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 AMICUS CURIAE OF CENTER FOR

AMERICAN LIBERTY IN SUPPORT OF

REVERSAL FOR PETITIONERS

Harmeet K. Dhillon

Counsel of Record

Mark Trammell

Josh Dixon

Eric Sell

Center for A merican Liberty

1311 South Main Street, Suite 207

Mount Airy, MD 21771

(703) 687-6212

harmeet@libertycenter.org

Counsel for Amicus Curiae

Center for American Liberty

332620

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

IDENTITY AND INTEREST OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

I.

THE EQUAL PROTECTION CLAUSE

RESTRICTS THE GOVERNMENT’S

ABILITY TO CONSIDER RACE DURING

THE NEPA PROCESS . . . . . . . . . . . . . . . . . . . 4

A. Race-conscious government action is

permissible only if it is “remedial.” . . . . . . . 4

1.

Government action that

distinguishes based on race is

almost always unconstitutional . . . . . . . 5

2. Remedial action can only be

a ccompl ished pu r sua nt t o a

government actor’s lawful authority . . . 8

B. Accounting for race-specific impacts

du r ing NEPA rev iew cannot be

“remedial” if outside the agency’s

regulatory authority . . . . . . . . . . . . . . . . . . . 9

ii

Table of Contents

Page

II. E N V I R O N M E N T A L J U S T I C E

REVIEW CANNOT IMPERMISSIBLY

CONSIDER RACE . . . . . . . . . . . . . . . . . . . . . . . 11

III. THE COURT BELOW ERRED BY

REQUIRING THE STB TO CONSIDER

EN V IRON M EN TA L J UST ICE

IMPACTS BASED ON RACE . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

TABLE OF CITED AUTHORITIES

Page

Cases

A-1 Amusement Co. v. United States,

48 Fed. Cl. 63 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10

Bartlett v. Strickland,

556 U.S. 1 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Bolling v. Sharp,

347 U.S. 497 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

City of Bos. Delegation v. FERC,

897 F.3d 241 (D.C. Cir. 2018) . . . . . . . . . . . . . . . . . . . . 9

City of Richmond v. J. A. Croson Co.,

488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . 6, 7, 8, 17, 19

DOT v. Pub. Citizen,

541 U.S. 752 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fisher v. Univ, of Tex. at Austin,

570 U.S. 297 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Gratz v. Bollinger,

539 U.S. 244 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Int’l Dark-Sky Ass’n, Inc. v. FCC,

106 F.4th 1206 (D.C. Cir. 2024) . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Johnson v. California,

543 U.S. 499 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Leavenworth Cnty. v. Chicago, R.I. & P. Ry. Co.,

134 U.S. 688 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Miller Bros. Co. v. State of Md.,

347 U.S. 340 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Miller v. Johnson,

515 U.S. 900 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

Morton v. Mancari,

417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Palmore v. Sidoti,

466 U.S. 429 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) . . . . . . . . . . . . . . . . . . . . 4, 5, 10, 15

Plessy v. Ferguson,

163 U.S., 537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

Cited Authorities

Page

Rice v. Cayetano,

528 U.S. 495 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Robertson v. Methow Valley Citizens Council,

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

Shaw v. Hunt,

517 U.S. 899 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9

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

772 F.2d 1043 (2d Cir. 1985) . . . . . . . . . . . . . . . . . . . . 10

Standing Rock Sioux Tribe v.

U.S. Army Corps of Eng’rs,

255 F. Supp. 3d 101 (D.D.C. 2017) . . . . . . . . . . . . . . . 11

Strickland v. U.S. Dep’t of Agric,

No. 2:24-CV-60-Z (N.D. Tex. Jun. 7, 2024) . . . . . . . 11

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

143 S. Ct. 2141 (2023) . . . . . . . . . . . . . 5, 6, 7, 11, 16, 18

Thompson v. Henderson,

143 S. Ct. 2412 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Vecinos para el Beinestar de la Comunidad

Costera v. FERC,

6 F.4th 438 (D.C. Cir. 2022) . . . . . . . . . . . . . . . . . . . . 14

vi

Cited Authorities

Page

Wygant v. Jackson Bd. of Ed.,

476 U. S. 267 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Young v. Gen. Servs. Admin.,

99 F. Supp. 2d 59 (D.D.C. 2000) . . . . . . . . . . . . . . . . . 12

Statutes and Other Authorities

U.S. Const. Amend. V Due Process Clause . . . . . . . . . . 4

U.S. Const. Amend. XIV Equal Protection Clause . . . . 4

40 C.F.R. § 1501.3(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

40 C.F.R. § 1508.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Chapman, Environmental Justice, Climate Change,

& Racial Justice, Environmental Protection

Agency (July 24, 2015), https://www.epa.gov/

sites/default/files/2015-10/documents/post_2_-_

environmental_justice_climate_change.pdf . . . 13, 14

Comments of Center for Biological Diversity on Unita

Basin Railway Draft EIS, Docket No. FD 36284,

United States Surface Transportation Board,

(Feb. 12, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Executive Order 12,898, Federal Actions to Address

Environmental Justice in Minority Populations

and Low-Income Populations (Feb. 11, 1994) . . . . 12

vii

Cited Authorities

Page

Executive Order 14096, Revitalizing Our Nation’s

Commitment to Environmental Justice for

All (April 21, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Natu ra l Resou rces Defense Counci l, The

Environmental Justice Movement,(last visited

Aug. 22, 2024 at 11:01 p.m.), https://www.nrdc.

org/stories/environmental-justice-movement . . . . . 14

Promising Practices for EJ Methodologies in NEPA

Reviews, created by the Federal Interagency

Working Group on Environmental Justice

& NEPA Committee (March 2016), https://

w w w.epa.gov/environmentaljustice/ej-iwgpromising-practices-ej-methodologies-nepareviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1

IDENTITY AND INTEREST OF AMICUS CURIAE

The Center for American Liberty (“CAL”) is a 501(c)

(3) nonprofit law firm dedicated to protecting civil liberties

and enforcing constitutional limitations on government

power. CAL has represented litigants in courts across

the country and has an interest in ensuring application

of the correct legal standard in cases involving individual

constitutional liberties.1

INTRODUCTION

With narrow exceptions, this Court has roundly

rejected race-conscious government action. Yet in the

NEPA review process, it is a growth industry. The

requirement that agencies consider “environmental

justice” impacts has morphed into a proxy for race-based

decision-making that inevitably inures to the benefit of

specific racial groups, and almost always to the detriment

of development. And in cases like this one, modern

environmental-justice dogma forces agencies to pick and

choose between two disadvantaged communities that are

(ostensibly) on opposing sides of a project. NEPA does

not require this result. Indeed, the constitution forbids it.

This Court has long held government action that

distinguishes based on race must satisfy strict scrutiny.

Generally, race-discriminatory action will only satisfy

1. Amicus curiae states that no counsel for a party authored

this brief in whole or in part and that no party or counsel for a

party contributed money intended to fund the preparation or

submission of this brief. No person other than amicus curiae, its

members, or its counsel contributed money intended to fund the

preparation or submission of this brief.

2

this “daunting” test when intended to remedy prior

government discrimination or when needed to prevent an

imminent race conflict in prison. Other than these limited

circumstances, race-conscious action is impermissible.

For government action to be “remedial,” it must be

targeted at addressing specific, intentional discrimination

by the government. A government actor, however, can

only act in a “remedial” fashion if he or she has the lawful

authority to do so. If an agency discriminates on the basis

of race, it—at bare minimum—may not do so beyond the

scope of its regulatory authority. If the agency has no

authority to act, it has no authority to remedy. The Equal

Protection Clause therefore categorically bars agencies

from considering any race-conscious impacts beyond their

authority.

Agencies violate the Equal Protection Clause when

they consider race as a factor in the NEPA review process

in a way that is either not “remedial” or not narrowly

tailored to its remedial objective. The purpose of NEPA

review is to force federal agencies to consider the impact

of their actions prior to taking them. “Environmental

justice” is a factor that agencies must consider. Inherent

in this process is the understanding that an agency

might alter its decision-making after considering how

a proposed project might impact an “environmental

justice community.” This amounts to a preference in the

permitting process for these communities.

In practice, “environmental justice communities” is

a euphemism for areas with a high population of racial

minorities. The executive orders requiring environmental

justice review in the NEPA process—and the inter-agency

3

guidance documents for implementing this review—detail

the extent to which “minority” communities defined by

“demographic” information are the intended beneficiaries

of agencies’ efforts. Outside organizations pressure

agencies to consider race as the predominant factor in

identifying environmental justice communities during

NEPA review. And the “impacts” to these communities

that agencies consider are often far outside the agencies’

authority to control.

The court below erred to the extent it intended the

agency to consider impacts to environmental justice

communities due to the communities’ racial makeup. The

record shows the communities on the Gulf Coast that

the D.C. Circuit ordered the Surface Transportation

Board (“STB”) to consider are predominantly Black.

As a public commentor before the STB, the Center for

Biological Diversity (“Center”) argued the agency must

consider impact to these communities because they consist

largly of racial-minority residents. The D.C. Circuit

appears to agree that these communities deserve special

consideration because of their racial makeup. If so, this

is race-conscious government action that implicates the

Equal Protection Clause. And because the government

cannot justify this racial classification under strict

scrutiny, it is unconstitutional.

What is most egregious about the decision below

is its preferential treatment for one environmental

justice community over another. The STB considered

the concerns of the neighboring Ute Indian tribe—a

vulnerable community directly impacted by the project—

and approved a course of action that would provide

economic benefit to the tribe while protecting their natural

4

and cultural resources. But according to the D.C. Circuit,

because the STB did not consider speculative, downstream

impacts to predominantly Black communities a thousand

miles away, it somehow failed to comply with NEPA. This

is absurd. And to the extent it was motivated by race, it

is unconstitutional.

The Court should reverse.

ARGUMENT

I.

THE EQUAL PROTECTION CLAUSE RESTRICTS

THE GOVERNMENT’S ABILITY TO CONSIDER

RACE DURING THE NEPA PROCESS

The environmental review process under NEPA

is required for all major federal-government action

that impacts the human environment. When an agency

provides a specific population special consideration during

this process due to race, it creates a classification that

implicates the Equal Protection Clause. Unless the agency

can satisfy strict scrutiny, racial classifications like this

violate the constitution. 2

A.

R a c e - c on s ciou s gover n ment a c tion is

permissible only if it is “remedial.”

Our constitution abhors race-conscious government

action. See Parents Involved in Cmty. Sch. v. Seattle

2 . The Equal Protection Clause of the Four teenth

Amendment applies to the federal government by operation of

reverse incorporation through the Due Process Clause of the Fifth

Amendment. Bolling v. Sharp, 347 U.S. 497, 500 (1954).

5

Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (“The way

to stop discrimination on the basis of race is to stop

discriminating on the basis of race.”); Rice v. Cayetano,

528 U.S. 495, 517 (2000) (“Distinctions between citizens

solely because of their ancestry are by their very nature

odious to a free people whose institutions are founded

upon the doctrine of equality.”); Palmore v. Sidoti, 466

U.S. 429, 432 (1984) (observing the “core purpose” of

the Equal Protection Clause was “do[ing] away with all

governmentally imposed discrimination based on race”).

“Divvying us up by race” is a “sordid business.” League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

511 (2006) (Roberts, C.J., concurring). Only in the most

“extraordinary cases” is it permissible for the government

to take race into account. Students for Fair Admissions,

Inc. v. President & Fellows of Harvard Coll., 143 S. Ct.

2141, 2161 (2023) (“SFFA”).

Generally, the Equal Protection Clause only permits

race-conscious action when remedying specific, intentional

discrimination by the government. Parents Involved,

551 U.S. at 748. 3 But the government can only act in a

“remedial” fashion when it has the authority to do so.

Otherwise, it is just playing favorites.

1.

Government action that distinguishes based

on race is almost always unconstitutional.

In all cases, race-conscious government action must

satisfy strict scrutiny. Adarand Constructors, Inc. v.

3. The only other circumstance in which it is permissible for

government to distinguish based on race is when needed to avoid

“imminent and serious risk to human safety in prisons.” Johnson

v. California, 543 U.S. 499, 512–13 (2005).

6

Pena, 515 U.S. 200, 227 (1995) (“[A]ll racial classifications,

imposed by whatever federal, state, or local governmental

actor, must be analyzed by a reviewing court under strict

scrutiny.”). The government action must be necessary

to achieve a compelling government interest, Gratz v.

Bollinger, 539 U.S. 244, 270 (2003), and narrowly tailored

to that goal, SFFA, 143 S. Ct. at 2161.

A compelling interest ex ists when the racial

classification is necessary to remedy specific intentional

discrimination by the government that occurred in the

past. City of Richmond v. J. A. Croson Co., 488 U.S. 469,

493 (1989) (holding racial classifications impermissible

unless “strictly reserved for remedial settings”). The

government action cannot be intended to address past

“societal discrimination”; instead, the action must remedy

something the government did to a specific class of citizens

based on their race. Shaw v. Hunt, 517 U.S. 899, 909–10

(1996). And the past discrimination must be identified in

a particularized manner. J.A. Croson, 488 U.S. at 499

(holding “an amorphous claim that there has been past

discrimination in a particular industry cannot justify the

use of” race classifications).

These remedial actions also must be “narrowly

tailored.” SFFA, 600 U.S. at 215 (holding government

must “articulate a meaningful connection between the

means they employ and the goals they pursue”). For

remedial government action to be narrowly tailored in

this context, the government must show “that no workable

race-neutral alternatives” would achieve the compelling

government interest. Fisher v. Univ, of Tex. at Austin,

570 U.S. 297, 312 (2013). Such “racial classifications are

permitted only as a last resort.” Bartlett v. Strickland, 556

7

U.S. 1, 21 (2009). Moreover, “the remedial action usually

remains subject to continuing oversight to assure that it

will work the least harm possible to other innocent persons

competing for the benefit.” Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265, 308 (1978) (plurality op.).

Forward-looking racial preferences not tied to

specific past instances of intentional discrimination by

the government are impermissible. SFFA, 143 S. Ct. at

2162 (concluding racial classification permissible only

when “remediating specific, identified instances of past

discrimination that violated the Constitution or a statute”).

If the government cannot identify a “specific[] and

narrowly framed” instance of intentional discrimination

that it is remediating, then the racial classification is

unlawful. See Wygant v. Jackson Bd. of Ed., 476 U. S.

267, 280 (1986). For this reason, this Court has repeatedly

rejected race-conscious measures that seek to remedy

generalized race-based inequities through forwardlooking, race-based preferences. See, e.g., SFFA, 143 S.

Ct. 2161 (preferences for minority student applicants);

Shaw, 517 U.S. at 909–10 (preferences for minority voters);

J.A. Croson Co., 488 U.S. at 493 (preferences for minority

contractors).

The government may not discriminate based on race

outside of the narrow exceptions that this Court has

allowed. And within the context of “remedial” government

action, this Court has demanded the government identify

the specific past discrimination it seeks to remedy and

demonstrate that no race-neutral alternative could achieve

its goal. If the government cannot meet these burdens, its

actions violate the Equal Protection Clause.

8

2.

Remedial action can only be accomplished

pursuant to a government actor’s lawful

authority

For race-conscious government action to be “remedial,”

it must be undertaken pursuant to some lawful authority.

See Miller v. Johnson, 515 U.S. 900, 921 (1995) (holding

federal government may not act in “remedial” fashion

beyond the authority granted by Congress); Miller Bros.

Co. v. State of Md., 347 U.S. 340, 342 (1954) (observing

“ultra vires” government action is “void”); Leavenworth

Cnty. v. Chicago, R.I. & P. Ry. Co., 134 U.S. 688, 699 (1890)

(noting “any [action] contrary to the provisions of the

[underlying statute] shall be void”); A-1 Amusement Co. v.

United States, 48 Fed. Cl. 63, 68 (2000) (holding argument

that the government’s conduct was “unauthorized but

lawful” is “untenable”).4 If the government does not have

the authority to act, it cannot direct remedial action at

the problem supposedly necessitating the race-conscious

preference.

To satisfy strict scrutiny, the race-based government

action must be intended to alleviate a specific harm that it

caused. J. A. Croson, 488 U.S. at 510 (“Proper findings in

this regard are necessary to define both the scope of the

injury and the extent of the remedy necessary to cure its

effects.”). If the government creates a racial classification

in a way that is not narrowly defined to serve its specific

remedial purpose it is unconstitutional. And a government

4. This is a threshold requirement. As explained above,

even if the agency is acting pursuant to lawful authority, its

race-conscious action still must be “remedial” as this Court has

defined it.

9

act “beyond what Congress intended and [the Supreme

Court has] upheld” cannot be “remedial,” Shaw, 517 U.S.

at 913 (quotation omitted). The government cannot provide

special consideration for certain populations based on race

unless it has the lawful authority to do so. Solving alleged

problems beyond the scope of the agency’s authority

through race-conscious action is therefore impermissible.

B. Accounting for race-specific impacts during

NEPA review cannot be “remedial” if outside

the agency’s regulatory authority.

When an agency considers impacts to certain

communities due to their racial makeup during NEPA

review, it must show the consideration satisfies the Equal

Protection Clause. If the race-conscious consideration

is not done pursuant to a properly “remedial” objective

or is not narrowly tailored to achieve that objective,

it is unconstitutional. If the agency does not have the

regulatory authority to address a condition, then racebased action cannot be “remedial.”

NEPA’s purpose is to “ensure both that an agency

has information to make its decision and that the public

receives information so it might also play a role in the

decisionmaking process.” DOT v. Pub. Citizen, 541 U.S.

752, 754 (2004). Environmental review pursuant to NEPA

is a “process under which federal agencies identify the

reasonable alternatives to [a] contemplated action and look

hard at the environmental effects of their decisions.” City

of Bos. Delegation v. FERC, 897 F.3d 241, 246 (D.C. Cir.

2018) (citation omitted). Inherent in this process is the

understanding that an agency might “change its position”

to shift the costs and benefits of a proposed project among

10

stakeholders. Int’l Dark-Sky Ass’n, Inc. v. FCC, 106

F.4th 1206, 1218 (D.C. Cir. 2024). Federal agencies can

provide preferential treatment to certain interests by

considering “economic or social benefits of a project” prior

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

772 F.2d 1043, 1050 (2d Cir. 1985) (citations omitted); see

also Pet.App.66a (holding the STB “was required” to

“identify” and “weigh” the “cumulative effects within the

Uinta Basin of a major expansion of oil drilling there, on

Gulf Coast communities”).

When an agency considers race as a factor in the

NEPA process, it is creating a classification that implicates

the Equal Protection Clause. It does not matter that

NEPA is an information forcing mechanism and “does

not mandate particular results.” Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989). Simply

“being forced to compete in a race-based system that

may prejudice the plaintiff” offends the Equal Protection

Clause. Parents Involved, 551 U.S. at 719. All racial

classifications trigger strict scrutiny, and an agency’s

consideration of race during the environmental review

process is merely “a variation of [this] odious practice.”

Thompson v. Henderson, 143 S. Ct. 2412, 2414 (2023)

(Alito, J., dissenting from the denial of certiorari). If an

agency is going to consider race during the NEPA process,

it must satisfy strict scrutiny. Adarand Constructors, 515

U.S. at 227. 5

5. The Equal Protection Clause is generally not implicated

when the government provides preferences for Indian tribes.

Such a classification is based on political status, not race. Morton

v. Mancari, 417 U.S. 535, 555 (1974).

11

This is true even when the classification takes the form

of a race-based preference in an agency’s decision-making

among a series of race-neutral factors. Strickland v. U.S.

Dep’t of Agric, No. 2:24-CV-60-Z, *11 (N.D. Tex. Jun. 7,

2024) (holding race neutral government considerations

impermissible when “part of an overall scheme” that is

race conscious). Like the admissions programs this Court

analyzed just a few terms ago, “racial preferences” among

other race-neutral factors are impermissible in the NEPA

process when they “operate like clockwork” to achieve

race-conscious outcomes. SFFA, 143 S. Ct. at 2171 n.7.

And if the agency does not have the authority to remedy

the discrimination it factored into its analysis, then it

cannot act with a valid “remedial” purpose. Miller, 515

U.S. at 921.

As explained above, race-conscious evaluation cannot

be “remedial” as a matter of law if the impacts considered

are beyond the agency’s scope of authority to remedy. If

an agency were to consider race-conscious factors outside

of its control to regulate during the NEPA process, this

would be categorically unconstitutional. Such action can

never be “remedial” for Equal Protection purposes.

II. ENVIRONMENTAL JUSTICE REVIEW CANNOT

IMPERMISSIBLY CONSIDER RACE

Accounting for “environmental justice” is the most

common way race-conscious factors find their way into

agency decision-making during the NEPA process.

See, e.g., Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs, 255 F. Supp. 3d 101, 140 (D.D.C. 2017)

(“The purpose of an environmental justice analysis is to

determine whether a project will have a disproportionately

12

adverse effect on minority . . . populations.” (citations

omitted)); Young v. Gen. Servs. Admin., 99 F. Supp. 2d

59, 85 (D.D.C. 2000) (considering “negative impact on

minority-owned business[es]” by project).

Agencies have considered “environmental justice”

impacts during the NEPA process since the mid-1990s.

See Executive Order 12,898, Federal Actions to Address

Environmental Justice in Minority Populations and

Low-Income Populations (Feb. 11, 1994). But the modern

conception of environmental justice review took form

with the creation of interagency guidance documents

like Promising Practices for EJ Methodologies in NEPA

Reviews, created by the Federal Interagency Working

Group on Environmental Justice & NEPA Committee

(March 2016).6 This detailed guide “is a compilation of

methodologies gleaned from current agency practices

identified by the NEPA Committee concerning the

interface of environmental justice considerations through

NEPA processes.” Ibid. It explains how to determine

which “Minority Population” communities are deserving of

special consideration during the NEPA process, id. at 21,

including the use of “census data” and “local demographic

information” to identify these communities, ibid.

Agencies are now required by rule to consider

environmental justice impacts during the NEPA process.

The Council on Environmental Quality’s (“CEQ”) new

NEPA implementing regulations—finalized earlier this

year—codified the requirement that agencies consider

6. Available online at https://www.epa.gov/environmental

justice/ej-iwg-promising-practices-ej-methodologies-nepareviews.

13

environmental justice during NEPA review. See 40

C.F.R. § 1501.3(d)(1) (requiring agencies to consider

the env ironmental effects on “communities w ith

environmental justice concerns.”).7 The new regulations

define “environmental justice community” as “those

communities that may not experience environmental

justice.” 40 C.F.R. § 1508.1. “Environmental Justice”

incorporates the definition from an April 2023 executive

order issued by President Biden, which defines the phrase

as “the just treatment and meaningful involvement of all

people, regardless of income, race, color, national origin,

Tribal affiliation, or disability.” Ibid. See also Executive

Order 14096, Revitalizing Our Nation’s Commitment to

Environmental Justice for All (April 21, 2023).

Training materials available on the Environmental

Protection Agency’s website also show the extent to which

race is the predominating factor in identifying “minority

populations.” 8 According to these materials, because

“people of color” are “less responsible for climate change

yet bear disproportional risk,” the government should

7. The proceeding below occurred prior to the new rules’

adoption and followed the ad hoc process agencies had previously

used, following the Federal Interagency Working Group on

Environmental Justice & NEPA Committee guide. How agencies’

consideration of environmental justice will differ under the new

rules is unclear. But the amorphous and expansive definitions

provide plenty of room for agencies to interpret the rules as making

race the predominant factor in identifying environmental justice

communities.

8. See Chapman, Environmental Justice, Climate Change,

& Racial Justice, Environmental Protection Agency (July 24,

2015), https://www.epa.gov/sites/default/files/2015-10/documents/

post_2_-_environmental_ justice_climate_change.pdf

14

give these communities special consideration in the NEPA

process. See Chapman, supra n.8. This sentiment appears

to be the driving force behind most modern environmental

justice efforts.9 If these materials—publicly available on

the EPA’s website and echoing the rhetoric of activist

organizations—reflect the prevailing practice among

federal agencies, “environmental justice” is little more

than a euphemism for “racial minority.”

As a result of the requirement that agencies consider

environmental justice during NEPA review, public

commentors regularly identify populations worthy of

special consideration. See, e.g., JA566. And in so doing,

these commentors often explicitly ask agencies to take

race into account. Ibid. (asking STB to consider effect

of project on communities made up mostly of “African

Americans and other people of color”). Courts then often

require agencies to evaluate downstream impacts that

the government action might have on these communities.

See, e.g., Pet.App.65.a–69.a; Vecinos para el Beinestar de

la Comunidad Costera v. FERC, 6 F.4th 438, 449 (D.C.

Cir. 2022) (finding agency’s NEPA analysis of impacts on

climate change and environmental justice communities

deficient).

9. See, e.g., Natural Resources Defense Council, The

Environmental Justice Movement,(last visited Aug. 22, 2024

at 11:01 p.m.), https://w w w.nrdc.org/stories/environmentaljustice-movement (“Environmental justice is an important part

of the struggle to improve and maintain a clean and healthful

environment, especially for communities of color who have been

forced to live, work, and play closest to sources of pollution.”

(emphasis added)).

15

The combination of agency guidance and pressure

from outside groups has allowed race-conscious decision

making to permeate the NEPA process. Environmental

justice analysis that provides special preference for

“minority communities” defined predominantly by race

is a classification that implicates the Equal Protection

Clause. Parents Involved, 551 U.S. at 746 (observing it is

“not the inequality of the [outcome] but the fact of legally

separating [people] on the basis of race” that violates the

constitution). Like any other racial classification, this

triggers strict scrutiny.

III. THE COURT BELOW ERRED BY REQUIRING

THE STB TO CONSIDER ENVIRONMENTAL

JUSTICE IMPACTS BASED ON RACE

The Court bellowed erred in holding that the STB

impermissibly failed to consider “the cumulative effects”

of “a major expansion of oil drilling” on “environmental

justice communities located on the Gulf Coast.” Pet.

App.66.a. These communities were chosen because of

the racial makeup of their residents and the government

would not be able to justify such special consideration

under strict scrutiny.

Though the court below did not discuss this feature

of the STB’s NEPA review in much detail, its concerns

echo those raised by the Center for Biological Diversity

(“Center”) before the agency. JA566. The Center urged the

STB to consider the project’s impact to “black and brown

communities” on the Gulf Coast that could feel the effects

of increased oil refining activity. Ibid. According to the

Center, because these “communities of African Americans

and other people of color are hemmed in by these oil

16

refineries,” the STB should give them special consideration.

Ibid. See also Comments of Center for Biological Diversity

on Unita Basin Railway Draft EIS, Docket No. FD 36284,

United States Surface Transportation Board, (Feb. 12,

2021) (“Center’s Comments”) (arguing the agency “[f]

ail[ed] to Adequately Address Environmental Justice

and Racism Issues Elicited by the Proposed Project.”).

According to the Center, because the project might

impact these “communities of African Americans and

other people of color,” the agency should provide special

solicitude to them. Center’s Comments at 63. In addition,

the Center was of the opinion that “minority populations

and low-income populations in the affected environment

may be differently affected by past, present, or reasonably

foreseeable future impacts than the general population.”

Id. at 64. In the Center’s view, the Board should account

not only for past pollution in the area, but also “inadequate

housing, roads, or water supplies in [these] communities,”

“lack of education or language barriers,” and “chronic

stress related to environmental or socioeconomic impacts.”

Id. at 64–65.

The D.C. Circuit homed in on these communities based

on the Center’s comments and briefing. Pet.App.30.a, 66.a

(citing the Center’s brief discussing this alleged deficiency).

Because the Center identified these environmental justice

communities based on the predominating racial make-up

of their residents, racial classifications are inextricably

intertwined with the other non-race considerations raised.

SFFA, 143 S. Ct. at 2161 n.7. As discussed above, requiring

an agency to consider impact to an “environmental justice

community” because of the racial makeup of its residents

is a racial classification that must satisfy strict scrutiny.

There is no evidence in the record that consideration

17

of increased refining activity is “focused” on the goal

of remedying “wrongs worked by specific instances of

racial discrimination” by the government. J.A. Croson,

488 U.S. at 496–97. Indeed, it is axiomatic that focused

approaches reside with those agencies to whom Congress

has granted authority to address the disparate condition

at issue. Because the STB lacks regulatory authority over

the conditions that the court below identified as the locus

of environmental justice concerns, the government could

not satisfy strict scrutiny here. Ibid.

Worse, the D.C. Circuit’s decision pits environmental

justice communities against each other. When reviewing

this project, the STB considered the concerns raised

by the Ute Tribe, an environmental justice community

directly impacted. JA546. The STB worked in concert with

the Tribe to protect important environmental and cultural

resources impacted by the project. Pet.App.113.a–114a.

The STB considered the Tribe’s concerns, identified

alternative courses of action to account for those concerns,

and then selected one of the alternatives to which the

project proponents and the Tribe were agreeable. Ibid.

Yet according to the court below, because a potential

environmental justice community far removed from the

project in the Gulf Coast may experience some downstream

impact, the STB erred by not analyzing these effects. Pet.

App.66.a; JA566. In short, this allowed an environmental

justice veto under which third parties may inject raceconscious factors into agencies’ NEPA analyses, and then

use race as a means of obstructing a project that benefits

other environmental justice communities like the Ute

Tribe. Ibid. It is hard to imagine Congress intended such

a result when it enacted NEPA over fifty years ago.

18

The disproportionate impact faced by certain

communities may cer tainly be wor thy of special

consideration. But when the government relies on race

to identify these communities, it must satisfy strict

scrutiny, which it rarely will be able to do in the NEPA

context unless its actions are statutorily authorized

and targeted at specific past instances of government

discrimination. Even “if these goals could somehow be

measured, moreover, how is a court to know when they

have been reached, and when the perilous remedy of racial

preferences may cease?” SFFA, 600 U.S. at 214. Given the

significant overlap between the race-neutral alternatives

like income-based distinctions, the government is hard

pressed to show that relying on race-conscious factors is

ever necessary for environmental justice. Ibid.

19

CONCLUSION

“Our Constitution is color-blind, and neither knows nor

tolerates classes among citizens.” Plessy v. Ferguson, 163

U.S., 537, 559 (Harlan, J., dissenting). Giving these words

effect means eliminating race-conscious government

action. And policing the narrow situations in which it

is allowed is necessary to prevent “a mosaic of shifting

preferences based on inherently unmeasurable claims of

past wrongs.” J. A. Croson, 488 U.S. at 506. The Court

should reverse the judgment below.

Respectfully submitted,

Harmeet K. Dhillon

Counsel of Record

Mark Trammell

Josh Dixon

Eric Sell

Center for A merican Liberty

1311 South Main Street, Suite 207

Mount Airy, MD 21771

(703) 687-6212

harmeet@libertycenter.org

Counsel for Amicus Curiae

Center for American Liberty

September 4, 2024