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 AMICI CURIAE AMERICAN FOREST

RESOURCE COUNCIL AND WESTERN ENERGY

ALLIANCE IN SUPPORT OF PETITIONERS

♦

Ivan L. London

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

September 4, 2024

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS ................................... i

TABLE OF AUTHORITIES ............................ ii

IDENTITIES AND INTERESTS

OF AMICI CURIAE ..........................................1

SUMMARY OF THE ARGUMENT..................5

ARGUMENT .....................................................7

I.

Resource development serves the public

interest. ...................................................7

II.

NEPA requires processes, not outcomes.15

III.

NEPA does not require agencies to

guess about things they cannot control.19

A.

A “rule of reason” applies to

NEPA analyses as a limiting

principle.. ...................................19

B.

The lower court’s decision

contravenes the limiting principle

of “reason.” .................................23

CONCLUSION ................................................32

ii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Department of Transportation v. Public

Citizen,

541 U.S. 752 (2004) ................................ Passim

FCC v. Prometheus Radio Project,

592 U.S. 414 (2021) ........................................ 23

Inland Empire Pub. Lands Council v. Forest

Serv.,

88 F.3d 754 (9th Cir. 1996) ............................ 12

Kleppe v. Sierra Club,

427 U.S. 390 (1976) ........................................ 26

La. Public Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ........................................ 26

Marsh v. Oregon Nat. Res. Council,

490 U.S. 360 (1989) ........................................ 16

Metropolitan Edison Co. v. People Against

Nuclear Energy,

460 U.S. 766 (1983) ........................................ 20

N. Alaska Envtl. Ctr. v. Kempthorne,

457 F.3d 969 (9th Cir. 2006) .......................... 10

N. Slope Borough v. Andrus,

642 F.2d 589 (D.C. Cir. 1980) ........................ 10

iii

Paroline v. United States,

572 U.S. 434 (2014) ........................................ 20

Protect Our Communities Found. v. LaCounte,

939 F.3d 1029 (9th Cir. 2019) ........................ 16

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ........................................ 15

Sierra Club v. FERC,

827 F.3d 36 (D.C. Cir. 2016) .................... 21, 22

United States v. Coleman,

390 U.S. 599 (1968) ........................................ 11

WildEarth Guardians v. Bernhardt,

502 F. Supp. 3d 237 (D.D.C. 2020) ................ 29

WildEarth Guardians v. Zinke,

368 F. Supp. 3d 41 (D.D.C. 2019) .................. 28

WildEarth Guardians v. Haaland,

1:21-cv-00175 (D.D.C.) ................................... 29

WildEarth Guardians v. Haaland,

1:20-cv-00056 (D.D.C.) ................................... 29

WildEarth Guardians v. Haaland,

1:16-cv-01724, (D.D.C.) ................................. 29

STATUTES

PAGE(S)

5 U.S.C. § 706(2)(A).........................................21

16 U.S.C. § 1604(e)(1) .....................................11

iv

16 U.S.C. § 1604(g)(3)(A) ................................11

16 U.S.C. § 1604(m)(1) ....................................13

16 U.S.C. §§ 472a, 1600–06, 1607–14 ............13

16 U.S.C. §§ 528–31 ....................................7, 13

30 U.S.C. § 22 ..................................................10

30 U.S.C. § 181 ..............................................1, 7

30 U.S.C. § 226(b)(1)(A) ....................................9

30 U.S.C. § 226(g)..............................................9

42 U.S.C. § 4331(a)..........................................14

42 U.S.C. § 4332(2)(C)(i) .................................24

42 U.S.C. § 4332(2)(C)...............................14, 15

43 U.S.C. § 1701(a)(7), (8), (12) ........................7

43 U.S.C. § 1701(a)(8), (12) .............................11

43 U.S.C. § 1701(a)(12) .....................................7

43 U.S.C. § 1702(l) ......................................7, 11

43 U.S.C. § 1732(a)..........................................13

43 U.S.C. § 1732(a)–(b) .....................................7

43 U.S.C. §§ 1701–1787 ..............................7, 13

v

49 U.S.C. § 10901(c) ..................................12, 23

REGULATIONS

PAGE(S)

40 C.F.R. §§ 1501.5, 1501.11 ............................9

40 C.F.R. § 1508.1(g) (2020)............................24

43 C.F.R. § 1601.0-5(n) .....................................8

43 C.F.R. § 1601.5-3(a)......................................8

43 C.F.R. § 1601.0-6 ..........................................8

43 C.F.R. § 1610.5-3 ..........................................7

43 C.F.R. § 3120.1-2(a)......................................7

43 C.F.R. § 3162.3-1 ..........................................9

43 C.F.R. § 3171.5 .............................................9

43 C.F.R. § 3171.13 ...........................................9

43 C.F.R. §§ 46.120(c), 46.300(a)(2) ..................9

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

1

IDENTITIES AND INTERESTS

OF AMICI CURIAE1

Western Energy Alliance (the Alliance) and the

American Forest Resource Council (AFRC) represent

companies, communities, and stakeholders across the

American West whose livelihoods depend on

responsible development of the Nation’s abundant

natural resources.

Western Energy Alliance

For over fifty years, the Alliance has been a

leader, advocate, and champion of independent oil and

natural gas companies in the West. Alliance members

and staff are dedicated to abundant, affordable

energy, environmentally responsible development,

and a high quality of life for all. Alliance members

invest billions of dollars to lease, explore, operate, and

develop oil and natural gas on thousands of oil and gas

leases issued by the U.S. Department of the Interior,

through the Bureau of Land Management (BLM),

under the Mineral Leasing Act (MLA). 30 U.S.C.

§§ 181, et seq. The Alliance advocates for access to

federal lands for leasing, exploration, and production

of America’s oil and natural gas resources; and

rational, efficient, and effective permitting processes.

1 Per Supreme Court Rule 37.6, Amici affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

Judicial

application

of

the

National

Environmental Policy Act (NEPA) to the federal

onshore oil and gas program significantly affects

Alliance members. The Alliance defends BLM

decisions authorizing oil and gas land-use planning,

leasing, and development in cases before lower federal

courts and in the U.S. Courts of Appeals for the D.C.

and Ninth Circuits. In the past eight years, the

Alliance has litigated the judicial standards imposed

on the BLM’s NEPA analyses of greenhouse gas

emissions and global climate change.

American Forest Resource Council

AFRC is an Oregon-based nonprofit and

regional trade association that advocates for

sustained-yield timber harvests on public timberlands

and enhancing forest health and resistance to fire,

insects, and disease throughout the West. It

represents over fifty forest-product businesses and

forest landowners in Oregon, Washington, California,

Nevada, Idaho, and Montana. It also promotes active

management to have productive public forests,

protection of the value and integrity of adjoining

private forests, and support for the economic and

social foundations of local communities. And AFRC

works to improve federal and state laws, regulations,

policies, and decisions on access to and management

of public forest lands and protection of all forest lands.

AFRC members depend on reliable supplies of

timber and other forest products from National

Forests and BLM lands. Active forest management,

including logging, thinning, and prescribed fire, is

3

essential to reducing wildfire risks, improving forest

health, protecting watersheds and wildlife habitat,

and ensuring a steady supply of renewable building

materials. AFRC’s members are committed to

collaborative and science-based stewardship of public

lands with local communities and other stakeholders.

Interests of Amici Curiae

Although they focus on different natural

resources in the West, the Alliance and AFRC share

an interest in the proper implementation of NEPA.

For decades, anti-development (or, “anti-use”)

interests have wielded NEPA as a weapon to cut down

responsible resource-management activities that are

in the public interest. Amici curiae have taken part in

countless administrative processes and legal

challenges on the scope of NEPA reviews for projects

ranging from individual oil and gas wells and timber

sales to region-wide plans and programs.

Repeatedly, anti-development litigants abuse

NEPA. They demand exhaustive analyses of every

remote alternative and impact—not to improve

agency decision-making, but to stop development. As

a result, NEPA reviews now routinely span thousands

of pages and require five years or more to complete,

only to be challenged in court anyway.

Even the most diligent agencies suffer

flyspecking for supposed flaws and omissions. All the

while, the litigation paralyzes needed infrastructure,

energy development, forest-health projects, and

resulting economic productivity.

4

The consequences for the Alliance, AFRC, and

the Nation have been severe. While technologically

recoverable oil and gas resources on federal lands are

estimated at 194 trillion cubic feet of natural gas and

35 billion barrels of crude oil, actual production from

these vast reserves is a small fraction of its potential

due to leasing and permitting delays. Similarly,

timber harvests from National Forest lands are down

80 percent from peak levels,2 even as our forests have

grown dangerously overcrowded and wildfire risks

have soared.3 Rural communities across the West

have suffered the resulting job losses, mill closures,

and revenue declines.

The misuse of NEPA to target these

authorized—congressionally prioritized—activities

is not only devastating to local economies, but also

flatly inconsistent with the statute’s text and purpose.

NEPA is not an environmental-protection statute that

prohibits actions with adverse effects. It is a

procedural tool for agency deliberation and public

participation. When NEPA is contorted into an allencompassing

inquiry

requiring

exhaustive

guesswork about potential effects an agency cannot

meaningfully consider or control, it serves only to

delay critical economic and resource-management

activity, not to serve the public interest.

This case presents an opportunity for the Court

2 Katie Hoover, Cong. Research Serv., Federal Land Ownership:

Acquisition and Disposal Authorities (R45688) (2019).

3 Fiscal Year 2022 Budget Justification; Confronting the Wildfire

Crisis: A Strategy for Protecting Communities and Improving

Resilience in America’s Forests (2022).

5

to enforce critical limits on NEPA’s scope and prevent

further weaponization of the statute. The lower

court’s holding that the Surface Transportation Board

must analyze downstream greenhouse gas emissions

from any “reasonably foreseeable” fossil-fuel

consumption induced by its action, regardless of

whether the agency has authority to control that

consumption, is wrong. If the Court lets it stand, then

the ruling will further bog down federal decisionmaking and harm the public interest.

Also, this case shows yet another effort to

transform NEPA into a de facto national-energy and

climate “policy” overseen by federal courts. But

Congress has made clear in the MLA, Federal Land

Policy and Management Act (FLPMA), National

Forest Management Act (NFMA), Multiple Use

Sustained-Yield Act, and other statutes that

responsible development of natural resources is the

public interest. NEPA is not a weapon to cut down

that interest. Amici curiae respectfully ask the Court

to restore NEPA to its essential but modest purpose.

♦

SUMMARY OF THE ARGUMENT

In this case, a few anti-development interests,

a federal regulator (in the minority), and then the

lower court decided that they knew more about what

is in the “public interest” than Congress knows, and

they used NEPA as a sword to cut down a rail-line

construction project that would serve the public

interest. But Congress decided that building rail lines

6

is in the public interest. NEPA serves only an

ancillary role in making sure the federal regulators

pause to consider environmental consequences that

might flow from construction of a rail line.

Amici curiae do not construct rail lines, but

they advocate for other projects—oil and gas

development and active forest management—that

Congress says are in the public interest. Yet antidevelopment groups have for years now similarly

wielded NEPA as a sword to cut down those projects.

NEPA is a procedural statute; it makes federal

agencies pause before approving projects so the

agencies can “address”—not prevent, but address—

the “reasonably foreseeable” environmental effects of

their approvals. That is all NEPA does. As this case

shows, unelected regulators and lower federal courts

have misplaced NEPA’s role in decision-making,

elevating their own substantive “environmental” aims

over the public interest. The pernicious application of

NEPA asks whether federal regulators must in a

substantive sense prevent possible downstream

impacts of their actions that are nevertheless outside

their statutory authorities to control. This Court has

said that the regulators cannot do that. But regulators

and lower courts have ignored this Court’s precedent.

The systemic disregard of NEPA’s limits hurts oil and

gas development and active forest management. This

Court should reverse the trend and reinforce NEPA’s

limits.

7

ARGUMENT

I.

Resource development serves the public

interest.

Federal land-management in the West reflects

a balance between Congress’s power over the federal

lands and its desire to foster economic development

and resource use. The federal government has long

sought to facilitate settlement and use of its vast

Western holdings through land grants, homesteading

incentives, rights-of-way, and other policies.

Meanwhile, Congress incrementally reserved some

lands and resources in federal ownership to provide

for their stewardship and use. The resulting system of

“multiple use” management—formally adopted across

most federal lands in the mid-20th century—reflects

this essential balance among interests. See 16 U.S.C.

§§ 528–31. For this brief, it is worth explaining the

statutory frameworks guiding onshore oil and gas

development and active forest management on federal

lands.

Oil and Gas Development

Under the MLA, Congress requires the U.S.

Department of the Interior to hold competitive oil and

gas lease sales “at least quarterly” to promote

responsible development of this nation’s energy

resources, which the Department does through its

BLM. 30 U.S.C. § 181. The BLM must conduct these

quarterly lease sales for lands that are eligible and

available for leasing. 30 U.S.C. § 181; 43 C.F.R.

§ 3120.1-2(a).

8

At the same time, the BLM manages public

lands under FLPMA, 43 U.S.C. §§ 1701–1787.

FLPMA requires the BLM to manage public lands

under the principles of “multiple use” and “sustained

yield” to meet the needs of present and future

generations. 43 U.S.C. § 1701(a)(7), (8), (12); 43 U.S.C.

§ 1732(a)–(b); 43 C.F.R. § 1610.5-3. FLPMA also

identifies “mineral exploration and production” as one

of the “principal or major uses” of public lands,

43 U.S.C. § 1702(l), and declares that it is the Nation’s

policy that BLM manage public lands “in a manner

which recognizes the Nation’s need for domestic

sources of minerals, [and other commodities] from the

public lands.” 43 U.S.C. § 1701(a)(12).

So where does NEPA come into play? The BLM

employs a three-stage decision-making process

(planning, leasing, and development) for oil and gas

uses of federal lands, and the federal courts have held

that NEPA applies to all three stages. In other words,

federal agencies conduct NEPA analyses at least

three times before any oil or gas is produced from a

federal lease.

In the first stage, the BLM broadly assesses the

presence of minerals and other resources on public

lands through land-use planning, which includes

determining what lands are open or closed to potential

oil and gas development; and for “open” areas, what

conservation stipulations should apply to future

leases offered on those lands (e.g., offering parcels

with timing restrictions on surface activities to protect

migrating wildlife). 43 C.F.R. § 1601.0-5(n).

9

The final product of the first stage is a resourcemanagement plan (RMP), which is supported by an

environmental impact statement (EIS) prepared

following NEPA. 43 C.F.R. § 1601.0-6. An EIS

assesses the potential environmental impacts of oil

and gas development under different planning

alternatives based on “reasonably foreseeable”

development scenarios. With respect to oil and gas

resources, RMPs say which lands will remain open (or

closed) to oil and gas leasing and development.

43 C.F.R. § 1601.0-5(n). And they state the

stipulations and mitigation measures that may be

attached to leases or made conditions of approval for

subsequent permits for exploration or development

projects. Id. Once the BLM issues an RMP, later morespecific decisions implementing specific projects must

conform to the plan. 43 C.F.R. § 1601.5-3(a).

In the second stage, the BLM conducts a new

round of NEPA analysis to decide which parcels to

offer in its quarterly oil and gas lease sales. 30 U.S.C.

§ 226(b)(1)(A). Sometimes, the BLM may prepare one

or more environmental assessments that “tier” to an

EIS prepared in the planning stage. See 40 C.F.R.

§§ 1501.5, 1501.11. And sometimes, the BLM may rely

on earlier environmental documents when preparing

a lease sale. See 43 C.F.R. §§ 46.120(c), 46.300(a)(2).

But other times, the BLM must conduct a full EIS at

the leasing stage too.

The third stage of NEPA analysis occurs after

the BLM has issued a lease, when an oil and gas

operator submits an application for a permit to drill

and the BLM determines whether, and under what

10

conditions, it will approve the development proposed

for the lease it has issued. 30 U.S.C. § 226(g); 43

C.F.R. §§ 3162.3-1, 3171.5. The BLM reviews the

application, completes more environmental review,

and decides whether to approve the permit and

impose any limiting conditions on its approval.

43 C.F.R. § 3171.13.

The lower courts have generally required

NEPA review at each of the three stages, with the

BLM’s obligations intended to be relative to the

particular activity being authorized and the

availability of information, because “[i]t is more

logical and efficient to ask certain questions when the

truth of their premises is unveiled.” N. Slope Borough

v. Andrus, 642 F.2d 589, 606 (D.C. Cir. 1980); accord

N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969,

977 (9th Cir. 2006) (oil and gas projects “generally

entail separate stages of leasing, exploration and

development. At . . . the leasing stage we have before

us, there is no way of knowing what plans for

development, if any, may eventually materialize.”).

But while the lower courts have given NEPA a

pervasive presence in the federal onshore oil and gas

program, Congress has consistently declared that

development of the federal mineral estate is in public

interest. Since at least the middle of the 19th century,

“all valuable mineral deposits in lands belonging to

the United States . . . shall be free and open to

exploration and purchase, and the lands in which they

are found to occupation and purchase, by citizens of

the United States.” 30 U.S.C. § 22.

11

This open-access policy reflected Congress’s

intent “to reward and encourage the discovery of

minerals that are valuable in an economic sense.”

United States v. Coleman, 390 U.S. 599, 602 (1968).

And while the BLM can manage federal leasing, it—

like the Surface Transportation Board here—does not

have legal authority to regulate air emissions and set

climate policy that might (or might not) result from

the agency’s actions. See Wyoming v. Dep’t of the

Interior, 493 F. Supp. 3d 1046, 1065–66 (D. Wyo.

2020), vacated on other grounds, No. 20-8072, 2024

WL 3791170, at *2 (10th Cir. Aug. 13, 2024).

The MLA extended this principle to fuel

minerals such as oil, gas, and coal. The congressional

intent was to “to promote the orderly development of

the oil and gas deposits in . . . lands of the United

States through private enterprise.” Senate Subcomm.

of the Comm. on Interior and Insular Affairs, The

Investigation of Oil and Gas Lease Practices, 84th

Cong., 2nd Sess. 2 (1957) (emphasis added).

Active Forest Management

FLPMA and the NFMA, which provide organic

authority and comprehensive planning frameworks

for BLM and Forest Service lands, likewise set

resource development as a priority in multiple-use

stewardship. As it does with mineral development,

FLPMA specifies that “‘principal or major uses’

includes . . . timber production.” 43 U.S.C. § 1702(l)

(emphasis added). The NFMA, in turn, requires the

Forest Service to afford “coordination of outdoor

recreation, range, timber, watershed, wildlife and

12

fish, and wilderness” in developing land and RMPs.

16 U.S.C. § 1604(e)(1). It further directs the agency to

“determine forest management systems, harvesting

levels, and procedures” based on all multiple-use

values, not solely preservation. Id. § 1604(e)(2).

These statutes do not set a one-way ratchet in

which federal lands increasingly disappear from

resource development. Rather, they codify a balance

between production and other concerns. True,

FLPMA’s multiple-use mandate directs BLM to

consider “environmental” values while managing

uses, but Congress more directly ordered the BLM to

recognize the Nation’s need for “minerals, food,

timber, and fiber.” 43 U.S.C. § 1701(a)(8), (12).

Similarly, the NFMA requires the Forest

Service to “insure consideration of the economic and

environmental aspects of various systems of

renewable resource management” in developing land

management plans. 16 U.S.C. § 1604(g)(3)(A). The

statutes contemplate informed agency decisionmaking, not myopic preservation that ignores the

public interest.

As happens for oil and gas development, the

Forest Service (generally) conducts NEPA analyses at

multiple stages in forest management. The NFMA

envisions a two-stage approach to forest planning: a

first “programmatic level” and EIS, and a second

assessment of potential environmental effects for

individual, site-specific projects. Inland Empire Pub.

Lands Council v. Forest Serv., 88 F.3d 754, 757 (9th

Cir. 1996).

13

The lower courts have let anti-development

groups file NEPA challenges at each planning stage,

leading to average delays of roughly 4.2 years per

project. In the last decade, there was a 56% increase

in NEPA appeals over the prior decade, with the

agency prevailing in 80% of cases. But even when the

Forest Service wins, litigation can significantly delay

science-based forest management intended to reduce

wildfire risks, improve forest health and resilience,

and protect communities.

Serial litigation has made it impossible for the

Forest Service to increase the pace and scale of

management, with the agency conducting an average

of just 2.87 million acres of restoration work annually

in recent years,4 compared to the 20 million acres it

has identified as needing restoration.

Public Interest: Energy and Forest Management

As relevant to this case, Congress has decided

that building rail lines is in the public interest.

49 U.S.C. § 10901(c). Yet the lone dissenter at the

Surface and Transportation Board and the lower court

decided that they knew better than Congress about

the public interest. Evidently, only they know that

“Decarbonization is national policy” and that is

the public interest, Pet.App.146a.

4 Forest Service,

Fiscal Year 2022 Budget Justification, 2021;

Confronting the Wildfire Crisis: A Strategy for Protecting

Communities and Improving Resilience in America’s Forests

(2022); Forest Service, Fiscal Year 2022 Budget Justification at

107 (2021).

14

Similarly, Congress has repeatedly emphasized

for more than a century that onshore oil and gas

production and active forest management are in the

public interest. E.g., 16 U.S.C. §§ 528–31; 16 U.S.C.

§§ 472a, 1600–06, 1607–14; 43 U.S.C. §§ 1701–85.

Congress did not codify NEPA—a procedural

statute—to undermine the public interest in building

rail lines, producing oil and gas from the Nation’s

mineral estate, or managing the forests.

Nor, as relevant to this case, should so-called

“climate” concerns trump the public interest. To the

contrary, FLPMA expressly directs the Secretary to

“manage the public lands under principles of multiple

use and sustained yield[.]” 43 U.S.C. § 1732(a).

Conspicuously absent is any mandate to meet

greenhouse gas targets, emissions budgets, or vague

climate goals that Congress has not enacted. Even

less present is any requirement that federal

regulators guess about what might happen due to

actions that they have no authority to regulate.

The NFMA similarly recognizes that forest

management must balance environmental protection

with resource production and management flexibility.

It requires the Forest Service to prepare an EIS for

each forest plan, but it denies any intent “to preclude

silvicultural practices.” 16 U.S.C. § 1604(m)(1).

The upshot is clear: Congress declared that

responsible production of federal minerals and

management of the forests is in the public interest.

Congress further prescribed detailed statutes to

further the interest. Environmental “values” are

15

relevant to agency decisions on where, when, and how

the public interest is accomplished, and NEPA

requires the federal regulators to pause and address

those values. But Congress did not authorize anti-use

groups, federal regulators, or the lower courts to set

nationwide “climate” polices that elevate substantive

“environmental” outcomes over the public interest.

II.

NEPA requires processes, not outcomes.

Passed in 1970, NEPA “declares a broad

national commitment to protecting and promoting

environmental quality.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 348 (1989). But

Congress’s recognition of environmental values did

not override its prior codifications of the public

interest in resource uses; NEPA’s opening provision

describes a federal policy to “use all practicable means

and measures . . . to create and maintain conditions

under which man and nature can exist in productive

harmony, and fulfill the social, economic, and other

requirements of present and future generations of

Americans.” 42 U.S.C. § 4331(a). This policy reflects a

balance between environmental values and uses—not

a singular focus on preservation or “anti-use.”

To effectuate the policy, NEPA requires federal

agencies to prepare “a detailed statement” (an EIS) on

the environmental impacts of “major Federal actions

significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(C). The EIS must

address—that is, not prevent but address—

“reasonably foreseeable” environmental effects of the

proposed agency action, and address alternatives to

16

the action, short-term versus long-term effects, and

whether the effects will be irreversible. Id.

NEPA “does not mandate particular results,

but simply prescribes the necessary process” for

agencies to follow. Robertson, 490 U.S. at 350. “Other

statutes may impose substantive environmental

obligations on federal agencies, but NEPA merely

prohibits uninformed—rather than unwise—agency

action.” Id. at 351. It does not require agencies to

elevate environmental concerns, and it does not

require agencies to adopt the least environmentally

damaging action. See generally Protect Our

Communities Found. v. LaCounte, 939 F.3d 1029,

1035 (9th Cir. 2019). Instead, NEPA ensures that an

agency will consider detailed information concerning

significant environmental impacts and make that

information available to the wider public before going

ahead. Robertson, 490 U.S. at 349.

In short, NEPA serves two goals: (1) to improve

the quality of agencies’ decision-making process, and

(2) to inform the public about that decision-making

process so that interested citizens may offer input. As

this Court put it, “NEPA’s purpose is not to generate

paperwork—even excellent paperwork—but to foster

excellent action” through well-informed and

transparent agency deliberation. See Marsh v. Oregon

Nat. Res. Council, 490 U.S. 360, 371 (1989).

Agencies and Courts Depart from the Statute

Despite Congress’s modest goals, NEPA has

evolved over into a burdensome and litigious

17

enterprise. On average, an EIS takes 4.5 years to

complete, with some projects enduring delays of up to

17 years before receiving approval. Dan Bosch &

Philip Rossetti, Addressing Delays Associated with

NEPA Compliance, Am. Action Forum, July 10, 2018.5

The costs often are in millions of dollars. Id. Taking

infrastructure as an example, NEPA-related delays

can add up to $4.2 million per year in costs for

infrastructure projects. Id. And 148 infrastructure

projects reviewed between 2010 and 2017 had an

average delay of 7.6 years due to NEPA. These

financial burdens and prolonged timelines pose severe

challenges to the efficient and cost-effective

implementation of essential projects.

But the risk of litigation hangs over every

project like the Sword of Damocles. “[P]rocesses that

have evolved to implement NEPA have often led to

delay, confusion and litigation[.]” Kathleen McGinty

testimony to Senate Energy and Natural Res. Comm.,

Subcomm. on Oversight (Oct. 19, 1995). The lower

courts have allowed any group to file a NEPA lawsuit

challenging even the most exhaustive analysis. These

lawsuits are in the hundreds each year, stretching

agency resources and chilling private investment. See

WHITE HOUSE COUNCIL ON ENVTL. QUALITY, NEPA

LITIGATION SURVEYS: 2001–2013.6

The Alliance and AFRC have suffered the

Philip Rossetti, Addressing Delays Associated with NEPA

Compliance, American Action Forum (Mar. 20, 2017),

https://www.americanactionforum.org/research/addressingdelays-associated-nepa-compliance/ (last visited Aug. 28, 2024).

6 https://perma.cc/J7A4-GTM7 (last visited Aug. 15, 2024).

5

18

consequences of this broken process. Across vast

swaths of the American West, domestic energy

production, timber harvests and other congressionally

authorized uses of federal lands have ground to a near

halt. Oil and gas development from the federal estate

has suffered.7 Timber harvests from the National

Forests have likewise fallen precipitously in recent

decades.8

Win or lose, the mere pendency and even the

boogeyman of NEPA litigation can delay critical

projects by years or make them economically

infeasible. Further, regardless of the underlying merit

of the claims, the mere filing of a complaint adds

months or years to even the most mundane agency

action. Too often, the path of least resistance is simply

not to act in the first place, despite the public’s interest

in natural resource use.

This situation is untenable and undermines

multiple-use management of federal lands. Congress

has declared that mineral production, timber

production, and other resource uses are priority uses

of federal lands—the agencies must promote these

uses under their organic planning statutes. Anti7 See U.S. Energy Info. Admin., Cal. Field Prod. of Crude Oil,

https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=

MCRFPCA1&f=A (last visited Aug. 28, 2024).

8 See Oswalt, S.N., Smith, W.B., Miles, P.D., & Pugh, S.A. (2019).

Forest Resources of the United States, 2017: A Technical

Document Supporting the Forest Service 2020 Update of the RPA

Assessment. at 44, Forest Service (“Removals of these timber

products peaked in 1986 at 17 billion cubic feet. From this peak,

removals for products declined 24.8 percent to 12.8 billion cubic

feet in 2011.”)

19

development groups, regulators, and the lower courts

cannot wield NEPA as a veto over the public interest.

This Case

This case arises against that backdrop and

implicates the proper scope of NEPA in an era of

weaponized litigation. In demanding that the Surface

Transportation Board quantify any greenhouse gas

emissions traceable to guesses as to future upstream

production and downstream uses of oil and gas

spurred by its approval of a railroad, the lower court

lost sight of NEPA’s limited purpose. The lower court’s

unbounded conception of “indirect effects” stretches

the causal chain beyond the breaking point and

threatens to paralyze a broad swath of congressionally

authorized infrastructure and resource management

activities.

III.

NEPA does not require agencies to guess

about things they cannot control.

A.

A “rule of reason” applies to NEPA

analyses as a limiting principle.

This is not the first time the Court has grappled

with NEPA’s jurisdictional limits, although it has

been a long time. In Department of Transportation v.

Public Citizen, 541 U.S. 752 (2004), the Court rejected

the notion that NEPA requires agencies to guess

about future events that they lack authority to

prevent.

That case involved a NEPA challenge to

20

Federal Motor Carrier Safety Administration

(FMCSA) safety monitoring rules for Mexican trucks

running in the United States. The plaintiff argued

that FMCSA had to guess about the environmental

impacts of cross-border truck traffic before publishing

rules that would allow that, on the theory that the

President’s separate decision to lift a preexisting

moratorium on such traffic was a “reasonably

foreseeable” effect of FMCSA’s action. Id. at 765.

This Court disagreed, emphasizing that

“inherent in NEPA and its implementing regulations

is a ‘rule of reason’” that governs the scope of impacts

an agency must consider. Id. at 767 (quoting Marsh,

490 U.S. at 373). That rule of reason incorporates “the

‘familiar doctrine of proximate cause from tort law’” to

figure out whether a particular effect bears a

sufficiently close causal relationship to the agency

action to warrant NEPA review. Id. (quoting

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 774 (1983)). Under these

background principles, “‘but for’ causation is

insufficient to make an agency responsible for a

particular effect under NEPA and the relevant

regulations.” Id.; see also Paroline v. United States,

572 U.S. 434, 445 (2014) (reaffirming these limits).

The Court held that the increase in crossborder truck traffic was not proximately caused by

FMCSA’s safety rules. While the rules would “allow”

such traffic to occur by establishing a registration and

monitoring regime—that is, there was a “but for”

relationship—that connection was insufficient to

require further NEPA analysis because FMCSA had

21

“no ability to countermand the President’s lifting of

the moratorium or otherwise categorically to exclude

Mexican trucks from operating in the United States.”

Pub. Citizen, 541 U.S. at 766. Put differently, any

emissions generated by trucks crossing the border

were attributable to “the President’s action in lifting

the moratorium,” not to “FMCSA’s issuance of safety

regulations.” Id. at 769. The agency had no obligation

under NEPA to analyze the effects of truck activity it

“simply lack[ed] the power to act on.” Id. at 768.

The Court further emphasized the limited

utility of requiring analyses of effects an agency

cannot meaningfully address within its statutory

authority. “Since FMCSA has no ability categorically

to prevent the cross-border operations of Mexican

motor carriers, the environmental impact of the crossborder operations would have no effect on FMCSA’s

decisionmaking.” Id. at 768. Demanding “an agency to

consider environmental effects that will occur

regardless of that agency’s decisionmaking process”

would not “fulfill NEPA’s ‘rule of reason’ because the

analysis would serve ‘no purpose’ in light of NEPA’s

regulatory scheme as a whole.” Id. at 770. In short, an

agency need not conduct a futile assessment of

impacts beyond its power to control.

The lower court is aware of Public Citizen and

should have applied it in this case to uphold the

Surface Transportation Board’s approval of the rail

line. In Sierra Club v. FERC, 827 F.3d 36 (D.C. Cir.

2016), for example, the lower court rejected a claim

that the Federal Energy Regulatory Commission

(FERC) had to analyze emissions from increased

22

natural gas exports as part of its approval of upgrades

to a liquified-natural-gas terminal. While the

terminal modifications would “substantially increase”

the potential for this Nation to export liquified natural

gas, FERC could not refuse to approve the upgrades

on the grounds that they might lead to increased

exports. Id. at 47. Only the Department of Energy

(DOE) could authorize exports, and DOE had already

done so under a separate statutory process. Id. FERC

had no obligation to “duplicate the environmental

review conducted by DOE,” and NEPA did not pose a

requirement to provide a duplicate review of the

environmental impact of exporting natural gas. Id.

That would go beyond the limiting principle.

Applying “reason” to limit the scope of NEPA

has clear benefits. Proximate cause serves a critical

gatekeeping function under NEPA by limiting the

scope of effects an agency must analyze to those

bearing a “reasonably close causal relationship” to the

proposed action. Pub. Citizen, 541 U.S. at 767.

Where an agency lacks jurisdiction to control

third-party conduct, it need not engage in a futile,

speculative assessment of the effects of that conduct

merely because they may be a “but for” consequence

of the agency’s decision. And where an impact

assessment would be of only marginal utility to the

agency’s decision-making process, NEPA does not

demand that the agency conduct it anyway.

23

B. The lower court’s decision contravenes

the limiting principle of “reason.”

The decision below ignores the precedential

aspects of the Public Citizen decision and opinion.

Here, the lower court held that a NEPA analysis must

encompass in detail any downstream GHG emissions

“reasonably foreseeable” allowed—in a “but for”

sense—by an agency action regardless of whether the

agency can do anything about those emissions. This

near-limitless view of “indirect effects” not only

ignores Public Citizen and proximate-cause

principles, but also threatens to inject (or continue

allowing

the

perpetuation

of)

standardless

speculation into a broad swath of agency decisionmaking in defiance of this Court and Congress’s

Administrative Procedure Act, 5 U.S.C. § 706(2)(A),

which requires federal regulators to act reasonably,

see FCC v. Prometheus Radio Project, 592 U.S. 414,

423 (2021) (§ 706(A)(2) “requires that agency action be

reasonable and reasonably explained”).

At best, the lower court misread Public Citizen.

The lower court erroneously concluded that the Board

had to quantify downstream greenhouse gas

emissions as a “reasonably foreseeable” indirect effect

of its rail authorization, without considering whether

the Board has any statutory authority to regulate

those emissions, and never mind whether there was

any realistic way to figure out how, if, when, and

where those emissions would occur. Prudence and

reality took a back seat to the lower court’s desired

substantive “environmental” outcome, which was to

prevent construction of the rail line.

24

Further, the court improperly looked past

Public Citizen’s grounding in proximate-cause

principles, suggesting that this Court’s analysis was

limited

to

narrow

circumstances

involving

presidential discretion and foreign affairs. These

analytical missteps led the lower court to stretch

NEPA beyond all reasonable limits.

“But For” or Proximate Causation?

Elaborating further, the lower court at best

fundamentally misapprehended Public Citizen’s

holding and analytical framework. In Public Citizen,

this Court did not say the mere foreseeability that

some trucks would enter the Nation from Mexico that

would not be able to enter “but for” the agency’s action

would nevertheless trigger the agency’s duty to

analyze those trucks’ emissions. Rather, the Court

emphasized repeatedly that proximate cause—not

just “but for” cause—is essential to prompt an agency

obligation under NEPA. 541 U.S. at 767 (“[A] ‘but for’

causal relationship is insufficient to make an agency

responsible for a particular effect under NEPA and

the relevant regulations.”). Where an agency cannot

prudentially control or mitigate an environmental

impact, that impact “cannot be considered an effect of

the agency action in any meaningful sense,” even if it

is foreseeable in an attenuated “but for” sense. Id.

Properly understood, Public Citizen compels

the conclusion that the Surface Transportation Board

need not quantify—to guess about—potential

upstream oil and gas-development and downstreamrefining emissions here even if, in some sense, those

25

emissions might not occur “but for” the Board’s action

approving construction of the rail line. The Board has

no authority to regulate them, much less hold up

projects so that it could guess what those emissions

might be. To its credit, the Board agreed and approved

construction of the rail line, which was in the public

interest. The lower court erred in setting aside that

action.

But like FMCSA in Public Citizen, the Board

“has no ability to prevent” oil and gas drilling in the

Uinta Basin, the operation of pipelines or refineries,

or the downstream use of fossil fuels shipped over the

railway—wherever in the world those fuels might end

up. Id. at 770. Those matters lie within the regulatory

ambit of the BLM, the Pipeline and Hazardous

Materials Safety Administration, the Environmental

Protection Agency, the State of Utah, and myriad

other entities that are not the Board. The Board’s

“limited statutory authority” begins and ends with

licensing the construction and operation of rail lines

as “required by the present or future public

convenience and necessity.” 49 U.S.C. § 10901(c).

That’s all.

Implementing Public Citizen by Regulation

Admittedly, the lower courts generally, federal

regulators, and even Congress have struggled with

NEPA, including Public Citizen. The Council on

Environmental Quality (CEQ) attempted to codify

Public Citizen, but then in 2022 removed the phrase

“reasonably close causal connection” from its NEPA

regulations, 87 Fed. Reg. 23,453, 23,465 (Apr. 20,

26

2022), and Congress recently codified the requirement

that agencies examine “reasonably foreseeable

environmental effects,” whatever that means,

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

137 Stat. 38. However, these changes do not diminish

the importance of proximate cause as a limiting

principle for agencies’ NEPA obligations.

To its credit, CEQ’s explanation for its

regulatory revision did not explicitly say that agencies

must analyze effects that have only an attenuated,

“but for” connection to agency actions. See 87 Fed.

Reg. at 23,465. Instead, CEQ indicated that the “rule

of reason” dictated the need for a close causal

relationship between an agency action and its alleged

effects. Id. Similarly, while Congress amended NEPA

to specify that agencies must examine “reasonably

foreseeable environmental effects,” in practice, the

agencies and lower courts are up-in-the-air when it

comes to limiting the regulators’ NEPA obligations, so

they are afraid to approve and let go forward

important projects on federal lands.

NEPA does not demand such angst. This Court

has perhaps most succinctly stated it as: an EIS need

not delve into the possible effects of a hypothetical

project, but need only focus on the impact of the

particular proposal at issue and other pending or

recently approved proposals that might be connected

to or act cumulatively with the proposal at issue.

Kleppe v. Sierra Club, 427 U.S. 390, 410 n.20 (1976).

And an agency has no power to act “unless and until

Congress confers power upon it.” La. Public Serv.

Comm’n v. FCC, 476 U.S. 355, 374 (1986). So the

27

Surface Transportation Board cannot delve—and it

could not have delved—into hypotheticals by guessing

about future upstream oil and gas development and

future downstream refining worldwide, wherever the

oil from the Uinta Basin might go and despite the

lower court’s judgment. See id.

The lower court’s approach injects standardless

conjecture into every NEPA analysis. Applying the

lower court’s reasoning, every agency action becomes

a reckoning on climate policy. That would be, in fact it

is, disastrous in practice.

Example: NEPA Stops Oil and Gas Development

This is not idle speculation. By requiring the

Board to quantify downstream emissions from any oil

and gas production, no matter how attenuated from

the agency’s action, the lower court would open the

door to similarly expansive NEPA challenges across a

broad swath of federal decision-making.

Recall that anti-development groups get at

least three bites of the apple when wielding NEPA

as a weapon to prevent or shut down oil and gas

development and similarly have multiple chances to

challenge forest-management projects. Supra at

Argument § I. The lower court’s expansive, invasive

approach to NEPA in this case would enable

completely unreasonable regulatory actions and

lower-court decisions that prevent realization of the

public interest in the form of oil and gas development

and active forest management.

28

Taking oil and gas development as an example:

development of nearly every federal oil and gas lease

offered for sale by the BLM since 2015, in seven states,

is currently stymied by NEPA litigation in the D.C.

Circuit’s and Ninth Circuit’s lower courts. The agency

and producers are regularly whipsawed by lowercourt decisions that order more NEPA guesses—

depending on the judges’ preferences—on climate

impacts, including from transportation of oil and gas

to market and eventual downstream combustion.

A group of legal challenges brought in the U.S.

District Court for the District of Columbia illustrate

the detrimental delays that result when courts do not

confine an agency’s NEPA-review responsibilities to

the impacts that are within the agency’s statutory

authority.

In 2016, anti-development groups challenged

eleven BLM oil and gas lease sales in Wyoming,

Colorado, and Utah. In 2019, the court granted in part

the claims as to the Wyoming federal oil and gas lease

sales, concluding that the BLM violated NEPA by:

failing to (1) quantify guesses of greenhouse gas

emissions; (2) pinpoint downstream uses’ greenhouse

gas emissions, and (3) consider cumulative impacts of

quantified greenhouse gas emissions compared to

regional and national emissions. WildEarth

Guardians v. Zinke, 368 F. Supp. 3d 41 (D.D.C. 2019).

The court remanded the BLM’s decisions and enjoined

the agency from approving any development on the

Wyoming-only leases until the agency conducted the

curative NEPA analysis.

29

The agency did so, but the anti-development

groups at once amended their complaint to challenge

the supplemental analysis. The court then also found

deficiencies and remanded the Wyoming leasing

decisions a third analysis and again restricted

development—all while leaving the BLM and the

leaseholders of later issued lease sales guessing as to

what the governing NEPA standard would be, and

whether any of the leases across several States would

survive to see development. WildEarth Guardians v.

Bernhardt, 502 F. Supp. 3d 237 (D.D.C. 2020).

Meanwhile, the anti-development groups

brought even more complaints challenging the BLM’s

analyses of other oil and gas lease sales from 2017

through 2020—covering millions of acres of federal

minerals in five Western states. WildEarth

Guardians v. Haaland, 1:20-cv-00056 (D.D.C. 2020);

WildEarth Guardians v. Haaland, 1:21-cv-00175

(D.D.C. 2021). In 2021, the BLM and the plaintiffs

settled the claims, shutting oil and gas interests out

of those discussions. Without regard to the limits on

the BLM’s authority, the agency agreed to conduct

more NEPA analyses—guesses about attenuated

issues—on greenhouse gases and climate impacts for

the thousands of the leases challenged in the various

cases, further tying up those thousands of leases

covering millions of acres across several States. See,

e.g., WildEarth Guardians v. Haaland, 1:16-cv-01724,

Doc. 227-1 (D.D.C. Mar. 4, 2022).

As part of the new supplemental analysis, the

BLM analyzed other federal oil and gas lease sales

that were not subject to the anti-development groups’

30

complaints. In total, the agency addressed seventyfive different federal oil and gas lease sales covering

seven states. See Supp. E.A. for Greenhouse Gas

Emissions Related to Oil and Gas Leasing in Seven

States from February 2015 to December 2020, DOIBLM-WO-3100-2023-0001-EA.9

While the BLM released a draft supplemental

analysis for public review and comment in late 2022—

years and years after issuing the leases, which at the

time were also supported by exhaustive NEPA

analyses— the agency to this day has not finalized it

or issued a Record of Decision. As a result, the BLM

has taken the position that leaseholders cannot

develop valid leases issued as long ago as 2015.

The lengthy delays affect not only the

challenged federal leases, but also—because of the

nature of oil and gas development—the development

of adjacent private, state, and federal oil and gas

interests. The business impacts of these delays are

significant. In aggregate, the face value of these sold

leases is approximately $471 million, with millions

more invested in due diligence review and capital

allocation for exploration and development, and

billions in lost revenue from not being able to develop

these stranded assets.

In sum, by wielding NEPA as a weapon in a

way that Congress never intended, the antidevelopment groups, the regulators and the lower

courts—like the lone dissenter at the Surface

https://eplanning.blm.gov/eplanning-ui/project/2022218/510

(last visited Aug. 8, 2024).

9

31

Transportation Board who decided that he alone knew

that “Decarbonization is national policy,”

Pet.App.146a (emphasis in original)—get exactly

what they want: indefinite delays of oil and gas

production (and, similarly, forest management) on

federal lands, notwithstanding the public interest.

The most recent report analyzing the federal

circuit courts’ decisions on NEPA challenges says that

five out of the six cases in which the circuit courts

found a NEPA violation involved oil and gas or

mineral interests. The sixth case involved a federal

energy company’s (Tennessee Valley Authority’s)

decision to remove timber for a transmission project.

See NEPA Annual Report 2022.10 The oil and gas and

timber industries suffer unfairly.

This Court should put NEPA back into its

proper role. Public Citizen’s anchoring in proximate

cause—in being reasonable—is no mere suggestion; it

is an indispensable safeguard against untenable

speculation and uncheckable regulatory actions.

Where, as here, an agency has no statutory authority

to prevent downstream impacts, it need not quantify

those impacts in an EIS.

The Board took a hard look at the effects of

approving construction of the Uinta Basin Railway. In

NEPA, Congress demanded no more.

10 https://naep.memberclicks.net/assets/annual-

report/NEPA_Annual_Report_2022.pdf (last visited Aug. 28,

2024)

32

♦

CONCLUSION

It is the role of elected legislators, not federal

regulators or the courts, to define and implement a

national climate and energy policy. Those dissatisfied

with current priorities can advocate for change

through Congress, but they cannot wield NEPA as a

sword to strike down the public interest.

For the foregoing reasons, the judgment of the

lower court should be reversed.

Respectfully submitted,

Ivan L. London

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

September 4, 2024

Attorneys for Amici Curiae