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

No. 23-975

IN THE

Supreme Court of the United States

_________________________________________________

SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,

Petitioners,

v.

EAGLE COUNTY, COLORADO, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

____________________________________________________________________________________________________

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION AND

THE COMPETITIVE ENTERPRISE INSTITUTE

IN SUPPORT OF PETITIONERS

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amici Curiae

Devin Watkins

Dan Greenberg

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

Devin.Watkins@cei.org

September 4, 2024

i

TABLE OF CONTENTS

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

Interest of Amici Curiae .............................................. 1

Summary of Argument................................................ 2

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

I.

NEPA Is Not The Magna Carta.......................5

II.

NEPA Has Morphed Into a Compliance Regime

Congress Did Not Intend ..................................7

III.

NEPA Only Requires Study of Effects Caused

By The Specific Proposed Action Within The

Agency’s Regulatory Power ............................ 11

A. Under Public Citizen, Agencies Need Not Study

Effects Beyond Their Jurisdiction ................. 11

B. Congress Statutorily Cabined the Scope of

NEPA Review to Effects Directly Flowing From

The Proposed Action Under Review .............. 14

C. The Decision Below Mistakenly Expanded

NEPA’s Sweep and Overrode Congress’s

Legislative Choices ......................................... 19

IV.

The Emperor Has No Clothes: CEQ Has No

Legislative Rulemaking Authority ................ 23

Conclusion ................................................................. 27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

350 Mont. v. Haaland,

29 F.4th 1158 (9th Cir. 2022) ..................... 13, 14

Airport Impact Relief, Inc. v. Wykle,

192 F.3d 197 (1st Cir. 1999) ............................. 23

Alaska v. Carter,

462 F. Supp. 1155 (D. Alaska 1978) ................. 26

Alaska Survival v. Surface Transp. Bd.,

705 F.3d 1073 (9th Cir. 2013) ..................... 20, 21

Balt. Gas & Elec. Co. v. NRDC,

462 U.S. 87 (1983) ............................................... 6

Barnes v. Dep’t of Transp.,

655 F.3d 1124 (9th Cir. 2011) ........................... 10

Basel Action Network v. Mar. Admin.,

370 F. Supp. 2d 57 (D.D.C. 2005) ..................... 17

Cape May Greene, Inc. v. Warren,

698 F.2d 179 (3d Cir. 1983) .............................. 18

Citizens against Burlington, Inc. v. Busey,

938 F.2d 190 (D.C. Cir. 1991) ................... 3, 5, 18

City of Shoreacres v. Waterworth,

420 F.3d 440 (5th Cir. 2005) ............................. 13

iii

Conservation Cong. v. Finley,

774 F.3d 611 (9th Cir. 2014) ............................... 5

Cronin v. U.S. Dep’t of Agric.,

919 F.2d 439 (7th Cir. 1990) ............................... 8

Ctr. for Biological Diversity v. FERC,

67 F.4th 1176 (D.C. Cir. 2023) ........................... 6

Ctr. for Biological Diversity, Manasota-88,

Inc. v. U.S. Army Corps of Eng’rs,

941 F.3d 1288 (11th Cir. 2019) . 12, 14, 17, 21, 24

Dep’t of Transp. v. Public Citizen,

41 U.S. 752 (2004) ..................... 2, 5, 6, 12, 14, 18

Ecosystem Inv., Partners v. Crosby

Dredging, L.L.C.,

729 F. App’x 287 (5th Cir. 2018)..................... 6, 7

Ensco Offshore Co. v. Salazar,

781 F. Supp. 2d 332 (E.D. La. 2011) ................ 19

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ............................................. 7

FEC v. Cruz,

596 U.S. 289 (2022) ........................................... 24

Food & Water Watch v. U.S. Dep’t of Agric.,

1 F.4th 1112 (D.C. Cir. 2021) ............... 23, 25, 26

Friends of the Atglen-Susquehanna Trail,

Inc. v. Surface Transp. Bd.,

252 F.3d 246 (3d Cir. 2001) .............................. 19

iv

Greene Cty. Planning Bd. v. Fed. Power

Com.,

455 F.2d 412 (2d Cir. 1972) .............................. 25

Greenpeace USA v. Stone,

748 F. Supp. 749 (D. Haw. 1990)...................... 17

Gross v. FBL Financial Services, Inc.,

557 U.S. 167 (2009) ........................................... 15

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) ........................................... 15

Hiram Clarke Civic Club v. Lynn,

476 F.2d 421 (5th Cir.1973) .............................. 25

Int’l Bhd. of Teamsters v. Dep’t of Transp.,

724 F.3d 206 (D.C. Cir. 2013) ........................... 13

Kouichi Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012) ........................................... 15

Lemon v. Geren,

514 F.3d 1312 (D.C. Cir. 2008) ........................... 5

Limerick Ecology Action, Inc. v. United

States Nuclear Regulatory Com.,

869 F.2d 719 (3d Cir. 1989) .............................. 27

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) ....................................... 23

Metropolitan Edison Co. v. People Against

Nuclear Energy,

460 U.S. 766 (1983) ..................................... 11, 12

v

Morrison v. Nat’l Austl. Bank Ltd.,

561 U.S. 247 (2010) ........................................... 18

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ....................................... 21, 22

NAACP v. FPC,

425 U.S. 662 (1976) ..................................... 18, 21

Nat’l Helium Corp. v. Morton,

455 F.2d 650 (10th Cir.1971) ............................ 25

Nat’l Wildlife Fed’n v. Sec’y of the U.S. Dep’t

of Transp.,

960 F.3d 872 (6th Cir. 2020) ............................. 21

Nestle USA, Inc. v. Doe,

593 U.S. 628 (2021) ........................................... 18

Nevada v. DOE,

457 F.3d 78 (D.C. Cir. 2006) ............................. 26

New Prime Inc. v. Oliveira,

586 U.S. 105 (2019) ........................................... 15

NRDC v. EPA,

859 F.2d 156 (D.C. Cir. 1988) ..................... 14, 18

NRDC v. Nuclear Reg. Comm’n,

647 F.2d 1345 (D.C. Cir. 1981) ......................... 17

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

287 U.S. 12 (1932) ............................................. 21

vi

Protect Our Parks, Inc. v. Buttigieg,

39 F.4th 389 (7th Cir. 2022) ................... 5, 14, 17

Robertson v. Methow Valley Citizens

Council,

490 U.S. 332 (1989) ............................................. 5

Ry. Labor Executives’ Assn’s v. Nat’l

Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ............................. 24

Seattle Audubon Soc. v. Moseley,

80 F.3d 1401 (9th Cir. 1996) ....................... 18, 19

Shapiro v. United States,

335 U.S. 1 (1948) ............................................... 12

Sierra Club v. Bosworth,

510 F.3d 1016 (9th Cir. 2007) ........................... 10

Sierra Club v. Clinton,

746 F. Supp. 2d 1025 (D. Minn. 2010) ............. 17

Sierra Club v. FERC,

867 F.3d 1357 (D.C. Cir. 2017) ..................... 5, 13

Sierra Club v. FERC,

827 F.3d 59 (D.C. Cir. 2016) ............................... 5

Sierra Club v. FERC,

827 F.3d 36 (D.C. Cir. 2016) ................. 12, 13, 17

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

803 F.3d 31 (D.C. Cir. 2015) ............................... 6

vii

Town of Barnstable v. FAA,

740 F.3d 681 (D.C. Cir. 2014) ........................... 13

Vt. Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978) ............................................. 8

Wash. Env’t Council v. Bellon,

732 F.3d 1131 (9th Cir. 2013) ........................... 14

West Virginia v. EPA,

597 U.S. 697 (2022) ........................................... 24

Winter v. NRDC, Inc.,

555 U.S. 7 (2008) ................................................. 5

Wyoming v. DOI,

493 F. Supp. 3d 1046 (D. Wyo. 2020) ............... 19

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ........................................... 26

Statutes

Fiscal Responsibility Act of 2023,

Pub. L. 118-5, § 321,

137 Stat. 10, 38 (2023) ...................................... 21

National Environmental Policy Act of

1969, Pub. L. 91-190, §§ 102(C)(i)–

(ii), 83 Stat. 852, 853 (1970) ............................. 16

16 U.S.C. § 824a(a) ................................................. 18

42 U.S.C. § 4331(a) ................................................. 18

viii

42 U.S.C. § 4331(b)(2) ............................................ 18

42 U.S.C. § 4332(C) ............................................ 5, 18

42 U.S.C. § 4332(C)(i) (2023) ................................. 16

42 U.S.C. § 4332(C)(ii) (2023) ................................ 16

42 U.S.C. § 4333 ............................................... 18, 27

42 U.S.C. § 4342 ..................................................... 25

42 U.S.C. § 4344 ..................................................... 24

43 U.S.C. § 1332(3) ................................................. 18

49 U.S.C. § 10101(4) ............................................... 20

49 U.S.C. § 10101(7) ............................................... 20

49 U.S.C. § 10101(11) ............................................. 20

49 U.S.C. § 10501(a)(1) .......................................... 19

49 U.S.C. § 10502 ................................................... 19

49 U.S.C. § 10502(a) ............................................... 21

49 U.S.C. § 10901 ................................................... 19

49 U.S.C. § 10901(a) ............................................... 21

49 U.S.C. § 10901(b) ............................................... 21

49 U.S.C. § 10901(c) ............................................... 21

ix

Federal Register

43 Fed. Reg. 55,978 (Nov. 29, 1978) ...................... 26

85 Fed. Reg. 43,304 (July 16, 2020) ....................... 23

89 Fed. Reg. 35,442 (May 1, 2024) ......................... 15

Rules

Sup. Ct. R. 37.3 ......................................................... 1

Other Authorities

About, Surface Transportation Board,

https://www.stb.gov/about-stb .......................... 20

Black’s Law Dictionary (4th ed. 1951)................... 15

Black’s Law Dictionary (5th ed. 1979)................... 15

Black’s Law Dictionary (12th ed. 2024)................. 15

Bradley C. Karkkainen,

Whither NEPA?,

12 N.Y.U. Envtl. L.J. 333 (2004) ........................ 8

Brian Potter et al., How to Stop

Environmental Review from

Harming the Environment (2022),

https://ifp.org/environmental-review................ 10

x

EPA, Regulations for Emissions from

Locomotives,

https://www.epa.gov/regulationsemissions-vehicles-andengines/regulations-emissionslocomotives ........................................................ 20

Eric Edwards and Sara Sutherland,

Does Environmental Review Worsen

the Wildfire Crisis? (June 2022),

https://www.perc.org/wpcontent/uploads/2022/06/PERCPolicyBrief-NEPA-Web.pdf ................................. 9

Frank B. Cross,

The Judiciary and Public Choice,

50 Hastings L.J. 355 (1999) ................................ 8

Henry J. Friendly,

A Look at the Federal Administrative

Agencies,

60 Colum. L. Rev. 429 (1960)............................ 25

James W. Coleman, Fixing the

Environmental Policy Act, U.S.

House of Representatives House

Committee on Natural Resources

(April 25, 2018),

https://www.congress.gov/115/meetin

g/house/108215/witnesses/HHRG115-II00-TTF-ColemanJ20180425.PDF ..................................................... 8

xi

Mark C. Rutzick, A Long and Winding

Road: How the National

Environmental Policy Act Has

Become the Most Expensive and

Least Effective Environmental Law

in the History of the United States,

and How to Fix It (Oct. 16, 2018),

https://rtp.fedsoc.org/wpcontent/uploads/RTP-EnergyEnvironment-Working-Group-PaperNational-Environmental-PolicyAct.pdf ....................................................... 6, 7, 10

Nikki Chiappa et al., Understanding

NEPA Litigation (2024),

https://thebreakthrough.imgix.net/U

nderstanding-NEPALitigation_v4.pdf ............................................. 8, 9

Scott C. Whitney,

Should the National Environmental

Policy Act Be Extended to Major

Federal Decisions Significantly

Affecting the Environment of

Sovereign Foreign States and the

Global Commons,

1 Vill. Envtl. L.J. 431 (1990)....................... 17, 18

Scott C. Whitney,

The Role of the President’s Council

on Environmental Quality in the

1990s and Beyond,

6 J. Envtl. L. & Lit. 81 (1991) ............... 24, 25, 27

xii

Statement of Abigail Kimbell, USDA

Forest Service, Before the U.S.

House of Representatives Committee

on Resources (April 23, 2005),

https://www.fs.usda.gov/sites/default

/files/legacy_files/media/types/testim

ony/042305.pdf .................................................. 10

Susannah T. French,

Judicial Review of the

Administrative Record in NEPA

Litigation,

81 Cal. L. Rev. 929 (1993) ................................... 8

USDA Forest Service, The Process

Predicament: How Statutory,

Regulatory, and Administrative

Factors Affect National Forest

Management (2002),

https://www.fs.usda.gov/projectspolicies/documents/ProcessPredicament.pdf .................................................. 9

Webster’s Seventh New Collegiate

Dictionary (1972) .............................................. 15

1

BRIEF OF AMICI CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.3, amici curiae

respectfully submit this brief in support of

Petitioners.1

INTEREST OF AMICI CURIAE

Amicus curiae Americans for Prosperity Foundation

(“AFPF”) is a 501(c)(3) nonprofit organization

committed to educating and training Americans to be

courageous advocates for the ideas, principles, and

policies of a free and open society. Some of those key

ideas include the separation of powers and

constitutionally limited government. As part of this

mission, AFPF appears as amicus curiae before

federal and state courts.

Amicus curiae Competitive Enterprise Institute

(“CEI”) is a nonprofit organization headquartered in

Washington, D.C., dedicated to promoting the

principles of free markets and limited government.

Since 1984, CEI has carried out its mission through

policy analysis, commentary, and litigation.

This case raises a familiar problem. Too often,

federal agencies overstep their authority by

substituting their policy preferences for those

mandated by Congress in the law. This problem can

1 Amici curiae state that no counsel for any party authored this

brief in whole or in part, and no entity or person, aside from amici

curiae or its counsel, made any monetary contribution intended

to fund the preparation or submission of this brief.

2

be exacerbated when a judicial panel erroneously

imports atextual policy considerations into a statute,

here, the National Environmental Policy Act

(“NEPA”). Neither agencies nor Article III courts

should be in the business of substituting their policy

preferences for those of Congress, as set forth in the

text of statutes.

SUMMARY OF ARGUMENT

This case is not about what constitutes sound

energy, infrastructure, environmental, or social

policy. The question presented has nothing to do with

those issues, which must be addressed through

substantive authorizing statutes, subject to

constitutional limits. Instead, this case is about

whether NEPA, as enacted by Congress and construed

by this Court in Department of Transportation v.

Public Citizen, 541 U.S. 752 (2004), requires agencies

to study questions beyond their regulatory authority

and outside their expertise. The answer is no.

Congress wrote NEPA as a purely procedural

statute that does not dictate outcomes. It merely

obligates agencies to study the proximate

environmental effects of proposed actions within their

jurisdiction and report the results. But over the past

50 years some lower courts have transmogrified

NEPA into a substantive, outcome-oriented

environmental statute that allows project opponents

to block projects that do not align with their policy

preferences. This decades-long accretion has layered

onto the statute an expansive and elaborate body of

compliance requirements going far beyond what the

text requires and has led to the creation of, in essence,

a NEPA industrial complex.

3

The decision below—which held the Surface

Transportation Board (“STB”) had “responsibility

under NEPA to identify and describe” upstream

effects “it lacks authority to prevent, control, or

mitigate,” Pet. App. 36a—highlights the scope of the

problem. It is the jurisprudential equivalent of

requiring a law student to obtain a medical degree as

a condition precedent to practicing law. That cannot

be right. And it makes zero sense.

This extratextual gloss on NEPA cannot be

allowed to stand. “Just as NEPA is not a green Magna

Carta, federal judges are not the barons at

Runnymede.” Citizens against Burlington, Inc. v.

Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (Thomas, J.).

And the time has come to closely examine the

operative statutory text. Amicus respectfully submits

it is well worth the effort. A thorough statutory

investigation may reveal that a large body of NEPA

precedent has no textual foundation, instead resting

on nothing more than statutory quicksand and

judicial policy preferences.

A root cause of the problem is that courts have long

assumed the Council on Environmental Quality

(“CEQ”) has broad authority to issue NEPA

regulations that bind other agencies and are entitled

to judicial deference. CEQ, in turn, has created an

elaborate body of NEPA interpretations that venture

far beyond NEPA’s statutory requirements. This has,

in turn, led to judicial interpretations of CEQ

regulations straying yet further from NEPA’s text.

The problem is that CEQ does not have, and never

has had, any authority to issue binding NEPA

regulations. Instead, its charge is to serve a purely

4

advisory function and make policy recommendations.

Indeed, shortly after NEPA’s passage, Congress

enacted major substantive authorizing statutes, such

as the Clean Air Act of 1970 and the Clean Water Act

of 1972, which empowered the Environmental

Protection Agency, underscoring CEQ’s modest,

advisory role. An Executive Order issued years after

NEPA’s enactment cannot retroactively revise NEPA

to grant CEQ sweeping “legislative” rulemaking

powers that Congress withheld from it. The atextual

judicial gloss on NEPA—based, in part, on a

misguided reliance on CEQ’s legislative project—

likewise cannot change or add to the actual words

Congress enacted into law.

As relevant here, nothing in NEPA requires

agencies to study indirect or cumulative effects

outside of the scope of the specific proposed agency

action under review. Instead, agencies must only

study effects that are proximately caused by specific

decisions within their regulatory authority. Each

individual agency must also comply with their organic

statute, which sets forth the factors Congress

intended the agency to consider in assessing the

proposed action. This limits the scope of NEPA to

matters within each agency’s statutory authority as it

considers each individual project. In sum, NEPA

reviews must be tethered to effects proximately

caused by the specific agency decision that are within

the scope of the agency’s jurisdiction, guided by the

agency’s mission as set forth by Congress.

For the foregoing reasons, this Court should

reverse the decision below.

5

ARGUMENT

I.

NEPA Is Not The Magna Carta.

As a threshold matter, it is important to

understand that “NEPA is not a green Magna

Carta[.]” Busey, 938 F.2d at 194. The statute merely

obligates agencies to create reports under certain

circumstances. See 42 U.S.C. § 4332(C). “NEPA

imposes only procedural requirements on federal

agencies with a particular focus on requiring agencies

to undertake analyses of the environmental impact of

their proposals and actions.” Pub. Citizen, 541 U.S. at

756–57 (citations omitted); see Winter v. NRDC, Inc.,

555 U.S. 7, 23 (2008). It is thus “not a substantive”

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

389, 397 (7th Cir. 2022), and “does not provide

substantive” requirements, Conservation Cong. v.

Finley, 774 F.3d 611, 615 (9th Cir. 2014).

“As a procedural statute, NEPA does not mandate

any particular outcome.” Sierra Club v. FERC, 827

F.3d 59, 68 (D.C. Cir. 2016). Instead, it “is all about

the journey.” Sierra Club v. FERC, 867 F.3d 1357,

1380 (D.C. Cir. 2017) (hereinafter “Sabal Trail”)

(Brown, J., concurring in part, dissenting in part).

“Other

statutes

may

impose

substantive

environmental obligations on federal agencies, but

NEPA merely prohibits uninformed—rather than

unwise—agency action.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 351 (1989).

“Preparation of an environmental impact statement

will never force an agency to change the course of

action it proposes.” Lemon v. Geren, 514 F.3d 1312,

1315 (D.C. Cir. 2008) (cleaned up). “Congress in

enacting NEPA . . . did not require agencies to elevate

6

environmental concerns over other appropriate

considerations.” Balt. Gas & Elec. Co. v. NRDC, 462

U.S. 87, 97–98 (1983) (citations omitted). If it complies

with the statute’s procedural requirements, an agency

is free to proceed with the proposed action regardless

of the nature, intensity, or scope of potential

environmental impacts.

An agency’s analytical obligations are tempered by

a “rule of reason.” Pub. Citizen, 541 U.S. at 767; see

Ctr. for Biological Diversity v. FERC, 67 F.4th 1176,

1182 (D.C. Cir. 2023) (“When reviewing an agency’s

compliance with NEPA, the rule of reason applies, and

we consistently decline to flyspeck an agency’s

environmental analysis.” (cleaned up)). For example,

if fewer than twenty miles of a 600-mile project is on

federal land, NEPA only requires study of the portion

of the project under federal control. See Sierra Club v.

U.S. Army Corps of Eng’rs, 803 F.3d 31, 54 (D.C. Cir.

2015) (Brown, J., concurring in the judgment).

In sum, “NEPA imposes no duty for federal

agencies (or anyone else) to use the reports to protect

the environment.” Mark C. Rutzick, A Long and

Winding Road: How the National Environmental

Policy Act Has Become the Most Expensive and Least

Effective Environmental Law in the History of the

United States, and How to Fix It 3 (Oct. 16, 2018).2

“NEPA cannot prevent informed[]” agency decisions

regardless of the consequences that may flow from

those decisions. Ecosystem Inv., Partners v. Crosby

https://rtp.fedsoc.org/wp-content/uploads/RTP-EnergyEnvironment-Working-Group-Paper-National-EnvironmentalPolicy-Act.pdf.

2

7

Dredging, L.L.C., 729 F. App’x 287, 295 (5th Cir.

2018). And Congress never intended for it to be used

as a tool to block projects some may disagree with.

II.

NEPA Has Morphed Into a Compliance

Regime Congress Did Not Intend.

But in the past decades, project opponents have

weaponized NEPA as a tool to block projects at odds

with their policy views.3 And “a half century of NEPA

implementation has transformed this seemingly

innocuous agency reporting duty into the most costly,

burdensome and ineffective environmental law in the

history of the United States.” Rutzick, supra, 3.

Regulatory and judicial policymaking has spawned

a sprawling NEPA industrial complex. “‘NEPA

compliance’ now consumes as much as one billion

dollars of direct federal expenditures every year, or

more . . . , and demands the full-time work effort of

hundreds or thousands of federal employees and

contractors . . . in every agency of the government.” Id.

NEPA also imposes massive costs on States, localities,

and private citizens seeking federal funds or permits.

See id. And as Judge Posner has observed, “a fullfledged” EIS “is very costly and time-consuming to

prepare and has been the kiss of death to many a

3 In an appropriate case, this Court should revisit the extent to

which such groups are allowed under Article III to bring NEPA

challenges. See FDA v. All. for Hippocratic Med., 602 U.S. 367,

405 (2024) (Thomas, J., concurring); Rutzick, supra, 4 n.9.

8

federal project[.]”4 Cronin v. U.S. Dep’t of Agric., 919

F.2d 439, 443 (7th Cir. 1990). Cf. Vt. Yankee Nuclear

Power Corp. v. NRDC, 435 U.S. 519, 551 (1978) (“Time

and resources are simply too limited to hold that an

impact statement fails because the agency failed to

ferret out every possible alternative[.]”).

The statute “is notorious for special interest abuse”

and “can be used by anyone interested in frustrating

or delaying a major government action.” Frank B.

Cross, The Judiciary and Public Choice, 50 Hastings

L.J. 355, 375 (1999). Project opponents “place[] a high

value on NEPA because it affords extraordinary

opportunities to throw up procedural roadblocks that

may delay or kill projects the monkey wrencher

opposes.” Bradley C. Karkkainen, Whither NEPA?, 12

N.Y.U. Envtl. L.J. 333, 339 (2004); see Susannah T.

French, Judicial Review of the Administrative Record

in NEPA Litigation, 81 Cal. L. Rev. 929, 972 (1993)

(describing “sandbagging” to interfere with projects).

Project opponents frequently use NEPA litigation

as a tactic to block projects through delay. Indeed, a

recent report found that “[b]etween 2013 and 2022,

circuit courts heard approximately 39 NEPA appeals

cases per year, a 56% increase over the rate from 2001

to 2015.” Nikki Chiappa et al., Understanding NEPA

4 “NEPA impact statements were once less than

ten pages[.]”

James W. Coleman, Fixing the Environmental Policy Act, U.S.

House of Representatives House Committee on Natural

Resources,

4

(April

25,

2018),

https://www.congress.gov/115/meeting/house/108215/witnesses/

HHRG-115-II00-TTF-ColemanJ-20180425.PDF.

9

Litigation 3 (2024).5 “On average, 4.2 years elapsed

between publication of an environmental impact

statement or environmental assessment and

conclusion of the corresponding legal challenge at the

appellate level.” Id.

“NEPA and the threat of litigation [also] impose a

sizable burden on agencies[.]” Id. at 5. “The U.S.

Forest Service, the agency that shoulders the greatest

NEPA burden, provides a prime example. By its own

admission, excessive environmental reviews have

prevented the Forest Service from effectively

managing forests, at one point consuming almost 40%

of the agency’s budget.” Id. at 4 (citing USDA Forest

Service, The Process Predicament: How Statutory,

Regulatory, and Administrative Factors Affect

National Forest Management (2002)).6 The excessive

burdens the threat of NEPA litigation impose on

Forest Service resources endangers humans and

property, hampering the Forest Service. See Eric

Edwards and Sara Sutherland, Does Environmental

Review Worsen the Wildfire Crisis? (June 2022).7

Experience has shown that pointless paperwork

requirements flowing from judicial expansion of

https://thebreakthrough.imgix.net/Understanding-NEPALitigation_v4.pdf.

5

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

6

https://www.perc.org/wp-content/uploads/2022/06/PERCPolicyBrief-NEPA-Web.pdf.

7

10

NEPA have real-world consequences. 8 Cf. Barnes v.

Dep’t of Transp., 655 F.3d 1124, 1143 (9th Cir. 2011)

(Ikuta, J., dissenting) (“[T]he majority sides with

delay and air pollution by imposing pointless [NEPA]

paperwork on the agency before the necessary project

can go forward.”). “In 1999, for instance, delays in the

NEPA process for the prescribed burning of the Six

Rivers National Forest resulted in the wildfire that

the prescribed burning was meant to prevent from

occurring.” Brian Potter et al., How to Stop

Environmental

Review

from

Harming

the

9

Environment (2022). Cf. Sierra Club v. Bosworth, 510

F.3d 1016, 1034 (9th Cir. 2007) (Kleinfeld, J.,

concurring) (questioning whether common-sense fireprotection measures require years of study under

NEPA). A similar event occurred in 2003. See

Statement of Abigail Kimbell, USDA Forest Service,

Before the U.S. House of Representatives Committee

on Resources (April 23, 2005).10

This Court should also be cognizant of the realworld harms that flow from Sabal Trail and its

progeny. Consider the decision below. “The railway

project into the Uinta Basin would empower the

individuals that the Utah AFL-CIO represents within

the

labor

industry

to

secure

meaningful

employment[.]” Utah AFL-CIO Cert. Amicus Br. 1. “A

long-awaited project in a region that has experienced

8 “In recent decades NEPA has imposed tens of billions of dollars

of unnecessary cost on the American economy with no proven

corresponding environmental benefit.” Rutzick, supra, 23.

9 https://ifp.org/environmental-review/.

10https://www.fs.usda.gov/sites/default/files/legacy_files/media/t

ypes/testimony/042305.pdf.

11

cycles of prosperity and decline for far too many years,

this eighty-eight-mile short-line railroad would finally

provide Vernal, Utah and Roosevelt, Utah some

stability in their economies.” Id. at 5–6. Indeed, the

“[p]roject holds the potential to employ thousands of .

. . hard-working, skilled professional trade workers,

and would contribute to rebuilding the middle class.”

Id. at 13. The “railroad would [also] dramatically

improve the economy and the lives of the Ute Indian

Tribe and others who live in the Uintah Basis.” Ute

Indian Tribe Cert. Amicus Br. 2–3. Project opponents

blocked that opportunity for thousands of people (and

their families) to live the American Dream and

achieve prosperity. “Blocking the Project stifle[d]

economic, environmental, and safety improvements in

the region and hurt[] area residents.” Utah Cert.

Amicus Br. 3. That was wrong. And it was contrary to

both the statute and this Court’s precedent.

III.

NEPA Only Requires Study of Effects

Caused By the Specific Proposed Action

Within The Agency’s Regulatory Power.

All of the above-described unnecessary delays and

litigation would unfortunately have to be tolerated by

this Court if they resulted from a proper textual

understanding of the statute that Congress wrote.

But they do not. Instead, this Court should mow the

jurisprudential weeds and return NEPA to its

statutory roots.

A. Under Public Citizen, Agencies Need Not

Study Effects Beyond Their Jurisdiction.

In Metropolitan Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766 (1983), this Court

12

construed the terms “‘environmental effect’ and

‘environmental impact’ in § 102” of NEPA “to include

a requirement of a reasonably close causal

relationship between a change in the physical

environment and the effect at issue,” id. at 774. In

Public Citizen, this Court reaffirmed that “NEPA

requires ‘a reasonably close causal relationship’

between the environmental effect and the alleged

cause” analogous “to the ‘familiar doctrine of

proximate cause from tort law.’” 541 U.S. at 767

(citing Metro. Edison Co., 460 U.S. at 774). “[A] ‘but

for’ causal relationship is insufficient to make an

agency responsible for a particular effect[.]” Id. In

other words, “NEPA does not cover all ‘effects’ that are

‘caused by’ a change in the physical environment in

the sense of ‘but for’ causation.” Ctr. for Biological

Diversity, Manasota-88, Inc. v. U.S. Army Corps of

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

Metro. Edison Co., 460 U.S. at 774).

Under Public Citizen, “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.”11 541 U.S. at 770; see Sierra Club v.

FERC, 827 F.3d 36, 47 (D.C. Cir. 2016) (hereinafter

11 The Fiscal Responsibility Act retains this Court’s construction

of “environmental effect.” See Fiscal Responsibility Act of 2023

(“FRA”), Pub. L. 118-5, § 321, 137 Stat. 10, 38 (2023) (codified at

42 U.S.C. §§ 4332(C)(i)–(ii) (2023)); see also Shapiro v. United

States, 335 U.S. 1, 16 (1948) (“In adopting the language used in

the earlier act, Congress must be considered to have adopted also

the construction given by this Court to such language, and made

it a part of the enactment.” (cleaned up)).

13

“Freeport”). Cf. City of Shoreacres v. Waterworth, 420

F.3d 440, 452 (5th Cir. 2005) (“[I]t is doubtful that an

environmental effect may be considered as

proximately caused by the action of a particular

federal regulator if that effect is directly caused by the

action of another government entity over which the

regulator has no control.”). This means that “when the

occurrence of an indirect environmental effect is

contingent upon” the actions of “a separate agency,

the agency under review is not required to address

those indirect effects in its NEPA analysis.” Sabal

Trail, 867 F.3d at 1380 (Brown, J., concurring in part,

dissenting in part). Jurisdictional limitations on an

agency’s authority break the causal chain for purposes

of NEPA. Put another way, “[a]n effect the agency is

powerless to prevent does not fall within NEPA’s

ambit.” Id. at 1381 (Brown, J., concurring in part,

dissenting in part).

Agencies therefore are not required to consider

effects outside of their jurisdiction.12 See Town of

Barnstable v. FAA, 740 F.3d 681, 691 (D.C. Cir. 2014)

(“Because the FAA simply lacks the power to act on

whatever information might be contained in the [EIS],

NEPA does not apply[.]”). And an agency’s “analysis

should not include effects that the agency ‘has no

ability to prevent . . . due to its limited statutory

authority over the relevant actions.’” 350 Mont. v.

Nor does NEPA require agencies to consider alternatives

outside of their jurisdiction and regulatory power. See Int’l Bhd.

of Teamsters v. Dep’t of Transp., 724 F.3d 206, 217 (D.C. Cir.

2013) (NEPA does not require an agency to consider alternatives

it “lacks authority to impose”).

12

14

Haaland, 29 F.4th 1158, 1188 (9th Cir. 2022) (Nelson,

J., dissenting) (quoting Pub. Citizen, 541 U.S. at 770).

Nor should NEPA analyses extend to effects that

are remote in time, geographically remote, or the

product of a lengthy causal chain, and those that

would occur regardless of the proposed agency

action.13 Cf. Protect Our Parks, 39 F.4th at 399

(“NEPA requires agencies to consider only

environmental harms that are both factually and

proximately caused by a relevant federal action.”).

Without these guardrails, agencies could be

empowered to act as “de facto environmental-policy

czar[s].” Ctr. for Biological Diversity, Manasota-88,

941 F.3d at 1299. Cf. NRDC v. EPA, 859 F.2d 156, 170

(D.C. Cir. 1988) (“EPA may not . . . under the guise of

carrying out its responsibilities under NEPA

transmogrify its obligation to regulate discharges into

a mandate to regulate the plants or facilities[.]”).

B. Congress Statutorily Cabined the Scope of

NEPA Review to Effects Directly Flowing

From The Proposed Action Under Review.

First principles of statutory interpretation

underscore this basic point. “[I]t’s a fundamental

canon of statutory construction that words generally

should be interpreted as taking their ordinary

meaning at the time Congress enacted the statute.”

13 For example, it is near impossible to draw a causal connection

between any individual project and global phenomena. See Wash.

Env’t Council v. Bellon, 732 F.3d 1131, 1143 (9th Cir. 2013); see

also 350 Mont., 29 F.4th at 1186 (Nelson, J., dissenting).

15

New Prime Inc. v. Oliveira, 586 U.S. 105, 113 (2019)

(cleaned up). “As in all such cases, . . . [this Court]

begin[s] by analyzing the statutory language,

‘assum[ing] that the ordinary meaning of that

language accurately expresses the legislative

purpose.’” Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242, 251 (2010) (quoting Gross v. FBL

Financial Services, Inc., 557 U.S. 167, 175 (2009)

(internal quotation marks omitted)).

“Effects” is an undefined term in the statute.

“When a term goes undefined in a statute,” this Court

“give[s] the term its ordinary meaning.” Kouichi

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566

(2012) (citation omitted). As dictionaries have long

made clear, an “effect” is “something produced by an

agent or cause”; the word “may be chosen to designate

only those factors in a complex situation that may be

definitely attributed to a known and immediate

cause.”14 Effect, Webster’s Seventh New Collegiate

Dictionary 264 (1972); see Effect, Black’s Law

Dictionary 461 (5th ed. 1979) (“Effect, n. That which

is produced by an agent or cause; result; outcome;

consequence.”); Effect, Black’s Law Dictionary 605

(4th ed. 1951) (defining “[e]ffect” to mean “[r]esult.”).

This has not changed. See Effect, Black’s Law

Dictionary (12th ed. 2024) (“Something produced by

an agent or cause; a result, outcome, or

consequence.”).

14 CEQ recently reimagined the entire concept of “effects” in a

way that is at odds with, and appears to reject, the statute’s text.

See 89 Fed. Reg. 35,442, 35,575 (May 1, 2024) (codified at 40

C.F.R. § 1508.1(i)) (defining “[e]ffects” or “impacts”).

16

Other statutory language further supports this

construction of “effects.” As relevant here, NEPA

requires agencies to include in the required report

discussion of “the environmental impact of the

proposed action” and “any adverse environmental

effects which cannot be avoided should the proposal be

implemented[.]” National Environmental Policy Act of

1969, Pub. L. 91-190, §§ 102(C)(i)–(ii), 83 Stat. 852,

853 (1970) (codified at 42 U.S.C. §§ 4332(C)(i)–(ii))

(emphasis added).15 This makes pellucid that the

scope of an agency’s NEPA study must be limited to

the specific “proposed action” at issue and only study

the “environmental effects” of that “proposal” and not

extend to speculation about the independent actions

of third parties, other federal and state agencies, or

foreign bodies. The only “adverse environmental

effects” that must be included in the report are those

that “cannot be avoided”—and are certain to occur—

as a result of, and directly and unavoidably caused by,

the specific proposal the agency is reviewing.

As a definitional matter, this excludes effects that

can only occur as a result of another agency’s decision,

as well as the independent actions of third parties that

are outside the scope of the specific proposal before the

agency. NEPA’s text thus makes clear that as a

matter of first principles agencies are not required to

15 In 2023, these provisions of NEPA were amended by the FRA.

Those amendments do not retroactively apply to the 2021 Board

Order. See Eagle County BIO 4 n.1. The FRA further clarified

that the scope of NEPA analysis must be limited to the specific

proposal under agency review. See 42 U.S.C. §§ 4332(C)(i)–(ii)

(2023).

17

study indirect or cumulative effects. Those concepts

are not present in the statutory language.

Possible upstream and downstream effects not

directly attributable to the specific agency decision

under NEPA review should not factor into the

analysis. The independent decisions by other

responsible state and federal agencies (and for that

matter foreign governments) with regulatory

authority over upstream and downstream activities,

and the independent actions of third parties outside

the sphere of proposal under review, break the causal

chain. See, e.g., Freeport, 827 F.3d at 47. Under NEPA,

“an agency is on the hook only for the decisions that it

has the authority to make,” Protect Our Parks, 39

F.4th at 400, and should thus “draw the line at the

reaches of its own jurisdiction.” Ctr. for Biological

Diversity, Manasota-88, 941 F.3d at 1295.

Nor does NEPA alter the limits of an agency’s

substantive statutory authority set by Congress. 16 See

NEPA should also not be given extraterritorial reach. Cf.

NRDC v. Nuclear Reg. Comm’n, 647 F.2d 1345, 1366 (D.C. Cir.

1981); Greenpeace USA v. Stone, 748 F. Supp. 749, 761 (D. Haw.

1990); Basel Action Network v. Mar. Admin., 370 F. Supp. 2d 57,

71 (D.D.C. 2005); Sierra Club v. Clinton, 746 F. Supp. 2d 1025,

1046 (D. Minn. 2010) (“the activities in Canada here are beyond

the review of NEPA”). Indeed, “NEPA expressly restricts the

extraterritorial environmental role that Congress intended

agencies of the federal government to perform[.]” Scott C.

Whitney, Should the National Environmental Policy Act Be

Extended to Major Federal Decisions Significantly Affecting the

Environment of Sovereign Foreign States and the Global

16

18

42 U.S.C. §§ 4332(C), 4333. NEPA “does not expand

the jurisdiction of an agency beyond that set forth in

its organic statute,” Cape May Greene, Inc. v. Warren,

698 F.2d 179, 188 (3d Cir. 1983), and “does not expand

an agency’s substantive powers.” NRDC v. EPA, 859

F.2d at 169. It simply does not require an agency to

evaluate issues over which it has no control. Pub.

Citizen, 541 U.S. at 766–69. To the contrary, the scope

of an agency’s NEPA analysis should be shaped and

limited by the agency’s organic statute setting out the

metes and bounds of its jurisdiction and the specific

factors Congress intended for it to consider. After all,

“an agency should always consider the views of

Congress, expressed, to the extent that the agency can

determine them, in the agency’s statutory

authorization to act, as well as in other congressional

directives.”17 Busey, 938 F.2d at 196. Cf. Seattle

Commons, 1 Vill. Envtl. L.J. 431, 445 (1990). Its focus is instead

on “present and future generations of Americans.” 42 U.S.C.

§ 4331(a); see id. § 4331(b)(2) (“all Americans”). NEPA was not

intended to require study of global issues. See Whitney, 1 Vill.

Envtl. L.J. at 471; see also Morrison v. Nat’l Austl. Bank Ltd.,

561 U.S. 247, 255 (2010) (“When a statute gives no clear

indication of an extraterritorial application, it has none.”); Nestle

USA, Inc. v. Doe, 593 U.S. 628, 634 (2021).

Many agencies’ organic statutes are sharply tilted toward

prosperity, abundance, and economic growth—as opposed to

degrowth—by promoting development critical to Americans’

ability to affordably heat and cool their homes, travel to visit

family, have a reliable food supply, and pursue their livelihoods.

See, e.g., 16 U.S.C. § 824a(a); 43 U.S.C. § 1332(3); see NAACP v.

FPC, 425 U.S. 662, 669–70 (1976) (“[T]he principal purpose of

th[e Power and Gas] Acts was to encourage the orderly

17

19

Audubon Soc. v. Moseley, 80 F.3d 1401, 1404 (9th Cir.

1996) (agency need not consider options “inconsistent

with its basic policy objectives”).

C. The Decision Below Mistakenly Expanded

NEPA’s Sweep and Overrode Congress’s

Legislative Choices.

Here, “the proposed action” was authorization by

the STB to construct and operate a small rail line. See

Pet. App. 74a–75a. “In 2020, the Seven County

Infrastructure Coalition (Coalition) filed a petition for

exemption under 49 U.S.C. § 10502 from the prior

approval requirements of 49 U.S.C. § 10901 for

authorization to construct and operate an

approximately 85-mile rail line” in rural Utah. Pet.

App. 74a–75a. After over a year and a half of extensive

study, consistent with its mission and organic statute,

the STB issued an Order granting the Coalition’s

exemption petition subject to certain conditions. See

Pet. App. 122a.

The STB has “exclusive jurisdiction over

transportation by railroad.” Friends of the AtglenSusquehanna Trail, Inc. v. Surface Transp. Bd., 252

F.3d 246, 250 n.1 (3d Cir. 2001) (citing 49 U.S.C. §

10501(a)(1)). The agency “is charged with the

development of plentiful supplies of electricity and natural gas

at reasonable prices.”); Ensco Offshore Co. v. Salazar, 781 F.

Supp. 2d 332, 339 (E.D. La. 2011) (noting “OCSLA’s overriding

policy of expeditious development”); Wyoming v. DOI, 493 F.

Supp. 3d 1046, 1062 (D. Wyo. 2020) (“The purpose of the [MLA]

is to promote the orderly development of oil and gas deposits . . .

through private enterprise[.]” (cleaned up)).

20

economic regulation of various modes of surface

transportation, primarily freight rail.” About, Surface

Transportation Board, https://www.stb.gov/about-stb/

(emphasis added). It is not an environmental

regulator and has no role in setting environmental

standards for locomotives.18

Congress has made its railroad transportation

policy preferences clear. For instance, “ensure the

development and continuation of a sound rail

transportation system,” 49 U.S.C. § 10101(4); “reduce

regulatory barriers to entry into and exit from the

industry,” id. § 10101(7); and “encourage fair wages

and safe and suitable working conditions in the

railroad industry,” id. § 10101(11). That is what

Congress has tasked the STB with doing.

Against this backdrop, the STB’s organic statute

provides “the STB ‘shall’ grant an exemption from a

provision of the statute if (1) application of that

provision is not necessary to carry out the

transportation policy and (2) the transaction is of

limited scope or the application of the full statutory

procedures is not needed to protect shippers from

abuse of market power.”19 Alaska Survival v. Surface

18 Congress appears to have instead tasked EPA with doing so.

See EPA, Regulations for Emissions from Locomotives,

https://www.epa.gov/regulations-emissions-vehicles-andengines/regulations-emissions-locomotives.

“Section 10901 sets forth a more detailed procedure for

authorizing construction and operation of rail lines, which

requires a determination that the activities are consistent with

19

21

Transp. Bd., 705 F.3d 1073, 1082 (9th Cir. 2013)

(quoting 49 U.S.C. § 10502(a)). Those are the only

permissible reasons why the STB may deny an

exemption. Cf. Nat’l Wildlife Fed’n v. Sec’y of the U.S.

Dep’t of Transp., 960 F.3d 872, 880 (6th Cir. 2020)

(“Nor do the enumerated criteria allow the agency to

make free-form environmental decisions.”).

The STB thus lacked power to deny an exemption

based on upstream (or downstream) effects outside of

its jurisdiction.20 See Ctr. for Biological Diversity,

Manasota-88, 941 F.3d at 1299 (“Because the statute

authorizes the Corps to deny a permit only if the

discharge itself will have an unacceptable

environmental impact, the regulations cannot

empower the Corps to deny permits for any other

reason—including downstream . . . effects”). Indeed, it

would be arbitrary and capricious for the STB to deny

an exemption based on factors Congress did not

intend for it to consider, such as policy considerations

outside of its jurisdiction. See Motor Vehicle Mfrs.

the public convenience and necessity.” Alaska Survival, 705 F.3d

at 1082 (quoting 49 U.S.C. § 10901(a)–(c)). That standard does

not authorize the STB to deny authorization based on

considerations outside of its charge. See N.Y. Cent. Sec. Corp. v.

United States, 287 U.S. 12, 25 (1932) (“[T]he term ‘public interest’

as thus used” in the Transportation Act of 1920 “has direct

relation to adequacy of transportation service, to its essential

conditions of economy and efficiency, and to appropriate

provision and best use of transportation facilities[.]”); see also

NAACP v. FPC, 425 U.S. at 669 (“[T]he use of the words ‘public

interest’ in a regulatory statute is not a broad license to promote

the general public welfare.”).

20 The decision below found otherwise. See Pet. App. 37a. That

was error. See supra n.19.

22

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983).

Thus, the STB was required to discuss in its EIS

the environmental impact of the rail line and any

adverse environmental effects that would necessarily

occur as a direct result of the rail line. That is all. The

STB did this—and more—describing the proposed

action’s effects on water resources, special status

species, wayside noise, land use and recreation,

socioeconomics, tribal concerns, vehicle safety and

delay, rail operations safety, big game, fish and

wildlife, vegetation, geology and soils, hazard waste

sites,

construction

noise,

vibration,

energy,

paleontological resources, visual resources, air

quality, and greenhouse gas emissions.21 See Unita

Basis Railway Final Environmental Impact

Statement (“Final EIS”), STB Docket No. FD 36284,

Vol. I, at S-8–S-12 (Aug. 6, 2021) (JA 121–34). The

Final EIS and supporting materials comprised three

volumes, totaling 3,650 pages.22

Still, the decision below found that this was not

good enough for government work. It instead held that

the STB had “responsibility under NEPA to identify

and describe” upstream effects “it lacks authority to

21 The Final EIS found that “emissions during construction and

operation would represent a small percentage of statewide

greenhouse gas emissions in Utah.” Final EIS S-12 (JA 132).

The Final EIS and supporting materials are available at

http://www.uintabasinrailwayeis.com/DocumentsAndLinks.asp

x.

22

23

prevent, control, or mitigate[.]” Pet. App. 36a. That

was error and should not be permitted.

Here, the STB has no authority to regulate

upstream and downstream effects that may (or may

not) occur as a result of the independent actions of

third parties outside its regulatory jurisdiction and

decisions made by other state and federal regulatory

bodies. And therefore it had no obligation to study or

speculate about whatever effects may flow from

independent decisions other agencies may make. The

reason why is that the STB lacked the authority to act

on this information and would not be the legal cause

of any such effects. Cf. Airport Impact Relief, Inc. v.

Wykle, 192 F.3d 197, 207 (1st Cir. 1999).

IV.

The Emperor Has No Clothes: CEQ Has No

Legislative Rulemaking Authority.

This Court should likewise reject any suggestion

that CEQ’s views about the proper scope of

environmental studies agencies must conduct under

NEPA are entitled to deference or are binding on other

agencies.23 See Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024). CEQ is a creature of statute,

which possesses only those powers Congress chooses

to confer upon it. “An agency, after all, literally has no

23 In the past, CEQ has erroneously suggested that its so-called

NEPA regulations are entitled to Chevron deference. See 85 Fed.

Reg. 43,304, 43,307 (July 16, 2020). That argument was wrong

then and, in any event, is now foreclosed by Loper Bright. This

Court “has never addressed the question of CEQ’s regulatory

authority.” Food & Water Watch v. U.S. Dep’t of Agric., 1 F.4th

1112, 1119 (D.C. Cir. 2021) (Randolph, J., concurring).

24

power to act—including under its regulations—unless

and until Congress authorizes it to do so by statute.

An agency’s regulation cannot operate independently

of the statute that authorized it.” FEC v. Cruz, 596

U.S. 289, 301 (2022). And CEQ bears the burden to

establish statutory authorization for its actions.

CEQ cannot change or expand NEPA’s text to add

NEPA “compliance” obligations beyond what

Congress thought appropriate. See Ctr. for Biological

Diversity, Manasota-88, 941 F.3d at 1299

(“[R]egulations cannot contradict their animating

statutes or manufacture additional agency power.”).

“[E]nabling legislation is generally not an open book

to which the agency may add pages and change the

plot line” as it sees fit. West Virginia v. EPA, 597 U.S.

697, 723 (2022) (cleaned up). Congress need not

prohibit an agency action or negate a claimed power;

“[w]ere courts to presume a delegation of power absent

an express withholding of such power, agencies would

enjoy virtually limitless hegemony, a result plainly

out of keeping with . . . the Constitution[.]” Ry. Labor

Executives’ Assn’s v. Nat’l Mediation Bd., 29 F.3d 655,

671 (D.C. Cir. 1994) (en banc).

Indeed, Congress did not assign CEQ any

authority to issue regulations that bind other

agencies. Instead, the scope of its statutorily

authorized duties is much more limited. See 42 U.S.C.

§ 4344 (duties and functions of CEQ). CEQ, “created

in Title II of NEPA, was intended to act primarily in

an advisory capacity.” Scott C. Whitney, The Role of

the President’s Council on Environmental Quality in

the 1990s and Beyond, 6 J. Envtl. L. & Lit. 81, 88

(1991). Its charge is to “to formulate and recommend

national policies to promote the improvement of the

25

quality of the environment.” 42 U.S.C. § 4342

(emphasis added). “It is part of the Executive Office of

the President, created for the purpose of advising the

President on environmental matters.”24 Food & Water

Watch, 1 F.4th at 1119 (Randolph, J., concurring).

And its “duties and functions are confined” to

gathering information, conducting studies, and

advising the President. Whitney, 6 J. Envtl. L. & Lit.

at 89 (discussing 42 U.S.C. § 4342).

“The Council’s function is in no way regulatory[.]”

Nat’l Helium Corp. v. Morton, 455 F.2d 650, 656 (10th

Cir.1971). Under the statute, CEQ “has no authority

to prescribe regulations governing compliance with

NEPA[.]” Greene Cty. Planning Bd. v. Fed. Power

Com., 455 F.2d 412, 421 (2d Cir. 1972); accord Hiram

Clarke Civic Club v. Lynn, 476 F.2d 421, 424 (5th

Cir.1973) (“CEQ does not have the authority to

prescribe regulations governing compliance with

NEPA”); see Food & Water Watch, 1 F.4th at 1119

24 As Judge Randolph has observed:

If CEQ’s regulations are binding, several

concerns would need to be addressed. What, if

any, mechanism is there for judicial review of

CEQ’s regulations? Do CEQ’s regulations bind

executive and independent agencies alike? Can

the President override the requirement (and

safeguard) of notice-and-comment rulemaking?

And can other executive offices assert this

authority as well? “[W]here there is so much

smoke, there must be a fair amount of fire, and

we would do well to analyze the causes[.]”

Food & Water Watch, 1 F.4th at 1119 (concurring) (quoting

Henry J. Friendly, A Look at the Federal Administrative

Agencies, 60 Colum. L. Rev. 429, 432 (1960)).

26

(Randolph, J., concurring) (“No statute grants CEQ

the authority to issue binding regulations.”).

CEQ was first given the task of promulgating

NEPA “regulations” in 1977 not by any amendment to

the statute, but rather by President Carter’s

Executive Order 11,991. See Food & Water Watch, 1

F.4th at 1119 (Randolph, J., concurring); see also

Nevada v. DOE, 457 F.3d 78, 87 n.5 (D.C. Cir. 2006)

(noting CEQ “was empowered to issue regulations

only by executive order”). Cf. Alaska v. Carter, 462 F.

Supp. 1155, 1162 n.16 (D. Alaska 1978) (“Although

CEQ was created by NEPA, it derives its authority to

issue guidelines on EIS preparation not from the

statute but from Exec. Order No. 11,514.”). In 1978,

pursuant to this Executive Order, CEQ issued socalled “regulations” that purported to implement

NEPA’s provisions and that it claimed were binding

on other agencies. See 43 Fed. Reg. 55,978, 55,978

(Nov. 29, 1978). In so doing, CEQ mistakenly

conflated Congress’s Article I legislative power with

the President’s powers under Article II. See id.

That was error. See Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 588–89 (1952). To be sure,

the President has a duty to ensure that the laws are

faithfully executed. In furtherance of that duty, he

has the power to control individual agencies’ NEPA

implementation through his appointment and

removal authority under Article II, and he is free to

direct his appointees to adopt NEPA policies, to the

extent those policies are otherwise lawful. He may

also use CEQ to design those NEPA policies and hold

his agencies accountable for failing to follow his

directions issued through CEQ. However, he may not

do so in a way that conflicts with the statute, and

27

courts may not give binding effect to CEQ rules when

they conflict with the statute.

Because Congress did not assign CEQ substantive

rulemaking authority, CEQ’s interpretation of NEPA

cannot set a “floor” that binds courts or the general

public. Instead, CEQ’s interpretation of NEPA is

simply a direction from the President to agencies. See

Limerick Ecology Action, Inc. v. United States Nuclear

Regulatory Com., 869 F.2d 719, 743 (3d Cir. 1989)

(Becker, J.) (“CEQ guidelines are not binding on an

agency to the extent that the agency has not expressly

adopted them.”). This means that each agency must

comply with NEPA in a manner that is both consistent

with NEPA’s statutory text and appropriately tailored

to each agency’s mission and circumscribed by the

statutes that agency administers. In other words,

NEPA was never meant to be a one-size-fits-all

statute. See Whitney, 6 J. Envtl. L. & Lit. at 101. As

NEPA’s statutory structure makes clear, Congress

tasked

individual

agencies—not

CEQ—with

implementing NEPA in a manner that best fits within

each agency’s individual mission and organic statutes,

subject to limits on each agency’s jurisdiction and

mission. See 42 U.S.C. § 4333.

CONCLUSION

This Court should reverse the decision below.

28

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Devin Watkins

Dan Greenberg

COMPETITIVE ENTERPRISE INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

Devin.Watkins@cei.org

Counsel for Amici Curiae

September 4, 2024