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

Supreme Court briefSep 4, 2024

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No. 23-975

In the Supreme Court of the United States

_____________________

SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,

Petitioners,

EAGLE COUNTY, ET AL.,

Respondents.

_____________________

On Writ of Certiorari to the U.S. Court of Appeals

for the D.C. Circuit

______________________

BRIEF OF LAW PROFESSORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

______________________

Richard A. Epstein

New York University

16 Thomas Place

Norwalk, CT 06853

James W. Coleman

University of Minnesota

229 19th Ave. South

Minneapolis, MN 55455

Mario A. Loyola

Counsel of Record

Florida International University

11200 SW 8th St.

Miami, FL 33199

(305) 472-2700

mloyola@fiu.edu

QUESTION PRESENTED

Whether environmental impacts that are beyond the

scope of an agency’s jurisdiction and expertise can be

among the reasonably foreseeable effects of a major

federal action that must be studied under the

National Environmental Policy Act.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES...................................... iv

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

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 5

II.

NEPA Does Not Require Agencies to

Study Impacts that Are Beyond the

Scope of their Jurisdiction and

Expertise ....................................................... 6

What Impacts Are “Reasonably

Foreseeable” Depends on the Scope

of Agency Authority .............................. 6

Climate Impacts Are Beyond the

Limited Scope of STB’s Authority ...... 15

The D.C. Circuit Gave STB Little

Deference within the Scope of Its

Authority, While Imposing Vast New

Procedural Requirements On It Outside

the Scope of Its Authority ........................... 18

The D.C. Circuit Failed to Defer to

STB Where Deference Was Due ......... 19

iii

Impacts Outside the Agency’s

Authority May be Noted in an EIS

but Studying Them in Detail

Cannot Be Required............................ 24

III. CEQ Has No Rulemaking Authority

under NEPA and Cannot Create

Judicially Enforceable Obligations ............ 26

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

TABLE OF AUTHORITIES

Page(s)

Cases:

Alaska Survival v. Surface Transp. Bd.,

705 F.3d 1073 (9th Cir. 2013) ............................. 15

Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y.,

360 U.S. 378 (1959) ............................................. 17

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

462 U.S. 87 (1983) ............................7, 8, 18, 23, 24

Calvert Cliff’s Coordinating Committee v.

Atomic Energy Commission,

449 F.2d 1190 (D.C. Cir. 1971) .......................... 31

Center for Biological Diversity, Manasota-88,

Inc. v. United States Army Corps of

Engineers,

941 F.3d 1288 (11th Cir. 2019) ..................... 13, 14

Chambers v. United States,

451 F.2d 1045 (Ct. Cl. 1971) ............................... 30

City of Albuquerque v. U.S. Dep’t of the Interior,

379 F.3d 901 (10th Cir. 2004) ............................. 30

City of Carmel-By-The-Sea v.

U.S. Dep’t of Transportation,

123 F.3d 1142 (9th Cir. 1997) ............................. 30

Cort v. Ash,

422 U.S. 66 (1975) ............................................... 31

Department of Transp. v. Public Citizen,

541 U.S. 752 (2004) .......... 1, 4, 5, 10, 11, 12, 13, 26

Facchiano Const. Co., v.

United States Dept. of Labor,

987 F.2d 206 (3d Cir. 1993), cert. denied,

510 U.S. 822 (1993) ............................................. 28

Gonzales v. Oregon,

546 U.S. 243 (2006) ............................................. 19

Haitian Refugee Ctr., Inc. v. Baker,

953 F.2d 1498 (11th Cir.), cert. denied,

502 U.S. 1122 (1992) ........................................... 28

In re Surface Mining Regulation Litig.,

627 F.2d 1346 (D.C. Cir. 1980) ............... 10, 28, 29

Indep. Meat Packers Asso. v. Butz,

526 F.2d 228 (8th Cir. 1975) ................... 28, 30, 31

J. W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ......................................... 9, 18

Kentuckians for the Commonwealth v. United

States Army Corps of Eng'rs,

746 F.3d 698 (6th Cir. 2014) ............................... 14

Kisor v. Wilkie,

588 U. S. 558 (2019) .................................. 2, 10, 19

Legal Aid Soc’y of Alameda County v. Brennan,

608 F.2d 1319 (9th Cir. 1979) ............................. 30

Loper Bright Enterprises. v. Raimondo,

144 S. Ct. 2244 (2024) ....................5, 20, 22, 24, 27

Manhattan-Bronx Postal Union v. Gronouski,

350 F.2d 451 (1965), cert. denied,

382 U.S. 978 (1966) ............................................. 29

Metropolitan Edison Company v.

People Against Nuclear Energy,

460 U.S. 766 (1983) ......................3, 7, 9, 11, 12, 14

Michigan v. Thomas,

805 F.2d 176 (6th Cir. 1986) ............................... 28

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co.,

463 U.S. 29 (1983) .... 4, 5, 10, 12, 18, 21, 22, 23, 24

Myersville Citizens for a Rural Cmty. v. FERC,

783 F.3d 1301 (D.C. Cir. 2015) ........................... 17

N.J. Dep't of Envtl. Prot. v. United States NRC,

561 F.3d 132 (3d Cir. 2009) ................................ 14

NAACP v. FPC,

425 U.S. 662 (1976) ............................................. 17

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) ............................................. 17

New York Cent. Sec. Corp. v. United States,

287 U.S. 12 (1932) ......................................... 16, 18

Ohio Valley Coalition v. Aracoma Coal Co.,

556 F.3d 177 (4th Cir. 2009) ............................... 14

Sierra Club v. FERC,

867 F.3d 1357 (D.C. Cir. 2017) ............4, 12, 13, 14

Sierra Club v. Peterson,

705 F.2d 1475 (9th Cir. 1983) ............................. 30

Skidmore v. Swift,

323 U.S. 134 (1944) ................................... 5, 10, 26

vii

Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc.,

435 U.S. 519 (1978) ................................... 3, 24, 26

West Virginia v. EPA,

597 U.S. 697 (2022) ................................... 2, 10, 19

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................................ 17-18

Wildlands CPR, Inc. v. U.S. Forest Service,

872 F. Supp. 2d 1064 (D. Mont. 2012)................ 30

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................... 9, 26, 28

Statutes & Other Authorities:

5 U.S.C. § 706 ............................................. 1, 9, 10, 18

15 U.S.C. § 717f(e) .................................................... 12

42 U.S.C. § 4321 ..................................................... 1, 5

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

42 U.S.C. § 4332(C) .................................................... 7

42 U.S.C. § 4371 ....................................................... 27

42 U.S.C. § 7411(b)(1)(A) ......................................... 29

42 U.S.C. § 7609 ....................................................... 27

49 U.S.C. § 10101 ............................................... 15, 16

49 U.S.C. § 10101(8) ................................................. 16

49 U.S.C. § 10502 ......................................... 15, 16, 21

49 U.S.C. § 10901 ............................................... 15, 16

viii

49 U.S.C. § 10901I .................................................... 15

40 C.F.R. § 1500 ..................................................... 5, 6

40 C.F.R. § 1500.3 .................................................... 28

40 C.F.R. § 1502.14 .................................................. 26

40 C.F.R. § 1502.22 .................................................. 19

40 C.F.R. § 1508 ....................................................... 26

40 C.F.R. § 1508.1(i)(2) .............................................. 9

39 Fed. Reg. 41501 (November 29, 1974) ................ 30

43 Fed. Reg. 55978 (November 29, 1978) .................. 7

APA § 706 ....................................................... 9, 10, 18

James W. Coleman, Pipelines & Power-lines:

Building the Energy Transport Future, 80

Ohio St. L.J. 263 (2019) ........................................ 3

Richard A. Epstein, Simple Rules for a Complex

World (1995) ........................................................ 14

Richard A. Epstein, Torts, §10.9 Directness and

Foresight (1999) .................................................... 8

Executive Order 11514............................................. 27

Executive Order 11821............................................. 30

Executive Order 11991....................................... 27, 28

Lon L. Fuller, Morality of Law (New Haven:

Yale University Press, rev. ed. 1969) ................. 14

Interstate Commerce Act, § 5(2) .............................. 16

Note, Enforcing Executive Orders: Judicial

Review of Agency Action Under the

Administrative Procedure Act, 55 Geo. Wash.

L. Rev. 659 (1987) ............................................... 29

Section of Administrative Law and Regulatory

Practice, American Bar Association, A Guide

to Judicial and Political Review of Federal

Agencies § 6.024 (John F. Duffy & Michael

Herz eds., 2005) .................................................. 29

Sup. Ct. R. 37.6........................................................... 1

INTEREST OF AMICI CURIAE1

Amici are law professors who specialize in

administrative and environmental law, including

the National Environmental Policy Act (NEPA), 42

U.S.C. §§ 4321 et seq., and who have previously

published on, or have interest in, maintaining the

legality and effectiveness of administrative agency

action as originally envisioned in the U.S.

Constitution, the Administrative Procedure Act, and

NEPA. Amici have no personal stake in the outcome

of this case.

SUMMARY OF THE ARGUMENT

In Public Citizen, this Court rightly held that an

environmental impact statement (EIS) is not

required under NEPA when the agency “has no

ability to prevent” those effects “due to its limited

statutory authority.” Department of Transp. v. Public Citizen, 541 U.S. 752, 770 (2004). The Court

likened this limiting principle to the principle of

proximate causation in torts. But the question of

what constitutes a “reasonably foreseeable” environmental impact under NEPA cannot be considered in

legal isolation, for NEPA must be applied

consistently with other sources of law that bear on

the question. Those include the Administrative

Procedure Act’s “arbitrary and capricious” standard,

5 U.S.C. § 706, and the Constitution’s separation of

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae

states that no counsel for a party authored this brief in whole

or in part, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity other than amici curiae or its

counsel has made a monetary contribution to the preparation

or submission of this brief.

powers—all aspects of the case that the D.C. Circuit

glossed over.

Both the APA and the Constitution create

independent limits of their own on those matters

which agencies may delve into as well as those

which courts may require them to delve into, and

NEPA must be interpreted consistently with those

limits. The question of what is a “reasonably foreseeable” effect of an agency’s action under NEPA

cannot be separated from the question of what

deference the agency is due on matters that lie

within its jurisdiction and expertise, nor from the

related question of how far beyond its jurisdiction

and expertise the agency can stray before its actions

and determinations not only deserve no deference

but must be set aside as arbitrary and capricious.

Hence what this Court said just a few years ago

in West Virginia v. EPA should have been enough to

close the door on decisions like the one below:

“‘When the agency has no comparative expertise’ in

making certain policy judgments, we have said,

‘Congress presumably would not’ task it with doing

so.” 597 U.S. 697, 729 (2022) (quoting Kisor v.

Wilkie, 588 U. S. 558, 578 (2019)).

These issues are also inseparable from the

Constitution’s separation of powers, which require

both intelligible principles for agencies exercising

delegated rulemaking authority and that the

delegations

rulemaking

authority

unambiguous. Requiring an agency such as the

Surface Transportation Board (STB) to study

climate

impacts

connection

with

the

authorization of a short railway line violates all

these requirements.

This Court has placed clear boundaries on “the

scope of the agency’s inquiries” under NEPA to

ensure that they fall within “manageable” limits to

accomplish “NEPA’s goal of insuring a fully

informed

and

well-considered

decision.”

Metropolitan Edison Company v. People Against

Nuclear Energy, 460 U.S. 766, 776 (1983) (citing

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519, 558

(1978) (internal citations and punctuation omitted).

Agencies must only consider environmental impacts

that bear a “reasonably close causal relationship” to

the action that the agency is taking, which the

Court, analogizing to the “familiar doctrine of

proximate cause,” has defined as only those impacts

that the agency was legally responsible for.

Metropolitan Edison, 462 U.S. at 774.

In this case, the D.C. Circuit Court of Appeals

vacated a Surface Transportation Board (STB)

approval of a short segment of railroad in Utah

because the court concluded that the agency should

have further analyzed impacts that might occur far

downstream and upstream as a result of authorizing

the railway segment, including increased oil

production in Utah, accidents on distant rail lines,

increased oil refining on the Gulf Coast, further oil

consumption around the world, and all of the

ultimately resulting carbon emissions.

This Court has repeatedly admonished the lower

courts to stop reading the NEPA so expansively. See

James W. Coleman, Pipelines & Power-lines:

Building the Energy Transport Future, 80 Ohio St.

L.J. 263, 299 & n.167 (2019). Had the court below

followed this Court’s admonition to consider the

“familiar doctrine of proximate cause,” 541 U.S. at

767, the case would have been easy: the STB’s

approval of a rail line entirely within Utah would

have been largely confined to impacts within Utah,

not hypothetical future impacts due to the

independent actions of other actors around the

world.

Yet the lower courts continue reading this

Court’s opinions narrowly and applying their own

increasingly

baroque

standards

require

consideration of more and more hypothetical

impacts, causing more and more delay to important

national infrastructure projects. See, e.g., Sierra

Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017)

(distinguishing Public Citizen). To ensure lower

court compliance with this Court’s decisions, the

Court should clearly state that agencies need only

consider impacts, whether direct or indirect, if the

agency is legally responsible for that impact because

it lies within the scope of the agency’s jurisdiction

and expertise.

That the scope of agency authority is the right

place for the “manageable line” between effects the

agency must study and those it need not study is

reinforced by the APA’s deferential “arbitrary and

capricious” standard, which is similarly predicated

on the scope of agency authority—in particular its

statutory jurisdiction and expertise. In State Farm,

this Court confirmed that to survive “arbitrary and

capricious review,” agencies must take a hard look

at all relevant facts. Motor Vehicle Mfrs. Ass'n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). But “relevant facts” does not mean all facts,

otherwise the agency may have “relied on factors

which Congress has not intended the agency to

consider.” Id.

Moreover, while CEQ’s Regulations Implementing the Procedural Provisions of NEPA, 40 C.F.R.

§§ 1500 et seq., (CEQ Regulations) have long been

considered authoritative, NEPA in fact grants CEQ

no rulemaking authority. Hence the CEQ

Regulations may “regulate” agencies for purposes of

presidential administration, but they cannot bind

agencies as a matter of law and can have no impact

on independent agencies like the Federal Energy

Regulatory Commission (FERC). Especially after

this Court’s decision in Loper Bright Enterprises. v.

Raimondo, 144 S. Ct. 2244 (2024), the CEQ

Regulations are at most entitled to deference under

Skidmore v. Swift, 323 U.S. 134 (1944).

By expanding NEPA well beyond its statutory

bounds in disregard of Public Citizen, the decision

below systematically trampled on both the APA’s

deference scheme and the Constitution’s separation

of powers, and should be reversed.

ARGUMENT

All agree that under the National Environmental

Policy Act (NEPA), 42 U.S.C. § 4321 et seq., agencies

need study only those downstream and upstream

impacts that are reasonably foreseeable. But as

interpreted by the D.C. Circuit and courts that

follow it, that standard has become largely

indeterminate. That has introduced several grave

errors into administrative law which this Court now

has a chance to correct.

First, requiring agencies to study impacts beyond

their jurisdiction and expertise makes it nearly

impossible in routine cases for agencies to predict

where courts will draw the line between those

impacts that they must study and those they need

not, thereby upsetting the division of regulatory

labor ordained by Congress. Second, this expansive

reading of NEPA contradicts the APA’s sensible

scheme of deference under “arbitrary and

capricious” review, while imposing expansive

environmental review requirements with respect to

matters entirely outside the agency’ jurisdiction and

expertise and as to which the agency should expect

little deference. Third, the D.C. Circuit approach

engenders major separation-of-powers problems,

including a lack of intelligible principles to guide

agencies in climate-based rulemaking and the fact

that CEQ has no rulemaking authority under

NEPA, and therefore its Regulations for

Implementing the Procedural Provisions of NEPA,

40 C.F.R. §§ 1500 et seq., (the CEQ Regulations),

cannot be not judicially enforceable.

I. NEPA Does Not Require Agencies to Study

Impacts that Are Beyond the Scope of their

Jurisdiction and Expertise.

A. What Impacts Are “Reasonably Foreseeable” Depends on the Scope of Agency

Authority.

As originally enacted, NEPA required agencies to

include in any proposal for “major Federal actions

significantly affecting the quality of the human

environment” an environmental impact statement

(EIS) on “the environmental impact of the proposed

action.” It was obvious virtually from the start that

there had to be some limiting principle on the

downstream and upstream impacts that had to be

studied,

otherwise

NEPA

would

become

unmanageable for agencies. But in the D.C. Circuit

and courts that follow it, “reasonably foreseeable”

has been transformed into an almost infinitely

elastic

standard.

the

decision

below

demonstrates, the only “manageable line” between

effects the agency must study under NEPA and

those which it need not study is one based upon the

scope of the agency’s statutory authority.

The

original

1978

CEQ

Regulations

acknowledged that there must be a limiting

principle on the impacts that must be studied under

NEPA. It defined “Effects” to include both “(a)

Direct effects, which are caused by the action and

occur at the same time and place,” and “(b) Indirect

effects, which are caused by the action and are later

in time or farther removed in distance, but are still

reasonably foreseeable.” 43 Fed. Reg. 55978, 56004

(November 29, 1978) (emphasis added). In 2023, the

Fiscal Responsibility Act codified the reasonably

foreseeable standard. 42 U.S.C. § 4332(C).

This Court first explored what standard should

govern the effects that an agency must study under

NEPA in Metropolitan Edison Company v. People

Against Nuclear Energy. 460 U.S. 766 (1983). The

Nuclear Regulatory Commission (NRC) had

authorized one of the reactors at Three Mile Island

to restart operations. Pursuant to its general safety

procedures (see, Balt. Gas & Elec. Co. v. NRDC, 462

U.S. 87 (1983)), the NRC determined that the action

would have no significant environmental impacts.

Challengers argued that the NRC had failed to

consider the psychological harm to residents in the

vicinity, as well as their relatives elsewhere, that

might be caused by the reactor restart as a

cognizable environmental effect within NEPA.

The Court held that the psychological effects of

the reactor restart were not within the scope of

NEPA analysis and adopted a causation test to

determine NEPA's applicability:

Our understanding of the congressional concerns

that led to the enactment of NEPA suggests that

the

terms

“environmental

effect”

and

“environmental impact” in § 102 be read to

include a requirement of a reasonably close

causal relationship between a change in the

physical environment and the effect at issue.

This requirement is like the familiar doctrine of

proximate cause from tort law.

462 U.S. at 774. Thus, to be relevant for NEPA

analysis, an impact has to be proximately caused by

a change in the physical environment entailed in the

proposed agency action. The Court held that the

NRC did not have to take into account the

psychological impacts of the decision to reopen a

reactor. “In the context of both tort law and NEPA,

courts must look to the underlying policies or

legislative intent in order to draw a manageable line

between those causal changes that may make an

actor responsible for an effect and those that do

not.” Id. at 774 n.7. The requirement of proximity

cannot be satisfied given the vast array of actions

that intervene between an agency action and remote

psychological or climate impacts. See Richard A.

Epstein, Torts, §10.9 Directness and Foresight

(1999). The range of consequences that the D.C.

Circuit wishes to add into the analysis are orders of

magnitude greater than those rejected in

Metropolitan Edison, such that any “indirect effects”

included in the 1978 CEQ Regulation are subject to

the cautionary limitations of Metropolitan Edison.

Hence the CEQ Regulation risks drawing

agencies onto treacherous waters when it provides

that “[i]ndirect effects may include growth-inducing

effects and other effects related to induced changes

in the pattern of land use, population density or

growth rate, and related effects on air and water

and other natural systems, including ecosystems.”

40 C.F.R. § 1508.1(i)(2). Such effects are still subject

to other limitations, of which the proximate cause of

Metropolitan Edison is only one. There is also the

limitation inherent in APA § 706, which cautions

agencies not to stray far beyond the scope of their

authority and expertise. There is the fact that

beyond the scope of the agency’s expertise, Congress

has almost certainly supplied no intelligible

principle. See J. W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928) (holding that

precise mechanisms for setting tariff adjustments

prescribed in statute constituted intelligible

principles to guide the agency in its exercise of

delegated rulemaking authority). And there is the

question, which courts have too long ignored, of

exactly what legal effect should be given to the CEQ

Regulation: While a president has inherent

executive authority to add to the agency procedures

that are required by law, the president has no power

to create law. Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 587 (1952). Any command

from the president to federal agencies which claims

to have the force of law must therefore rest on a

delegation of rulemaking authority from Congress,

In re Surface Mining Regulation Litig., 627 F.2d

1346, 1357 (D.C. Cir. 1980).

The high deference due to agencies under APA §

706 with respect to issues “which rest[] within the

expertise of [the agency], and upon which a

reviewing court must be most hesitant to intrude,”

See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual

Automobile Ins. Co., 463 U.S. 29, 53 (1983), has as

its corollary that determinations outside the

agency’s sphere of competence are due little

deference beyond the respect of Skidmore. Properly

understood, State Farm implies that agencies

cannot stray too far beyond those issues Congress

has entrusted to them before their very lack of

expertise renders their actions inherently “arbitrary

and capricious” under § 706. And that matters here,

because “‘[w]hen the agency has no comparative

expertise’ in making certain policy judgments […]

Congress presumably would not task it with doing

so.” West Virginia v. EPA, 597 U.S. at 729 (quoting

Kisor v. Wilkie, 588 U. S. 558, 578 (2019) (internal

quotations omitted).

The issue of what acts fall within agency

authority came to the fore with Department of

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

(2004). In that case, the President had decided to lift

a moratorium on Mexican motor carrier certification

following the preparation of new motor carrier

safety regulations required by law. In crafting the

proposed safety regulations, the Federal Motor

Carrier Safety Administration (FMCSA) determined

that it need not consider the environmental impact

of the increased presence of Mexican trucks within

the United States. The Court upheld FMCSA’s

determination because FMCSA had no discretion to

prevent the entry of Mexican trucks, where the legal

authority lay with the President, not FMCSA.

The “relevant question,” this Court said, was

whether the environmental impact of an increased

volume of Mexican trucks in the U.S. was an “effect”

of FMCSA’s issuance of safety regulations for those

trucks. 541 U.S. at 764. The Court held that it was

not. “[A] ‘but for’ causal relationship is insufficient

to make an agency responsible for a particular effect

under NEPA. . . . NEPA requires ‘a reasonably close

causal relationship’ between the environmental

effect and the alleged cause.” Id. This Court again

noted a strong analogy to proximate causation in

torts law: “[C]ourts must look to the underlying

policies or legislative intent in order to draw a

manageable line between those causal changes that

may make an actor responsible for an effect and

those that do not.” “Inherent in NEPA . . . is a ‘rule

of reason’ which ensures that agencies determine

whether and to what extent to prepare an EIS based

on the usefulness of any new potential information

to the decisionmaking process.” 541 U.S. at 767.

Public Citizen was an unusual case in that the

statute triggering NEPA was non-discretionary. As

a result, some courts have had a difficult time

applying it to the more usual case, in which the

agency has substantial discretion over the decision.

But Public Citizen merely added to the foundation

established in Metropolitan Edison, the linchpin of

which was the need for a “manageable line” between

the effects an agency is responsible for and those it

is not, given its limited statutory authority. For

even where the agency has discretion over the

decision, and therefore can theoretically stop the

impact from happening, no agency has unlimited

statutory authority. The question remains whether

that impact is a “factor which Congress [] intended

[the agency] to consider,” 463 U.S. at 43, and

whether considering it would advance “NEPA’s goal

of insuring a fully informed and well-considered

decision,” See Metropolitan Edison, 460 U.S. at 776

(internal citations and punctuation omitted). Hence

the crucial first question in all of these cases is:

What is the scope of the agency’s authority?

Part of what has led to the circuit split observed

by the petitioners and others is a difference of

opinion over whether NEPA requires agencies to

study impacts beyond their narrow jurisdiction and

expertise and therefore requires agencies to consider

those remote impacts in their decision making.

Answering that question emphatically in the

affirmative, the D.C. Circuit approach ignores

multiple important guardrails inherent in NEPA,

the APA, and the Constitution’s separation of

powers.

Emblematic of this unsound approach is the D.C.

Circuit’s decision in Sierra Club v. FERC, 867 F.3d

1357 (D.C. Cir. 2017) (Sabal Trail), where the court

vacated FERC’s Certificate of Public Convenience

and Necessity for the Sabal Trail pipeline project

under the Natural Gas Act, 15 U.S.C.S. § 717f(e)

(NGA). The court concluded that the agency had

authority under the NGA to consider climate

change, which it failed to do, in the court’s view, by

not estimating carbon emissions from power plants.

Sabal Trail wrongly reads Public Citizen as

turning “not on the question ‘What activities does

[the agency] regulate,’” but on the agency’s

unchecked power to block a project that “would be

too harmful to the environment.” 867 F.3d at 1373.

On this view, agencies must consider even those

distant environmental effects that are another

agency’s responsibility: “[T]he existence of permit

requirements overseen by another federal agency or

state permitting authority cannot substitute for a

proper NEPA analysis.” Id. at 1375.

Center for Biological Diversity, Manasota-88, Inc.

v. United States Army Corps of Engineers, 941 F.3d

1288 (11th Cir. 2019) stands for the opposite

position. When the Corps of Engineers was

permitting wetland discharges required for the

expansion of a phosphate mine in Florida, the Corps’

NEPA review addressed the direct and indirect

effects of those discharges. But the Corps did not

study the effects of downstream activities, such as

refining the phosphate ore into fertilizer or storing

phosphogypsum. Relying on Public Citizen, the

Eleventh Circuit upheld the Corps’ decision not to

delve into such downstream issues, noting that

“[t]he Corps has no jurisdiction to regulate or

authorize any of that.” 941 F.3d at 1294. It went on

to note that “EPA and the [Florida Department of

Environmental Protection]—not the Corps—directly

regulate fertilizer plants and phosphogypsum.” Id.

at 1295. “[I]t was sensible,” the court explained, “for

the Corps to draw the line at the reaches of its own

jurisdiction, leaving the effects of phosphogypsum to

phosphogypsum’s regulators” and “respecting the

jurisdictional boundaries set by Congress and

inherent in state-federal cooperation.” Id. at 1295–

96. Any other reading of Public Citizen would turn

the Corps into a “de facto environmental-policy czar”

that could deny a permit based on “its dislike of the

applicant’s business or downstream effects not

sufficiently caused by” the activity the Corps was

permitting. Id. at 1296, 1299. The Eleventh Circuit’s

holding was a sharp rebuke of the D.C. Circuit’s

decision in Sabal Trail on a remarkably analogous

set of facts, also involving the jurisdictional

boundary between a federal agency and Florida

regulators.

The Eleventh Circuit is not alone in disagreeing

with the D.C. Circuit. See Kentuckians for the

Commonwealth v. United States Army Corps of

Eng'rs, 746 F.3d 698 (6th Cir. 2014); Ohio Valley

Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th

Cir. 2009); and N.J. Dep't of Envtl. Prot. v. United

States NRC, 561 F.3d 132 (3rd Cir. 2009).

Simply put, the D.C. Circuit approach makes

Metropolitan

Edison’s

“manageable

line”

unmanageable. As interpreted by the D.C. Circuit

and kindred courts, NEPA’s requirements have

mushroomed into a fuzzy and indeterminate mass,

violating the basic principles of any legal system,

such as publicity, clarity, and constancy. See Lon L.

Fuller, Morality of Law (New Haven: Yale

University Press, rev. ed. 1969). Accordingly, the

case-by-case approach does not work. See Richard

A. Epstein, Simple Rules for a Complex World

(1995). By severely restricting the availability of

private

financing

for

infrastructure,

and

necessitating massive public subsidies, that

uncertainty also violates NEPA’s explicit policy of

encouraging man’s productive harmony with his

environment. 42 U.S.C. § 4331(a).

B. Climate Impacts Are Beyond the Limited

Scope of STB’s Authority.

The STB has broad discretion to consider the

public interest in granting the authorization at issue

here, but that discretion is not unlimited, and it

does not include the consideration of climate

impacts or climate policy.

The

Interstate

Commerce

Commission

Termination Act of 1995 (the Interstate Commerce

Act), 49 U.S.C. 10101 et seq., provides the STB with

authority to license the construction and operation

of new railroad lines in the interstate rail system.

See Alaska Survival v. Surface Transp. Bd., 705

F.3d 1073, 1078 (9th Cir. 2013). The STB’s

authorization of a new line takes one of two forms.

First, if an applicant submits a full application to

build a new railroad line, the STB must grant the

authorization “unless the STB finds that such

activities are inconsistent with the public

convenience and necessity.” 49 U.S.C. § 10901I.

Second, as in this case, an applicant may request

STB authorization through an “exemption” process

under 49 U.S.C. § 10502.

The STB may grant that exemption when it finds

that (1) a full proceeding under § 10901 “is not

necessary to carry out” the rail transportation policy

in § 10101 of the Interstate Commerce Act, and (2)

either that (a) the transaction is limited in scope, or

(b) the application of § 10901 “is not needed to

protect shippers from the abuse of market power.”

49 U.S.C. § 10502. Market power was no issue here.

In an exemption proceeding, the STB considers the

transportation merits of a project by looking to the

exemption criteria in § 10502, which in turn

requires the STB to analyze the rail transportation

policy factors identified in Section 10101. and of the

exemption criterion in Section 10502, only one of a

long list of 15 factors was materially implicated: “(8)

to operate transportation facilities and equipment

without detriment to the public health and safety.”

49 U.S.C. § 10101 (8).

The ICC’s authorizing statute, like the STB’s,

enabled it to approve a rail-line merger if the project

“will be in the public interest.” New York Cent. Sec.

Corp. v. United States, 287 U.S. 12, 20 n.1 (1932)

(quoting Interstate Commerce Act, § 5(2)). This

Court held that the “public interest” did not include

every conceivable public benefit, but was limited by

context to require a “direct relation to adequacy of

transportation service, to its essential conditions of

economy and efficiency, and to appropriate provision

and best use of transportation facilities, questions to

which the Interstate Commerce Commission has

constantly addressed itself in the exercise of the

authority conferred.” Id. at 25. The STB

appropriately concerns itself with the adequacy of

freight rail service, and, consistent with NEPA, the

incidental environmental effects of that service.

Congress

determines

whether

and

how

environmental effects are regulated, and it has not

tasked STB with weighing the merits and demerits

of the oil and gas industry.

The authority to grant a certificate of public

convenience and necessity carries broad discretion,

but that discretion is not unlimited. In the

analogous context of the Natural Gas Act (NGA), the

Supreme Court has held that the NGA’s nearly

identical language on public convenience and

necessity requires FERC to evaluate “all factors

bearing on the public interest.” Atl. Ref. Co. v. Pub.

Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959). The

Court has cautioned, however, that this requirement

is not unlimited in scope and cannot be read in a

vacuum. The term “public interest” in the NGA is

not “a broad license to promote the general public

welfare”—instead, it “take[s] meaning from the

purposes of the regulatory legislation.” NAACP v.

FPC, 425 U.S. 662, 669 (1976) (NAACP), which in

the case of the NGA is “to encourage the orderly

development of plentiful supplies of . . . natural gas

at reasonable prices.”

Id. at 669-70; accord

Myersville Citizens for a Rural Cmty. v. FERC, 783

F.3d 1301, 1307 (D.C. Cir. 2015) (quoting NAACP,

425 U.S. at 669-70).

The Supreme Court has also recognized that the

Commission has authority to consider “other

subsidiary purposes,” such as “conservation,

environmental, and antitrust questions.” NAACP,

425 U.S. at 670 & n.6 (citations omitted). But all

subsidiary purposes are, necessarily, subordinate to

the statute’s primary purpose, and the inquiry must

respect the guardrails provided by other sources of

law.

If the term “public convenience” were as “vague

and indefinite” as the D.C. Circuit suggests, it may

even violate the nondelegation doctrine. Nat’l

Broad. Co. v. United States, 319 U.S. 190, 226

(1943). Under the D.C. Circuit’s reading, STB can

address any foreseeable harm that it chooses. If that

is true, then Congress has failed to give an

“intelligible principle” to guide the STB in its

determination under the statute. Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quoting

J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 409 (1928)).

To avoid any nondelegation problem, “public convenience” must be read through the lens of the

statutory scheme Congress entrusted the STB with

implementing. Cf. New York Cent. Sec. Corp., 287

U.S. at 25 (interpreting the statute while ruling on a

nondelegation challenge). Viewed contextually, it

becomes clear that the environmental effects of oil

production or oil refining do not bear a “direct

relation to the adequacy of transportation service”

that the STB is tasked with promoting.

Finally, both NEPA and the statutory scheme

that

Congress

entrusted

the

STB

with

implementing must be read consistently with other

applicable law, including the APA and the

Constitution’s separation of powers, all of which

constrain the agency’s authorization process in ways

that the D.C. Circuit failed to take into account.

II. The D.C. Circuit Gave STB Little Deference

within the Scope of Its Authority, While

Imposing Vast New Procedural Requirements On It Outside the Scope of Its

Authority

The D.C. Circuit focus on remote environmental

impacts totally outside STB’s jurisdiction and

expertise led it to lose sight of the deference analysis

required by § 706 of the APA. Both State Farm and

Baltimore Gas tolerate agency discretion only on

matters within the scope of an agency’s jurisdiction

and expertise, but demand deference to agencies

within that scope. The D.C. Circuit trampled on

both sides of this sensible scheme, finding fault with

the agency’s entirely appropriate refusal to study

impacts well beyond the scope of its jurisdiction and

expertise, while giving no deference to STB

determinations within that scope. It thereby lost

sight of this Court’s observation in West Virginia v.

EPA: “‘When the agency has no comparative

expertise’ in making certain policy judgments, we

have said, ‘Congress presumably would not’ task it

with doing so.” West Virginia v. EPA, 597 U.S. 697,

729 (2022) (quoting Kisor v. Wilkie, 588 U. S. 558,

578 (2019). See also Gonzales v. Oregon, 546 U.S.

243, 266-67 (2006).

A. The D.C. Circuit Failed to Defer to

STB Where Deference Was Due.

The D.C. Circuit agreed with petitioners that

STB had failed to take a “hard look” at the increased

risk of rail accidents downline given the increased

rail traffic resulting from the proposed railway. The

STB used national data to assess the risk of

derailment for the proposed railway, explaining that

“insufficient data” existed to assess whether the

specific commodity to be transported (waxy crude

oil) entailed any particular risks. 82 F.4th at 1182.

The D.C. Circuit pointed to the CEQ Regulation’s

requirement that agencies explain why needed

information is unavailable and what actions the

agency took to address that unavailability. See 40

C.F.R. § 1502.22 (2019). (As explained in Part III of

this brief, this is another “requirement” of the CEQ

Regulation that is not judicially enforceable). The

court concluded that the agency had not taken these

steps, and that in view of “significant opposing

viewpoints” concerning its analysis of rail accidents,

it had failed to comply with NEPA, and therefore

also with the APA. The court found the STB’s

derailment-risk assessment arbitrary and capricious

without even suggesting that the STB had erred in

its assessment! Though assessing the risk of

derailment is at the very core of the agency’s

authority and technical expertise, the court gave no

hint of deference.

The court also found arbitrary and capricious the

STB’s assessment of low wildfire risk. The court

explained, “A significant increase in the frequency of

[sic] which existing ignition sources travel this route

equally poses an increased risk of fire.” 82 F.4th at

1184. But the court provides no authority to support

this assertion, and common sense suggests that the

agency was correct to assess a marginal increase in

a “very low risk” as still amounting to a very low

risk. The D.C. Circuit provided no reason why the

STB might be wrong in that assessment, other than

its own disagreement with the assessment. And to

paraphrase Loper Bright, courts have no special

competence in risk assessment. Agencies do. See 144

S. Ct. at 2251.

The court then held that the STB’s analysis of

impacts on downline water resources was faulty

because it did not specifically mention the Colorado

River adjacent to the downline Union Pacific line

that would be carrying increased rail traffic. In its

EIS, STB included a detailed section on potential

impacts to water resources, which the STB said

applied equally well to water resources elsewhere.

The D.C. Circuit found that expert assessment

wanting, too.

The D.C. Circuit even vacated the STB’s decision

to grant an exemption for the railway application

under 49 U.S.C. § 10502, even though it could point

to no way in which the exemption failed to comply

with statutory requirements, other than tagging

along with the STB’s other supposed deficiencies.

The D.C. Circuit’s opinion is characterized from

start to finish by an almost astonishing lack of

respect or deference for STB with respect to those

matters that fall within the agency’s jurisdiction

and expertise. What makes the court’s lack of

deference particularly remarkable is its expansive

view of the things STB should have given a “hard

look” to entirely outside its jurisdiction and

expertise. One is left to wonder: If the court gives

virtually no deference to the agency with respect to

the agency’s core competencies, what deference

could the agency expect from the same court with

respect to pure speculation about upstream oil

development or downstream greenhouse gas

emissions, both of which lie outside the agency’s

jurisdiction and expertise, and with respect to which

the agency did not have access to meaningful

information and no means of developing meaningful

information itself?

The question is no mere curiosity. Suppose STB

had spent dozens of pages ruminating on the

problems of global climate change, and on that basis

had denied the authorization for the railway. Would

it not then have been guilty of “rely[ing] on factors

which Congress ha[d] not intended it to consider”

and thereby fail the first test of “hard look” review?

See State Farm, 463 U.S. at 43. It is when agencies

are outside their jurisdiction and expertise that

“hard look” review must be the most exacting.

Given the D.C. Circuit’s casual disregard for

STB’s authority and expertise on matters as to

which the APA demands deference, this case may be

an opportune time for this Court to ask whether its

embrace of “hard look” review in State Farm did not

unintentionally

open

the

door

courts’

systematically ignoring the deference that is clearly

implied in the APA’s “arbitrary and capricious”

standard. In Loper Bright, this Court finally

signaled a return to the simple and sensible scheme

of the APA, but deference on pure questions of law

was not the only part of that tapestry that has

frayed.

This Court’s concerns about judicial usurpation

of agency expertise, which were so misplaced in

Chevron, would have been fully justified in State

Farm.

Ministerial

fact-finding

the

implementation of a statutory scheme is a core

executive function. The court’s inquiry should be

chiefly directed to whether the agency has properly

exercised that function, either as part of delegation

of rulemaking authority, or as an exercise of

inherent executive authority.

On these mixed

questions of law and fact, the agency should

ordinarily receive ample running room as Justice

William Rehnquist pointed out in his short State

Farm dissent. 463 U.S. 57-59.

Alas, in practice, State Farm’s “hard look” review

has created a fog of litigation risk around every

agency action that no amount of diligence can

reliably cut through it. Any court can think of some

point that even the most diligent agency neglected

to mention in a rulemaking or EIS hundreds of

pages long. The courts can then quite arbitrarily

and capriciously vacate a vitally necessary agency

action, without any regard to the public interest,

because the agency arguably failed to fulfill some

requirement that it had no way of knowing about

before it got to court. This is the reality facing

agencies engaged in NEPA compliance today. They

often have no idea what the law requires, spend

exorbitant amounts of taxpayer resources trying to

anticipate every possible angle of attack without a

thought

NEPA’s

purpose

informed

decisionmaking, and then publish their EISs with as

much confidence as the man betting on red at the

roulette table, and with only slightly more success.

When the law becomes so indeterminate that

compliance is almost impossible, there is a problem.

This problem was not created by NEPA, a simple

and modest good-governance statute, but by the

fearsome procedural nettle that activist courts have

turned it into over the years.

State Farm has been cited countless times since

1983, usually by federal courts second-guessing

agency actions they don’t like. However, the earlier

1983 case of Baltimore Gas, 462 U.S. 87 (1983), took

a far better approach to the “arbitrary and

capricious” standard by upholding the Nuclear

Regulatory Commission’s (NRC) “generic” procedure

for nuclear plant approval, emphasizing Congress’s

and agencies’ respective roles in resolving

fundamental policy questions. The alternative is to

insist on hundreds of ad hoc decisions that follow no

rhyme or reason, which slows down these reviews

while leading to indeterminate results that

pointlessly prolong empirical reviews. No business

takes such a mindless and wasteful approach.

Government agencies should not either.

Courts have lost sight of the deeper logic of

Vermont Yankee—that courts should not micromanage executive administration. To paraphrase

Loper Bright, courts have no comparative advantage

when it comes to the management of administrative

processes. Agencies do. 144 S. Ct. at 2251. The D.C.

Circuit violated that admonition when it substituted

its preferences on things within STB’s prerogative

for those of the agency.

Applied without rigorous consistency, State

Farm’s “hard look” doctrine often amounts to a

double standard. The grant of any infrastructure

permit can be vacated under “hard look” review, to

great acclaim from environmentalists. But an

agency’s refusal to grant a permit, or its imposition

of vast paperwork burdens, is routinely accorded

sweeping deference that often strikes down the

sensible agency-wide procedures upheld in

Baltimore Gas, helping to make American

infrastructure the costliest, most time-consuming

and riskiest to build in the industrial world.

B. Impacts

Outside

the

Agency’s

Authority May be Noted in an EIS but

Studying Them in Detail Cannot Be

Required.

Federal courts generally pay lip service to the

idea that agencies need only study impacts that are

“reasonably foreseeable.” But without guardrails,

that standard is still too malleable, as shown by the

decision below. The concrete limiting principle that

should guide reasonable foreseeability is right there

in the APA: The admonition against agency actions

that are “arbitrary, capricious, or abuse of

discretion” counsels for agencies to stick to their

jurisdiction and expertise. Environmental impacts

that occur outside the agency’s jurisdiction and

expertise of NEPA may be noted in a variety of

ways, such as general statements. But they are not

within the reasonably foreseeable impacts that

NEPA requires careful study of, because NEPA

must be implemented consisted with the APA, and

under the APA agency action that stray too far from

the scope of agency authority risks being set aside

as arbitrary and capricious.

That any given environmental impact is not a

particular agency’s problem does not mean that it is

not the federal government’s problem. The purpose

of NEPA is still served when environmental impacts

within the jurisdiction of other agencies, or of

Congress, are noted for their attention. But there is

no point in an agency such as STB spending time on

climate policy; climate policy is no part of its

statutory mandate or expertise, and nothing that it

says on the subject should be due any deference

under the APA—on the contrary, anything it says

on the subject should be viewed with great

skepticism. The president surely has authority to

make STB part of a national policy effort on climate,

but such a national effort would not be judicially

enforceable against agencies without congressional

action, and there was none here.

III.

CEQ Has No Rulemaking Authority

under NEPA and Cannot Create

Judicially Enforceable Obligations.

The inclusion of “cumulative impacts” in the

definition of “effects”, 40 C.F.R. § 1508, and the

directive to examine “reasonable alternatives not

within the jurisdiction of the lead agency”, 40 C.F.R.

§1502.14, are just two familiar examples among

many of the requirements that CEQ invented out of

thin air. As a component of the White House, there

is no doubt that CEQ has authority to promulgate

rules of administration to guide agencies in their

implementation of NEPA’s procedural requirements.

But there is no basis for those rules’ being judicially

enforceable, and the D.C. Circuit’s enforcement of

them was another source of reversible error.

Federal courts’ enforcement of NEPA since

publication of the 1978 CEQ Regulation has lost

sight of the fact that NEPA grants CEQ no

legislative rulemaking authority. The procedural

requirements that the CEQ Regulation adds to

NEPA are binding upon executive agencies in the

same manner as any other presidential directive.

But judicial enforcement of those requirements has

no basis in law, and violates both the basic principle

of Youngstown Steel, that presidents cannot make

law, and that of Vermont Yankee, that courts cannot

add procedural requirements to those provided in a

procedural statute.

In Public Citizen, this Court said, that CEQ was

“established by NEPA with authority to issue

regulations interpreting it.” 541 U.S. at 757. This is

certainly true in the sense that CEQ’s

interpretations of NEPA deserve Skidmore respect,

a conviction reinforced by this Court’s recent

decision in Loper Bright. But the inclusion of things

like “cumulative impacts” of other agency actions

and socioeconomic effects of the agency action

within the definition of “environmental impact”

could not follow from any reasonable interpretation

of that statutory term; they are surplusage, which

could only be judicially enforceable if promulgated

pursuant to delegated rulemaking authority. And

neither NEPA nor any other statute grants CEQ

rulemaking authority in the traditional sense.

Federal courts may be forgiven for assuming that

CEQ does have such authority, however, given the

wording of the 1978 CEQ Regulation, which through

a clever sleight-of-hand glossed over the lack of

statutory basis. Section 1500.3 of the 1978 CEQ

Regulation contains the following recitation of

authorities:

These regulations are issued pursuant to NEPA,

the Environmental Quality Improvement Act of

1970, as amended (42 U.S.C. 4371 et seq.),

Section 309 of the Clean Air Act, as amended (42

U.S.C. 7609), and Executive Order 11514,

Protection and Enhancement of Environmental

Quality (March 5, 1970, as amended by

Executive Order 11991, May 24, 1977). […] It is

the Council’s intention that judicial review of

agency compliance with these regulations not

occur before an agency has filed the final

environmental impact statement. . . .

The reference to E.O. 11991 is on firm ground;

the rest of the quoted passage statement is nothing

but smoke and mirrors. There is not a word about

CEQ’s having authority to issue regulations, nor

even an intimation to that effect, in any of the

statutes mentioned in § 1500.3. The (Carter-era)

E.O. 11991 is in fact the sole authority for the

(Carter-era) CEQ Regulation, which in fact was

promulgated wholly pursuant to the President’s

vested authority under Article II of the U.S.

Constitution.

It may have been dressed up as a regulation and

adopted through notice-and-comment rulemaking; it

may walk and talk like a regulation; and it may

have fooled lots of people into thinking that it is a

regulation in the legislative sense. But in truth, the

CEQ Regulation of NEPA is nothing more than an

executive order. When the Eighth Circuit refused to

enforce a similar presidential directive, it said,

“Youngstown Sheet & Tube Co. v. Sawyer completely

refutes the claim that the President may act as a

lawmaker in the absence of a delegation of authority

or mandate from Congress.” Indep. Meat Packers

Asso. v. Butz, 526 F.2d 228, 236 (8th Cir. 1975)

(citations omitted).

“Generally, there is no private right of action to

enforce obligations imposed on executive branch

officials by executive orders.” Facchiano Const. Co.,

v. United States Dept. of Labor, 987 F.2d 206, 210

(3d Cir. 1993), cert. denied, 510 U.S. 822 (1993); See

also Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d

1498, 1510-11 (11th Cir.), cert. denied, 502 U.S.

1122 (1992); Michigan v. Thomas, 805 F.2d 176, 187

(6th Cir. 1986). Only when executive orders have

“specific foundation in Congressional action” are

they “judicially enforceable in private civil suits.”

See In re Surface Mining Regulation Litig., 627 F.2d

1346, 1357 (D.C. Cir. 1980).

Unless based in delegated rulemaking authority,

presidential directives such as executive orders have

never been considered enforceable de jure and draw

the entirety of their compelling force from the

President’s power to remove agency heads, which

does not extend to independent agencies like FERC.

Section of Administrative Law and Regulatory

Practice, American Bar Association, A Guide to

Judicial and Political Review of Federal Agencies §

6.024 (John F. Duffy & Michael Herz eds., 2005).

Multiple courts of appeals have held that

executive orders without specific foundation in

congressional action are not judicially enforceable in

private civil suits. See Manhattan-Bronx Postal

Union v. Gronouski, 350 F.2d 451, 456-57 (1965),

cert. denied, 382 U.S. 978, (1966) (holding E.O.

10988 not judicially enforceable); In re Surface

Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C.

Cir. 1980) (holding E.O. 11821 and OMB Circular

No. A-107 not judicially enforceable).

Congress knows how to delegate rulemaking

authority. For example, Section 111 of the Clean Air

Act specifically delegates to EPA the authority to

promulgate New Source Performance Standards

with the force of law: “. . . the Administrator shall

publish proposed regulations, establishing Federal

standards of performance for new sources within

such category.” 42 U.S.C. § 7411(b)(1)(A). See Note,

Enforcing Executive Orders: Judicial Review of

Agency Action Under the Administrative Procedure

Act, 55 Geo. Wash. L. Rev. 659, 661-62 (1987). There

is no similar language in NEPA.

Judicial enforcement of the CEQ Regulation is a

glaring exception to the general practice of federal

courts, which only enforce executive orders that are

authorized by a statute. See, e.g., City of

Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d

901, 905-06, 913-14 (10th Cir. 2004) (considering a

claim that agency violated executive order in

choosing office space); City of Carmel-By-The-Sea v.

U.S. Dep’t of Transportation, 123 F.3d 1142 (9th Cir.

1997); Sierra Club v. Peterson, 705 F.2d 1475 (9th

Cir. 1983); Legal Aid Soc’y of Alameda County v.

Brennan, 608 F.2d 1319 (9th Cir. 1979); Chambers v.

United States, 451 F.2d 1045, 1050 (Ct. Cl. 1971)

(awarding backpay for the government’s violation of

an executive order regarding nondiscriminatory

employment practices); Wildlands CPR, Inc. v. U.S.

Forest Service, 872 F. Supp. 2d 1064 (D. Mont. 2012)

(finding that EOs governing use of off-road vehicles

on public lands had force and effect of law and were

intended to create a private right of action).

In Independent Meat Packers Association v. Butz,

526 F.2d 228 (8th Cir. 1975), meatpackers challenged an agency action partly on the basis that its

inflation impact statement was deficient and failed

to comply with the requirements of Executive Order

No. 11821, “Inflation Impact Statements,” 39 Fed.

Reg. 41501 (November 29, 1974). The 8th Circuit

Court of Appeals disagreed:

[I]n our view, Executive Order No. 11821 was

intended primarily as a managerial tool for

implementing the President’s personal economic

policies and not as a legal framework enforceable

by private civil action. Even if appellees could

show that the Order has the force and effect of

law, they would still have to demonstrate that it

was intended to create a private right of action.

To infer a private right of action here creates a

serious risk that a series of protracted lawsuits

brought by persons with little at stake would

paralyze the rulemaking functions of federal

administrative agencies.

526 F.2d at 234-236. Unfortunately, that describes

eminently well the modern state of NEPA.

Hundreds of federal permits have been vacated

by courts because of agencies’ failure to comply with

supposed NEPA requirements that are not in the

statute and that were invented by CEQ out of thin

air. And not only does NEPA contain no hint of

delegated rulemaking authority for CEQ, it doesn’t

even hint at a private right of action for enforcing

the statute! The D.C. Circuit’s decision in Calvert

Cliff’s Coordinating Committee v. Atomic Energy

Commission, 449 F.2d 1190 (D.C. Cir. 1971), has

stood the test of time, but was arguably contradicted

by this Court’s holding in Cort v. Ash, which held

that these actions should be inferred only when the

plaintiff is “one of a class for whose especial benefit

the statute was enacted.” 422 U.S. 66, 78 (1975)

(emphasis in the original). That test cannot be met

when thousands of individuals and organizations

have standing. Calvert Cliffs, much like the decision

below, wholly distorts the statute, whose procedures

were intended to find middle positions on hard

questions. Allowing a private right action to enforce

NEPA lets extreme opponents prolong litigation and

undermine cooperative solutions. Such rulings have

helped transform the CEQ regulation into fertile

ground for endless litigation where there was

arguably no right of action at all.

CONCLUSION

We urge this Court to reverse the decision below.

Respectfully submitted,