeking to minimize federal regulation

over the rail system, we arrive at a conclusion that the

railroad should not be built at all because STB

disagrees with the potential future decisions of other

regulators with expertise in overseeing oil and gas

drilling and refining. Only through that backwards

logic can the D.C. Circuit conclude that STB needed to

consider under NEPA the upstream and downstream

effects at issue here.

The actions of other permitting authorities—

upstream and downstream—are necessary links in

the causal chain over which STB has no control.

Unless those agencies take independent action, there

will be no environmental effects from oil production or

consumption to even discuss. By analogy to “the

familiar doctrine of proximate cause from tort law,”

Metro. Edison, 460 U.S. at 774, the consequence of

such intervening actions is that STB is not a legally

relevant cause of effects that might arise from

production or consumption approved by other

agencies.

15

C. The Resulting Problem Is Many Agency

Czars

With

Overlapping

Vetoes,

Regardless of Expertise

In effect, the Eagle County and Sabal Trail

decisions read discretionary language in agency

enabling statutes as permitting agencies to veto an

action based on effects they could not regulate in the

first instance. That makes little sense. STB has no

expertise in oil and gas refining, for obvious reasons.

It authorizes railroads, not oil wells or refineries. See

West Virginia, 142 S. Ct. at 2612-2613 (“When an

agency has no comparative expertise in making

certain policy judgments . . . Congress presumably

would not task it with doing so.” (cleaned up)). Here,

as in many cases, numerous other agencies with more

specific expertise are implicated, both upstream and

downstream, ranging from the Utah Department of

Natural Resources or, if federal land, the Bureau of

Land Management, to the Environmental Protection

Agency and its state counterparts in Utah, Texas,

Louisiana, and possibly elsewhere.

The D.C. Circuit allows STB to invade the

regulatory sphere of all those other agencies. In

dissent in the earlier Sabal Trail decision, Judge

Brown identified this very issue in the context of an

agency with an identically broad “public convenience

and necessity” statute. “[N]othing in the text of either

statute empowers the Commission to entirely deny the

construction of an export terminal or the issuance of a

certificate based solely on an adverse indirect

environmental effect regulated by another agency.”

867 F.3d at 1382 (Brown, J., dissenting in part).

16

Under the D.C. Circuit’s case law, however, even

though STB has no comparative expertise in refining,

it can block a railroad based on potential downstream

effects from that same refining. That view of virtually

limitless agency delegation cannot be reconciled with

this Court’s decisions. See West Virginia, 142 S. Ct. at

2609 (noting the “particular and recurring problem” of

“agencies asserting highly consequential power

beyond what Congress could reasonably be understood

to have granted”). Nevertheless, starting from the

premise of unfettered veto power based on the mere

speculative potential of anything environmentally

related, upstream or downstream, D.C. Circuit law

requires STB to create an EIS that analyzes

theoretical environmental effects anywhere in the

possible causal chain. This approach led the D.C.

Circuit to dismiss as “simply inapplicable” the

principle of this Court’s Public Citizen decision that an

agency “need not consider effects it cannot prevent.”

Eagle Cty., 82 F.4th at 1180.

The Eleventh Circuit colorfully, but accurately,

described the world created by the D.C. Circuit’s

“alternative, unbounded view of the public-interest

review” as one in which each agency functions as a “de

facto environmental-policy czar.” Army Corps, 941

F.3d at 1299. Because each agency involved anywhere

upstream or downstream in a project would have

equal blocking powers, Congress’s regulatory design

would be scrambled, and the risk of inconsistent,

project-killing agency determinations would be high.

See id. at 1296 (“Requiring the Corps to enter those

regulatory spheres not only offends congressional

design but risks duplicative, incongruous, and unwise

regulation. . . . Far from manageable, the new

17

inquiries required of the Corps would bog down agency

action in the name of duplicative and potentially

incoherent regulation.”). See also Kentuckians, 746

F.3d at 709 (“There are good reasons that Congress

would not have designed a regulatory system in which

each regulatory actor involved in a large operation,

even in a comparatively minor way, is required to

consider all of the effects of the overall project.”).

III.

Unlimited Consideration of Upstream and

Downstream

Effects

Creates

an

Unworkable Standard for NEPA

With respect to NEPA, this Court long has

cautioned that the “scope of the agency’s inquiries

must remain manageable.” Metro. Edison, 460 U.S. at

776. The decision below violates that principle. See

id. (“Time and resources are simply too limited for us

to believe that Congress intended to extend NEPA as

far as the Court of Appeals has taken it.”).

A. NEPA Review Beyond the Proximate

Cause of an Agency’s Action Has No

Logical Stopping Point

Public Citizen’s proximate cause test makes sense

as a dividing line for what must be included in a NEPA

analysis. In expressly rejecting the “particularly

unyielding variation of ‘but for’ causation” sought by

the challengers in that case, 541 U.S. at 767, the Court

explained that NEPA’s purpose of ensuring that

agencies act in an informed manner is not served by

consideration of environmental effects where the

agency “lacks the power to act” on them, id. at 768.

18

Aside from being outside STB’s jurisdiction, the

upstream and downstream effects cited by the D.C.

Circuit are highly speculative and uncertain,

requiring the agency to predict potential future

changes in the energy markets, including

development and refining levels, all of which are price,

material, and production dependent, in hypothetical

future worlds that do and do not include the project

under consideration. Cf. James W. Coleman, Beyond

the Pipeline Wars: Reforming Environmental

Assessment of Energy Transport Infrastructure, 2018

UTAH L. REV. 119, 143 (2018) (“In practice, in

unpredictably changing energy markets, it is nearly

impossible to predict the upstream and downstream

impact of a new pipeline project.”). No agency has that

gift of prophecy, especially when the agency has no

authority or expertise in a given arena, like STB here.

This is particularly true when considering the

length of time it takes to prepare an EIS and the

volatility of energy markets. The Keystone XL

pipeline provides a case study. As part of its EIS for

the pipeline, the State Department spent seven years

analyzing whether approval of the pipeline would

increase oil production in Canada. The EIS found that

the impact on upstream production would depend

primarily on the price of oil per barrel, with the

pipeline potentially impacting production only if oil

prices hovered between $65-$75 a barrel. See id. at

143-44. During the many years of review, oil prices

fluctuated between $44 and approximately $100. Id.

“In its final decision, the State Department confirmed

its view that the project was ‘unlikely to significantly

impact [oil] extraction’ but said that it should be

rejected anyway because, despite its analysis, it was

19

‘perceived as enabling’ oil extraction.” Id. at 145

(quoting U.S. DEP’T OF STATE, RECORD OF DECISION

AND NATIONAL INTEREST DETERMINATION 12 (2015)

(alteration original)).

Comparing that real-world example to the D.C.

Circuit’s supercharging of the “public convenience and

necessity” language in STB’s enabling statute, one is

left with a disturbing conclusion. Not only might STB

get the analysis wrong and block important

infrastructure development based on an errant

analysis of upstream or downstream factors beyond its

scope of authority, but STB might veto a development

project merely on the basis of “perceived”

environmental concerns caused by upstream or

downstream effects outside of its regulatory bailiwick.

Invariably, even if the state of the energy market

many years in the future could be predicted

accurately—and it cannot—forcing agencies to

consider upstream and downstream effects over which

they have no regulatory authority expands NEPA

review into a limitless consideration of environmental

effects that directly leads to first-order questions of

energy policy.

Here, STB was faulted for not

considering every emission—whether currently

existing or projected distant years into the future—

from the oil leaving the ground through the refining

stage, even though the only action in question was an

88-mile railroad in Utah. But why should the analysis

stop there? Basic economic principles lead to further

effects that could be considered.

Increased oil

production affects supply, increased supply lowers

costs, and cheaper gasoline causes more drivers to buy

it and drive more, affecting the cost calculus of

20

automobile owners debating whether to buy an

electric vehicle, a decision with knock-on effects for

overall U.S. climate policy.4

Ultimately, that is where the analysis leads. In

explicitly rejecting the D.C. Circuit’s approach, the

Eleventh Circuit, in a case involving phosphate

mining, explained that accounting for all downstream

effects would require the Corps of Engineers under

NEPA

“to

account

for

every

conceivable

environmental effect of fertilizer’s use.” Army Corps,

941 F.3d at 1297. Then, “because the Corps could

indirectly mitigate those effects by denying [the

company] its Section 404 permit and thereby choking

its fertilizer plants of phosphate, the Corps must

consider the environmental effects of crop

fertilization. That cannot be right.” Id. The effect of

the D.C. Circuit’s “unbounded view” of NEPA analysis

would go further: “Rather than consider whether the

Corps’ own action is in the public interest, that

broader view would have the Corps consider whether

fertilizer production and use is really worth the cost.”

Id. at 1299.

“And that,” the Eleventh Circuit

cautioned, “could be just the beginning. The next time

the Corps is asked to approve a section of a gas

4 One can readily imagine other far-ranging inquiries opened up

by the D.C. Circuit’s approach. The focus on oil and gas assumes

that is the only significant new development in the Uinta Basin.

But a decade or two down the line, the nature of the Uinta Basin

could change entirely, spurring new settlement and significant

population growth. New businesses may want to ship their cargo,

and new residents may wish to use the line for commuting. The

railway, as a common carrier, must transport it all. Must those

impacts be included in an NEPA analysis too? The amounts of

upstream and downstream greenhouse gas emissions are no less

speculative than the long-term land uses of the Uinta Basin.

21

pipeline running through a wetland, would the Corps

be required to consider whether the country’s reliance

on fossil fuels is really in the public interest?” Id.

Such decisions are reserved to Congress.

The approach advanced by the Federal

Respondents is no better, because it provides no

standard at all. The government argues what the

standard is not, but does not tell the Court what it

thinks it should be.

Thus, according to the government, the standard is

not the limits of an agency’s authority. Fed. Br. at 3233. The standard also is not the tort doctrine of

proximate cause. Id. at 34-37. The standard is not

reasonable foreseeability, because the government

maintains that even if the upstream and downstream

effects were reasonably foreseeable, STB did not need

to consider them. Id. at 41. Instead of any workable

standard, the government proposes “context-specific

causal lines,” id. at 18, described with this word salad:

the agency may draw a manageable causal

line that excludes the harms that the agency

lacks the statutory authority to prevent, and

that takes account of whether and to what

extent particular harms are too attenuated,

speculative, or otherwise insufficiently

material to the agency’s decisionmaking to

serve NEPA’s purposes and satisfy its rule of

reason, given the scope and nature of the

agency action and the governing statutes.

Id. at 30.

The government cites no law in support of this

vague pronouncement, which seems invented from

22

whole cloth to support a reversal here without

providing any guidance to agencies or courts on the

bounds of required NEPA analyses going forward.

The government’s supposed “causal line” is no line at

all, but only a case-by-case, effect-by-effect,

discretionary assessment, usually in areas outside of

the regulator’s expertise. Such an approach would

eliminate none of the uncertainty caused by the

decision below.

B. New Regulations Will Exacerbate the

Problem and Turn U.S. Federal

Agencies Into Global Environmental

Monitors

The current administration recently finalized the

second phase of revising the Council on

Environmental Quality’s (“CEQ’s”) rules governing

NEPA reviews. Stage one focused on undoing an

earlier rule that tied NEPA to Public Citizen’s

proximate cause test.

CEQ “reconsidered its

reasoning” and decided to strike from the rule “the

‘reasonably close causal relationship’ and ‘but for’

language drawn from Public Citizen.”

National

Environmental Policy Act Implementing Regulations

Revisions, 87 FR 23453, 23465 (April 20, 2022)

(codified at 40 C.F.R. § 1508.1).

Phase two pushes NEPA review even further. In

determining the appropriate level of NEPA review,

agencies previously were directed to consider “the

affected area (national, regional, or local) and its

resources,” with the regulations indicating that “in the

case of a site-specific action, significance would

usually depend only upon the effects in the local area.”

23

40 C.F.R. § 1501.3(b)(1) (2023). The new rules

obliterate that restrained focus, calling on agencies to

“analyze the significance of an action in several

contexts,” including “the potential global, national,

regional, and local contexts as well as the duration,

including short- and long-term effects.” 40 C.F.R.

§ 1501.3(d)(1) (2024).

Further emphasizing the

international focus of the review, CEQ added “climate

change-related effects” to a list of effects to be

analyzed under NEPA, “including the contribution of

a proposed action and its alternatives to climate

change, and the reasonably foreseeable effects of

climate change on the proposed action and its

alternatives.” 40 C.F.R. § 1508.1(i)(4).

In five years, companies have faced three

dramatically different versions of CEQ’s NEPA

regulations: the pre-2020 rules; the Trump

administration rules; and the Biden administration

rules.

Through all this regulatory flip-flop, Public

Citizen’s proximate cause ruling remained, as did the

statutory command tying the effects under a NEPA

analysis to “action” being analyzed. 42 U.S.C. §

4332(C)(i). No statutory change has occurred since

Public Citizen that would authorize the free-ranging

environmental review demanded by the D.C. Circuit,

and the new regulations further exacerbate the

problem. Cf. Loper Bright, 144 S. Ct. at 2272

(critiquing how a “statutory ambiguity . . . becomes a

license authorizing an agency to change positions as

much as it likes . . . even when Congress has given [it]

no power to do so”).

Combining upstream and downstream review with

a global focus will render NEPA review even more

24

boundless and unmanageable. It also will turn every

agency into a gatekeeper able to veto projects because

of environmental considerations, real or imagined,

anywhere in the world. This regulatory shift will

move beyond the problem created by the D.C. Circuit’s

decision, whereby agencies are responsible for

environmental effects under the jurisdiction of other

agencies, and usher in a new era where agencies are

tasked with considering environmental effects in other

countries under the regulatory jurisdiction of no

agency. All of this will occur without any direction or

authorization by Congress, even though such

expansive global NEPA review would work directly

against the interest of the U.S. economy.

Consider, for example, the close relationship

between mining and energy. As discussed in greater

detail below, the U.S. Department of the Interior,

Bureau of Land Management (“BLM”), controls

mineral leasing rights and for coal leases requires an

environmental assessment of the post-mining

combustion of coal by downstream power plants, even

though those power plants are not under BLM’s

regulatory control or within its expertise. So, too, are

wind and solar projects inextricably intertwined with

mineral extraction. Indeed, the “materials and metals

demanded by a low-carbon economy will be immense.”

Benjamin K. Sovacool et al., Sustainable Minerals and

Metals for a Low-Carbon Future, 367 SCIENCE 30, 30

(2020). Unlike coal, however, the vast majority of

these necessary minerals comes from abroad. See id.

at 33 (charting global critical mineral production,

including 95% of rare earth elements from China and

approximately two-thirds of cobalt from Congo).

25

The extraction of these necessary upstream

minerals for wind and solar is no different in terms of

the causal chain than the coal inputs to a power plant.

And reviewing agencies will not like what they find.

The negative social and environmental consequences

of mining in these countries are extraordinary. See,

e.g., id. at 30 (describing the use of child labor in

Congo’s cobalt mines where workers often lack “basic

safety equipment” and how China’s rare earth mining

and processing “has resulted in chemical pollution

from ammonium sulfate and ammonium chloride that

now threatens rural groundwater aquifers as well as

rivers and streams”); Sam Kalen, Mining Our Future

Critical Minerals: Does Darkness Await Us?, 51

ENVTL. L. REP. 11006, 11009 (2021) (“China’s

production of lithium has become an environmental

and international human rights issue.”); id. at 11021

(“The abuses flowing from cobalt mining in the

Democratic

Republic

of

the

Congo

are

unfathomable.”). Even when some of these necessary

minerals are produced domestically, there can be

international downstream impacts, such as the need

to ship resources abroad for processing. See id. at

11019 (“[A] California rare earth mine arguably has

abundant resources, but its product must be shipped

to China for processing.”).

Adding the global regulatory focus of the new rules

to the D.C. Circuit’s approach requiring upstream and

downstream environmental review could bring these

international environmental effects into the NEPA

analysis, even though no U.S. agency has regulatory

authority or any real influence whatsoever over

mining or processing in China or Congo. This is where

the D.C. Circuit’s approach leads, because under it the

26

limits of regulatory authority do not matter. This is

not what Congress authorized.

C. Limitless NEPA Review Is Bad for

Everyone

Much NEPA review involves the fossil fuel

industry. But there is no NEPA exemption for solar

and wind projects. They, too, must pass through the

same

onerous

NEPA

gauntlet,

and

the

upstream/downstream logic applies to them with

equal force.

Unsurprisingly, commentators have raised the

alarm that the expansion of NEPA review over the

past decade or so will delay renewable energy projects,

possibly even more than fossil fuel projects. See, e.g.,

Ruhl & Salzman, Old Green Laws, supra, at 695 (“The

existing project siting and environmental protection

regulatory regimes do not hand out a ‘green pass’ to

infrastructure projects that promote desirable

environmental outcomes.”); James Coleman, Pipelines

& Power-Lines: Building the Energy Transport Future,

80 OHIO ST. L.J. 263, 291 (2019) (“And the arguments

for

considering

upstream

and

downstream

consequences of electricity transmission are, if

anything, more reasonable than the same case for oil

pipelines . . . . Thus, renewable power is, if anything,

more vulnerable than oil pipelines to delay-byenvironmental-review

tactics.”);

id.

at

299

(“[A]ggressive judicial expansion of environmental

reviews is a unique danger to energy transport

investment.”).

27

This system benefits no one other than those

opposed to any sort of energy and related

infrastructure development.

Forcing agencies to

consider upstream and downstream effects in the

wheelhouse of other agencies—even effects that

already are permitted—demands that agencies act

outside of their expertise and well beyond what

Congress could have intended. See West Virginia, 142

S. Ct. at 2612-2613. Granting every agency involved

in a project, however peripherally, a veto because of

environmental effects, or claimed environmental

effects, anywhere in the project chain “risks

duplicative, incongruous, and unwise regulation.”

Army Corps, 941 F.3d at 1296. This overlapping set of

czars is unlikely to generate better environmental

analyses and is likely to generate inconsistent

analyses of the same effects. The D.C. Circuit’s ruling

primarily functions to multiply the opportunities to

delay or derail energy projects.

See Coleman,

Pipelines & Power-Lines, supra, at 296 (“And there is

no reason to think that subjecting each proposed

project to multiple veto gates would improve overall

economic and environmental results. Multiple veto

gates just mean more opportunities to kill proposed

investments—and that is true whether those

investments are in oil, gas, or renewable power

transport.” (footnote omitted)).

In sum, NEPA does not require or authorize

agencies to engage in costly and time-consuming

analyses of possible upstream and downstream effects

of agency actions that will not be proximately caused

by those actions. The Court should emphatically

reject the D.C. Circuit’s assertion that limits on

agency authority are “simply inapplicable” to the

28

scope of a NEPA analysis, Eagle Cty., 82 F.4th at 1180,

and should reaffirm the rule of Public Citizen.

IV.

NACCO’s Own Experiences Provide a Case

Study of the Negative Consequences of

Downstream Review

One of NACCO’s subsidiaries, North American

Coal, LLC (“NA Coal”), through its mining

subsidiaries, regularly enters into coal leases with

BLM. One of NA Coal’s mines is the Falkirk Mine in

North Dakota.

By statute, Congress has declared its intent to

“assure that the coal supply essential to the Nation’s

energy requirements, and to its economic and social

well-being is provided . . . .” 30 U.S.C. § 1202(f). One

way Congress has encouraged the development of coal

reserves from public lands is through the federal

leasing program. As part of federal leasing, the

Secretary of the Interior “is authorized to divide any

lands . . . which have been classified for coal leasing

into leasing tracts of such size as he finds appropriate

and in the public interests and which will permit the

mining of all coal which can be economically extracted

in such tract.” 30 U.S.C. § 201(a)(1).

Coal mines are planned far in advance to operate

for many years in order to ensure a steady and reliable

fuel supply to associated power generating stations.

Coal supply contracts can span decades, and the

leasing of mineral rights typically occurs in stages,

with areas to be mined at later dates leased closer in

time to when mining will occur.

29

NEPA review for a coal mine leasing application is

conducted by BLM and the Office of Surface Mining

and

Reclamation

Enforcement

(“OSMRE”).

Historically, these sorts of NEPA reviews took only a

few months, but in recent years they have become

almost interminable. The primary source of this delay

comes from analysis of downstream factors, such as

power plant emissions, over which neither BLM nor

OSMRE has regulatory authority or expertise. In the

case of power generating stations that NACCO

supplies, by the time of NEPA review for the lease, the

approvals and permits for the downstream activities

have already long been secured from the appropriate

regulatory authority.

Ownership of mineral interests in North Dakota is

fragmented; interests owned by the federal

government are scattered between those owned by

private parties in a checkerboard fashion. NA Coal’s

Falkirk Mine, which has been in operation since 1978,

includes a combination of coal leased from both private

parties and the government.

In anticipation of reaching new coal tracts in late

2024, Falkirk applied to BLM for a lease on October

30, 2019. Five years later, the lease application still

has not been acted upon in any way, and the

government has failed to complete the required NEPA

review, requiring NA Coal finally to file a lawsuit

against BLM. Amended Complaint, The Falkirk

Mining Co. v. Dep’t of the Interior, No. 1:24-cv-00040DLH-CRH (D.N.D. Apr. 4, 2024).

Notably, this lease required only an EA rather

than the more arduous EIS, or so everyone involved

thought at the beginning. A draft EA was submitted

30

shortly after the lease application. BLM planned to

notice a public hearing on the draft EA in 2021, but

then cancelled the planned public hearing without

explanation. Id. at ¶ 45. No draft EA was published

by BLM in 2022 either. In December 2023, after no

substantive progress in the preceding four years, BLM

notified NA Coal by telephone that the EA could not

move forward because no test exists to determine the

impact of the lease on global CO2 emissions. Id. at

¶ 47. At no point has the government ever sent any

notice of deficiency, as required by regulations, or any

notice of any information purported to be missing. Id.

at ¶ 49.

Instead, the lease application persists in

regulatory purgatory, delayed by a NEPA review of

emissions from already-permitted sources outside

BLM’s control and not proximately caused by the

action under review. Cf. Sabal Trail, 867 F.3d at 1381

(“[T]he truth is that [the agency] has no control over

whether the power plants that will emit these

greenhouse gases will come into existence or remain

in operation.”) (Brown, J., dissenting in part). Most

recently, after the filing of NACCO’s lawsuit, the

government attempted to moot the lawsuit by

changing its position and claiming that the lease will

require a full-blown EIS, which, of course, will take

even longer.

There is great irony in the government using

NEPA review to delay the Falkirk lease application

initially for five years and now, according to the

government’s estimate, until late 2025, at the earliest.

Because of how coal mining works and the

geographic distribution of federal and private coal in

31

North Dakota, rejecting the application would

increase air emissions. Falkirk Mine would have to go

around the federal holdings. Avoiding that coal would

force the mine to excavate in a less efficient pattern

that would disturb an additional 433.5 surface acres.

NA Coal estimates that doing so would burn an

additional 908,144 gallons of diesel fuel between the

truck shovel fleet, dozers, and blades necessary to do

this additional work. Conversely, if NA Coal were able

to mine through the federal coal, it could rely on its

more efficient electric dragline and reduce emissions.

NORTH AMERICAN COAL CORPORATION, COMMENTS ON

DRAFT

RESOURCE

MANAGEMENT

THE

PLAN/ENVIRONMENTAL IMPACT STATEMENT FOR THE

BUREAU OF LAND MANAGEMENT NORTH DAKOTA Field

Office 22-23 (May 17, 2023), available at

https://perma.cc/G85J-6CK8.

The downstream emissions from electricity

generation will occur regardless of whether BLM

approves the lease, because Falkirk Mine will

substitute other privately held coal in the area. Yet

the lease application cannot proceed nearly five years

after its initial filing because, among other alleged

effects outside its authority and expertise, BLM

belatedly claims an inability to adequately measure

the downstream impacts on global CO2 emissions

under NEPA—emissions that BLM cannot stop or

reduce, even if it denies the lease. Indeed, given that

all of Falkirk Mine’s coal is consumed by existing,

permitted power plants that EPA has been prevented

from regulating for CO2 emissions, the only apparent

purpose served by reviewing power plant CO2

emissions under NEPA is circumventing the

constitutional limits that this Court recognized on

32

EPA’s authority, to stop an activity that is otherwise

allowed, and even encouraged, by existing law. See

West Virginia, 142 S. Ct. at 2616.

In sum, Falkirk Mine offers a cautionary example

of the regulatory shenanigans and real-world impact

made possible by rulings like the D.C. Circuit’s

decision below.

33

CONCLUSION

The D.C. Circuit should be reversed, and NEPA

review should be limited to environmental effects

within an agency’s jurisdiction and proximately

caused by the agency’s action.

Respectfully submitted,

CHARLES T. WEHLAND

Counsel of Record

JONES DAY

110 N. Wacker Drive, Ste 4800

Chicago, IL 60606

312.269.4388

ctwehland@jonesday.com

JEFFERY D. UBERSAX

BRANDON MORDUE

KUSHNER & HAMED CO., LPA

1375 East Ninth St., Ste 1930

Cleveland, OH 44114

216.696.6700

jdubersax@kushnerhamed.com

bmordue@kushnerhamed.com

September 4, 2024