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

No. 23-975

In the

Supreme Court of the United States

SEVEN COUNTY INFRASTRUCTURE COALITION, et al.,

Petitioners,

v.

EAGLE COUNTY, COLORADO, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of A ppeals for the District of Columbia Circuit

BRIEF OF THE

CENTER FOR ENVIRONMENTAL

ACCOUNTABILITY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Paul E. Salamanca

Counsel of Record

279 Cassidy Avenue

Lexington, KY 40502

(859) 338-7287

psalaman20@gmail.com

Counsel for Amicus Curiae

116984

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

A n agency’s duties under NEPA are

limited to matters within its organic

jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. No rational legislature would embrace

t he D.C. C i r c u it ’s c on st r uc t ion of

NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. The Fiscal Responsibility Act of 2023

confirms that Congress intends to limit an

agency’s duties under NEPA to matters

within its organic jurisdiction . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Allied-Signal, Inc. v.

U.S. Nuclear Regulatory Comm’n,

988 F.2d 146 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . 12, 19

Andrus v. Sierra Club,

442 U.S. 347 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Black Oak Energy, LLC v. FERC,

725 F.3d 230 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . . . . 12

Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 723 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ctr. for Biological Diversity v. Bernhardt,

982 F.3d 723 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ctr. for Biological Diversity v.

U.S. Army Corps of Eng’rs,

941 F.3d 1288 (2019) . . . . . . . . . . . . . . . . . 6, 8, 9, 13, 14

Department of Transportation v. Public Citizen,

541 U.S. 752 (2004) . . . . 2, 3, 5-8, 10, 12, 14, 15, 18, 22

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

1 F.4th 1112 (D.C. Cir. 2021) . . . . . . . . . . . . . . . . . . . 15

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) . . . . . . . . . . . . . . . . . . . . . . 3

iii

Cited Authorities

Page

Kentuckians for the Commonwealth v.

U.S. Army Corps of Eng’rs,

746 F.3d 698 (6th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 8

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . . . . . 13, 15

Marsh v. Oregon Natural Resources Council,

490 U.S. 360 (1989) . . . . . . . . . . . . . . . . . . . . . . 5, 18, 20

N.J. Dep’t of Envtl. Prot. v.

U.S. Nuclear Regulatory Comm’n,

561 F.3d 132 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . 7, 8

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Protect Our Parks, Inc. v. Buttigieg,

39 F.4th 389 (7th Cir. 2022) . . . . . . . . . . . . . . . . . . 8, 19

Robertson v. Methow Valley Citizens Council,

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

Sierra Club v. FERC (Sabal Trail),

867 F.3d 1357 (D.C. Cir. 2017) . . . . . . . 10, 12-16, 18, 19

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Stone v. INS,

514 U.S. 386 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

Cited Authorities

Page

Statutes, Rules and Regulations

42 U.S.C. § 4331(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

42 U.S.C. § 4332(2)(C)(i) . . . . . . . . . . . . . . . . . . . . . 2, 4, 21

National Environmental Policy Act of 1969, https://

environmentalaccountability.org/publications/

(last visited Aug. 29, 2024) . . . . . . . . . . . . . . . . . . . . . . 1

88 Fed. Reg. 49,924 (July 31, 2023), Docket

No. CEQ - 2 0 2 3 - 0 0 0 3 (S ept . 2 9, 2 0 2 3),

https://environmentalaccountability.org /

wp-content/uploads/2024/05/CEA-NEPAPH A SE -2 - COM M EN TS -FINA L .pd f

(last visited Aug. 29, 2024) . . . . . . . . . . . . . . . . . . . . . . 1

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

115 Cong. Rec. 40419 (Dec. 20, 1969) . . . . . . . . . . . . . . . . 4

169 Cong. Rec. H2704 (May 31, 2023) . . . . . . . . . . . . . . 21

v

Cited Authorities

Page

Eric Boehm, It Took 15 Years for the Feds To Approve

a 700-Mile Electric Line, Apr. 14, 2023, https://

reason.com/2023/04/17/it-took-15-years-forthe-feds-to-approve-a-700-mile-electric-line/

(last visited Aug. 29, 2024) . . . . . . . . . . . . . . . . . . . . . 19

Stephen A. Berkowitz, “Project Selection Under

Uncertainty,” in Dennis E. Logue, Handbook of

Modern Finance 26-6 (1984) . . . . . . . . . . . . . . . . . . . 17

James M. Buchanon and Gordon Tullock, The

Calculus of Consent, in 3 The Collected Works

of James M. Buchanan 60 (1990) . . . . . . . . . . . . . . . . 18

Complaint, Mulgrew v. U.S. Dep’t of Transportation

(now S .D.N.Y. Nos. 2 4 - c v-16 4 4 , 2 4 - c v367, and 23-cv-10365), https://files.uft.org/

congestion-pricing-lawsuit.pdf (last visited

Aug. 29, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Dakota Access, LLC’s Emergency Motion for Stay

Pending Appeal, Standing Rock Sioux Tribe

v. U.S. Army Corps of Engineers, No. 20-5197

(D.C. Cir. Jul. 10, 2020) . . . . . . . . . . . . . . . . . . . . . . . . 20

Final Exemption Order, 2021 WL 5960905 . . . . . . . . . 11

Jamie Henn, Here’s How We Defeated the

Keystone XL Pipeline, Sierra, Jan. 31, 2021,

https://w w w.sierraclub.org/sierra/here-show-we - de fe at e d -key st one -x l - pip e l i ne

(last visited Aug. 29, 2024) . . . . . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

Bill McKibben, Joe Biden’s Cancellation of the

Keystone Pipeline Is a Landmark in the Climate

Fight, The New Yorker, Jan. 20, 2021, https://

www.newyorker.com/news/daily-comment/

joe-bidens-cancellation-of-the-keystonepipeline-is-a-landmark-in-the-climate-fight

(last visited Aug. 29, 2024) . . . . . . . . . . . . . . . . . . . . . 17

NEPA: The Original Intent of the Law, 109 J.

Prof. Issues in Eng’g Educ. & Prac. 249, 251

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Pub. L. No. 91-190, §102(2)(C)(i), 83 Stat. 852

(Jan. 1, 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21

Pub. L. No. 118-5, 137 Stat. at 10, 38 . . . . . . . . . . . . . 2, 21

Sen. Rep. No. 91-296 at 9 (Jul. 9, 1969) . . . . . . . . . . . . . . 4

1

INTEREST OF AMICUS CURIAE

The Center for Environmental Accountability

(CEA) is a non-profit organization whose mission is to

promote transparency, excellence, and accountability in

environmental policy and fidelity to the rule of law.1 Its

commitment to a clean environment includes commitment

to a healthy human environment, such that people from all

walks of life can thrive. To date, it has submitted sixteen

distinct sets of comments to agencies at the federal and

state level in ten different areas of environmental law

and policy. 2 With particular reference to this case, it

submitted comments on the Council on Environmental

Quality’s most recent proposed rules in respect of the

National Environmental Policy Act of 1969 (NEPA). 3

CEA respectfully submits that its broad familiarity with

environmental law and policy, together with its specific

insights on NEPA, enable it to be of considerable help to

the Court.

1. In accordance with this Court’s Rule 37.6, counsel for

amicus curiae states that no counsel for a party wrote this brief

in whole or in part, and that no party or counsel for a party made

a monetary contribution intended to pay for the preparation or

submission of this brief. No person or entity other than amicus

curiae or its counsel made a monetary contribution to the

preparation or submission of this brief. Counsel for amicus curiae

provided timely notice of intent to file this brief.

2. See https://environmentalaccountability.org/publications/

(last visited Aug. 29, 2024).

3. See 88 Fed. Reg. 49,924 (July 31, 2023), Docket No. CEQ2023-0003 (Sept. 29, 2023), https://environmentalaccountability.

org / w p - cont ent /uploads /2 0 2 4 /0 5/CEA-NEPA-PH A SE-2 COMMENTS-FINAL.pdf (last visited Aug. 29, 2024).

2

SUMMARY OF THE ARGUMENT

Under the D.C. Circuit’s test for NEPA, a federal

agency is obliged to assess effects completely outside

its organic jurisdiction, and often completely inside

the organic jurisdiction of another federal agency, or

perhaps even an agency of another sovereign, provided

only that the effect is “reasonably foreseeable.” See Pet.

App.37a. This approach is irreconcilable with Congress’

goal in enacting the statute, which was simply to enable

agencies to take environmental concerns into account

when making particularized decisions within their area

of jurisdiction. This approach is also irreconcilable with

this Court’s decision in Department of Transportation

v. Public Citizen, where it held that, “where an agency

has no ability to prevent a certain effect due to its limited

statutory authority over the relevant actions, the agency

cannot be considered a legally relevant ‘cause’ of the

effect.” 541 U.S. 752, 770 (2004) (emphasis added). Finally,

this approach is irreconcilable with NEPA as recently

amended by Congress in the Fiscal Responsibility Act of

2023 (FRA). In the FRA, Congress took important steps

to reiterate that an agency’s duties under NEPA are

limited, and, more precisely, limited to the “reasonably

foreseeable environmental effects of the proposed agency

action.” Pub. L. No. 118-5, 137 Stat. 10, 38 (codified at 42

U.S.C. § 4332(2)(C)(i)) (emphasis added). This confirms

the correctness of Public Citizen. Consistent with its

mission to promote accountability in environmental law,

CEA respectfully asks this Court to reiterate the correct

doctrinal position that it took in Public Citizen, in the hope

that further reiteration will not be necessary.

3

ARGUMENT

I.

An agency’s duties under NEPA are limited to

matters within its organic jurisdiction.

This Court’s decision in Department of Transportation

v. Public Citizen took a long step toward restoring

manageability to NEPA. 541 U.S. 752 (2004). It did so

by recognizing that agencies have distinct jurisdictions,

and that NEPA does not require them to assess effects

arising from activities outside those jurisdictions. In a

manner of speaking, the Court validated the elemental

principle that good fences make good neighbors. “[W]here

an agency has no ability to prevent a certain effect due to

its limited statutory authority over the relevant actions,”

it held, “the agency cannot be considered a legally relevant

‘cause’ of the effect.” Id. at 770 (emphasis added). In other

words, if an agency lacks power under its organic statute

to actually regulate an effect, “that is, to prescribe the

rule by which [that effect] is to be governed,” it also lacks

a duty under NEPA to evaluate that effect. Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). A right-sized

NEPA, as delineated in Public Citizen, takes heed of how

Congress has allocated responsibility among different

sovereigns and agencies, and allows each to deploy its

expertise efficiently, thus promoting the best principles

of sound government.

Given the spareness of its text, consideration of NEPA’s

underlying purposes is in order. From its inception, NEPA

has displayed an unusual mix of grandeur and modesty.

Its rhetoric is soaring, as befits legislation from the dawn

of the environmental era. It spoke then, and continues to

speak, of “achiev[ing] a balance between population and

4

resource use which will permit high standards of living and

a wide sharing of life’s amenities.” 42 U.S.C. § 4331(b)(5).

As an operational matter, however, it is quite modest, even

minimalist. Its only directive, as of 1970, was that federal

agencies “include in every recommendation or report

on proposals for . . . major Federal actions significantly

affecting the quality of the human environment . . . a

detailed statement” as to “the environmental impact of

the proposed action.” Pub. L. No. 91-190, §102(2)(C)(i), 83

Stat. 852, 853 (Jan. 1, 1970). Today, even more modestly, its

only directive is that federal agencies include “a detailed

statement” as to “reasonably foreseeable environmental

effects of the proposed agency action.” 42 U.S.C. § 4332(2)

(C)(i) (emphasis added).

This operational modesty is easy to explain. As the

Senate Report that preceded NEPA noted, many agencies

in the late 1960s thought that their organic statutes forbade

consideration of environmental issues. See Sen. Rep. No.

91-296 at 9 (Jul. 9, 1969). In other words, they believed in

good faith that they had to ignore environmental concerns.

As an early sponsor of NEPA noted, “[i]n some areas of

Federal activity, existing legislation does not provide

clear authority to assure consideration of environmental

factors which conflict with other Federal objectives.” 115

Cong. Rec. 40419 (Dec. 20, 1969) (statement of Senator

Henry M. “Scoop” Jackson). Daniel A. Dreyfus, one of

Senator Jackson’s staffers at the time, later wrote that,

before NEPA, “[f ]ederal officials had no authority or

responsibility to incur additional costs in their activities

to prevent even the most blatant environmental insult.”

NEPA: The Original Intent of the Law, 109 J. Prof. Issues

in Eng’g Educ. & Prac. 249, 251 (1983).

5

NEPA addressed this concern by inserting a

procedural “beat” into the process, during which agencies

were able, but not compelled, to alter their decisions after

taking environmental concerns into account. However, it

does not purport to create a substantive test for agency

decision making. After Congress enacted NEPA, an

agency could, if it wanted to, reject, modify, or approve

a project that caused more environmental harm than it

achieved economic good. Likewise, it could, if it wanted

to, adopt the more environmentally friendly of two

alternatives, even if that alternative was the less attractive

of the two as a matter of economics.

As this Court knows, from having decided not only

Public Citizen but also a litany of cases in which the

lower courts have engaged in overreach, this is all NEPA

does. By providing a beat for environmental assessment,

NEPA “ensures that the agency will not act on incomplete

information, only to regret its decision after it is too

late to correct.” Marsh v. Oregon Natural Resources

Council, 490 U.S. 360, 371 (1989). As this Court noted in

Robertson v. Methow Valley Citizens Council, “NEPA

itself does not mandate particular results, but simply

prescribes the necessary process.” 490 U.S. 332, 350

(1989). In other words, it is solely about the acting agency

and how it exercises its jurisdiction under its organic

statute. It is nothing more. Least of all is it a mandate for

federal agencies to look over the shoulder of other federal

agencies, as well as state agencies, simply because an

effect in those other agencies’ jurisdictions can be framed

as a “reasonably foreseeable” consequence of an activity

in its own jurisdiction. As the Eleventh Circuit properly

recognized, that “unbounded view” would reconstitute

many agencies as “de facto environmental-policy czar[s].”

6

Ctr. for Biological Diversity v. U.S. Army Corps of Eng’rs,

941 F.3d 1288, 1299 (2019). Congress could never have

intended such a thing.

This Court underscored the relationship between an

agency’s jurisdiction and its duties under NEPA in Public

Citizen. That case involved the President’s decision to lift

a ban on the operation of Mexican trucks in the United

States. See 541 U.S. 752, 759-60 (2004). Before these

trucks could enter the country, the Federal Motor Carrier

Safety Administration (FMCSA) had to issue new rules

to govern their safe operation. See id. at 760. Importantly,

however, that was the extent of FMCSA’s authority. As

this Court observed, FMCSA had “no statutory authority

to impose or enforce emissions controls or to establish

environmental requirements unrelated to motor carrier

safety.” Id. at 759.

Consistent with its narrow jurisdiction, FMCSA

limited its NEPA analysis to probable effects from the

enforcement of the rules themselves, that is, effects

“likely to arise from the increase in the number of

roadside inspections of Mexican trucks and buses due

to the proposed regulations.” Id. at 761. These included

“a slight increase in emissions,” presumably because of

vehicles idling during inspection, “noise from the trucks,”

presumably for the same reason, and “possible danger

to passing motorists,” presumably from the risk that

inspections would take place in breakdown lanes adjacent

to moving traffic. Id. at 761-62. Mindful of the fence that

Congress placed around its jurisdiction, FMCSA did not

assess “any environmental impact that might be caused

by the increased presence of Mexican trucks within

the United States.” Id. at 761. This was the President’s

lookout, not FMCSA’s.

7

The line FMCSA drew was subsequently attacked

on the ground that, if the agency issued no regulations at

all, no trucks could enter the United States. Therefore,

the environmental groups that brought the case argued,

FMCSA’s decision to issue rules would “cause” the trucks

to enter the country. This Court flatly rejected this

argument, embracing the idea that an agency need not

study matters outside its jurisdiction to satisfy NEPA.

The attack on FMCSA’s determination, the Court wrote,

reflected “a particularly unyielding variation of ‘but for’

causation, where an agency’s action is considered a cause

of an environmental effect even when the agency has

no authority to prevent the effect.” Id. at 767 (emphasis

added). In reiterating the principle that good fences make

good neighbors, this Court took a large step toward

restoring a sense of proportion to NEPA.

When called upon to do so, most of the courts of

appeals have followed Public Citizen. According to the

Third Circuit, for example, the “line between those causal

changes that may make an actor responsible for an effect

and those that do not. . . . appears to approximate the

limits of an agency’s area of control.” N.J. Dep’t of Envtl.

Prot. v. U.S. Nuclear Regulatory Comm’n, 561 F.3d 132,

139 (3d Cir. 2009) (internal citation and quotation marks

omitted) (emphasis added). With this in mind, that court

correctly held that the Nuclear Regulatory Commission

(NRC), when asked to relicense a nuclear power plant, had

no duty under NEPA to evaluate the environmental impact

of a hypothetical terrorist attack on that plant. See id. at

144. In reaching this conclusion, the court emphasized

the limits of the NRC’s authority. “In the instant case,”

it wrote, “the NRC controls whether equipment within

a facility is suitable for continued operation or could

8

withstand an accident, but it has no authority over the

airspace above its facilities, which is largely controlled by

Congress and the Federal Aviation Administration. . . . ”

Id. at 139.

The Sixth Circuit has similarly recognized that

“agencies may reasonably limit their NEPA review to

only those effects proximately caused by the actions over

which they have regulatory responsibility.” Kentuckians

for the Commonwealth v. U.S. Army Corps of Eng’rs, 746

F.3d 698, 710 (6th Cir. 2014) (emphasis added). In that

case, the Corps had been asked to permit the discharge

of dredged or fill material into the jurisdictional waters

of the United States in connection with certain surface

mining operations. The issue in the case was whether the

Corps could limit its review under NEPA to the effects

of that discharge, leaving the effects of “surface mining

in general” to the political and administrative actors

under whose jurisdiction that issue falls. In keeping

with Public Citizen, the court said yes, emphasizing that

“[t]he Corps reasonably limited its scope of review to the

effects proximately caused by the specific activities that

were authorized by the permit.” Id. at 706. The Seventh

Circuit reached a similar conclusion in Protect Our Parks,

Inc. v. Buttigieg, where it concluded an agency subject to

NEPA is “on the hook only for the decisions that it has

the authority to make.” 39 F.4th 389, 400 (7th Cir. 2022).

The Eleventh Circuit as well has taken Public Citizen

seriously. Obliquely at issue in Center for Biological

Diversity v. U.S. Army Corps of Engineers was a series of

steps in the making of fertilizer. See 941 F.3d 1288, 129394 (2019). The first was the mining of phosphate ore, which

yielded dredged and fill material as a byproduct. The

second was benefication of the ore to remove sand and clay.

9

The third was the making of phosphoric acid from the ore,

which yielded phosphogypsum as a byproduct. Notably,

the phosphogypsum had to be “left to ‘weather’” in

enormous “open-air ‘stacks’” because it contains uranium

and other materials seen as hazardous. Id. at 1294.

The facts leading up to the case began when a private

entity, Mosaic, sought to expand its mining operations for

phosphate ore in Florida. To do so, it needed a permit from

the Corps to discharge additional dredged and fill material

into the jurisdictional waters of the United States. In

deciding to grant the permit, the Corps confined its

NEPA review to the effects of the discharges themselves.

Thus, it assessed how the discharges “might affect the

water quality of [surrounding] wetlands.” Id. at 1293.

It also considered “how that discharge might through

stormwater runoff be carried to and affect the quality

of distant waters.” Id. It declined, however, to assess

the environmental effects of storing phosphogypsum or

allowing it to “weather,” on the ground that the storage

of phosphogypsum was outside its jurisdiction. See id. at

1294.

The issue in the case was whether NEPA compelled

it to take those effects into account. See id. at 1292.

The court said no, emphasizing the distinction between

the Corps’ jurisdiction and the jurisdiction of other

sovereigns and agencies. “[I]t was sensible,” the court

wrote, “for the Corps to draw the line at the reaches of its

own jurisdiction, leaving the effects of phosphogypsum

to phosphogypsum’s regulators.” Id. at 1295 (emphasis

added). The court went on to note that “[t]he Corps’ line

respects the jurisdictional boundaries set by Congress

and inherent in state-federal cooperation.” Id. at 1295-96.

10

As the foregoing survey attests, most of the courts of

appeals have taken Public Citizen seriously when asked

to do so. But two courts have not. Instead, the approach

the D.C. Circuit took in the decision below, which began

with Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357

(D.C. Cir. 2017), and which the Ninth Circuit has appeared

to follow, see Ctr. for Biological Diversity v. Bernhardt,

982 F.3d 723, 736-40 (2020), all but repudiates Public

Citizen. Whereas Public Citizen eschewed “a particularly

unyielding variation of ‘but for’ causation,” 541 U.S. at 767,

the decisions below and in Sabal Trail seem to embrace

such an approach, under which the mere fact that agency

could by its action forestall an effect makes it a proximate

cause of that effect, without regard to the limits of its

jurisdiction.

Petitioners in the instant case want to build a short

railway, less than a hundred miles long, to connect a

remote basin in northeastern Utah and northwestern

Colorado with a main line. At present, the only way to

move freight into or out of this basin is by truck over twolane roads. See Pet.App.6a-7a. Before they can build their

railway, however, they need permission from the Surface

Transportation Board (STB). And, before the STB can

let them build their railway, it must comply with NEPA.

At the time the STB received petitioners’ application,

NEPA required federal agencies to prepare, with respect

to any “major Federal action[ ] significantly affecting the

quality of the human environment,” a “detailed statement”

as to the “environmental impact of the proposed action.”

The STB did so, noting (as befits its area of expertise) that:

construction and operation of the Railway could

have “major impacts” on water resources, air

11

quality, special status species like the greater

sage-grouse, land use and recreation, local

economies, cultural resources, and the Ute

Indian tribe, as well as “minor impacts” on

vehicle safety and delay, rail operations safety,

big game, fish and wildlife, vegetation, and

geology in the Uinta Basin.

Pet.App.11a (quoting Final Exemption Order, 2021 WL

5960905, at *7-13) (emphasis added).

But petitioners and the STB soon ran headlong into

the D.C. Circuit’s oversized notion of what NEPA requires.

According to that court, an agency conducting analysis

under NEPA must take into account any reasonably

foreseeable effect of a proposed action, even if that effect

would take place far from, or long after, the activity over

which the agency has jurisdiction, even if that effect falls

completely outside the agency’s area of expertise, and

even if that effect falls squarely within the jurisdiction and

expertise of another agency or a state. See Pet.App.37a.

Applying this oversized test, the D.C. Circuit concluded

that the STB’s evaluation of petitioners’ railway was

deficient because it did not adequately take into account

the impact of new wells that might be drilled in the basin

as a consequence of the railway’s existence, see id. at 34a,

because it did not adequately assess the increased risk of

accidents on main lines downline from the railway, see id.

at 40a, and because it did not adequately take into account

greenhouse gas emissions from the refining of oil or gas

welled in the basin, see id. at 34a-35a.4

4. CEA recognizes that the D.C. Circuit found fault with

aspects of the STB’s decision beyond those noted in the text.

12

It did not matter to the D.C. Circuit that the STB

lacks authority to authorize, or forbid, the drilling of wells

in the basin. Nor did it matter that the Federal Railroad

Administration, not the STB, regulates rail safety. Nor

did it matter that the STB does not regulate oil and

gas refineries. The only thing that mattered to the D.C.

Circuit was the fact that the STB, by denying petitioners’

application, could—in a literal, but-for sense—prevent

these contingencies from occurring. See Pet.App.37a

(“[G]iven that the Board has authority to deny an

exemption to a railway project on the ground that the

railway’s anticipated environmental and other costs

outweigh its expected benefits, the Board’s argument that

it need not consider effects it cannot prevent is simply

inapplicable.”). This approach cannot be squared with

Public Citizen.

Respondents may argue that the STB in fact did

have “jurisdiction” over the upstream and downstream

effects of the proposed railway because it has authority

to grant or deny exemptions in the “public convenience

and necessity.” See Pet.App.37a. This kind of language, of

course, appears in the organic statutes of many agencies.

See, e.g., Sabal Trail, 867 F.3d at 1373 (“Congress broadly

Importantly, however, that court applied the Allied-Signal test to

determine whether to vacate the STB’s decision on remand. Under

this test, the court asks, among other things, about “‘the likelihood

that “deficiencies” in an order can be redressed on remand.’”

See Pet.App.69a-70a (quoting Black Oak Energy, LLC v. FERC,

725 F.3d 230, 244 (D.C. Cir. 2013) (quoting Allied-Signal, Inc. v.

U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C.

Cir. 1993))). Thus, the perceived extent of the STB’s deficiency

was material to the decision by the court below. Correcting that

misperception would materially enhance the likelihood that the

STB’s decision would avoid vacatur on remand from this Court.

13

instructed [FERC] to consider ‘the public convenience

and necessity’ when evaluating applications to construct

and operate interstate pipelines.”). If the D.C. Circuit’s

oversized notion of NEPA is correct, agencies would

routinely be expected to engage in analysis outside their

area of expertise, and often squarely within the expertise

and jurisdiction of another agency. This cannot be. No

rational legislature would require multiple agencies to

undertake precisely the same calculus. That would be

wasteful, dangerous, and even absurd. It would also

defy sound principles of administrative law. As this

Court recently observed in Loper Bright Enterprises v.

Raimondo, courts are prudent to take into account “the

‘interpretations and opinions’ of the relevant agency,

‘made in pursuance of official duty’ and ‘based upon

. . . specialized experience.’” 144 S. Ct. 2244, 2259 (2024)

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 139

(1944)). This emphasis on “official duty” and “specialized

experience” reflects the elemental principle that agencies

have no business assessing effects outside their specialty

or, worse, squarely within the specialty of another

agency, or another sovereign. As the Eleventh Circuit

has correctly observed, tying an agency’s duties under

NEPA to a broad “public-interest” analysis would make

each agency a “de facto environmental-policy czar.” Ctr.

for Biological Diversity, 941 F.3d at 1299.

Sabal Trail, on which Eagle County relies, is just as

palpable a departure from Public Citizen as the decision

below. At issue in Sabal Trail was an order by the Federal

Energy Regulatory Commission (FERC) allowing the

construction and operation of three pipelines to carry

natural gas from Alabama to power plants in Florida,

passing through Georgia along the way. See 867 F.3d

at 1363. Sierra Club argued that FERC’s analysis of

14

the pipelines’ effects on the environment was deficient

because it had “failed to adequately consider the project’s

contribution to greenhouse-gas emissions.” Id. at 1365. It

had in mind the power plants at the downstream end of

the pipelines and the carbon dioxide those plants would

emit when they burned the natural gas that moved

through those pipelines. Relying on this Court’s decision

in Public Citizen, FERC reasonably and correctly argued

that it had no duty to assess those emissions because it

did not regulate power plants. See id. at 1372. Although

the Sabal Trail court “recognize[d] that the power

plants in question will be subject to state and federal air

permitting processes” of other agencies, it nevertheless

rejected FERC’s argument. “[T]he existence of permit

requirements overseen by another federal agency or

state permitting authority,” it wrote, “cannot substitute

for a proper NEPA analysis.” Id. at 1375. As the Eleventh

Circuit aptly noted in declining to follow its sister circuit,

the D.C. Circuit in Sabal Trail “fail[ed] to take seriously

the rule of reason announced in Public Citizen.” Ctr. for

Biological Diversity, 941 F.3d at 1300.

Sabal Trail and the cases that follow in its wake are

not mere one-off errors. Instead, they reflect a dangerous

line of caselaw neglecting this Court’s teachings and

misapprehending Congress’ intent in enacting NEPA.

Congress’ goal in enacting the statute was not to stymie

the development of necessary infrastructure, nor was it

to blur lines between the delineated jurisdiction it had

carefully delegated to the several agencies. As noted

above, it was simply, and only, to enable federal agencies

to take environmental concerns into account as they made

their particularized decisions with respect to actions

under their own, limited jurisdiction, such as the decision

by the STB in this case to authorize an eighty-odd-mile

15

railway. 5 This case gives this Court an opportunity to

confirm the correct construction of NEPA it set forth in

Public Citizen.6

5. Federal Respondents miss the point of Public Citizen in

tying NEPA to a “context-specific inquiry.” Brief for the Federal

Respondents Supporting Petitioners at 31 (Federal Brief ). This

Court made clear in that case that agencies have no duty under

NEPA to assess effects outside the jurisdiction that Congress

gave them. See 541 U.S. at 770. And, far from eliminating the

uncertainty to which Sabal Trail and the decision below give rise,

their test would simply perpetuate that uncertainty. Nor does

NEPA’s requirement that agencies “consult with and obtain the

comments of any Federal agency which has jurisdiction by law

or special expertise with respect to any environmental impact

involved” support their test. Federal Brief at 32 (quoting 42 U.S.C.

§4332(2)(C)). This argument assumes that an “involved” impact

can be outside an agency’s organic jurisdiction, but Public Citizen

teaches the opposite. All this provision means, consistent with

Public Citizen, is that an agency, when assessing an effect that

is within its organic jurisdiction and also within the jurisdiction

or expertise of another agency, must consult with that agency.

6. This case does not present the issue of whether the rules

that CEQ issues with respect to NEPA should have any controlling

weight in litigation. On the other hand, the court below did rely

on those rules heavily. Moreover, it is quite possible that CEQ’s

purported requirement that agencies delineate between “direct”

and “indirect” effects exerts a hydraulic pressure on agencies to

assess effects arising from activities outside their jurisdiction.

See Pet.App.26a-27a (noting those distinctions). In any case, a

strong argument can be made that CEQ’s rules have no controlling

weight. As Judge Randolph recently noted, “[n]o statute grants

CEQ the authority to issue binding regulations.” Food & Water

Watch v. U.S. Dep’t of Agriculture, 1 F.4th 1112, 1119 (D.C. Cir.

2021) (Randolph, J., concurring). In addition, although this Court

has accorded “substantial deference” to CEQ’s regulations,

Andrus v. Sierra Club, 442 U.S. 347, 358 (1979), it is far from

clear whether that deference is consistent with this Court’s recent

decision in Loper Bright.

16

II. No rational legislature would embrace the D.C.

Circuit’s construction of NEPA.

According to Sabal Trail and the decision below,

reasonable foreseeability alone is sufficient to make an

agency responsible for evaluating an effect under NEPA.

This is true even if the effect is completely outside its

regulatory authority and even if the effect is squarely

within the regulatory authority of another agency, or

even another sovereign. NEPA as deployed by Sabal Trail

and the decision below thus makes every project—and

especially every long, skinny infrastructure project—

subject to multiple, and perhaps numberless, vetogates.

Congress could not possibly have intended this. To be sure,

the authors and ratifiers of our Constitution contemplated

a system of separated powers that would check one

another. See, e.g., Perez v. Mortg. Bankers Ass’n, 575 U.S.

92, 118 (2015). But to say the one is to exclude the other.

Although the founders constituted the House, Senate, and

President to serve as checks on one another, they did not

make every individual citizen a check on public policy, for

that would have precluded public policy. And if Congress

wanted every significant project proposed by a federal

officer to be subject to countless vetoes by private parties,

surely it would have said so. As noted above, however, its

goals in enacting NEPA were far more modest. Congress

simply wanted to let agencies take environmental concerns

into account as they made particularized decisions within

the four corners of their jurisdiction.

Sabal Trail and the decision below take what Congress

intended to be a modest, sensible statute and make of it

a recipe for a failed state. After all, a nation that cannot

reopen a harbor, rebuild a bridge, run a transmission line

17

from a windfarm to a city, move natural gas from where it

is plentiful and cheap to where it is scarce and expensive,

or build a high-speed rail line without the forbearance

of virtually every actor in our political system (or a side

deal to persuade the actor to stand down) is asking for

trouble. The simple truth is that uncertainty drives away

capital. “The suppliers of capital to private and public

sector organizations expect to earn returns on their

capital investments commensurate with the risks they

are assuming.” Stephen A. Berkowitz, “Project Selection

Under Uncertainty,” in Dennis E. Logue, Handbook of

Modern Finance 26-6 (1984). In other words, capital is

input for infrastructure as much as cement or steel. And

it is not free. People with capital want an adequate return

on their investment. And they will accept risk only if they

are properly compensated for doing so. Otherwise, they

will take their capital and invest it in something less risky.

NEPA as interpreted below complicates this process, not

only by introducing an enormous element of risk into many

projects, but by rendering that risk hard if not impossible

to quantify.

For many, of course, this stymieing effect is a feature,

not a bug. As one person wrote, “[e]nvironmentalists have

won many . . . infrastructure battles, and they’ve added

delay and cost to projects.” Bill McKibben, Joe Biden’s

Cancellation of the Keystone Pipeline Is a Landmark in

the Climate Fight, The New Yorker, Jan. 20, 2021, https://

www.newyorker.com/news/daily-comment/joe-bidenscancellation-of-the-keystone-pipeline-is-a-landmark-inthe-climate-fight (last visited Aug. 29, 2024). Similarly, a

writer for Sierra Club reported a few years ago that “our

movement has . . . shown that we’ll fight every new fossil

fuel project that’s proposed—and that we’ll often win.”

18

Jamie Henn, Here’s How We Defeated the Keystone XL

Pipeline, Sierra, Jan. 31, 2021, https://www.sierraclub.

org/sierra/here-s-how-we-defeated-keystone-xl-pipeline

(last visited Aug. 29, 2024). This does not bode well for

our nation’s ability to adapt. “The closer to unanimity

is the rule required for decision,” wrote the economists

James M. Buchanon and Gordon Tullock, “the greater

is the power of the individual bargainer and the greater

the likelihood that at least some individuals will try to

‘exploit’ their bargaining position to the maximum extent

possible.” The Calculus of Consent, in 3 The Collected

Works of James M. Buchanan 60 (1990). These two

economists went on to observe, with equal bluntness,

that “[v]oluntary contractual agreements sufficient to

remove the externality completely may be as costly as

the organization of collective action under the unanimity

rule.” Id.

Empowering a project’s most ardent opponents to

flyspeck an agency’s attempt to satisfy NEPA is nothing

Congress could ever have intended, and something this

Court should seek to preclude. After all, where NEPA is

concerned, we are dealing with “a judicial oak which has

grown from little more than a legislative acorn.” Blue

Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 737

(1975); see also Public Citizen, 541 U.S. at 767 (quoting

Marsh, 490 U.S. at 373 (associating NEPA with a “‘rule of

reason’”)). Given the substantial role that the judiciary has

played in letting NEPA metastasize, it is proper for this

Court to ask itself if a rational legislature would ordain

the kind of process that Sabal Trail and the opinion below

contemplate. The clear answer is no.

To be clear, strategic deployment of NEPA to delay,

frustrate, and preclude important improvements to

19

infrastructure is not limited to fossil fuels. In Protect

Our Parks, Inc. v. Buttigieg, it was deployed against a

proposed presidential library. See 39 F.4th 389, 392-93

(7th Cir. 2022). It has also been deployed against New York

City’s proposed congestion pricing plan. See Complaint at

6, Mulgrew v. U.S. Dep’t of Transportation (now S.D.N.Y.

Nos. 24-cv-1644, 24-cv-367, and 23-cv-10365), https://files.

uft.org/congestion-pricing-lawsuit.pdf (last visited Aug.

29, 2024). And it has been deployed many times against

transmission lines, which can serve wind and solar farms

as easily as fossil-fuel-fired plants. See Eric Boehm, It

Took 15 Years for the Feds To Approve a 700-Mile Electric

Line, Apr. 14, 2023, https://reason.com/2023/04/17/it-took15-years-for-the-feds-to-approve-a-700-mile-electric-line/

(last visited Aug. 29, 2024). Reassociating NEPA with a

rule of reason would go far to restoring our nation’s ability

to thrive across many areas of policy and many economic

sectors.

Limiting the mission creep that Sabal Trail and the

decision below require would also have side benefits. First,

it would save lower courts from the often difficult decision

of whether, upon finding a violation of NEPA, it should

vacate the administrative decision and remand for further

proceedings, or remand without vacatur. See generally

Allied-Signal v. U.S. Nuclear Regulatory Comm’n, 988

F.2d 146, 150-51 (D.C. Cir. 1993). The smaller the universe

of possible violations, the smaller the universe of difficult

vacatur decisions on remand.

Limiting Sabal Trail’s mission creep would also

relieve federal appellate courts, and this Court, from

some of the strains of writ practice. As this Court knows,

if a court finds a violation of NEPA, it may also be asked

to halt work in progress, or perhaps halt the operation

20

of infrastructure already in service. If the court merely

halts work in progress, the proponent and the agency

may not seek relief from judgment, depending on such

variables as weather and financing. But if it stops the

operation of infrastructure already in service, especially

a key component, writ practice may well ensue. See,

e.g., Dakota Access, LLC’s Emergency Motion for Stay

Pending Appeal, Standing Rock Sioux Tribe v. U.S. Army

Corps of Engineers, No. 20-5197 (D.C. Cir. Jul. 10, 2020)

(seeking emergency relief to keep open a pipeline that

carried 570,000 barrels of oil per day). This puts an acute

burden on both the courts and the parties. To be sure,

writ practice is an important part of our legal system,

independent of the operative scope of NEPA. But reducing

that scope in accordance with a rule of reason would be

conducive to judicial economy.

III. The Fiscal Responsibility Act of 2023 confirms that

Congress intends to limit an agency’s duties under

NEPA to matters within its organic jurisdiction.

As noted above, the operative provision of NEPA

as of 1970 was quite modest. Congress simply wanted

to “ensure[ ] that [agencies] will not act on incomplete

information, only to regret [their] decision[s] after

[they are] too late to correct.” Marsh, 490 U.S. at 371.

Over the years, however, NEPA as deployed became

an ever-increasing impediment to sensible growth and

development. In the FRA last year, Congress responded

by underscoring the limited nature of an agency’s duties

under the statute.

NEPA as orig inally enacted required federal

agencies to “include in every recommendation or report

21

on proposals for . . . major Federal actions significantly

affecting the quality of the human environment . . . a

detailed statement” as to “the environmental impact of the

proposed action.” Pub. L. No. 91-190, §102(2)(C)(i), 83 Stat.

852, 853 (Jan. 1, 1970). Today, it requires federal agencies

to include “a detailed statement” as to “reasonably

foreseeable environmental effects of the proposed agency

action.” 42 U.S.C. § 4332(2)(C)(i) (emphasis added).

The FRA thus effected three changes in NEPA’s

operative language. First, it substituted “effects” for

“impact.” Second, it inserted the words “reasonably

foreseeable” before “environmental effects.” And third, it

inserted the word “agency” between the words “proposed”

and “action.” Pub. L. No. 118-5, 137 Stat. at 10, 38.

These changes are significant. “Impact” and “effects”

may be interchangeable in colloquial speech, but there

is no gainsaying that Congress intended the adjectival

phrase “reasonably foreseeable” to restrict the universe

of “effects” (or “impact[s]”) that an agency is obliged

to consider under NEPA. This is underscored by the

remarks on the floor of the House by Representative

Bruce Westerman, Chairman of the House Committee on

Natural Resources, three days before the FRA became

law. As he explained, “[t]he intent of using the term

‘reasonably foreseeable’ in subsection (a) of section 321

[of the FRA], which amends section 102 of the National

Environmental Policy Act, is to narrow the scope of

NEPA’s requirements.” 169 Cong. Rec. H2704 (May 31,

2023). Importantly, this Court has recognized that, when

Congress acts, it necessarily acts with a purpose. See

Stone v. INS, 514 U.S. 386, 397 (1998). The only function

that the phrase “reasonably foreseeable” could serve

22

would be to limit the scope of the word (“effects”) that it

modifies. Even more significantly, Congress in the FRA

inserted the word “agency” between the words “proposed”

and “project,” thus underscoring this Court’s point in

Public Citizen, that an agency performing its work under

NEPA is only expected to evaluate the effects of its action

taken under its jurisdiction, not those of agencies and

entities that it does not control.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully

urges this Court to reverse the decision below.

Respectfully submitted,

Paul E. Salamanca

Counsel of Record

279 Cassidy Avenue

Lexington, KY 40502

(859) 338-7287

psalaman20@gmail.com

Counsel for Amicus Curiae