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

Supreme Court briefOct 25, 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, Colorado, Et Al.,

Respondents.

_________________________________________________

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

_________________________________________________

BRIEF OF FORMER SENIOR FEDERAL

OFFICIALS AS AMICI CURIAE

SUPPORTING RESPONDENTS

_________________________________________________

James M. Gross

Brenna M. Rosen

FOLEY HOAG LLP

1301 Ave. of the Americas

New York, NY 10019

(212) 812-4000

Beth C. Neitzel

Counsel of Record

Nicole E. Smith

FOLEY HOAG LLP

Seaport West

155 Seaport Blvd.

Boston, MA 02210

(617) 832-1000

bneitzel@foleyhoag.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

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

NEPA Saves Money, Time, and Lives—Not Just

the Environment. ................................................ 5

A. Projects That Preserve or Restore the

Natural Environment May Also Generate

Enormous Economic Value. .........................7

B. NEPA Makes Economically Advantageous

Projects Even Better. .................................. 12

II.

To The Extent NEPA Should Be (Further)

Revised, Such Work Is Congress’s Domain—And

That Work Is Currently Underway. ................. 24

A. Congress Recently Amended Key Aspects of

NEPA About Which Petitioners

Complain. .................................................... 25

B. Congress Is Considering Legislation That

Would Address Still More of Petitioners’

and Their Amici’s Policy Priorities. ........... 31

CONCLUSION .......................................................... 36

PENDING LEGISLATION APPENDIX

S. 879, 118th Cong. (2023): ....................................... 1a

S. 1449, 118th Cong. (2023) ...................................... 2a

S. 3170, 118th Cong. (2023): ..................................... 8a

H.R. 1, 118th Cong. (2023) ........................................ 9a

H.R. 495, 118th Cong. (2023): ................................. 16a

H.R. 6129, 118th Cong. (2024) ................................ 18a

iii

TABLE OF AUTHORITIES

Cases

Egbert v. Boule,

596 U.S. 482 (2022) .................................... 5, 24, 36

Metro. Edison Co. v. People Against

Nuclear Energy,

460 U.S. 766 (1983) ........................................ 26, 32

Ocean Advocates v. United States Army

Corps of Eng’rs,

402 F.3d 846 (9th Cir. 2004) ................................ 27

Omnicare, Inc. v. Laborers Dist. Council

Constr. Indus. Pension Fund,

575 U.S. 175 (2015) ........................................ 24, 25

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) .................................... 5, 24, 28

Sierra Club v. FHA,

435 F. App’x 368 (5th Cir. 2011).......................... 27

Statutes

42 U.S.C. § 4321 ........................................................ 22

42 U.S.C. § 4331(a) .................................................... 12

42 U.S.C. § 4332 ........................................................ 30

42 U.S.C. § 4332(2)(C) (2022).................................... 26

42 U.S.C. § 4332(2)(C) (2023).................................... 26

42 U.S.C. § 4336(a)(2) ............................................... 29

42 U.S.C. § 4336(b) .................................................... 29

42 U.S.C. § 4336(b)(2) ............................................... 29

42 U.S.C. § 4336a(a)(3) ............................................. 31

42 U.S.C. § 4336a(e) .................................................. 29

42 U.S.C. § 4336a(e)(1) ........................................ 28, 30

42 U.S.C. § 4336a(g) .................................................. 29

42 U.S.C. § 4336a(g)(1)(A) ......................................... 28

42 U.S.C. § 4336a(g)(2).............................................. 28

Fiscal Responsibility Act of 2023, Pub.

L. No. 118-5, Div. C, Title III, § 321,

137 Stat. 38 .......................................................... 25

Grand Canyon National Park. Pub. Law

No. 277, 65 Stat. 1175 (1919) ................................ 7

Water Resources Development Act of

2000, Pub. L. No. 106-541, 114 Stat.

2681 (2000) ............................................................. 8

Rules and Regulations

33 C.F.R. § 385.14 ....................................................... 8

40 C.F.R. § 1500.1(b) ................................................... 2

40 C.F.R. § 1500.1(c) ............................................... 2, 3

40 C.F.R. § 1501.9(a) ................................................. 19

40 C.F.R. § 1502.14(a) ........................................... 6, 12

40 C.F.R. § 1508.1(i)(2).............................................. 27

40 C.F.R. § 1508.1(k) ................................................. 29

Notice of Intent to Prepare an EIS,

64 Fed. Reg. 56306 (Oct. 19, 1999) ...................... 13

Notice of Proposed Rulemaking:

Roadless Area Conservation,

65 Fed. Reg. 30275 (May 10, 2000) ..................... 14

Final Rule and Accord of Decision,

66 Fed. Reg. 3244 (Jan. 12, 2001) ....................... 14

Legislative Authorities

H.R. 1, 118th Cong. (2023) ..................... 33, 34, 35, 36

H.R. 495, 118th Cong. (2023) ..................................... 35

The American Resources Act,

H.R. 1335, 118th Cong. (2023-2024)..................... 33

National Environmental Policy Act

Amendments, H.R. 1577, 118th Cong.

(2023-2024) ........................................................... 33

Limit Save Grow Act of 2023,

H.R. 2811, 118th Cong. (2023-2024)..................... 33

H.R. 6129, 118th Cong. (2024) ................................... 35

Countering Communist China Act,

H.R. 7476, 118th Cong. (2023-2024)..................... 33

Lower Energy Costs Act,

S. 947, 118th Cong. (2023-2024) ........................... 33

S. 1449, 118th Cong. (2023) .................... 33, 34, 35, 36

S. 3170, 118th Cong. (2023) ...................................... 36

Other Authorities

2023 National Park Visitor Spending

Effects: Economic Contributions to

Local Communities, States, and the

Nation, National Park Service (Aug.

2024) ....................................................................... 8

A. Masinter, The National

Environmental Policy Act and the

Value of Information, 22 N.Y.U. J.

LEGIS. & PUB. POL’Y 465 (2020) ...................... 12

Bald Mountain Mine Plan of Operations

Amendment Juniper Project, BLM

(Aug. 8, 2024) ....................................................... 30

Commercial Leasing for Wind Power on

the Outer Continental Shelf Offshore

North Carolina – Call for

Information and Nominations,

Docket No. BOEM-2012-0088 (Dec.

13, 2012) ............................................................... 19

Desert Renewable Energy Conservation

Plan, Executive Summary for the

Record of Decision, BLM (Sept. 2016) ........... 15, 16

Desert Renewable Energy Conservation

Plan Proposed Land Use Plan

Amendment and Final EIS, Volume

II (October 2015) .................................................. 15

Douglas H. Strong, Ralph H. Cameron

and the Grand Canyon (Part II),

Arizona and the West, Vol. 20, No. 2

(Spring 1978) .......................................................... 7

Engineering with Nature: An Atlas, U.S.

Army Corps of Engineers (2018) ................... 10, 11

Engineering with Nature: An Atlas, Vol.

2, U.S. Army Corps of Engineers,

(2021). ................................................................... 11

EA for the Proposed Demolition of

Building 330 at Argonne National

Laboratory, DOE/EA-1659 (Aug.

2009) ............................................................... 22, 23

Forest Service Area Conservation: Final

EIS Vol. 1, U.S.D.A., Forest Service

(Nov. 2000) ........................................................... 14

vii

Jeffrey King et. al, Achieving

Sustainable Outcomes Using

Engineering with Nature Principles

and Practices, Integrated

Environmental Assessment and

Management (Aug. 2020) .................................... 11

K. Emerson & E. Baldwin, Effectiveness

in NEPA Decision Making: In Search

of Evidence and Theory, J. ENV.

POL’Y & PLAN. 427 (2019) ............................... 13, 29

L. Caldwell, Beyond NEPA: Future

Significance of the National

Environmental Policy Act, 22 HARV.

ENVTL. L. REV. 203 (1998).................................... 13

Lisa Friedman, Biden Administration

Approves Two Big Solar Projects,

N.Y. Times (Dec. 21, 2021) .................................. 16

Mather Economics, Measuring the

Economic Benefits of America’s

Everglades Restoration (2010) ............................... 9

Michelle Wagner, Kitty Hawk Wants

Offshore Turbines Out of Sight,

Outer Banks Voice (Feb. 13, 2013) ...................... 19

NEPA Success Stories: Celebrating 40

Years of Transparency and Open

Government, The Environmental

Law Institute (Aug. 2010).............................. 17, 18

President Theodore Roosevelt, Remarks

at Grand Canyon, Arizona (May 6,

1903) ....................................................................... 7

viii

Press Release, Dep’t of the Interior,

Biden-Harris Administration

Announces Winners of Carolina

Long Bay Offshore Wind Energy

Auction (May 11, 2022) ........................................ 20

Press Release, Dep’t of the Interior,

BLM Approves Oberon Solar Project,

(Jan. 13, 2022) ...................................................... 16

Press Release, Dep’t of the Interior,

Secretary Jewell Announces

Milestone for Commercial Wind

Energy Development Offshore North

Carolina (Aug. 11, 2014) ..................................... 20

Press Release, Governor DeSantis

Announces $1.5 Billion for

Everglades Restoration and Water

Quality Improvements in Fiscal Year

2024-25 (April 22, 2024) .................................. 9, 10

Press Release, NPS, Timpanogos Cave

National Monument Revisits

Alternatives for Environmental

Assessment (Feb. 1, 2012) ................................... 23

Rob Morris, Energy Agency Moves Wind

Farm Lease Areas Farther Off OBX,

The Outer Banks Voice (Aug. 14,

2004) ............................................................... 19, 20

Sabine Pass to Galveston Bay, Texas

Coastal Storm Risk Management

and Ecosystem Restoration, Final

EIS (2017)............................................................. 18

Statement of Bruce Westerman (RArk.), Chair of House Committee on

Natural Resources (Sept. 11, 2024) ..................... 32

Statement of H. Greczmiel, Former

Associate Director for NEPA

Oversight at CEQ, Oversight

Hearing before the Committee on

Natural Resources, U.S. House of

Representatives (Apr. 25, 2018) .................... 21, 29

Statement of James R. Furnish Before

the United States Senate,

Committee on Energy and Natural

Resources, Subcommittee on Forests

and Public Lands Management (July

26, 2000) ............................................................... 14

STH 26 Final Environmental Impact

Statement (signed June 15, 2005) ....................... 21

The National Academies of Sciences,

Engineering, and Medicine, Progress

Toward Restoring the Everglades:

The Ninth Biennial Review (2022) ........................ 9

Timpanogos Cave National Monument

Long Range Interpretive Plan, NPS,

(Dec. 2010) ............................................................ 23

Timpanogos to Close After Labor Day

for Construction Project, Associated

Press (Aug. 20, 2018) .......................................... 24

U.S. Nuclear Commission, Regulatory

Guide 4.2 (Sept. 2018).......................................... 27

INTEREST OF AMICI CURIAE1

Amici are a bipartisan group of former senior

federal officials who interacted frequently with the

National Environmental Policy Act (“NEPA”) while in

office.

Despite divergent political views, amici

agree—based on their extensive experience with

NEPA—that: (I) NEPA makes federal projects better

for all stakeholders and (II) it is Congress’s job, not

this Court’s, to refine NEPA’s framework.

Sally Jewell, Secretary of the Interior, 20132017.

Lynn Scarlett, Deputy Secretary of the

Interior, 2005-2009.

Gregory Jaczko, Chairman of the U.S.

Nuclear Regulatory Commission, 2009-2012.

Jonathan Jarvis, Director of the National

Park Service, 2009-2017.

Dale Hall, Director of the U.S. Fish and

Wildlife Service, 2005-2009.

Jamie Rappaport Clark, Director of the U.S.

Fish and Wildlife Service, 1997-2001.

Thomas L. Tidwell, Chief of the U.S. Forest

Service, 2009-2017.

1 Pursuant to Supreme Court Rule 37.6, counsel represent that

they authored this brief in its entirety and no one else made a

monetary contribution for it.

Dave Matsuda, Administrator, 2010-2013,

and Deputy Administrator, 2009-2010, for the

Department

Transportation

Maritime

Administration.

Jo-Ellen Darcy, Assistant Secretary of the

Army (Civil Works), 2009-2017.

R. Lyle Laverty, Assistant Secretary of the

Interior for Fish, Wildlife, and Parks, 2007-2009.

Jim Furnish, Deputy Chief of the U.S. Forest

Service, 1999-2002.

INTRODUCTION AND SUMMARY OF

ARGUMENT

NEPA was enacted in 1969 with broad

bipartisan support. Signed into law by President

Nixon, NEPA has been the cornerstone of U.S.

environmental law and federal project management

for more than a half century. It is a procedural law

that seeks to ensure informed and transparent

decision making by federal officials undertaking

major federal actions. To this end, in the small

percentage of federal projects for which NEPA

requires an agency to prepare an Environmental

Assessment (“EA”) or, even more uncommonly, an

Environmental Impact Statement (“EIS”), “[a]ccurate

scientific analysis, expert agency comments, and

public scrutiny” are essential to the process, 40 C.F.R.

§ 1500.1(b). As NEPA’s implementing regulations

make clear, “it is not better documents but better

decisions that count.” Id. at § 1500.1(c). After all,

“NEPA’s purpose is not to generate paperwork—even

excellent paperwork—but

action.” Id.

foster

excellent

NEPA does not always achieve this aspiration

of excellence. But it does regularly make federal

actions better. One would not know that, however,

from the filings of petitioners and their amici. They

paint NEPA as little more than red tape that foils (or

intractably delays) infrastructure efforts and

economic development generally.

As the undersigned amici can attest, this tale

of wasted time and investment lost is a distorted

one. True, there are real instances of protracted,

years-long EIS review processes. But such cases are

exceedingly rare, corresponding to a tiny fraction of

NEPA reviews. An EIS—the most rigorous NEPA

analysis and the overwhelming target of petitioners’

and

their

amici’s

complaints—is

itself

rarity. Among the hundreds of thousands of proposed

federal actions each year, an EIS is prepared for

roughly 200, or less than one percent, of those

projects. See infra p. 29. And in amici’s experience,

the great majority of even EIS processes are vastly

more efficient than petitioners and their amici

suggest.

Similarly off base is petitioners’ fundamental

premise that environmentally informed decision

making

anathema

economic

development.

History,

amici’s

considerable

experience, and many NEPA reviews reveal that the

environmentally preferable option is sometimes also

the most economically beneficial for taxpayers,

project-developers, and local economies. Even efforts

overtly focused on environmental preservation or

restoration

may

yield

enormous

economic

returns. See infra Part I.A.

But NEPA does not expect such symbiosis. And

where it is not possible, NEPA’s function is not to

impede economically or socially advantageous

projects—it is to make them better.

NEPA does so in a variety of ways. In the event

of an EA or EIS, NEPA requires that lead agencies

consider—and take seriously—stakeholder input,

expert analysis, alternative proposals’ costs and

benefits, and, yes, environmental and other

sensitivities. Throughout its process, moreover,

NEPA requires that agencies keep front of mind the

project’s objectives. The result is superior federal

action. Time and again, amici saw NEPA make

projects better for everyone by improving design,

promoting stakeholder interests (including the

interests of those with economic claims), and

deconflicting inter-agency and inter-governmental

concerns. Simply put, NEPA’s process often means

cheaper, safer, more resilient, and even (due to its

deconfliction benefits) faster federal actions. See infra

Part I.B.

Still, amici acknowledge that there is room for

improvement. There are cases—though far fewer

than petitioners suggest—when NEPA does not

achieve its purpose, at least not efficiently. Yet the

job of refining or “right-siz[ing] NEPA” is not for this

Court, as petitioners and their amici would have

it. See, e.g., Brief for the American Exploration &

Mining Association et al. 3. Among other issues, the

appropriate scope and duration of NEPA review and

optimal level of interagency consultation are

quintessential policy considerations “properly

addressed to Congress, not this Court.” SAS Inst.,

Inc. v. Iancu, 584 U.S. 357, 369 (2018). The

undersigned amici, based on their extensive NEPA

experience, disagree with many of the policy positions

urged on the other side. But amici recognize that it is

Congress’s prerogative to weigh and resolve such

arguments. See Egbert v. Boule, 596 U.S. 482, 491

(2022).

Besides, Congress is actively doing exactly that,

having substantially amended NEPA just last year.

The revised framework supersedes the version of

NEPA that governed the events and decision below in

this case. Additionally, at least 13 bills to further

revise NEPA are pending at different stages of the

legislative process. If enacted, they would implement

many of the policy changes petitioners and their amici

request. This Court should decline petitioners’

invitation to intrude in this complex and contentious

policy debate, and leave to Congress the work of

shaping NEPA’s future. See infra Part II.

ARGUMENT

NEPA Saves Money, Time, and Lives—

Not Just the Environment.

Petitioners and their amici paint a dismal

picture of NEPA. In their telling, NEPA is a

burdensome waste of money and time that stymies

projects like the proposed railroad tracks at issue

here, the operation of mines, and the building of new

roads. Considering a project’s environmental impacts,

they say—whether through “[e]xpanded, wasteful

NEPA analyses” or otherwise—serves only to “hurt

developers, the thousands of employees and

contractors they employ, and the economies they and

their projects support and energize.” Br. of Anschutz

Exploration Corp. 26 (“Anschutz Br.”); see also Petrs.

Br. 50 (describing the decision below as a “threat not

just to the promising project here, but to

infrastructure development in general”). In short,

petitioners and their amici maintain, NEPA’s

requirements benefit only the environment and its

patrons—at the expense of critical infrastructure

needs, industrial development, and local economies.

That argument does not accord with reality.

History, and the experience of the undersigned amici,

are chockful of examples of NEPA improving federal

projects across nearly every metric—enhancing

project design, saving taxpayer and project-developer

dollars, promoting public safety, protecting property

rights, and preserving the natural environment.

NEPA enables agencies to identify superior

proposals and bring them to fruition. In doing so, it

serves not as a barrier to financial gain and economic

development. In fact, NEPA sometimes reveals that

the environmentally preferable option is also the most

profitable. And when that is not the case, or when

such option is incompatible with the project’s aims,

NEPA improves projects by requiring consideration of

stakeholder interests and “reasonable alternatives,”

40 C.F.R. § 1502.14(a). In amici’s experience, that

process frequently yields cheaper, safer, and overall

superior federal actions.

Projects That Preserve or Restore

the Natural Environment May Also

Generate

Enormous

Economic

Value.

To begin, contrary to the petitioners’ basic

thesis, it is simply not the case that a project can

result in economic gain or environmental benefit, but

not both. For more than a century, conservation,

restoration, and sustainable infrastructure efforts

have led to enormous positive economic externalities.

Such projects have generated broad bipartisan

support and tremendous economic, social, and

environmental benefits.

1. Take what is now known as Grand Canyon

National Park. When, in 1903, President Theodore

Roosevelt sought to preserve “this great wonder of

nature,” President Theodore Roosevelt, Remarks at

Grand Canyon, Arizona (May 6, 1903),2 some had

other ideas. Those with mining interests fought for

decades to thwart attempts to protect the canyon from

industrial development. See generally Douglas H.

Strong, Ralph H. Cameron and the Grand Canyon

(Part II), Arizona and the West, Vol. 20, No. 2

(Summer 1978). Happily, President Roosevelt’s vision

prevailed when Congress established Grand Canyon

National Park. Pub. Law No. 277, 65 Stat. 1175

(1919). Not only was the Grand Canyon later shown

to possess “no mineral value,” Strong, supra p. 7, at

2 Available at:

https://www.presidency.ucsb.edu/documents/remarks-grandcanyon-arizona.

156, it is now widely accepted as one of our country’s

great treasures.

The Park has also proven to be an outstanding

economic investment. According to a peer-reviewed

study, in 2023 alone, more than 4.7 million visitors to

the Grand Canyon brought more than $768 million

dollars in spending to the surrounding economy. 2023

National Park Visitor Spending Effects: Economic

Contributions to Local Communities, States, and the

Nation, National Park Service (“NPS”), at 27 (Aug.

2024).3 That spending, in turn, generated 10,060 jobs,

producing more than $350 million in labor income. Id.

That result is an annual economic output—defined as

the “total estimated value of the production of goods

and services supported by NPS visitor spending”—of

more than $1 billion. Id.

2. Restoration of the Florida Everglades is a

similar story. In 2000, Congress committed more

than $10.5 billion over a 35-year timeline to “restore,

preserve, and protect the south Florida ecosystem”—

an area more than twice the size of New Jersey—

through the Comprehensive Everglades Restoration

Plan (“CERP”). Water Resources Development Act of

2000, Pub. L. No. 106-541, 114 Stat. 2681 (2000). The

plan was an ambitious one, with each phase shaped

by and implemented pursuant to a NEPA analysis.

See 33 C.F.R. § 385.14 (directing the Army Corps of

Engineers to “comply with the requirements of NEPA

3 Available at:

https://www.nps.gov/subjects/socialscience/vse.htm?utm_mediu

m=email&utm_source=govdelivery.

and applicable implementing regulations” when

implementing CERP). The restoration work quickly

paid environmental dividends. See generally The

National Academies of Sciences, Engineering, and

Medicine, Progress Toward Restoring the Everglades:

The Ninth Biennial Review (2022). But just as

important are CERP’s economic benefits, owing to the

Everglades’ critical role in desalinating South

Florida’s drinking water and protecting against

damage from hurricane storm surges. According to a

2010 study, every dollar spent on CERP generates an

economic benefit worth four times that amount.

Mather Economics, Measuring the Economic Benefits

of America’s Everglades Restoration, at iii (2010).4

That means that the $10.5 billion allocated pursuant

to CERP “will generate an increase in economic

benefits of approximately $46.5 billion in net present

value,” with benefits potentially as high as “$123.9

billion.” Id.

Given these extraordinary returns, it is

unsurprising that continued investment in CERP has

broad bipartisan support. Earlier this year, Governor

DeSantis committed $1.5 billion for the 2024-25 Fiscal

Year for Everglades restoration, with $614 million

allocated for CERP alone. Press Release, Governor

DeSantis Announces $1.5 Billion for Everglades

Restoration and Water Quality Improvements in

4 Available at:

https://downloads.regulations.gov/FWS-R8NWRS-2016-0063-0811/attachment_9.pdf.

Fiscal Year 2024-25 (April 22, 2024).5 As Governor

DeSantis put it: “I am proud to continue making these

investments in Everglades restoration and water

quality that will benefit our state for decades to come.”

Id.

3. The Everglades is hardly the only example

of a natural resource that serves as a protective, and

economically efficient, system. The U.S. Army Corps

of Engineers (“USACE”)—the federal entity tasked

with implementing CERP in accordance with NEPA—

has an entire program devoted to identifying and

implementing

nature-based

solutions

infrastructure projects. Known as “Engineering with

Nature,” the program is rooted in modern advances in

engineering and ecology that demonstrate that

environmentally sustainable infrastructure can also

the

most

cost-effective

and

socially

beneficial. Through this program, the USACE has,

among many other projects:

Restored wetlands in San Pablo Bay,

California, which provide a habitat for

endangered species and improve the quality

of water entering the Bay while also

maintaining

buffer

for

flooding.

Engineering with Nature: An Atlas, U.S.

Army Corps of Engineers 68-70 (2018);6

5 Available at:

https://www.flgov.com/2024/04/22/governor-rondesantis-announces-1-5-billion-for-everglades-restoration-andwater-quality-improvements-in-fiscal-year-2024-25/.

6 Available at https://ewn.erdc.dren.mil/atlas-

series/volume/engineering-with-nature-an-atlas-volume-1/.

Rehabilitated a river in Washington that

provides a migratory and rearing habitat for

salmon

species—important

both

for

ecosystem health and for the region’s

commercial

and

recreational

fishing

industries, id. at 210-12; and

Reused dredged sediment from the Buffalo

River to restore wetland vegetation

decimated by decades of industrial

development. The project rehabilitated a

coastal wetland habitat that is home to

threatened wildlife, provided a native seed

bed, and generated “significant cost savings”

by reducing the need for a sediment disposal

facility. Engineering with Nature: An Atlas,

Vol. 2, U.S. Army Corps of Engineers 106

(2021).7

In each instance, the USACE not only “reduce[d]

demands on limited natural resources, and

minimize[d] environmental impacts,” but also

“generat[ed] a diverse array of economic … and social

benefits.” Jeffrey King et. al, Achieving Sustainable

Outcomes Using Engineering with Nature Principles

and Practices, Integrated Environmental Assessment

and Management (Aug. 2020).8

7 Available at:

https://ewn.erdc.dren.mil/atlasseries/volume/engineering-with-nature-an-atlas-volume-2/.

8 Available at:

https://setac.onlinelibrary.wiley.com/doi/10.1002/ieam.4306.

NEPA

Makes

Economically

Advantageous Projects Even Better.

Of course, environmental conservation and

restoration do not always go hand-in-hand with

economic gain. And as amici well recognize, there are

times when an infrastructure project or industrial

development effort will benefit the public good, even if

it will harm the environment.

NEPA’s purpose is not to impede such projects.

Rather, its function is to identify the best approach;

i.e., the one that causes the least environmental harm

while also achieving the project’s goals and advancing

stakeholders’ interests—whether they be “social,

economic,” or otherwise. 42 U.S.C. § 4331(a) (NEPA

Congressional Declaration of National Environmental

Policy). Beyond seeking to maintain the environment,

after all, NEPA’s mandate is to help “fulfill the social,

economic, and other requirements of present and

future generations of Americans.” Id.

NEPA accomplishes that goal by requiring

agencies to engage in a reasoned and transparent

decision-making process that accounts for the

interests of all stakeholders. It does so in multiple

ways. By mandating that agencies “[r]igorously

explore and objectively evaluate reasonable

alternatives to the proposed action” when preparing

an EIS, 40 C.F.R. § 1502.14(a), NEPA stands to

“reveal cheaper, more effective, or less damaging

alternatives,”

Masinter,

The

National

Environmental Policy Act and the Value of

Information, 22 N.Y.U. J. LEGIS. & PUB. POL’Y 465,

469 (2020). Likewise, NEPA invites input from

parties with vastly divergent perspectives, which

“help[s] to satisfy diverse stakeholders and aid[s] in

avoiding litigation.” K. Emerson & E. Baldwin,

Effectiveness in NEPA Decision Making: In Search of

Evidence and Theory, J. ENV. POL’Y & PLAN. 427, 430

(2019). And, NEPA demands “inter-agency exchange

of information,” as well as “inter-agency cooperation,”

in a setting “where competition and exclusiveness

were once standard practice.” L. Caldwell, Beyond

NEPA: Future Significance of the National

Environmental Policy Act, 22 HARV. ENVTL. L. REV.

203, 207 (1998).

As amici saw time and again while in office, the

result is better overall projects for everyone—

including project developers, taxpayers, property

owners, local communities, and the many individuals

whose safety would have otherwise been jeopardized

by a federal project. The following are just a few

examples of how NEPA has benefitted those groups.

Project Developers and Other Economic

Stakeholders. Some of petitioners’ amici cast NEPA

as a tool used exclusively by “special-interest groups

that oppose oil-and-gas and other mineral

development on public lands.” See, e.g., Anschutz Br.

at 1. Hardly. Project developers, too, have a voice in

the NEPA process.

1. The carve-outs found in the Forest Service’s

“Roadless Rule” are illustrative. In 1999, consistent

with NEPA’s requirements, the Forest Service

initiated rulemaking regarding roadless area

conservation. Notice of Intent to Prepare an EIS, 64

Fed. Reg. 56306 (Oct. 19, 1999). The purpose was to

conserve the road-free portions of the National Forest

System by limiting road construction, reconstruction,

and timber harvest within those zones.

See

Statement of James R. Furnish Before the United

States Senate, Committee on Energy and Natural

Resources, Subcommittee on Forests and Public

Lands Management (July 26, 2000).9

As initially proposed, the rule lacked exceptions

for holders of existing mineral leases. See Notice of

Proposed Rulemaking: Roadless Area Conservation,

65 Fed. Reg. 30275 (May 10, 2000).10 During the

NEPA process, however, it became clear that existing

and future holders of such leases required the ability

to construct roads, remove trees, and make other

environmentally impactful changes to extract the

minerals in accordance with their leases. Forest

Service Area Conservation: Final EIS Vol. 1, U.S.D.A.,

Forest Service at 3-259 (Nov. 2000).11 Recognizing the

importance of those interests, the Forest Service

established exceptions for both existing and

prospective mineral leasing activities. See Final Rule

and Accord of Decision, 66 Fed. Reg. 3244, 3256 (Jan.

12, 2001) (allowing “road construction needed in

9 Available at:

https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5

137345.pdf.

10 Available at:

https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5

137342.pdf.

11 Available at:

https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5

057895.pdf.

conjunction with the continuation, extension, or

renewal of a mineral lease”).

2. Similarly, as part of the Desert Renewable

Energy Conservation Plan (“DRECP”), lead agencies

delivered significant benefits to project developers

utilizing NEPA’s review process. The DRECP is a

collaborative effort among the U.S. Bureau of Land

Management (“BLM”), the U.S. Fish and Wildlife

Service, and two California state agencies to

“streamline[] permitting of renewable energy

projects” across 22.5 million acres in the Mojave

Desert. DRECP, Executive Summary for the Record

of Decision, BLM, at ES-1 (Sept. 2016).12

consultation with federal, state, and local agencies,

tribal governments, and the public, the DRECP

agencies zoned the Mojave Desert to identify

conservation areas, tribal lands, and “development

focus areas”—zones appropriate for utility-scale

renewable energy resource development. Id. at ES-58.

Leveraging the NEPA process, the DRECP

agencies successfully deconflicted the interests of the

many government entities involved, received input

from additional stakeholders, collected all necessary

data, and performed environmental analyses of the

development focus areas—all in advance of receiving

project proposals. See DRECP Proposed Land Use

Plan Amendment and Final EIS, Volume II at II.3-119

12 Available at:

https://eplanning.blm.gov/public_projects/lup/66459/133459/163

123/DRECP_BLM_ROD_Executive_Summary.pdf.

(October

2015)13

(highlighting

“interagency

coordination [undertaken] to expedite service and

provide priority processing to [developers]”). This

enabled the DRECP to offer an accelerated approval

process for proposed construction projects within the

focus areas, having already addressed the concerns of

interested parties through NEPA’s framework.

Executive Summary, supra p. 15, at ES-5-6.

BLM has already approved three Mojave

Desert solar projects capable of generating enough

electricity to power nearly 300,000 homes. Lisa

Friedman, Biden Administration Approves Two Big

Solar Projects, N.Y. Times (Dec. 21, 2021);14 Press

Release, Dep’t of the Interior, BLM Approves Oberon

Solar Project (Jan. 13, 2022).15 While beneficial from

an environmental standpoint too, these rapid

approvals were a win for the project developers.

Taxpayers. Taxpayers also gain from NEPA’s

mandate that agencies consider reasonable

alternatives before commencing a project.

1. The Department of Energy’s (“DOE”) shift in

approach to producing tritium—a radioactive gas that

is a key component in nuclear weapons—provides a

dramatic illustration. Because tritium has a decay

13 EISs issued from 2012 onward are available at the following

database: https://cdxapps.epa.gov/cdx-enepaII/public/action/eis/search.

14 Available at:

https://www.nytimes.com/2021/12/21/climate/solar-powerfederal-land-california.htm.

15 Available at:

https://www.blm.gov/press-release/blmapproves-oberon-solar-project.

rate of 5.5% per year, it must be continually produced

to maintain nuclear arms. During the Cold War, far

more was needed, so DOE devoted significant

resources to producing and recycling sufficient tritium

to compete in the ever-intensifying arms race. NEPA

Success Stories: Celebrating 40 Years of Transparency

and Open Government, The Environmental Law

Institute, at 33 (Aug. 2010)16. But when the Cold War

ended abruptly, so did DOE’s need for massive

amounts of tritium.

The NEPA process gave DOE the runway it

needed to adapt to the new global order. As thenSecretary of Energy Admiral James Watkins told

Congress in 1992: “Thank God for NEPA because

there were so many pressures to make a selection for

a technology that might have been forced upon us and

that would have been wrong for the country.” Id.

Instead, NEPA ensured that DOE would carefully

evaluate multiple proposals, including those rejected

during the Cold War years because of their inability

to provide then-adequate quantities of tritium. Id.

Taxpayers emerged as the winner. After DOE

cancelled plans to restart an existing production

reactor and prepared EISs on favored alternatives, it

announced that it could meet the nation’s

requirements for tritium production at an existing

nuclear reactor operated by the Tennessee Valley

Authority, combined with processing at the Savannah

River site in South Carolina. Id. That result saved

16 Available at:

https://ceq.doe.gov/docs/getinvolved/NEPA_Success_Stories.pdf.

billions of dollars in construction costs and tens of

millions of dollars per year in operation costs, all while

fulfilling the country’s national security needs. Id.

2. Taxpayers are also front of mind for the U.S.

Army Corps of Engineers in carrying out its coastal

initiatives. Many Texas counties have experienced

multiple major coastal storm surge events in recent

years, including from Hurricane Rita in 2005 and

Hurricane Ike in 2008. In response, the USACE

initiated the Sabine Pass to Galveston Bay Coastal

Storm Risk Management Program to reduce

significant human and economic risks from storm

surges. See Sabine Pass to Galveston Bay, Texas

Coastal Storm Risk Management and Ecosystem

Restoration, Final EIS at ES-2, 9-10 (2017). The

Program called for the construction of a new levee

system in Orange County, Texas as well as

improvement projects for existing hurricane flood

protection systems. Id.

Through a NEPA-mandated evaluation of

alternatives, the agency discovered that the

installation of a floodgate—a central component of the

proposed projects—would cost approximately $865

million more than the levee alternative, and would

also include significant operation, maintenance, and

repair costs. Id. ES-5. That cost disparity led USACE

to drop the floodgate from further consideration, once

again saving taxpayers hundreds of millions of

dollars. Id. at ES-27.

Local Communities and Landowners.

NEPA’s implementing regulations require agencies

“to inform the public of an agency’s proposed action,

allow for meaningful engagement during the NEPA

process, and ensure decision makers are informed by

the views of the process.” 40 C.F.R. § 1501.9(a). That

public engagement frequently results in project

design changes that address legitimate concerns from

surrounding communities, without jeopardizing the

project’s economic success.

1. NEPA-mandated community engagement

and interagency cooperation played a significant role

in the development of the Kitty Hawk wind farm off

the coast of the Cape Hatteras National Seashore in

North Carolina. In 2012, the Bureau of Ocean Energy

Management (“BOEM”) called for commercial wind

lease proposals that would permit the construction of

wind energy projects on multiple sites along North

Carolina’s coast. See Commercial Leasing for Wind

Power on the Outer Continental Shelf Offshore North

Carolina – Call for Information and Nominations,

Docket No. BOEM-2012-0088 (Dec. 13, 2012).

Not everyone was thrilled—particularly

because BOEM’s initial proposal allowed for leases as

close as six miles from the shore. The town of Kitty

Hawk, for instance, expressed concern over that

proximity. Michelle Wagner, Kitty Hawk Wants

Offshore Turbines Out of Sight, Outer Banks Voice

(Feb. 13, 2013). So did NPS, because turbines within

20 miles of shore would obstruct the views from the

Cape Hatteras National Seashore, including its famed

Bodie Island Lighthouse. Rob Morris, Energy Agency

Moves Wind Farm Lease Areas Farther Off OBX, The

Outer Banks Voice (Aug. 14, 2004).

In accordance with NEPA’s public engagement

requirement, however, both the town of Kitty Hawk

and NPS—then led by one of the undersigned amici—

were entitled to express their concerns, and BOEM

was required to listen. Through that engagement,

BOEM agreed to move the proposed lease sites beyond

24 nautical miles off the Kitty Hawk coastline and

33.7 nautical miles off nearby Bodie Island. Id.; see

also Press Release, Dep’t of the Interior, Secretary

Jewell Announces Milestone for Commercial Wind

Energy Development Offshore North Carolina (Aug.

11, 2014) (BOEM “worked with [NPS] to address

concerns regarding potential visual impacts”). That

compromise paved the way for several exceptionally

lucrative, competitively auctioned lease agreements—

with the money again accruing to taxpayers’

benefit. See, e.g., Press Release, Dep’t of the Interior,

Biden-Harris Administration Announces Winners of

Carolina Long Bay Offshore Wind Energy Auction

(May 11, 2022) (“Sale results in $315 million total in

winning bids for two lease areas and a $42 million

investment in domestic supply chain and workforce

training.”).

2. The route occupied by State Highway 26 in

south-central Wisconsin is also illustrative. In 2000,

the Wisconsin Department of Transportation

(“WDOT”) proposed constructing a bypass to address

high rates of traffic congestion along this significant

trucking route. Absent NEPA, the agency would have

done little more than “‘ask[] what the shortest

distance was and buil[d] the road through there.’”

Statement of H. Greczmiel, Former Associate Director

for NEPA Oversight at CEQ, Oversight Hearing

before the Committee on Natural Resources, U.S.

House of Representatives, at 31 (Apr. 25, 2018)

(quoting WDOT project manager).17

Instead,

consistent with NEPA’s public engagement mandate,

the agency partnered with members of potentially

affected communities to evaluate a host of “throughtown” and other alternative proposals. See STH 26

Final EIS at 11-5 (signed June 15, 2005) (detailing

public engagement process).18

That process produced a compromise route that

minimized disruption to local communities. The final

route successfully navigated around private lands and

dairy farms, and assuaged communities’ concerns by

avoiding routes through urban centers. Still, the final

route resolved the traffic efficiency concerns that had

sparked the project in the first place. See id. at 11-71

– 11-77 (detailing selected preferred alternative).

According to local residents, such consensus was

possible only because of NEPA.

As one town

supervisor put it: “‘We talked out problems and came

up with solutions that were agreeable to most

participants. The NEPA process has saved us a lot of

money and mitigated many of the externalized

consequences of a freeway expansion project.’”

Greczmiel Statement, supra pp. 20-21, at 31 (quoting

town supervisor).

17 Available at:

https://www.congress.gov/115/chrg/CHRG115hhrg29883/CHRG-115hhrg29883.pdf.

18 Available at:

https://books.google.com/books?id=JA1g7uoPiIkC&pg=RA1PA1&source=gbs_toc_r&cad=2#v=onepage&q&f=false.

Public Safety.

When enacting NEPA,

Congress declared that a key purpose of the new law

was to enhance “the health and welfare of man.” 42

U.S.C. § 4321. NEPA achieves that objective in part

by making federal actions safer.

1. NEPA’s process proved critical to the safe

demolition of the former nuclear reactor known as

Chicago Pile 5 at Argonne National Laboratory in

Argonne, Illinois. After the reactor ceased operations,

it was decontaminated and decommissioned following

an EA prepared pursuant to NEPA. See EA for the

Proposed Demolition of Building 330 at Argonne

National Laboratory, DOE/EA-1659 (Aug. 2009) at 2;

see also id. at 1 n.1 (noting initial EA).19 In 2009, the

Department of Energy proposed taking the final step:

demolishing the dormant structure. Id. at 1. That

effort, however, was complicated by the possibility

that demolition would release toxic radionuclides into

the air.

NEPA’s consultation and expert-analysis

requirements ensured that this risk was adequately

addressed to protect the safety of the local community

and on-site workers. Among other mechanisms, the

EA set out steps to ensure compliance with federal

limits on public exposure to radionuclides. Id. at 10.

Those steps included mandating air monitoring at the

building location and site boundaries; the

implementation of airborne contamination controls

such as filters, dust suppression techniques, and the

19 Available at:

https://www.energy.gov/nepa/articles/ea-1659final-environmental-assessment.

like; requiring workers to wear personal protective

equipment such as respirators; and providing for postdemolition radiation surveys. Id.

2. NEPA similarly succeeded in protecting the

public in a project at the Timpanogos Cave National

Monument in Utah. In 1991, the Monument’s Visitor

Center burned down, requiring NPS to operate out of

a “temporary” facility for the next two decades. In

2010, NPS approved a new Visitor Center to be built

on essentially the same site as the existing temporary

facility. See Timpanogos Cave National Monument

Long Range Interpretive Plan, NPS, at 6 (Dec. 2010).20

Through the NEPA process, however, NPS

learned that the chosen site posed a much greater risk

of rock falls than NPS initially believed. NPS

announced in 2012 that it had “reevaluated

alternatives for the Environmental Assessment

regarding the construction of a new visitor facility” in

order to “improve visitor and employee safety

from … the rockfall hazard.” Press Release, NPS,

Timpanogos Cave National Monument Revisits

Alternatives for Environmental Assessment (Feb. 1,

2012).21 In the end, NPS decided to build the new

Visitor Center in a new location, thus “put[ting]

visitors out of the path [of] rocks and boulders.”

20 Available at:

https://npshistory.com/publications/tica/lrip-

2010.pdf.

21 Available at:

revisit.htm.

https://www.nps.gov/tica/learn/news/2012-ea-

Timpanogos to Close After Labor Day for Construction

Project, Associated Press (Aug. 20, 2018).22

II.

To The Extent NEPA Should Be (Further)

Revised, Such Work Is Congress’s

Domain—And That Work Is Currently

Underway.

None of the above is to say that NEPA is a

perfect law. It is not. And as the briefing in this case

makes clear, reasonable minds disagree on several of

NEPA’s key elements. As this Court has long

recognized, however, such policy considerations are

“properly addressed to Congress, not this Court.” SAS

Inst., Inc. v. Iancu, 584 U.S. 357, 369 (2018);

Omnicare, Inc. v. Laborers Dist. Council Constr.

Indus. Pension Fund, 575 U.S. 175, 193 (2015)

(“Congress gets to make policy, not the courts.”). For

one thing, Congress is “far more competent than the

Judiciary to weigh such policy considerations.” Egbert

v. Boule, 596 U.S. 482, 491 (2022). For another, this

Court’s “authority” to engage in policy making “at all

is, at best, uncertain.” Id.

Bedrock separation-of-powers principles limit

this Court’s role to reviewing whether the D.C.

Circuit’s decision below comports with NEPA’s thenapplicable requirements.

Those principles are

particularly pressing here, where a policy debate

regarding NEPA’s future is currently underway in

Congress.

Just last year, Congress enacted

significant revisions to NEPA that supersede the

NEPA framework in effect during the events at issue

22 Available at:

https://apnews.com/travel-general-news0fd2c794586d4767a08151e5a3757c7e.

here. Moreover, at least 13 bills to further amend

NEPA are winding their way through the legislative

process. If enacted, they would implement many of

the policy changes petitioners and their amici

advocate.

In short, were there ever a case for this Court

to tread lightly, this is it. “Congress gets to make

policy, not the courts,” Omnicare, Inc., 575 U.S.

at 193, and here Congress is actively doing just that.

This Court should decline petitioners’ invitation to

intrude in this process.

Congress Recently Amended Key

Aspects of NEPA About Which

Petitioners Complain.

Since the preparation of the EIS underlying

this dispute, Congress overhauled NEPA as part of

the Fiscal Responsibility Act of 2023, Pub. L. No. 1185, Div. C, Title III, § 321, 137 Stat. 38. That overhaul

involved several of the issues underlying petitioners’

challenge here. Specifically, the 2023 amendments:

(1) imposed a standard requiring agencies to evaluate

all “reasonably foreseeable” effects of a proposed

agency action, (2) circumscribed the duration of

environmental reviews and the length of

environmental documents prepared under NEPA, and

(3) reaffirmed the importance of interagency

coordination.

1. Scope of Effects Assessment. Petitioners’

principal objection to the decision below is that NEPA

requires

agencies

consider

only

those

environmental effects that the proposed action would

proximately cause—yet, petitioners contend, the D.C.

Circuit required much more. See Petrs.’ Br. 19-30.

Petitioners’ chief request is thus for this Court to

clarify that NEPA embodies a proximate causation

standard, “not mere but-for causation.” Petrs. Br. 16.

Since the EIS at issue was drafted, however,

Congress has already amended NEPA to make clear

that agencies need not assess all potential effects

under a but-for causation standard. The previous

iteration of NEPA—which governs this case—

required an agency to consider a proposed action’s

“environmental impact,” as well as “any adverse

environmental effects which cannot be avoided.” 42

U.S.C. § 4332(2)(C) (2022).

The new statutory

language, consistent with longstanding CEQ

regulations, see Br. for the United States 3 (“Gov’t

Br.”), requires agencies to consider “the reasonably

foreseeable environmental effects” and “any

reasonably foreseeable adverse environmental

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

(2023) (emphasis added).23

Petitioners urge this Court to announce that

NEPA embodies a “more demanding form of

proximate causation,” under which agencies need not

consider effects that are distant in geography or time.

Petrs. Br. 16, 17, 34. But neither NEPA’s pre- nor

post-amendment text supports such a “demanding”

approach. And as amici’s experience confirms, effects

observed many miles from a project’s base or many

23 Although this reasonable foreseeability standard sounds in

proximate causation, NEPA does not employ the same

proximate cause standards as tort law, for the reasons the

government explains. See Gov’t Br. 34-38; see also Metro.

Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774

n.7 (1983).

years after a project takes place may nonetheless be

“reasonably foreseeable” at the outset.

For starters, any federal action involving the

approval of a mine, dam, power plant, or other facility

with long-term operations will require an agency to

consider and disclose reasonably foreseeable effects

commensurate with those operations—meaning many

years or decades into the future. See, e.g., U.S.

Nuclear Commission, Regulatory Guide 4.2 at ¶ 2.4

(Sept. 2018) (advising that environmental documents

prepared in connection with an application to operate

a nuclear power plant assess long-term effects within

a 50-mile radius of the proposed site).

Yet even a discrete infrastructure project may

have reasonably foreseeable impacts far down the

line. For instance, “[d]evelopment induced by the

construction of a new highway is a secondary effect

that must be considered in the EIS for [a] proposed

highway,” Sierra Club v. FHA, 435 F. App’x 368, 375

(5th Cir. 2011), even if it is difficult to predict exactly

when that development will occur. Likewise, an

agency contemplating the approval of an addition to

an oil refinery dock must evaluate the foreseeable

impact of increased tanker traffic at the dock—and, in

turn, the heightened risk of oil spills. See Ocean

Advocates v. United States Army Corps of Eng’rs, 402

F.3d 846, 868 (9th Cir. 2004). Indeed, there is good

reason that NEPA’s implementing regulations define

“effects” to include “[i]ndirect effects” that are “caused

by the action and are later in time or farther removed

in distance, but are still reasonably foreseeable.” 40

C.F.R. § 1508.1(i)(2) (emphasis added).

In any event, not only has Congress now

incorporated into NEPA a reasonable foreseeability

standard, it is contemplating (by way of at least six

separate bills, see infra Part II.B.1) the more

demanding test petitioners urge this Court to

embrace. As those bills reflect, the question whether

NEPA should impose a narrower effects assessment

than reasonable foreseeability involves policy

considerations “properly addressed to Congress, not

this Court,” SAS Inst., 584 U.S. at 369.

Length of NEPA Documents and

Duration of NEPA Review. Petitioners and their

amici complain that lower-court rulings like the

decision below have led to interminable EIS

documents and years-long review processes. Petrs.

Br. 48-51; Anschutz Br. 20-23; Br. of American

Petroleum Institute et al. 25 (“API Br.”). Petitioners

return to this theme time and time again, quipping

that “88 miles of track should not require 3,600 pages

of EIS.” Petrs. Br. 19. Yet in 2023, Congress

responded to this concern, enacting new limits on

NEPA documents and the duration of NEPA review.

The 2023 amendments provide that unless an

EIS is of “extraordinary complexity,” it cannot “exceed

150 pages, not including any citations or appendices.”

42 U.S.C. § 4336a(e)(1). The amendments further

require that an EIS be completed “not later than the

date that is 2 years after the sooner of, as applicable,”

the date the agency determines an EIS is required by

statute, the date the agency notifies an applicant that

an application to establish a right-of-way is complete,

or the date on which the agency “issues a notice of

intent to prepare” the EIS. Id. § 4336a(g)(1)(A).

These deadlines may be extended only “in

consultation with the applicant” and only for “so much

additional time as is necessary to complete” the EIS.

Id. § 4336a(g)(2). The revised statute thus addresses

petitioners’ concern that the NEPA process is simply

too long and too burdensome.

To be clear, during amici’s tenure, the EIS

process was far from the morass petitioners suggest.

And having to prepare an EIS, the most

comprehensive

NEPA’s

“environmental

documents,” 40 C.F.R. § 1508.1(k); see 42 U.S.C.

§ 4336(b), was (and is) a rare occurrence. The CEQ

estimates that an EIS is required for less than one

percent of all proposed major federal actions.

Greczmiel Statement, supra pp. 20-21, at 20. EAs—

“concise public document[s] … set[ting] forth the basis

of [an] agency’s finding of no significant impact,” 42

U.S.C. § 4336(b)(2)—are more common, accounting

for roughly four percent of proposed major federal

actions. See Greczmiel Statement, supra pp. 20-21, at

20. Still, that leaves 95 percent of proposed projects

requiring neither an EIS nor an EA. Id. In this

overwhelming majority of cases, NEPA requires only

a “categorical exclusion determination,” 40 C.F.R.

§ 1508.1(k), meaning documentation of the agency’s

determination that the proposed action is “excluded

[from NEPA’s EA and EIS review processes] pursuant

to one of the agency’s categorical exclusions [or]

another agency’s categorical exclusions,” 42 U.S.C.

§ 4336(a)(2). In real numbers, this means that tens or

hundreds of thousands of project proposals are

excepted from NEPA review each year via a

categorical exclusion, while only approximately 200

require EIS consideration. K. Emerson, supra p. 13.

Regardless, following the 2023 amendments,

even the seldom-used EIS process has been

significantly streamlined. 42 U.S.C. § 4336a(e), (g).

Petitioners’ amici point to one EIS that recently

topped the new 150-page limit, contending that

agencies apparently “view the statutory page limits as

optional,” Anschutz Br. 21-22 & n.9; API Br. 26. But

a single lengthy EIS hardly indicates as much.

Besides, the environmental review for that project

began in 2021—two years before the amendments

were enacted.

Bald Mountain Mine Plan of

Operations Amendment Juniper Project, BLM (Aug.

8, 2024) (noting Feb. 11, 2021 start date).24 Going

forward, an EIS may exceed the cap only in cases of

“extraordinary complexity.” 42 U.S.C. § 4336a(e)(1).

3. Cooperation Between Agencies. Finally,

petitioners urge the Court to announce limits on interagency cooperation based on the so-called “rule of

reason.” Petrs. Br. 45-46. In petitioners’ view,

agencies should consult with one another only with

respect to the particular effects petitioners believe

“the proponent agency is supposed to study under

NEPA.” Id. But here, too, Congress has recently

spoken—just not in the way petitioners and their

amici would have liked.

Although NEPA has long required lead

agencies to “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,” 42 U.S.C. § 4332 (emphasis added),

Congress recently expanded the consultation

prerogative of lead agencies to encompass non-federal

entities. Following the 2023 amendments, a lead

agency may “designate . . . any Federal, State, Tribal,

24 Available at: https://eplanning.blm.gov/eplanning-

ui/project/2011567/510.

or local agency that has jurisdiction by law or special

expertise with respect to any environmental

impact . . . as a cooperating agency.” 42 U.S.C.

§ 4336a(a)(3) (emphasis added).

For the reasons outlined supra pp. 13, 19-20,

amici view inter-agency consultation in the NEPA

process as invaluable. During amici’s time in office,

such cooperation led again and again to critical project

improvements and time-saving inter-agency and

inter-governmental deconfliction. Id. Amici therefore

applaud Congress’s decision to empower lead agencies

to leverage the expertise of a broader array of

government officials—and would disagree with efforts

to limit this authority. But whatever the future policy

determination on this point, amici recognize that it is

just that: a policy choice that rightfully belongs to

Congress.

Congress Is Considering Legislation

That Would Address Still More of

Petitioners’ and Their Amici’s

Policy Priorities.

Other policy preferences that petitioners and

their amici urge this Court to adopt are the subject of

pending legislation in Congress. Proposals that were

not enacted as part of the 2023 amendments are

expected to be reintroduced when the next Congress

convenes.

Indeed, just last month, the House

Committee on Natural Resources held a full

committee legislative hearing on three NEPA-related

bills in an effort to “tak[e] major steps to reform the

NEPA process.” Statement of Bruce Westerman (RArk.), Chair of House Committee on Natural

Resources (Sept. 11, 2024).25 According to Chairman

Westerman, additional amendments to NEPA are

needed

“streamlin[e]

permitting

for

crucial infrastructure projects and eliminat[e]

bureaucratic

red

tape

that

holding

back development of our domestic energy and mineral

resources.” Id.

These bills make clear that petitioners and

their amici are asking this Court to wade into a policy

debate—not simply to apply a since-superseded

version of NEPA to the facts of this case. For their

part, the undersigned amici believe that many of

these bills are misguided and would leave NEPA

unable to deliver its intended benefits. Still, amici

recognize that it is for Congress to evaluate the

proposals’ costs and benefits—and that it is to

Congress that the parties here and their amici must

direct their policy arguments.

The Court should decline petitioners’ invitation

to enter this policy debate. Just as it recognized in

Metropolitan Edison that NEPA is not the place for

policy disputes, 460 U.S. at 777, nor is this Court.

Rather, “[t]he political process … provides the

appropriate forum in which to air policy

disagreements.” Id.

1. Scope of effects. Congress is considering

further refinements to the reasonably foreseeable

standard it adopted in NEPA in 2023. H.R. 1, along

with five bills that contain identical text (collectively,

25 Available at:

https://naturalresources.house.gov/news/documentsingle.aspx?

DocumentID=416501.

the “strict causation bills”),26 would limit the effects

an agency must consider to “reasonably foreseeable

environmental effects with a reasonably close causal

relationship to the proposed agency action.” H.R. 1,

118th Cong., § 20202(a) (2023) (emphasis added); see

also S. 1449, 118th Cong., § 2(b) (2023) (limiting the

definition of environmental “effects” to those that

“have a proximate causal relationship”).27

In line with the policy objectives of petitioners

and their amici, see Petrs. Br. 31-39; API Br. 21-22,

the strict causation bills—one of which has passed the

House of Representatives—would also limit the scope

of effects deemed “reasonably foreseeable” by

redefining that term. These bills would define

“reasonably foreseeable” to include only those effects

that are “likely to occur” (1) within “10 years after the

lead agency begins preparing the environmental

document” and (2) within “an area directly affected by

the proposed agency action such that an individual of

ordinary prudence would take such occurrence into

account in reaching a decision,” e.g., H.R. 1, §

20202(b). In addition, the strict causation bills and S.

1449 would limit consideration of environmental

effects to those that “(i) occur on Federal land or (ii)

Additional bills with text identical to H.R. 1 include The

American Resources Act (H.R. 1335), the National

Environmental Policy Act Amendments (H.R. 1577), the Limit

Save Grow Act of 2023 (H.R. 2811), the Countering Communist

China Act (H.R. 7476), and the Lower Energy Costs Act (S. 947).

27 To be clear, these bills were pending when Congress enacted

the recent amendments in 2023, so Congress plainly declined to

incorporate the “reasonably close causal relationship” language

into the current iteration of NEPA.

are subject to Federal control and responsibility.”

E.g., id.; S. 1449, § 2(g).

Study of effects, risks, or factors

outside an agency’s control. Petitioners and their

amici further object to the decision below because,

they contend, it requires agencies to study alternative

actions that fall outside the agency’s regulatory

jurisdiction. See Petrs. Br. 44-49; Anschutz Br. 11-19;

API Br. 8-20. In this respect, too, Congress is

considering amending NEPA.

Each of the strict causation bills would require

an agency to review only alternatives to a proposed

project that “are within the jurisdiction of the [lead]

agency.” E.g., H.R. 1, § 20202(a). Similarly, S. 1449

would limit agencies to considering “technically

feasible alternatives in the jurisdiction and authority

of the [lead] Federal Agency.” S. 1449, § 2(b). And in

the context of NEPA review for a proposed oil or gas

lease, the strict causation bills would outright

preclude agencies from “consider[ing] downstream,

indirect effects of oil and gas consumption.” E.g., H.R.

1, § 20215.

3. Further shortening the duration of

review. If Congress’s efforts to shorten the window

for NEPA review in the 2023 amendments do not

satisfy petitioners and their amici, see Petrs. Br. 6;

Anschutz Br. 22-23, 29; API Br. 7, 24-25, pending

proposals would tighten the timeframe still more. The

strict causation bills would preclude an agency from

extending a deadline to continue environmental

review unless it first obtained the approval of the

applicant. E.g., H.R. 1, § 20202(b). And if an agency

were to miss a deadline, these bills would require the

agency to pay $100 per day to the applicant for every

day past the deadline that NEPA review continues.

E.g., id.; see also S. 1449, § 3(d)(1) (similar).

Proposals to better monitor EIS timelines are

also pending. H.R. 6129, for instance, would require

the CEQ to publish data regarding the time agencies

took to complete environmental reviews during the

previous decade. H.R. 6129, § 2. Such data would

provide Congress additional information relevant to

understanding and refining NEPA’s operation.

4. Containing the costs of NEPA review.

Congress is considering proposals that would curtail

the costs associated with NEPA review—and thus

address another of petitioners’ and their amici’s

concerns. See Petrs. Br. 4-9; Anschutz Br. 26-28. To

monitor the costs of NEPA review, the strict causation

bills and S. 1449 would require agencies to state in

every EIS the estimated total costs of preparing the

document. E.g., H.R. 1, § 20202(b); S. 1449, § 3(d)(1).

Pending legislation would also redistribute certain

costs to states, other non-federal entities, and project

sponsors. See H.R. 495, 118th Cong., § 2 (2023)

(states); H.R. 1, § 20209 (non-federal entities);

S. 1449, § 3(g) (sponsors). And many other proposals

pending in Congress—from those limiting the effects

and risks agencies must consider to those further

constraining the review period, see supra Parts II.B.13—would also decrease the costs of NEPA review.

Limiting judicial review.

Finally,

pending legislation would limit litigation over NEPA’s

requirements. The strict causation bills, for example,

would permit a would-be plaintiff to file suit only if

the plaintiff had submitted comments during the

administrative proceedings that “were sufficiently

detailed to put the lead agency on notice of the issue

upon which the party seeks judicial review.” E.g.,

H.R. 1, § 20202(b); see also S. 1449, §§ 3(d)(1), 3(h)

(requiring same and calling for accelerated judicial

review under limited circumstances when review is

permitted); S. 3170, 118th Cong., § 4 (2023)

(eliminating all “judicial right of action” under NEPA

for project approvals following an EA or EIS).

The strict causation bills would also

significantly limit the injunctive relief permitted

under NEPA. They provide that no EA or EIS “shall

be vacated or otherwise limited, delayed, or enjoined

unless a court concludes allowing such proposed

action will pose a risk of an imminent and substantial

environmental harm and there is no other equitable

remedy available as a matter of law.” E.g., H.R. 1,

§ 20202(b).

In sum, petitioners’ arguments and requested

relief intrude on a policy debate that is complex,

fraught, and actively underway right where it

belongs—in Congress. It is for this Court to assess

whether the D.C. Circuit properly applied the prior

version of NEPA to the facts of this case. It is for

Congress to “weigh such policy considerations” as

petitioners and their amici urge here, Egbert, 596 U.S.

at 491, and to decide NEPA’s future.

CONCLUSION

For the foregoing reasons, the Court should

recognize NEPA’s considerable value and leave to

Congress the work of further refining NEPA’s

requirements.

Respectfully submitted.

James M. Gross

Brenna M. Rosen

FOLEY HOAG LLP

1301 Ave. of the Americas

New York, NY 10019

(212) 812-4000

Beth C. Neitzel

Counsel of Record

Nicole E. Smith

FOLEY HOAG LLP

Seaport West

155 Seaport Blvd.

Boston, MA 02210

(617) 832-1000

bneitzel@foleyhoag.com

Counsel for Amici Curiae

October 25, 2024

PENDING LEGISLATION APPENDIX

TABLE OF CONTENTS

S. 879, 118th Cong. (2023): ....................................... 1a

S. 1449, 118th Cong. (2023) ...................................... 2a

S. 3170, 118th Cong. (2023): ..................................... 8a

H.R. 1, 118th Cong. (2023) ........................................ 9a

H.R. 495, 118th Cong. (2023): ................................. 16a

H.R. 6129, 118th Cong. (2024) ................................ 18a

1. The cited portions of S. 879, 118th Cong. (2023)

provide:

SEC. 106.

IMPACTS.

DOMESTIC

ENVIRONMENTAL

(a) IN GENERAL.—Section 102(2) of the National

Environmental Policy Act of 1969 (42 U.S.C. 4332(2))

is amended—

...

(2) in subparagraph (F), by inserting “in any

proposal or other major Federal action that

involves the funding or development of projects

outside the United States or the exclusive

economic zone of the United States,” before

“recognize”.

....

2. The cited portions of S. 1449, 118th Cong.

(2023) provide:

SEC. 2. MODERNIZING THE NATIONAL

ENVIRONMENTAL POLICY ACT OF 1969.

(a)

EXISTING NEPA REQUIREMENTS.—Section

102(2) of the National Environmental Policy Act of

1969 (42 U.S.C. 4332(2)) is amended—

...

(7) by striking subparagraph (G) (as so redesignated)

and inserting the following:

“(G) consistent with the requirements of this Act,

study, develop, and describe technically feasible

alternatives in the jurisdiction and authority of the

Federal agency;”

...

(b) DEFINITIONS.—The National Environmental

Policy Act of 1969 is amended by inserting after

section 2 (42 U.S.C. 4321) the following:

SEC. 3 DEFINITIONS.

In this Act:

...

(6) EFFECTS.—

(A) IN GENERAL.—The term ‘effects’ means

changes to the human environment as a result of a

proposed agency action or an alternative, as

applicable, to be carried out by a Federal agency

that—

(i) are reasonably foreseeable, including

changes that may occur not later than 10 years

after the date on which the lead agency begins

preparing an environmental document in an

area directly affected by the proposed agency

action or alternative, as applicable, such that

an individual of ordinary prudence would take

such occurrence into account in reaching a

decision; and

(ii) have a proximate causal relationship to the

proposed agency action or an alternative, as

applicable.

(B) REQUIREMENT.—For purposes of subparagraph

(A)(ii), a ‘but for’ causal relationship is insufficient

to establish a proximate causal relationship.

...

(d)

ENVIRONMENTAL

REQUIREMENTS.—

IMPACT

STATEMENT

(1) IN GENERAL.—Title I of the National

Environmental Policy Act of 1969 (42 U.S.C. 4331 et

seq.) (as amended by subsection (c)) is amended by

adding at the end the following:

SEC.

107.

ENVIRONMENTAL

STATEMENT REQUIREMENTS.

IMPACT

...

(b) COVER SHEET.— The cover sheet for an

environmental impact statement shall include a

statement of the estimated total cost of preparing the

environmental impact statement, including the costs

of Federal agency full-time equivalent personnel

hours, contractor costs, and other direct costs.

...

(d) TIMELINE FOR PREPARING AN ENVIRONMENTAL

IMPACT STATEMENT.—

. . . (2) FAILURE TO ACT.—

(A) IN GENERAL.— If a Federal agency fails to

publish a final environmental impact

statement or notice of availability of the final

environmental impact statement in accordance

with the timeline described in paragraph (1),

and the timeline has not been extended in

accordance

with

paragraph

(3),

the

requirements of this title shall be deemed to

have been fulfilled for the major Federal action.

(B) NO JUDICIAL REVIEW.— A major Federal

action deemed to fulfill the requirements of this

title under subparagraph (A) shall not be

subject to judicial review under this title or

subchapter II of chapter 5, and chapter 7, of

title 5, United States Code (commonly known

as the ‘Administrative Procedure Act’).

(3) EXTENSION.—The timeline established under

paragraph (1) may only be extended if—

(A) the extension is requested, in writing, by

the project sponsor; and

(B) the applicable Federal agency concurs, in

writing, with the extension.

(e) SPECIFICITY OF COMMENTS AND INFORMATION.—

...

(3) UNEXHAUSTED AND FORFEITED COMMENTS.—

Comments and objections not provided within a

comment period described in paragraph (1)—

(A) shall be considered unexhausted and

forfeited; and

(B) shall not be grounds for judicial review.

...

(g) EFFICIENT REVIEWS.—Title I of the National

Environmental Policy Act of 1969 (42 U.S.C. 4331 et

seq.) (as amended by subsection (f)) is amended by

adding at the end the following:

SEC. 111. EFFICIENT REVIEWS.

...

(c)

SCOPE OF REVIEW.—In

developing

environmental document for a proposed agency

action, the lead agency and any other involved

Federal agencies shall only consider the effects of the

proposed agency action that—

(1) occur on Federal land; or

(2) are subject

responsibility.

Federal

control

and

(d) PROJECT SPONSOR PREPARATION.—

(1) IN GENERAL.— A lead agency shall allow a

project sponsor to prepare an environmental

document for a proposed agency action on request

of the project sponsor.

(2) GUIDANCE.— A lead agency may provide a

project sponsor that elects to prepare an

environmental document under paragraph (1)

with appropriate guidance and assistance in the

preparation of that environmental document.

(3) INDEPENDENT VERIFICATION.—A lead agency

shall—

(A) independently evaluate the environmental

document prepared by a project sponsor under

paragraph (1); and

(B) take responsibility for the contents of the

environmental document on adoption.

(h) JUDICIAL REVIEW.—Title I of the National

Environmental Policy Act of 1969 (42 U.S.C. 4331 et

seq.) (as amended by subsection (g)) is amended by

adding at the end the following:

SEC. 112. JUDICIAL REVIEW.

...

(d) DEADLINE FOR RESOLUTION.—A district court of

the United States shall render a final judgment on a

covered cause of action—

(1) as expeditiously as practicable; and

(2) not later than the date that is 180 days after

the date on which the covered cause of action is

filed.

(e) APPELLATE REVIEW.— A court of appeals of the

United States shall render final judgment on a

covered cause of action subject to its original

jurisdiction or an interlocutory order or final

judgment, decree, or order of a district court of the

United States in a covered cause of action—

(1) as expeditiously as practicable; and

(2) not later than the date that is 180 days after

the date on which the applicable interlocutory

order or final judgment, decree, or order of the

district court was issued.

(f) REMANDED ACTIONS.—

(1) IN GENERAL.—If a court of competent

jurisdiction remands a record of decision, a finding

of no significant impact, or an authorization under

this title to a Federal agency, the court shall set a

reasonable schedule and deadline for the Federal

agency to act on remand, which shall not exceed

180 days from the date on which the order of the

court was issued.

(2)

EXPEDITED TREATMENT OF REMANDED

head of the Federal agency to

which a court remands a record of decision, a

finding of no significant impact, or an

authorization under paragraph (1) shall take such

actions as may be necessary to provide for the

expeditious disposition of the action on remand in

accordance with the schedule and deadline set by

the court under that paragraph.

ACTIONS.—The

....

3. The cited portions of S. 3170, 118th Cong.

(2023) provide:

SEC. 4. JUDICIAL STANDING UNDER NEPA.

Title I of the National Environmental Policy Act of

1969 (42 U.S.C. 4331 et seq.) is amended by adding at

the end the following:

SEC. 112. JUDICIAL STANDING.

Nothing in this title, or any environmental review (as

defined in section 2 of the REPAIR Act of 2023) carried

out pursuant to this title, provides a judicial right of

action under this title or subchapter II of chapter 5,

and chapter 7, of title 5, United States Code

(commonly known as the ‘Administrative Procedure

Act’), relating to the approval of an authorization (as

defined in that section) for a project (as defined in that

section) that uses an applicable environmental review

(as so defined).

....

4. The cited portions of H.R. 1, 118th Cong.

(2023) provide:

SEC. 20202. BUILDER ACT.

(a)

PARAGRAPH (2) OF SECTION 102.—Section

102(2) of the National Environmental Policy Act of

1969 (42 U.S.C. 4332(2)) is amended—

...

(3) in subparagraph (C)—

...

(B) by striking clauses (i) through (v) and inserting

the following:

(i) reasonably foreseeable environmental

effects with a reasonably close causal

relationship to the proposed agency action;

(ii) any reasonably foreseeable adverse

environmental effects which cannot be avoided

should the proposal be implemented;

(iii) a reasonable number of alternatives to the

proposed agency action, including an analysis

of any negative environmental impacts of not

implementing the proposed agency action in

the case of a no action alternative, that are

technically and economically feasible, are

within the jurisdiction of the agency, meet the

purpose and need of the proposal, and, where

applicable, meet the goals of the applicant;

(iv) the relationship between local short-term

uses of man's environment and the

maintenance and enhancement of long-term

productivity; and

10a

(v) any irreversible and irretrievable

commitments of Federal resources which would

be involved in the proposed agency action

should it be implemented.

...

(b) NEW SECTIONS.—Title I of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et

seq.) is amended by adding at the end the following:

...

SEC. 107. TIMELY AND UNIFIED FEDREAL

REVIEWS.

...

(b) ONE DOCUMENT.—

...

(3) SCOPE OF REVIEW.—In developing an

environmental document for a proposed agency

action, the lead agency and any other involved

Federal agencies shall only consider the effects of

the proposed agency action that—

(A) occur on Federal land; or

(B) are subject

responsibility.

Federal

control

and

...

(e) ESTIMATED TOTAL COST.—The cover sheet for each

environmental impact statement shall include a

statement of the estimated total cost of preparing

such environmental impact statement, including the

costs of agency full-time equivalent personnel hours,

contractor costs, and other direct costs.

...

11a

(h) DEADLINES.—

...

(2) DELAY.—A lead agency that determines it is not

able to meet the deadline described in paragraph

(1) may extend such deadline with the approval of

the applicant. If the applicant approves such an

extension, the lead agency shall establish a new

deadline that provides only so much additional

time as is necessary to complete such

environmental impact statement or environmental

assessment.

(3) EXPENDITURES FOR DELAY.— If a lead agency is

unable to meet the deadline described in

paragraph (1) or extended under paragraph (2),

the lead agency must pay $100 per day, to the

extent funding is provided in advance in an

appropriations Act, out of the office of the head of

the department of the lead agency to the applicant

starting on the first day immediately following the

deadline described in paragraph (1) or extended

under paragraph (2) up until the date that an

applicant approves a new deadline. This

paragraph does not apply when the lead agency

misses a deadline solely due to delays caused by

litigation.

...

SEC. 108. JUDICIAL REVIEW.

(a) LIMITATIONS ON CLAIMS.— Notwithstanding any

other provision of law, a claim arising under Federal

law seeking judicial review of compliance with this

Act, of a determination made under this Act, or of

Federal action resulting from a determination made

under this Act, shall be barred unless—

12a

(1) in the case of a claim pertaining to a proposed

agency action for which—

(A) an environmental document was prepared

and an opportunity for comment was provided;

(B) the claim is filed by a party that

participated in the administrative proceedings

regarding such environmental document; and

(i) is filed by a party that submitted a

comment during the public comment period

for such administrative proceedings and

such comment was sufficiently detailed to

put the lead agency on notice of the issue

upon which the party seeks judicial review;

and

(ii) is related to such comment;

...

(e) REMAND.—Notwithstanding any other provision

of law, no proposed agency action for which an

environmental document is required shall be vacated

or otherwise limited, delayed, or enjoined unless a

court concludes allowing such proposed action will

pose a risk of an imminent and substantial

environmental harm and there is no other equitable

remedy available as a matter of law.

SEC. 109. DEFINITIONS.

In this title:

...

(13)

REASONABLY

FORESEEABLE.—The

term

‘reasonably foreseeable’ means likely to occur—

13a

(A) not later than 10 years after the lead agency

begins preparing the environmental document;

and

(B) in an area directly affected by the proposed

agency action such that an individual of ordinary

prudence would take such occurrence into account

in reaching a decision.

...

SECTION 20209. FUNDING TO PROCESS

PERMITS AND DEVELOP INFORMATION

TECHNOLOGY.

(a) IN GENERAL.—In fiscal years 2023 through 2025,

the Secretary of Agriculture (acting through the

Forest Service) and the Secretary of the Interior, after

public notice, may accept and expend funds

contributed by non-Federal entities for dedicated

staff, information resource management, and

information technology system development to

expedite the evaluation of permits, biological

opinions, concurrence letters, environmental surveys

and studies, processing of applications, consultations,

and other activities for the leasing, development, or

expansion of an energy facility under the jurisdiction

of the respective Secretaries.

(b) EFFECT ON PERMITTING.—In carrying out this

section, the Secretary of the Interior shall ensure that

the use of funds accepted under subsection (a) will not

impact impartial decision making with respect to

permits, either substantively or procedurally.

FUNDS.— Not later than 60 days after the end of the

applicable fiscal year, if the Secretary of Agriculture

(acting through the Forest Service) or the Secretary of

14a

the Interior does not accept funds contributed under

subsection (a) or accepts but does not expend such

funds, that Secretary shall submit to the Committee

on Natural Resources of the House of Representatives

and the Committee on Energy and Natural Resources

of the Senate a statement explaining why such funds

were not accepted, were not expended, or both, as the

case may be.

(d) PROHIBITION.—Notwithstanding any other

provision of law, the Secretary of Agriculture (acting

through the Forest Service) and the Secretary of the

Interior may not accept contributions, as authorized

by subsection (a), from non-Federal entities owned by

the Communist Party of China (or a person or entity

acting on behalf of the Communist Party of China).

(e) REPORT ON NON-FEDERAL ENTITIES.—Not later

than 60 days after the end of the applicable fiscal year,

the Secretary of Agriculture (acting through the

Forest Service) and the Secretary of the Interior shall

submit to the Committee on Natural Resources of the

House of Representatives and the Committee on

Energy and Natural Resources of the Senate a report

that includes, for each expenditure authorized by

subsection (a)—

(1) the amount of funds accepted; and

(2) the contributing non-Federal entity.

...

SECTION 20215. SCOPE OF ENVIRONMENTAL

REVIEWS FOR OIL AND GAS LEASES.

An environmental review for an oil and gas lease or

permit prepared pursuant to the requirements of the

National Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.) and its implementing regulations—

15a

(1) shall apply only to areas that are within or

immediately adjacent to the lease plot or plots and

that are directly affected by the proposed action;

and

(2) shall not require consideration of downstream,

indirect effects of oil and gas consumption.

....

16a

5. The cited portions of H.R. 495, 118th Cong.

(2023) provide:

SEC. 2 ASSIGNMENT TO STATES OF FEDERAL

ENVIRONMENTAL

REVIEW

RESPONSIBILITIES.

Title I of the National Environmental Policy Act of

1969 (42 U.S.C. 4331 et seq.) is amended by adding at

the end the following new section:

SEC. 106 ASSIGNMENT TO STATES OF

ENVIRONMENTAL

REVIEW

RESPONSIBILITIES WITH RESPECT TO

CERTAIN PROJECTS IN THE STATE.

(a) Assumption Of Responsibility.—

(1) IN GENERAL.— Subject to the other provisions of

this section, with the written agreement of the

responsible Federal official and a State, which may

be in the form of a memorandum of understanding,

the responsible Federal official may assign, and

the State may assume, the responsibilities of the

responsible Federal official under this Act with

respect to one or more covered Federal projects of

the responsible Federal official within the State.

(2) ADDITIONAL RESPONSIBILITY.— If a State

assumes responsibility under paragraph (1) the

responsible Federal official may assign to the

State, and the State may assume, all or part of the

responsibilities of the responsible Federal official

for environmental review, consultation, or other

action required under any Federal environmental

law pertaining to the review or approval of covered

projects of the responsible Federal official.

17a

(3)

PROCEDURAL

AND

SUBSTANTIVE

REQUIREMENTS.—

State

shall

assume

responsibility under this section subject to the

same procedural and substantive requirements as

would apply if that responsibility were carried out

by the responsible Federal official.

(4) FEDERAL RESPONSIBILITY.— Any responsibility

of the responsible Federal official not explicitly

assumed by the State by written agreement under

this section shall remain the responsibility of the

responsible Federal official.

(5) NO EFFECT ON AUTHORITY.— Nothing in this

section preempts or interferes with any power,

jurisdiction, responsibility, or authority of an

agency, other than the agency of the responsible

Federal official for a covered Federal project, under

applicable law (including regulations) with respect

to the project.

....

18a

6. The cited portions of H.R. 6129, 118th Cong.

(2024) provide:

SEC. 2. ANNUAL REPORT ON NEPA’S IMPACT

ON PROJECTS.

Section 201 of the National Environmental Policy Act

of 1969 (42 U.S.C. 4341) is amended to read as follows:

SEC. 201. ANNUAL REPORT

IMPACT ON PROJECTS.

NEPA’S

(a) REPORT REQUIRED.— Beginning July 1, 2024, the

Council on Environmental Quality shall annually

publish on the website of the Council on

Environmental Quality, and submit to Congress, a

report on—

...

(3) the timelines to complete environmental

reviews pursuant to section 102(2)(C) during the

period of 10 years that ends on June 1 of the

current year, which shall include—

(A) with respect to each major Federal action

commenced during such period of 10 years, the

date on which (as applicable)—

(i) the notice of intent to prepare the

environmental impact statement was

published in the Federal Register;

(ii) the draft environmental impact

statement was published in the Federal

(iii) the final environmental impact

statement was published in the Federal

19a

(iv) the record of decision was published in

the Federal Register;

(B) the average and median publication

timelines during such period of 10 years for

each document described in subparagraph (A);

and

during such period of 10 years for such

documents compared to prior reports published

by the Council on Environmental Quality.

....

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.