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

A ppeals for the District of Columbia Circuit

BRIEF OF AMERICAN PETROLEUM INSTITUTE,

NATIONAL ASSOCIATION OF HOME BUILDERS OF

THE UNITED STATES, NATIONAL ASSOCIATION

OF MANUFACTURERS, NATIONAL MINING

ASSOCIATION, AND NATIONAL RURAL ELECTRIC

COOPERATIVE ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

A ndrew Wheeler

Sarah Bordelon

Holland & Hart LLP

505 Ninth Street NW,

Suite 700

Washington, DC 20004

Tina R. Van Bockern

Holland & Hart LLP

555 Seventeenth Street,

Suite 3200

Denver, CO 80202

117005

Hadassah M. Reimer

Counsel of Record

Holland & Hart LLP

645 South Cache Street,

Suite 100

Jackson, WY 83001

(307) 734-4517

hmreimer@hollandhart.com

Counsel for Amici Curiae

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENT . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

I N T RODUC T ION A N D SU M M A RY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

NEPA Analyses of Actions and Effects

O ut s ide a n A g enc y ’s A ut hor it y t o

Control or Mitigate Stray From NEPA’s

Purpose to Promote Informed Decisions . . . . . . 8

II. Public Citizen, When Applied Correctly,

Serves NEPA’s Foundational Purpose

of Informed Agency Decisionmaking . . . . . . . . 16

III. An Expansive View of Indirect Effects

Forces Agencies to Analyze and Make

Decisions Based on Actions and Effects

Outside Their Statutory Jurisdiction

and Ex per tise, T u r n i ng T hem i nt o

De Facto Environmental Policy Czars . . . . . . . 18

IV. The Real-World Implications of EverExpanding NEPA Review Are Staggering

for Businesses and the U.S. Economy . . . . . . . . 20

ii

Table of Contents

Page

A. Each Decision Distinguishing or

Ignoring Public Citizen Increases

Permitting Litigation Risk . . . . . . . . . . . . . 20

B. “Litigation-Proof ” NEPA Reviews

Result in Longer Documents and

Permitting Timelines . . . . . . . . . . . . . . . . . . 23

C. Permitting Uncertainty and Litigation

Risk Impose Enormous Burdens

on the Economy . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iii

TABLE OF CITED AUTHORITIES

Page

CASES

350 Mont. v. Bernhardt,

443 F. Supp. 3d 1185 (D. Mont. 2020) . . . . . . . . . . 9, 22

350 Mont. v. Haaland,

50 F.4th 1254 (9th Cir. 2022) . . . . . . . . . . . . . . 9, 22, 23

Alsea Valley Alliance v. Dep’t of Commerce,

358 F.3d 1181 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . 23

Cape May Greene, Inc. v. Warren,

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

Ctr. for Biological Diversity v.

U.S. Army Corps of Eng’rs.,

941 F.3d 1288 (11th Cir. 2019) . . . . . . . . . . . . 17, 18, 19

Ctr. for Biological Diversity v.

U.S. Dep’t of Interior,

563 F.3d 466 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . 12

Dep’t of Transp. v. Public Citizen,

541 U.S. 752 (2004) . . . . . . . . . 5, 7, 8, 11, 16-22, 26, 31

Eagle Cty. v. Surface Transp. Bd.,

82 F.4th 1152 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . 13

Friends of the Earth v. Haaland,

583 F. Supp. 3d 113 (D.D.C. 2022) . . . . . . . . . 11, 12, 23

iv

Cited Authorities

Page

Geosearch, Inc. v. Andrus,

508 F. Supp. 839 (D. Wyo. 1981) . . . . . . . . . . . . . . . . .19

Kleppe v. Sierra Club,

427 U.S. 390 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Metro. Edison Co. v. People Against Nuclear

Energy,

460 U.S. 766 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mobil Oil Expl. & Producing Se. v. United States,

530 U.S. 604 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Mont. Envt. Info. Ctr. v. Haaland,

2022 U.S. Dist. LEXIS 128280

(D. Mont. Feb. 11, 2022) . . . . . . . . . . . . . . . . . 10, 21, 22

Mont. Envt. Info. Ctr. v. Haaland,

2022 U.S. Dist. LEXIS 179417

(D. Mont. Sept. 30, 2022) . . . . . . . . . . . . . . . . . . . . . . 10

Mont. Envt. Info. Ctr. v. U.S. Off. of Surface Mining,

274 F. Supp. 3d 1074 (D. Mont. 2017) . . . . . . . . . . .9, 22

NAACP v. FERC,

425 U.S. 662 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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

556 F.3d 177 (4th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 18

v

Cited Authorities

Page

Oregon-California Trails Ass’n v. Walsh,

467 F. Supp. 3d 1007 (D. Colo. 2020) . . . . . . . . . . 14, 15

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

S. Coast Air Quality Mgmt. Dist. v. FERC,

621 F.3d 1085 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . 18

S. Fork Band of Council of W. Shoshone v.

U.S. Dep’t of Interior,

2012 U.S. Dist. LEXIS 988 (D. Nev. Jan. 3, 2012) . . 11

S. Fork Band of Council of W. Shoshone v.

U.S. Dep’t of Interior,

588 F.3d 718 (9th Cir. 2009) . . . . . . . . . . . 10, 11, 21, 23

Sierra Club v. FERC,

867 F.3d 1357 (D.C. Cir. 2017) . . . . . . . . . . . . . . . . . . 14

Signal Peak Energy, LLC v. Haaland,

2024 U.S. Dist. LEXIS 149325

(D.D.C. Aug. 21, 2024) . . . . . . . . . . . . . . . . . . . . . . . 9, 25

Sovereign Iñupiat for a Living Arctic v. BLM,

555 F. Supp. 3d 739 (D. Alaska 2021) . . . . . . . . . . . . 23

White Tanks Concerned Citizens, Inc. v. Strock,

563 F.3d 1033 (9th Cir. 2009) . . . . . . . . . . . . . . . . 15, 16

vi

Cited Authorities

Page

WildEarth Guardians v. Bernhardt,

502 F. Supp. 3d 237 (D.D.C. 2020) . . . . . . . . . . . . 12, 13

WildEarth Guardians v. Zinke,

368 F. Supp. 3d 41 (D.D.C. 2019) . . . . . . . . . . . . . . . . 12

STATUTES

15 U.S.C. § 717f(c)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

16 U.S.C. § 1531(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

30 U.S.C. § 201(a)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

30 U.S.C. § 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 4332 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 4332(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 4336a(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

42 U.S.C. § 4336a(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 4336a(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

43 U.S.C. § 1332(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vii

Cited Authorities

Page

Fiscal Responsibility Act of 2023, Pub. L.

No. 118-5, 137 Stat. 10 (2023) . . . . . . . . . . . . . . . . . 4, 24

Pub. L. No. 117-169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

RULES AND REGULATIONS

30 C.F.R. § 746.11(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

30 C.F.R. § 816.59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

40 C.F.R. § 1500.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

40 C.F.R. § 1501.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

40 C.F.R. § 1502.4(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

40 C.F.R. § 1502.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

43 C.F.R. § 3809.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FEDERAL REGISTER

85 Fed. Reg. 43,304 (July 16, 2020) . . . . . . . . . . . . . . . . 30

89 Fed. Reg. 9,171 (Feb. 9, 2024) . . . . . . . . . . . . . . . . . . 15

viii

Cited Authorities

Page

OTHER AUTHORITIES

169 Cong. Rec. H2681, H2704 (daily ed. May 31, 2023) . . . 4

Am. Petroleum Inst., 2023 State of American

Energy, https://bit.ly/3Mp6ENP . . . . . . . . . . . . . . . . 27

BLM, Juniper Project Final EIS, Appendix K

(May 2024), https://bit.ly/3AETiKK . . . . . . . . . . . . . 26

Council on Env’t Quality, Environmental

Impact Statement Timelines (2010-2018)

(June 12, 2020), https://bit.ly/3MmBbMa . . . . . . 24, 25

Elec. Power Rsch. Inst., LCRI Net-Zero 2050:

U.S. Economy-Wide Deep Decarbonization

Scenario Analysis, Executive Summary

(Mar. 9, 2023), https://bit.ly/4e37vQ9 . . . . . . . . . . . . 28

Michael Bennon & Devon Wilson, NEPA Litigation

Over Large Energy and Transport Infrastructure

Projects, 53 Envtl. L. Rep. 10836 (Oct. 2, 2023) . . . 29

Mont. Envt. Info. Ctr. v. Haaland, No. CV 19-130,

Memo. in Support of Federal Defendants’ Motion

to Extend Deadline to Complete Corrective

NEPA Analysis and Deferred Vacatur of the

EIS, ECF No. 206 (D. Mont. Jan. 10, 2024) . . . . . . . 24

Mont. Envt. Info. Ctr. v. Haaland, No. CV 19-130,

Order ECF No. 223 (D. Mont. Apr. 2, 2024) . . . . . . 10

ix

Cited Authorities

Page

Nat’l Acads. of Sci., Eng’r, & Med., Accelerating

Decarbonization of the U.S. Energy System

(2021), https://bit.ly/3MrsNeG . . . . . . . . . . . . . . . . . . 28

Nat’l Ass’n. of Env’t Profs., 2022 Annual NEPA

Report (July 2022), https://bit.ly/3T7hcFi . . . . . . . . 24

Nat’l Ass’n. of Home Builders, Alleviating Permitting

Roadblocks (May 2024), https://bit.ly/4fY0hih . . . . 29

Na t ’ l A s s ’n . of Ho m e B u i ld e r s , NA HB

Announces 10-Point Plan to Tame Shelter

Inf lation, Ease the Housing Affordability

Crisis (May 1, 2024), https://bit.ly/4dBUlK6 . . . . . . 29

Nat’l Ass’n. of Home Builders, Fixing Building

Material Supply Chains and Easing Costs

(May 2024), https://bit.ly/3Xra3lS . . . . . . . . . . . . . . . 29

Nat ’l A ss’n of M f rs., Energy Per mitting

Refor m Act Will Help Unlock the Full

Potential of Manufacturing Industry, Is

Cr itical for Competing with China

(July 31, 2024), https://bit.ly/4fWANBI . . . . . . . . . . 30

S & P Global, Mine development times: The U.S. in

Perspective (June 2024), https://bit.ly/4dGkMya . . 27, 28

Signal Peak Energy, LLC v. Haaland, No. 24CV-366, Signal Peak’s Motion for Preliminary

Injunction, ECF No. 18 (D.D.C. May 9, 2024) . . . . . 25

x

Cited Authorities

Page

The Energy and Commerce Comm., Chairs

Rodgers and Duncan Question FERC on

Power Plant Retirements and Grid Reliability

Issues (Jan. 5, 2024), http://bit.ly/3Z5iswt . . . . . . . . 28

The U.S. Gov’t Accountability Office, GAO2 3 -10 618 0, ELECTRICITY GRID, DOE

Could Better Support Industry Efforts for

Ensure Adequate Transformer Reserves

(Aug. 2023), http://bit.ly/4dYu7kS . . . . . . . . . . . . . . . 28

1

INTERESTS OF AMICI CURIAE1

A. American Petroleum Institute

The American Petroleum Institute represents all

segments of America’s natural gas and oil industry, which

supports more than 11 million United States jobs. Its

nearly 600 members produce, process, and distribute the

majority of the nation’s energy, and its members frequently

engage in a wide variety of activities with federal permits

or authorizations triggering National Environmental

Policy Act (NEPA) reviews. These activities include,

among others, leasing federal minerals, exploration and

development of oil and gas on public lands and on the Outer

Continental Shelf, construction of interstate natural gas

pipelines and liquid energy and natural gas pipelines that

cross federal lands or international borders, construction

of liquified natural gas terminals, and carbon capture,

utilization, and sequestration infrastructure.

B. National Association of Home Builders of the

United States

The National Association of Home Builders of the

United States strives to protect the American Dream

of housing opportunities for all, while working to

achieve professional success for its members who build

communities, create jobs, and strengthen our economy.

1. Pursuant to Rule 37.6, amici curiae 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 or entity other than amici

curiae and their members made a monetary contribution to fund

the preparation and submission of this brief.

2

The National Association of Home Builders of the United

States is a Federation of more than 700 state and local

associations with more than 140,000 members. Each year,

its members construct about 80% of the new homes built

in the U.S., both single-family and multifamily. Permitting

delays at all levels of government delay housing projects

and raise construction costs. Federal permits under the

Endangered Species Act and Clean Water Act for housing

developments trigger NEPA review, which can add years

to project permitting. The Association’s members are

also affected by delays in infrastructure projects that

are necessary to develop vibrant communities. Finally,

members are negatively impacted by surging building

supply costs, which are aggravated by NEPA delays for

domestic production of timber, metallurgical coal (a precursor to steel), and other building materials.

C. National Association of Manufacturers

The National Association of Manufacturers is

the largest manufacturing association in the U.S.,

representing small and large manufacturers in all 50

states and in every industrial sector. Manufacturing

employs 13 million people, contributes more than $2.8

trillion to the U.S. economy annually, has the largest

economic impact of any major sector, and accounts for over

half of all private-sector research and development in the

nation. The National Association of Manufacturers is the

voice of the manufacturing community and the leading

advocate for a policy agenda that helps manufacturers

compete in the global economy and create jobs across the

U.S. The National Association of Manufacturers’ members

are directly affected by NEPA when seeking permits

to construct facilities. Overly burdensome, shifting

3

regulatory policies inherently affect permitting, licensing,

and siting applications because they move the goalposts

of compliance with federal regulations. As downstream

users, the National Association of Manufacturers’

members are also indirectly affected by NEPA’s impacts

on energy, infrastructure, and supply chains.

D. National Mining Association

The National Mining Association represents the

interests of the mining industry including the producers

of most of America’s metals, coal, and industrial and

agricultural minerals and the hundreds of thousands of

workers it employs. The National Mining Association

has more than 250 members, including companies and

organizations involved in every aspect of U.S. mining.

America’s mining industry supplies the essential materials

necessary for nearly every sector of our economy. Because

coal, hard rock, and other mining operations routinely

require federal authorizations that trigger NEPA review,

National Mining Association members spend tens of

millions of dollars annually on environmental analyses,

paying NEPA third-party contractors and subcontractors,

and reimbursing agencies for their costs in implementing

NEPA.

E. National Rural Electric Cooperative Association

The National Rural Electric Cooperative Association

is the national association for nearly 900 not-for-profit

electric cooperatives and public power districts that

provide electric service to roughly one in eight Americans,

covering 56% of the nation’s landmass. Rural electric

cooperatives serve millions of businesses, homes, schools,

4

farms, irrigation systems, and other establishments in

2,500 of the nation’s over 3,100 counties, including 92% of

the nation’s persistent poverty counties. Members own

and maintain 2.7 million miles, or 42%, of the nation’s

electric distribution lines and serve large expanses of the

U.S. that are primarily residential and typically sparsely

populated. Electric cooperatives are often subject to the

NEPA process for projects that require federal permits,

rights-of-way, and other approvals such as building and

modernizing electric and broadband infrastructure,

bringing cleaner energy to the grid, reducing wildfire risk,

and adding capacity as electricity demand increases. Many

electric co-ops also receive federal loans and grants that

trigger NEPA reviews. Overinclusive NEPA processes

inevitably delay projects and undermine electric co-ops’

provision of affordable, reliable, and safe electricity, which

negatively affects the communities they serve.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The practical import of this NEPA case cannot be

overstated: requiring an agency to study environmental

effects beyond those proximately caused by the action

over which the agency has regulatory authority increases

litigation risk and impedes federal agency permitting

across the economic spectrum—from upstream energy,

mineral, and material production to manufacturing,

processing, and construction, and the pipelines, railroads,

transmission lines, and highways in between. See 169

Cong. Rec. H2681, H2704 (daily ed. May 31, 2023) (2023

NEPA amendments—the Builder Act—proposed and

ultimately adopted as part of the Fiscal Responsibility

Act, Pub. L. No. 118-5, 137 Stat. 10, were intended to

5

“narrow the scope” of NEPA review). NEPA reaches all

of these vital industries making its proper implementation

critical to economic prosperity and national security.

But NEPA is not functioning properly, and amici

cur iae and their members bear the brunt of the

dysfunction. Twenty years ago, the Court unanimously

held in Department of Transportation v. Public Citizen,

541 U.S. 752 (2004), that an agency’s NEPA obligation ends

at the limits of its jurisdiction—after all, NEPA’s purpose

to promote informed decisionmaking is meaningless where

the agency “lacks discretion” to prevent the environmental

effects of actions outside its purview. Id. at 756, 767-68.

Despite this clear ruling, lower courts increasingly flout

Public Citizen’s reasonable limits on NEPA—invalidating

agencies’ analyses for failure to consider environmental

effects over which the agency had no regulatory authority,

often with disastrous results for amici curiae and their

members. For instance, as described in more detail in

this brief:

• The future of a coal mine in Montana hangs in the

balance after its federal mine plan was vacated and the

Office of Surface Mining Reclamation and Enforcement

(Office of Surface Mining)—charged with permitting

coal mine operations—was ordered to analyze in

greater detail the effects of coal combustion in Asia,

and coal transportation by rail, activity regulated by

another federal agency, including the outside risk of

train derailment, along hundreds of miles of possible

rail routes.

• Another Montana mine operates under threat of

vacatur after the Office of Surface Mining was forced

6

to consider the effects of operating an adjacent thirdparty power plant regulated by separate state and

federal agencies, including the power plant’s water use,

authorized by yet another state agency, and its potential

effect on endangered fish dozens of miles downstream

of the water-withdrawal point.

• A 225-mile transmission line in Nebraska that has

been in the permitting process for 10 years is still not

built because a court invalidated the U.S. Fish and

Wildlife Service’s Endangered Species Act “incidental

take” permit for a beetle species and instructed the

agency to consider the effects of separately proposed

and permitted upstream wind projects that may

utilize the new line, despite the wildlife agency’s lack

of jurisdiction to either site the transmission line or

regulate wind power development.

• Oil and gas leases have been set aside and development

has been delayed where the Bureau of Land Management

and the Bureau of Ocean Energy Management,

obligated to lease and manage federal oil and gas

reserves for development, were required to analyze the

effects of leasing decisions on foreign oil consumption

and global climate change caused by countless thirdparty actors and over which the agencies have zero

control, requiring, in one case, an act of Congress to

remedy the district court’s overreach.

Cases like these require agencies on remand—and

encourage agencies preemptively—to prepare expansive,

lengthier, and duplicative analyses in futile attempts

to insulate NEPA reviews from future litigation risk.

7

But doing so fails to serve NEPA’s purpose of informed

decisionmaking where that analysis exceeds the bounds

of the agency’s authority.

Worse, the seemingly limitless litigation risk

threatens the very core of American ingenuity and

economic vitality. The cost of doing business in America

continues to soar, with NEPA documents taking longer

and growing in length regardless of the utility to the

federal decisionmaker. Permit applicants must foot

the bill, either directly through payment for NEPA

contractors or indirectly through project delays—or both.

Once the NEPA analysis is complete, many projects must

then survive scrutiny in the federal courts and frequently

suffer further delays. The more significant the project and

the more capital invested, the higher the risk of litigation

and the greater the stakes if the court finds fault with

the agency’s review. It is no wonder that when choosing

where to invest capital, companies heavily weigh the costs

and uncertainty of both getting a permit and its ultimate

durability. For amici curiae and their members, which are

the drivers of a substantial portion of the U.S. economy,

the stakes could not be higher.

In the end, NEPA’s purpose to promote informed

agency decisions can be achieved without requiring

agencies to amass environmental treatises on effects over

which they lack any control or ability to mitigate. This

Court already detailed the limiting principles required

to achieve this result in Public Citizen, and amici curiae

respectfully request that it reaffirm them now and reverse

the D.C. Circuit.

8

ARGUMENT

I.

NEPA Analyses of Actions and Effects Outside an

Agency’s Authority to Control or Mitigate Stray

From NEPA’s Purpose to Promote Informed

Decisions.

Courts in the Ninth, Tenth, and D.C. Circuits ignore

Public Citizen’s direction to focus on effects for which

agency action is the proximate cause and over which the

agency has regulatory control. The following examples in

several industries highlight the extreme reaches to which

courts have pushed federal agencies to consider actions

and effects far beyond their ability to regulate, control,

or mitigate—where the federal approval is just one “but

for” link in the long causal chain.

Mining. The Office of Surface Mining—the federal

agency that issues mining permits for federal coal under

the Surface Mining Control and Reclamation Act, 30

U.S.C. §§ 1201, et seq.—issued permits to two Montana

mines to develop pre-existing federal coal leases. When

considering a permit application, the agency must

consider, among other things, whether the mine plan will

achieve the “maximum economic recovery” of the coal

resource, 30 U.S.C. § 201(a)(3)(C); 30 C.F.R. §§ 746.11(b),

816.59. While the Office of Surface Mining has discretion

regarding how the coal should be mined, it cannot deny the

lessee the right to mine. See Mobil Oil Expl. & Producing

Se. v. United States, 530 U.S. 604, 607 (2000) (U.S. must

honor contracts).

One mine, which ships coal by rail and then barge

to power plants in Asia, has had its 2015 permit to mine

9

federal coal remanded three times for ever-broader

NEPA reviews. First, the District of Montana held that

the Office of Surface Mining violated NEPA because the

agency failed to adequately analyze impacts of railroad

traffic transporting the coal along hundreds of miles of

existing rail lines from Montana to a Pacific port. Mont.

Env’t Info. Ctr. (MEIC) v. U.S. Off. of Surface Mining

(OSM), 274 F. Supp. 3d 1074, 1092 (D. Mont. 2017). After

the agency prepared a detailed railroad transportation

impact analysis in a second NEPA document on remand,

the district court again faulted the agency, this time for

failing to adequately consider the risk of train derailment

even though neither the Office of Surface Mining nor the

applicant had any control over the railroad, including

the route or speed of travel, which are regulated by the

Surface Transportation Board. 350 Mont. v. Bernhardt,

443 F. Supp. 3d 1185, 1195 (D. Mont. 2020). Although the

agency was able to remedy this issue in a third NEPA

document, the Ninth Circuit held that the agency had not

adequately considered the greenhouse gas emissions from

combusting coal in Asia and the permit was remanded

once again. See generally 350 Mont. v. Haaland, 50 F.4th

1254 (9th Cir. 2022). Today, the mine still cannot develop

federal coal, is running out of non-federal coal reserves,

and is at risk of closure until the Office of Surface Mining

finishes the fourth NEPA document. Signal Peak Energy,

LLC v. Haaland, No. 24-CV-366, Compl., ECF No. 1

(D.D.C. Feb. 7, 2024).

Another mine supplies coal to an adjacent power

plant owned and operated by third parties. The District

of Montana remanded the Office of Surface Mining’s

NEPA analysis for consideration of the power plant’s

operations, including the plant’s water withdrawals

10

from the Yellowstone River, despite the agency’s lack of

authority over power plant operations or Montana water

rights. MEIC v. Haaland, 2022 U.S. Dist. LEXIS 179417,

*39 (D. Mont. Sept. 30, 2022) (adopting recommendation

of magistrate judge); MEIC v. Haaland, 2022 U.S. Dist.

LEXIS 128280, *24-33 (D. Mont. Feb. 11, 2022) (magistrate

judge recommendations). Even though power plant

operations are regulated by different state and federal

agencies and the water withdrawals are exercised under

long-existing water rights, the court required the Office

of Surface Mining to consider how continued operation of

the power plant might impact endangered pallid sturgeon

dozens of miles downstream from the point of water

withdrawal. Id. at *29-32. Under a deferred vacatur order,

the mine is currently operating under threat of vacatur

pending the Office of Surface Mining’s NEPA analysis of

this and other issues on remand, a process which has been

repeatedly delayed. MEIC v. Haaland, No. CV 19-130,

ECF No. 223 (D. Mont. Apr. 2, 2024).

In another example, the Ninth Circuit faulted the

Bureau of Land Management for failing to extend its

environmental review of a Nevada gold mine expansion to

the air impacts of transporting and processing the ore at a

separately owned facility 70 miles from the mine. S. Fork

Band of Council of W. Shoshone v. U.S. Dep’t of Interior,

588 F.3d 718, 725-26 (9th Cir. 2009). The court was

unmoved by the facts that the Bureau’s authority under

the mining laws is limited to “prevent[ing] unnecessary

or undue degradation of public lands,” 43 C.F.R. § 3809.1,

and that the Bureau has no authority to regulate the

fully permitted processing facility that operates under

state-issued Clean Air Act permits. Id. at 726. The Ninth

Circuit reversed the district court’s decision to deny a

11

preliminary injunction, effectively halting mining pending

new NEPA review, id. at 728-29, which resumed only after

supplemental NEPA analysis was complete, see S. Fork

Band of Council of W. Shoshone v. U.S. Dep’t of Interior,

2012 U.S. Dist. LEXIS 988, *4-7 (D. Nev. Jan. 3, 2012).

Oil & Gas. Disregard for Public Citizen in the oil and

gas context is largely driven by litigation bent on halting

or stalling fossil fuel development. The relative success

of environmental organizations has resulted in everexpanding NEPA review of upstream and downstream

greenhouse gas emissions and their potential effects

on global climate change, no matter how attenuated

the causal chain and despite the regulatory agencies’

lack of control to set policy on fossil fuel development

or regulate greenhouse gas emissions. This case is

a prime example, with the court of appeals adopting

the view of environmental organizations that NEPA

requires the Surface Transportation Board to engage in

sweeping review of upstream oil and gas development and

downstream refining and combustion before authorizing

construction of a railroad caught in the middle. Pet’rs’

Br. 13-15.

Other examples abound. In Friends of the Earth

v. Haaland, 583 F. Supp. 3d 113, 162 (D.D.C. 2022), the

D.C. District Court vacated Lease Sale 257, a Bureau of

Ocean Energy Management Gulf of Mexico oil and gas

lease sale held under the Outer Continental Shelf Lands

Act, after confidential bids were opened and announced.

Despite the Bureau’s valiant attempt to anticipate and

model the reasonably foreseeable effects of the lease sale

on oil and gas markets, the court held that the agency

had not adequately accounted for changes in foreign oil

12

consumption if the lease sale were not held, global oil

and gas supply were reduced, prices were to increase

in response to the lower supply, foreign markets were

to use less oil given the increased price, and what all of

that would mean for global greenhouse gas emissions and

climate change. Id. at 136-37. And the D.C. District Court

required this analysis even though the agency “simply

lacks the discretion” under the Outer Continental Shelf

Lands Act “to consider any global effects that oil and

gas consumption may bring about” because “Congress

has already decided that the [Outer Continental Shelf ]

should be used to meet the nation’s need for energy.” Ctr.

for Biological Diversity v. U.S. Dep’t of Interior, 563

F.3d 466, 485 (D.C. Cir. 2009). Ultimately, it took an act

of Congress commanding the Bureau of Ocean Energy

Management to award leases to the high bidders in Lease

Sale 257 to prevent the irreparable harm of vacating a

sale after the sealed bids had been opened, see Pub. L.

No. 117-169, § 50264(b).

In another pair of oil and gas leasing cases, this time

for onshore development, the D.C. District Court remanded

the Bureau of Land Management’s leasing decisions under

the Mineral Leasing Act because the agency did not

quantify the greenhouse gas emissions of the downstream

combustion of oil and gas that might be developed under

the leases. WildEarth Guardians v. Zinke, 368 F. Supp. 3d

41, 51 (D.D.C. 2019); WildEarth Guardians v. Bernhardt,

502 F. Supp. 3d 237, 259 (D.D.C. 2020). In the first case,

the court held that the Bureau could not conclude, without

quantifying downstream emissions, that the leases would

represent only an incremental contribution to regional

and global greenhouse gas emissions. Zinke, 368 F. Supp.

3d at 77. In the second, after the Bureau attempted to fix

13

the quantification error, the court shifted its attention to

cumulative impacts, finding the Bureau failed to account

for the additive effects of other reasonably foreseeable oil

and gas leasing on federal lands. Bernhardt, 502 F. Supp.

3d at 249-51.

Transmission and Linear Infrastructure (Highways,

Railroads, Pipelines, and Power Lines). Transmission

and other linear infrastructure projects are almost always

proposed to serve some larger societal purpose, including

electric reliability, supply chain security, and freedom of

movement. These projects are particularly vulnerable

to NEPA creep because of their large geographic scope,

often crossing thousands of miles and multiple states.

As such, they often form the central link in a potentially

lengthy causal chain making an improper “but for”

analysis uniquely tempting.

This case is, again, a perfect example. The D.C.

Circuit has instructed the Surface Transportation Board

to conduct an environmental review of both upstream oil

and gas development in Utah (regulated by the Bureau of

Land Management and state agencies) and downstream

refinery operations in Louisiana and Texas (regulated

by the Environmental Protection Agency and other

state agencies). Eagle Cty. v. Surface Transp. Bd., 82

F.4th 1152, 1177-80 (D.C. Cir. 2023). Not only does the

Surface Transportation Board lack any say in oil and gas

development and refining decisions, see Resp’ts’ Br. in

Supp. of Pet’rs 41-45, but it is also not clear whether those

activities are causally connected to authorization of an 88mile railroad when current oil and gas production can be

transported out of Utah by truck. Id. at 1166; see Pet’rs’

Br. 35-36. No matter, the D.C. Circuit proclaimed—the

14

Board should expend its limited resources on analysis of

those effects despite its inability to regulate them.

The same was true of the Federal Energy Regulatory

Commission in Sierra Club v. FERC, 867 F.3d 1357 (D.C.

Cir. 2017) (Sabal Trail). Although the agency’s jurisdiction

was limited to conditioning pipeline operations based on

an assessment of the pipeline’s “public convenience and

necessity,” 15 U.S.C. § 717f(c)(1)(A), the court held that

the indirect effects analysis must extend to “reasonably

foreseeable” downstream effects, even though the agency

could only affect them by denying the permit altogether.

Sabal Trail, 867 F.3d at 1373. As Judge Brown aptly

described in dissent, the Commission “has no control

over whether the power plants [at the end of the pipeline]

that will emit these greenhouse gases will come into

existence or remain in operation,” a decision reserved

for the Florida Power Plant Siting Board, id. at 1381, and

the Commission’s efforts in reviewing the effects of that

separate activity would be wholly wasted.

Another striking example of NEPA’s extraordinary

reach is illustrated in Oregon- Califor nia Trails

Association v. Walsh, 467 F. Supp. 3d 1007 (D. Colo. 2020).

In that case, the U.S. Fish and Wildlife Service was asked

to issue an “incidental take” permit for an endangered

(now threatened) beetle that might be affected during

construction of a segment of a 225-mile transmission

line on private lands in Nebraska. The Service lacked

any authority to dictate the location or operation of the

powerline, which was approved by the state, and could only

evaluate whether the incidental take permit application

satisfied the Endangered Species Act. Yet the Service’s

NEPA review was comprehensive, encompassing the full

15

suite of direct and indirect effects of building the entire

length of the power line. Not even that was enough for the

court, which held that the Fish and Wildlife Service should

have analyzed the effects of an upstream wind project

that might take advantage of the transmission line despite

acknowledging that the transmission line “will be built

regardless of whether wind turbines will also be built in

the same region.” Id. at 1044, 1051. The court set aside the

incidental take permit. Id. at 1075. Now 10 years after the

NEPA process began, the updated analysis for the project

still has not been issued and a critical transmission line

for the people of Nebraska still has not been built. 89 Fed.

Reg. 9,171 (Feb. 9, 2024) (notice of availability of draft

supplemental environmental impact statement).

Housing Development and Manufacturing. New

housing development and manufacturing plants often

require federal authorization of minor activities associated

with the project, such as Clean Water Act permits for

wetland fill of a small area of a much larger project or

a wastewater discharge permit for a processing plant.

In NEPA terms, this is often referred to as the “small

handles” question. Particularly common for housing

and manufacturing projects, the small handles question

asks whether federal authority of a minor portion of an

otherwise private project “federalizes” and requires

NEPA review of the effects of the whole.

In one example, the Ninth Circuit held that the U.S.

Army Corps’ authority over a Section 404 permit for 26.8

acres of a 10,105-acre housing project required the Corps

to analyze the effects of construction across the entire

project area. White Tanks Concerned Citizens, Inc. v.

Strock, 563 F.3d 1033, 1036, 1042 (9th Cir. 2009). Because

16

the housing development could not proceed according

to its master plan and would be limited to “isolated

clusters” without the Corps permit, the Ninth Circuit

held “the entire project is within the Corps’ purview.”

Id. at 1040-42. The court enjoined construction until an

environmental analysis of the 10,105-acre development

could be completed. Id. at 1042.

***

These examples illustrate the urgency of the NEPA

issue on review—the willingness of courts to freely apply

“but for” causation to expand the scope of indirect effects

analysis has major implications for project permitting

across many sectors of the U.S. economy. The irony is

that these analyses, ranging farther afield than ever

before and considerably beyond the agencies’ respective

jurisdictions, frustrate NEPA’s informational purpose,

resulting in needless analysis that fails to inform the

decision before the agency.

II. Public Citizen, When Applied Correctly, Serves

NEPA’s Foundational Purpose of Informed Agency

Decisionmaking.

As Petitioners aptly explain, NEPA does not mandate

substantive outcomes; it is a procedural statute with

two goals—informed agency decisionmaking and public

participation. Pet’rs’ Br. 3-6; 42 U.S.C. § 4332(2)(c);

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

332, 349 (1989).

In fulfilling these two goals, NEPA implementation

is guided by the “rule of reason.” Pub. Citizen, 541 U.S.

17

at 767. Whether to prepare a NEPA document—an

environmental impact statement (EIS) or an environmental

assessment—and the extent of the issues covered by the

analysis are “based on the usefulness of any new potential

information to the decisionmaking process.” Id.; see also

Pet’rs’ Br. 5, 42-49. NEPA’s purpose is not to amass

paperwork for its own sake. 40 C.F.R. § 1500.2(b).

Drawing on these principles, this Court in Metropolitan

Edison Co. v. People Against Nuclear Energy, 460 U.S.

766, 774 (1983), and Public Citizen, 541 U.S. at 767,

circumscribed the scope of NEPA reviews, eschewing

any agency obligation to consider environmental effects

that it cannot prevent. Pet’rs’ Br. 5, 16-23. The Court

clarified that “but for” causation is not enough “to make

an agency responsible for a particular effect,” rather,

NEPA requires a “‘reasonably close causal relationship’

between the environmental effect and the alleged cause.”

Public Citizen, 541 U.S. at 767 (quoting Metro. Edison,

460 U.S. at 774).

The Eleventh Circuit’s decision in Center for

Biological Diversity v. U.S. Army Corps of Engineers,

941 F.3d 1288 (11th Cir. 2019), exemplifies the proper

application of Public Citizen. There, the court held that

the U.S. Army Corps of Engineers was not required to

extend the scope of its NEPA review for a Clean Water

Act Section 404 dredge and fill permit for a phosphate

mine to the later effects of processing the phosphate into

fertilizer at a separate facility and the eventual disposal

of hazardous materials produced during processing.

As the Eleventh Circuit explained, the Corps “has no

jurisdiction to regulate or authorize any of that,” id. at

1294, and “[n]o federal law empowers the Corps to protect

18

the environment writ large,” id. at 1296. Relying on Public

Citizen, the court rejected the notion that the Corps’

ability to influence the mining and eventual fertilizer

production “through indirect coercion” by denying a

permit was enough to demand an environmental review

of those separate operations. Id. at 1297. See also Ohio

Valley Env’t Coal. v. Aracoma Coal Co., 556 F.3d 177, 19697 (4th Cir. 2009) (Corps was not required to analyze the

effects of the entire valley fill surface mining operation

that was separately regulated by a state agency pursuant

to delegated authority under the Surface Mining Control

and Reclamation Act).

Applying the limiting principles of Public Citizen

correctly focuses the agency’s NEPA analysis on actions

and effects over which it has authority, appropriately

informing its decisionmaking process.

III. An Expansive View of Indirect Effects Forces

Agencies to Analyze and Make Decisions Based

on Actions and Effects Outside Their Statutory

Jurisdiction and Expertise, Turning Them into De

Facto Environmental Policy Czars.

NEPA cannot expand an agency’s jurisdiction beyond

its statutory responsibility. See S. Coast Air Quality

Mgmt. Dist. v. FERC, 621 F.3d 1085, 1092 (9th Cir.

2010) (quoting Cape May Greene, Inc. v. Warren, 698

F.2d 179, 188 (3d Cir. 1983) (“[NEPA] does not expand

the jurisdiction of an agency beyond that set forth in its

organic statute”)). Congress never intended NEPA to

“confer unlimited power on the agencies,” which remain

constrained to take action as “set forth in [their] enabling

act[s].” Cape May, 698 F.2d at 188.

19

Where Congress has defined the agency’s obligation

and set the parameters for consideration, the agency

cannot exceed those bounds. Yet courts continue to demand

consideration of effects beyond the agencies’ control that

can only be influenced by the “indirect coercion” of

withholding the permit altogether—i.e., classic “but for”

causation. See Ctr. for Biological Diversity, 941 F.3d at

1297. Congress never intended NEPA to make agencies

into “environmental policy czars,” see id., each with a

hand on the kill switch in the complicated web of federal

permitting required for project development. But that is

precisely the position in which many agencies have found

themselves when the courts ignore Public Citizen’s limits

and demand agency analysis of upstream and downstream

“effects” over which the agency exercises no regulatory

control.

This broad view of NEPA commands agencies to

step beyond their jurisdiction and expertise and opine

on matters best left to the purview of other agencies. As

illustrated by the cases discussed in Section I, supra, the

Fish and Wildlife Service, expert in the conservation of

endangered and threatened species under the Endangered

Species Act, 16 U.S.C. § 1531(b), is not equipped to make

abstract decisions about transmission line siting or wind

energy development. The Bureau of Land Management,

directed by the Mineral Leasing Act to “promote the

orderly development of oil and gas deposits in publicly

owned lands of the U.S.,” Geosearch, Inc. v. Andrus, 508

F. Supp. 839, 842 (D. Wyo. 1981), and the Bureau of Ocean

Energy Management, directed by the Outer Continental

Shelf Lands Act to make oil and gas resources on the

Outer Continental Shelf “available for expeditious and

orderly development,” 43 U.S.C. § 1332(3), cannot rethink

20

the wisdom of fossil fuel development or dictate global

climate change policy. The Federal Energy Regulatory

Commission, whose purpose is “to encourage the orderly

development of plentiful supplies of electricity and natural

gas at reasonable prices,” National Association for

the Advancement of Colored People v. Federal Energy

Regulatory Commission, 425 U.S. 662, 670 (1976), is not

equipped to analyze the climate impacts of power plant

operations. And the Office of Surface Mining, required

by the Surface Mining Control and Reclamation Act to

consider the means and methods of coal mining, has no

business dictating to the Surface Transportation Board

how to run a railroad.

IV. The Real-World Implications of Ever-Expanding

NEPA Review Are Staggering for Businesses and

the U.S. Economy.

Lower courts’ disregard of Public Citizen’s limitations

has widespread impacts beyond the parties to the example

cases described above. Project applicants and agencies

must factor unmitigable litigation risks into permitting

and business plans. This drives agencies to exceed

common sense, regulatory, and even statutory limits

on review in Sisyphean attempts to “litigation-proof ”

NEPA analyses. The resulting permitting delays impose

an enormous burden on amici curiae and the economy.

A.

Each Decision Distinguishing or Ignoring

Public Citizen Increases Permitting Litigation

Risk.

Most NEPA concepts develop as common law. The

statute itself is short and does not define key terms such

21

as “environmental impact.” Regulatory attempts to

define statutory concepts are, by necessity for a statute

applicable to all “major Federal actions,” broad and

abstract. Case law—judicial application of these abstract

concepts to real world facts—drives the development

of NEPA law and the rules that agencies apply to their

analyses. Kleppe v. Sierra Club, 427 U.S. 390, 421 (1976)

(J. Marshall, concurring in part, dissenting in part) (“In

fact, this vaguely worded statute seems designed to serve

as no more than a catalyst for development of a ‘common

law’ of NEPA.”).

In the familiar methodology of the common law, courts

look to precedent to determine whether a particular effect

falls within the scope of the “environmental impacts”

that the statute charges agencies with considering. Each

judge who distinguishes—or simply ignores—Public

Citizen’s limiting principles and requires agencies to

analyze impacts removed from the proposed action lays

the groundwork for future judges to push the zone of

analysis even further. There is seemingly no end to the

impacts that courts can require agencies to analyze.

South Fork Band and MEIC demonstrate the

phenomenon. The Ninth Circuit in South Fork Band

required the Bureau of Land Management to analyze

air quality impacts from transporting and processing

gold at an offsite processing facility 70 miles away—but

no further. 588 F.3d at 725-27. Thirteen years later, the

District of Montana relying on South Fork Band, required

the Office of Surface Mining to analyze not just impacts

from the offsite power plant, but alleged impacts on fish

dozens of miles downstream of the water withdrawal

point for the power plant. MEIC, 2022 U.S. Dist. LEXIS

22

128280, *24-33. That both permitting authorities lacked

the jurisdiction to regulate any of these distant impacts

stopped neither court. And neither court articulated a

principled basis for how far to trace the impacts from the

respective mines. One decision set the table for the next,

with no logical end point.

Another mine experienced this progression in a series

of three legal challenges to the same permit. See supra,

Section I (Mining). In back-to-back-to-back cases, the

District of Montana and then the Ninth Circuit remanded

the analysis to the Office of Surface Mining for everexpanding reviews of transportation and climate change

impacts, first to extend the transportation effects analysis

all the way from eastern Montana to a west coast port,

second to take into account possible train derailment,

and finally to provide more detailed analysis of climate

change effects of combusting the coal in Asia. See MEIC,

274 F. Supp. 3d at 1090-93; 350 Mont., 443 F. Supp. 3d

at 1195; 350 Mont., 50 F.4th at 1259. Neither the district

court nor the Ninth Circuit explained why the greenhouse

gas analysis must extend to combustion in Asia, but the

transportation analysis should stop at the Pacific port.

This problem is not unique to mining cases or these

courts. Most courts do not attempt to identify a limiting

principle and are constrained only by the creativity of the

environmental litigants’ arguments.

Because federal courts in key circuits have ignored

Public Citizen, it is impossible for agencies or applicants

to be confident that a NEPA document is sufficiently

expansive to satisfy whichever judge or panel will decide

the case. And the penalty for failing to anticipate what a

judge might think is “reasonably foreseeable” is severe.

23

In case after case, permits, leases, or licenses, often years

in the making have been vacated or enjoined, leaving

applicants in limbo. 2 See 350 Mont., 50 F.4th at 1266

(vacating mine plan three years after approval); Sovereign

Iñupiat for a Living Arctic v. BLM, 555 F. Supp. 3d 739,

804-05 (D. Alaska 2021) (vacating project approval);

Friends of the Earth v. Haaland, 583 F. Supp. 3d 113,

162 (D.D.C. 2022) (vacating lease sale, later reinstated

by Congress).

B. “Litigation-Proof ” NEPA Reviews Result in

Longer Documents and Permitting Timelines.

The sad reality is that NEPA review today seems

more motivated by surviving litigation than informing

the specific decision before the agency. Following court

instruction, agencies are analyzing issues wholly outside

their expertise. See supra Sections I, III. Often, they are

charged with analyzing issues that may be undergoing

(sometimes concurrent) review by other agencies. See

S. Fork Band, 588 F.3d at 726 (requiring the Bureau of

Land Management to duplicate state agency’s air quality

analysis because the state’s analysis was not a “NEPA”

document). These expansive and duplicative analyses

are not required by NEPA and serve only to delay the

review, increase costs, and distract from the issues within

the agency’s control. They also strain limited agency

resources upon which industry depends, and lead to delays

2. Applicants are often left without the ability to appeal

under the Ninth Circuit’s administrative remand rule, see Alsea

Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th

Cir. 2004) (a remand is not appealable by the applicant except in

narrow circumstances), further skewing the case law in favor of

environmental litigants and broader NEPA reviews.

24

in agencies approving actions critical to our communities

and economic success. And because project applicants are

usually footing the bill, they bear the burden of cost as

well as delay.

NEPA documents are getting lengthier and taking

longer to prepare. In 2020, the Council on Environmental

Quality found that the average time from a notice of intent

to a record of decision between 2010 and 2018 was 4.5

years, with a full quarter of EISs taking almost seven

years. Council on Env’t Quality, Environmental Impact

Statement Timelines (2010-2018) (June 12, 2020), https://

bit.ly/3MmBbMa. This remains the case even though the

Council on Environmental Quality amended its regulations

four years ago to require completion of EISs within two

years. 40 C.F.R. § 1501.10 (2020). Two years after the

Council on Environmental Quality imposed NEPA time

limits, the average time to prepare an EIS had hardly

budged, sitting at 4.2 years. Nat’l Ass’n of Env’t Profs.,

2022 Annual NEPA Report at 2 (July 2022), https://bit.

ly/3T7hcFi.

In the summer of 2023, Congress embraced NEPA time

limits (two years for EISs and one year for environmental

assessments) as part of the Fiscal Responsibility Act of

2023, Pub. L. No. 118-5, 137 Stat. 10, § 321 (the Builder

Act), codified at 42 U.S.C. § 4336a(g). But at least some

federal agencies seem to view even statutory time limits as

mere recommendations. The Office of Surface Mining has

declared to multiple courts its unwillingness or inability

to comply with the statutory time limits. See MEIC v.

Haaland, No. 19-cv-00130, Memo. in Support of Federal

Defendants’ Motion to Extend Deadline to Complete

Corrective NEPA Analysis and Deferred Vacatur of the

25

EIS, ECF No. 206 (D. Mont. Jan. 10, 2024) (proposing

schedule 9 months beyond two-year deadline); Signal

Peak Energy, LLC v. Haaland, No. 24-CV-366, Signal

Peak’s Motion for Preliminary Injunction, ECF No. 18,

*10 (D.D.C. May 9, 2024) (EIS schedule exceeds two-year

deadline by 19 months and counting). And, unfortunately,

at least one court suggests that a project applicant cannot

enforce the statutory two-year deadline until after the

agency exceeds it. See Signal Peak Energy, LLC v.

Haaland, 2024 U.S. Dist. LEXIS 149325, at *25 (D.D.C.

Aug. 21, 2024) (claim for enforcement prudentially unripe).

Other agencies are likely to extend what the Council on

Environmental Quality euphemistically calls “pre-[notice

of intent] activity”—the time and analysis undertaken

before the agency publishes the notice of intent triggering

the two-year time clock. Council on Env’t Quality, EIS

Timelines (2010–2018) at 2. The Council on Environmental

Quality acknowledged that even though the notice of intent

should be filed “as soon as practicable” after the decision

to prepare an EIS, see 40 C.F.R. § 1502.4(e), in reality the

“extent of preparatory work done before issuing [a notice

of intent] varies significantly among agencies and even

among EISs within agencies.” EIS Timelines (2010-2018)

at 2. Agencies seeking to “litigation-proof ” an EIS are

likely to defer publishing the notice of intent as long as

possible to allow more time for expansive reviews.

Agencies have been similarly reluctant to abide by

statutory and regulatory page limits. 42 U.S.C. § 4336a(e);

40 C.F.R. § 1502.7. Page limits reflect an effort to rein

in NEPA excesses. They are a clear indication from

Congress and the Council on Environmental Quality that

agencies have lost and must regain control of the NEPA

26

process. Absent complex circumstances, NEPA requires

an EIS be no more than 150 pages and an environmental

assessment no more than 75. 42 U.S.C. § 4336a(e)(2). Yet,

agencies continue to find ways to sidestep these limits.

A prime example is the Bureau of Land Management’s

recent certification of conformance with the Builder Act’s

page limits where the main body of the EIS was 300

pages, maps, tables, and introductory materials totaled

over 200 pages, and the appendices exceeded 630 pages.

See BLM, Juniper Project Final EIS, Appendix K (May

2024), https://bit.ly/3AETiKK.

All of this game playing is contrary to NEPA, as

amended. The Builder Act provided objective page and

time limits, not previously present in NEPA, reflecting

Congress’s intent to rein in agency overreach. These

limits, combined with Congress’s direction that analyses be

focused on “reasonably foreseeable adverse environmental

effects,” 42 U.S.C. § 4332 (2023), demonstrate that

the NEPA of today is different than the NEPA this

Court analyzed in Public Citizen, and the amendments

only underscore the need to reinforce Public Citizen’s

limiting principles to help agencies meet new statutory

requirements.

C.

Permitting Uncertainty and Litigation Risk

Impose Enormous Burdens on the Economy.

NEPA review touches every sector of the economy.

A reasonable and reliable regulatory process is essential

to American business, which requires transparent and

predictable permitting processes that result in durable

decisions to enable informed investments. The current

NEPA landscape of years-long, unfettered reviews,

27

followed by extended litigation risk deprives the American

public of needed projects and infrastructure.

Billions of dollars in energy investment are waiting

in the NEPA pipeline. Am. Petroleum Ins., 2023 State

of American Energy at 15, https://bit.ly/3Mp6ENP.

America’s energy infra-structure is aging and needs

substantial upgrades to support the current economy.

But permitting delays have cancelled, stalled, or blocked

10 major natural gas and oil infrastructure projects. Id.

at 12. The challenge is not just to meet current needs,

but to support the economy years in the future. Id. at

8. Permitting delays and judicial decisions requiring

expansive global impact analyses of oil and gas leasing

and development threaten the predictability of U.S.

development and production.

Permitting delays for mining of all kinds, including

critical minerals vital to the energy transition, are equally

concerning, if not worse. A recent report calculated an

average of 29 years for U.S mines to go from discovery

to production—longer than any country included in the

study other than Zambia. S & P Global, Mine development

times: The U.S. in Perspective at 6 (June 2024), https://bit.

ly/4dGkMya. Since 2002, only three mines have come online

in the U.S., and none are on federal land. Id. at 7. Yet the

changing economy urgently needs the essential materials

new mines could provide. To meet growing electricity

demands, the world will need to produce more copper in

the next 12 years than it has in the previous 120 years.

Id. at 9. U.S. consumption of so-called “battery minerals”

(lithium, cobalt, and nickel) could reach compound growth

rates between 20% and 30% by 2035. Id. Almost half of

the “11 mineral-rich western states—and over 60% of

28

Alaska” are comprised of federal lands. Id. at 26. These

federal minerals are critical to the energy transition, but

NEPA delays may preclude their development.

Providing affordable, reliable, and safe electricity

is paramount for electric cooperatives. A resilient and

reliable electric grid that affordably keeps the lights on

is the cornerstone of American social, economic, energy

security, and national security needs. However, the U.S.

is facing a number of challenges to maintaining reliable

electricity, including significant increases in electricity

demand3 and a series of policy decisions and rulemakings

that are forcing the premature and disorderly retirement

of electricity generation assets that provide essential

reliability services and balance energy reserves. The

Energy and Commerce Comm., Chairs Rodgers and

Duncan Question FERC on Power Plant Retirements and

Grid Reliability Issues (Jan. 5, 2024), http://bit.ly/3Z5iswt.

These obstacles can be added to significant delays and

challenges with supply chains which are contributing to

an unprecedented shortage of the most basic machinery

and components essential to ensure the continued

reliability of the electric grid, see generally The U.S. Gov’t

Accountability Office, GAO-23-106180, ELECTRICITY

GRID, DOE Could Better Support Industry Efforts for

3. Achieving net-zero economy-wide emissions by 2050 could

require a 480% increase in generation capacity compared to

capacity today. Elec. Power Rsch. Inst., LCRI Net-Zero 2050: U.S.

Economy-Wide Deep Decarbonization Scenario Analysis, Executive

Summary (Mar. 9, 2023), https://bit.ly/4e37vQ9. Electrifying other

sectors of the economy could require a three-fold expansion of the

transmission grid and up to 170% more electricity supply by 2050.

Nat’l Acads. of Sci., Eng’r, & Med., Accelerating Decarbonization

of the U.S. Energy System at 170 (2021), https://bit.ly/3MrsNeG.

29

Ensure Adequate Transformer Reserves (Aug. 2023),

http://bit.ly/4dYu7kS, and overly lengthy and excessively

complex NEPA and permitting processes that too often

are delaying or preventing infrastructure projects from

moving forward, Michael Bennon & Devon Wilson,

NEPA Litigation Over Large Energy and Transport

Infrastructure Projects, 53 Envtl. L. Rep. 10836, 10850

(Oct. 2, 2023).

In the construction and housing sector, unrestrained

NEPA review hurts Americans’ ability to afford homes. A

“nationwide shortage of roughly 1.5 million housing units

[makes] it increasingly difficult for American families to

afford to purchase or rent a home.” Nat’l Ass’n of Home

Builders (NAHB), NAHB Announces 10-Point Plan to

Tame Shelter Inflation, Ease the Housing Affordability

Crisis (May 1, 2024), https://bit.ly/4dBUlK6. Delayed

permits put home ownership out of reach by driving up

the costs of construction. For example, NEPA reviews

for federal permits required under the Clean Water Act

and Endangered Species Act for housing development

projects can often be delayed for years. During that time,

“builders’ capital is tied up and accumulating interest

expenses and other carrying costs even before one

shovelful of dirt is moved.” NAHB, Alleviating Permitting

Roadblocks (May 2024), https://bit.ly/4fY0hih. Further,

building material prices have “spiked,” driven by greater

demand and tighter domestic supply chains. NAHB,

Fixing Building Material Supply Chains and Easing

Costs (May 2024), https://bit.ly/3Xra3lS. NEPA delays to

federal timber and mineral material sales aggravate the

shortage and increase dependance on foreign supplies. Id.

Finally, home builders are adversely affected by delays

in infrastructure projects that are necessary to develop

vibrant communities.

30

For manufacturers, longer federal permitting times

mean less reliable and affordable energy with increased

costs, more supply chain disruptions, and delays in permits

for new manufacturing plants. U.S. manufacturers are

hampered in global competition when it takes “10 or

15 years to approve urgently needed projects” while

“approval can take a fifth of that time in other countries

that still adhere to high standards.” Nat’l Ass’n of Mfrs.,

Energy Permitting Reform Act Will Help Unlock the

Full Potential of Manufacturing Industry, Is Critical

for Competing with China (July 31, 2024), https://bit.ly/

4fWANBI.

In short, unfettered agency NEPA reviews and

unchecked litigation threaten all of the U.S. economy,

including traditional and renewable energy projects;

pipelines for traditional energy, hydrogen, and carbon

capture and storage; critical mineral mines and processing

facilities; semiconductor and battery manufacturing labs;

interstate transmission lines; hydroelectric and nuclear

power plants; highways and railroads; housing and urban

development projects; and manufacturing.

When attempting NEPA regulatory reform in 2020,

the Council on Environmental Quality quoted: “Perhaps

surprisingly, there have been thousands of NEPA suits.

It might seem strange that NEPA’s seemingly innocuous

requirement of preparing an EIS has led to more

lawsuits than any other environmental statute.” 85 Fed.

Reg. 43,304, 43,310 n.40 (July 16, 2020). And yet there

is nothing surprising about this at all. Where federal

courts in key circuits are unwilling to adhere to limits

on NEPA review, a lawsuit alleging an agency’s failure to

consider far flung impacts up and down the causal chain

31

and outside of the agency’s authority to regulate, control,

or mitigate, is well worth the project opponents’ efforts.

And because agencies know they face this litigation risk,

they will continue to expand the scope, time, and length of

reviews in a futile effort to “litigation-proof ” their NEPA

documents, regardless of the American public’s urgent

need for timely and predictable federal decisionmaking.

CONCLUSION

Lack of guardrails on NEPA presents one of the most

pressing problems for American businesses today. The

circuits that hear the most NEPA cases have endorsed an

interpretation of Public Citizen that reads any meaningful

limit out of the decision. This interpretation transforms

NEPA from an informational tool to a permitting

roadblock rendering it nearly impossible for an agency to

anticipate and analyze every conceivable impact that may

occur “but for” the agency’s decision. The Court should

resolve this misinterpretation of its precedent and clarify

that an agency’s obligation to analyze impacts under

NEPA ends at the limit of its regulatory authority.

Respectfully submitted,

A ndrew Wheeler

Sarah Bordelon

Holland & Hart LLP

505 Ninth Street NW,

Suite 700

Washington, DC 20004

Tina R. Van Bockern

Holland & Hart LLP

555 Seventeenth Street,

Suite 3200

Denver, CO 80202

Hadassah M. Reimer

Counsel of Record

Holland & Hart LLP

645 South Cache Street,

Suite 100

Jackson, WY 83001

(307) 734-4517

hmreimer@hollandhart.com

Counsel for Amici Curiae

September 4, 2024