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 A PPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE INSTITUTE FOR

POLICY INTEGRITY AT NEW YORK

UNIVERSITY SCHOOL OF LAW AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS OPPOSING PETITIONERS

JASON A. SCHWARTZ

Counsel of Record

JESSICA H. A RNELL

BRIDGET C. PALS

INSTITUTE FOR POLICY INTEGRITY

139 MacDougal Street, Third Floor

New York, NY 10012

(212) 998-6222

jason.schwartz@nyu.edu

Counsel for Amicus Curiae

Institute for Policy Integrity

October 25, 2024

333468

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

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

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

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

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

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

Best A na ly t ic a l P ra ct ices Requ i re

Agencies To Fully Consider Reasonably

Foreseeable Indirect Effects, And NEPA

Requires Best Practices. . . . . . . . . . . . . . . . . . . . .4

A. NEPA requires sound analytical

practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

B. Best analytical practices require

consideration of indirect effects . . . . . . . . . .6

C. Best analytical practices require

consideration of less-than-certain

effects, provided they are reasonably

foreseeable and not speculative . . . . . . . . . .10

D. Best analytical practices necessitate

evenhanded consideration of costs and

EHQHÀWV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

E. Courts consistently fault agencies

for failing to appropriately consider

indirect and less-than-certain but

foreseeable costs in other contexts . . . . . . .13

Table of Contents

Page

Courts interpret NEPA to align

with these same principles of rational

agency decisionmaking. . . . . . . . . . . . . . . . .15

II. Petitioners’ A nd T he Gover nment ’s

Approaches Run Afoul Of General Principles

Of Agency Decisionmaking . . . . . . . . . . . . . . . . .19

A. Petitioners’ interpretation would

create an imbalanced assessment

of environmental costs relative to

QRQHQYLURQPHQWDOEHQHÀWV . . . . . . . . . . . . .20

B. The Government’s approach deviates

from evenhanded consideration of

effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

III. Just As It Accounted For Indirect And

Uncer t a i n Econom ic Benef it s, T he

Board Easily Could Have Accounted

For Similarly Indirect But Foreseeable

Environmental Costs . . . . . . . . . . . . . . . . . . . . . .23

A. The Board quantified and touted

multiple indi rect and uncer ta in

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The Board relied on “indirect” and

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2. T he Bo a r d e st i m at e d lo c a l

tax revenue based on multiple

assumptions. . . . . . . . . . . . . . . . . . . . . . .27

iii

Table of Contents

Page

3. The Board projected economic

benef its from induced oil

production, by assuming Gulf

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crude oil from the Uinta Basin . . . . . . .28

4. The Board calculated emission

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tr ucks by assuming average

emission factors . . . . . . . . . . . . . . . . . . .30

B. The Board’s refusal to assess indirect

ef fec t s l i ke r ef i ner y em i s sion s

diverges from its own approach to

calculating economic benefits, other

agencies’ NEPA reviews, and best

analytical practices . . . . . . . . . . . . . . . . . . . .31

Other agencies’ analyses

routinely assess dow nstream

UHÀQHU\HPLVVLRQV . . . . . . . . . . . . . . . . .31

2. T he Boa rd cou ld have used

comparable assumptions and

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of indirect effects like refinery

emissions . . . . . . . . . . . . . . . . . . . . . . . . .33

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

TABLE OF CITED AUTHORITIES

Page

CASES

Air Alliance Houston v. EPA,

906 F.3d 1049 (D.C. Cir. 2018). . . . . . . . . . . . . . . . . . .12

American Dental Association v. Martin,

984 F.2d 823 (7th Cir. 1993) . . . . . . . . . . . . . .14, 15, 20

Bus. Roundtable v. SEC,

647 F.3d 1144 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . .13

&RPSHWLWLYH(QWHU,QVWY1DW·O+LJKZD\7UDIÀF

Safety Admin. (CEI I),

901 F.2d 107 (D.C. Cir. 1990). . . . . . . . . . . . . . . . . . . .14

&RPSHWLWLYH(QWHU,QVWY1DW·O+LJKZD\7UDIÀF

Safety Admin. (CEI II),

956 F.2d 321 (D.C. Cir. 1992) . . . . . . . . . . . 7, 13, 14, 21

Corrosion Proof Fittings v. EPA,

947 F.2d 1201 (5th Cir. 1991) . . . . . . . . . . . . . . . . .14, 21

Ctr. for Biological Diversity v. Nat’l Highway

7UDIÀF6DIHW\$GPLQ

538 F.3d 1172 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . .11

Dep’t of Transp. v. Public Citizen,

541 U.S. 752 (2004). . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Loper Bright Enters. v. Raimondo,

144 S.Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . .16

Metro. Edison Co. v. People Against

Nuclear Energy,

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

Cited Authorities

Page

Michigan v. EPA,

576 U.S. 743 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Mid-Tex Elec. Coop., Inc. v. FERC,

773 F.2d 327 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . .10

Mingo Logan Coal Co. v. EPA,

829 F.3d 710 (D.C. Cir. 2016). . . . . . . . . . . . . . . . . . . .15

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Sierra Club v. Coleman,

421 F. Supp. 63 (D.D.C. 1976) . . . . . . . . . . . . . . . . . . . 17

Sierra Club v. Sigler,

695 F.2d 957 (5th Cir. 1983). . . . . . . . . . . . . . .18, 19, 22

White Stallion Energy Ctr. v. EPA,

748 F.3d 1222 (D.C. Cir.) . . . . . . . . . . . . . . . . . . . . . . . .5

STATUTES AND LEGISLATIVE HISTORY

2 U.S.C. § 1532(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2 U.S.C. § 1551(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

5 U.S.C. § 603(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

42 U.S.C. § 4332(2)(B) . . . . . . . . . . . . . . . . . . . . . .2, 3, 4, 19

H.R. Rep. No. 91-765 (1969) . . . . . . . . . . . . . . . . . . . . . . . .5

S. Rep. No. 91-296 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . .5

Cited Authorities

Page

REGULATIONS AND REGULATORY ACTIONS

10 C.F.R. § 436.104(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . .9

10 C.F.R. § 436.24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

40 C.F.R. § 1508.1(i)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

40 C.F.R. § 1508.1(i)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

40 C.F.R. § 1508.8 (2019). . . . . . . . . . . . . . . . . . . . . . . . . .16

40 C.F.R. § 1508.8(b) (2019) . . . . . . . . . . . . . . . . . . . . . . .16

49 C.F.R. § 1105.7(e)(11) . . . . . . . . . . . . . . . . . . . . . . . . . .16

National Environmental Policy Act Regulations:

Implementation of Procedural Provisions,

43 Fed. Reg. 55978 (Nov. 29, 1978). . . . . . . . . . . . . . .16

Statements on P roposed Federal Actions

Affecting the Environment, 36 Fed. Reg. 7724

(Apr. 23, 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

OTHER AUTHORITIES

A r g o n n e Na t i o n a l L a b o r a t o r y, En e r g y

Sy st ems a nd In f r a st r uc t u re A n a ly si s

R&D GREET Model, https://greet.anl.gov/

index.php . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

$UJRQQH1DWLRQDO/DERUDWRU\5HÀQHU\3URGXFWV

Volatile Organic Compounds Emissions

Estimator (RP-VOC) (2020), https://greet.anl.gov/

ÀOHVUSBYRFBPDQXDO . . . . . . . . . . . . . . . . . . . . . . . .34, 35

vii

Cited Authorities

Page

Bu r e au of O c e a n Energ y Mg mt ., O u t e r

Continental Shelf Oil and Gas Leasing

Program: 2017–2022 Final Programmatic

Environmental Impact Statement (2016),

https://perma.cc/4R9W-HFJ4. . . . . . . . . . . . . . . . . . .33

Bu r e au of La nd Mg mt ., Wi l l o w Ma s t e r

Development Plan Final Supplemental

Environmental Impact Statement (2023),

https://perma.cc/9T8R-5HG9 . . . . . . . . . . . . . . . . . . .32

Candi Clouse, Examining Results &

In t e r p r e t i n g D i r e c t , In d i r e c t , a n d

Induced Effects, Launch IMPLAN (Nov.

12, 2019), https://support.implan.com/ hc/

en-us/articles/360038799153-ExaminingResults-Interpreting-Direct-Indirect-andInduced-Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

Counci l on Env ’t Qua l ity, P r inciples and

Requirements for Federal Investments

i n Wa t e r R e s o u r c e s ( 2 01 3) , ht t p s : //

perma.ccLX2P-D8BC . . . . . . . . . . . . . . . . . . . . . . . . . .9

Joe Demski, Understanding IMPLAN: Direct,

Indirect, and Induced Effects, IMPLAN Blog

(June 18, 2020), https://perma.cc/X5KZ-EE9A . . . .25

C h r i s t o p h e r C . D e Mu t h & D o u g l a s H .

Ginsbu rg, Rationalism in Regulation,

108 Mich. L. Rev. 877 (2010). . . . . . . . . . . . . . . . . . . . .8

viii

Cited Authorities

Page

Inst. for Pol’y Integrity, Strengthening Regulatory

Review: Recommendations for the Trump

Administration from Former OIRA Leaders

(2016), https://perma.cc/RZR6-9EXD . . . . . . . . . . . . .8

Nat’l Highway Traffic Safety Admin., The

Safer A ffordable Fuel-Efficient (SA FE)

Vehicles Rule for Model Year 2021–2026

Pa ssenger Ca rs a nd Light T r uck s

Final Environmental Impact Statement

(2020), https://perma.cc/L6N8-5RMA. . . . . . . . 33, 34

O f f. of Mg mt . & Budg et , C i r c u l a r A- 4:

Regulatory Analysis (2023), https://perma.cc/

CH4U-LA5C . . . . . . . . . . . .6, 7, 9, 11, 12, 18, 21, 22, 27

O f f. of Mg mt . & Budget , Ci rcu la r A-11:

Preparation, Submission, and Execution of the

Budget, Capital Programming Guide (2024),

https://perma.cc/NU4Y-76P2 . . . . . . . . . . . . . . . . .9, 11

Of f. of Mg mt . & Budget , Ci rcu la r A- 9 4:

Guidelines and Discount Rates for BenefitCost Analysis of Federal Programs (2023),

https://perma.cc/Q8BG-GVSQ . . . . . . . . . . . . . . . .9, 11

Oxford Eng. Dictionary (2d ed. 1989) . . . . . . . . . . . . . . . .5

R.L. Banks & Associates, Pre-Feasibility Study

of a Prospective Railroad Connecting the

Uinta Basin to the National Rail Network vii,

(Aug. 9, 2018), https://perma.cc/A5FS-CC5E. . . . . .28

Cited Authorities

Page

Richard L. Revesz & Michael A. Livermore,

R e t a k i n g R a t i o n a l i t y: Ho w C o s t Benefit Analysis Can Better Protect the

Environment and Our Health (2008) . . . . . . . . . . . . .8

S e ve n C ou nt y I n f r a s t r uc t u r e C o a l it ion

Response to OEA’s September 25, 2019

Information Request No. 2 (Oct. 10, 2019),

https://perma.cc/9V6N-53SY . . . . . . . . . . . . . . . . . . .28

Surface Transp. Bd., Uinta Basin Railway Final

Environmental Impact Statement (2021),

https://perma.cc/B2G4-XMEW . . . . . . . . . . 23, 30, 35

Surface Transp. Bd., Uinta Basin Railway

Final Environmental Impact Statement

App. M (2021), https://perma.cc/SX4V-97QQ . . . . . .30

Surface Transp. Bd., Uinta Basin Railway Final

Environmental Impact Statement App. Q

(2021), https://perma.cc/LV9S-SMPL . . . . . . . . 24, 26

INTEREST OF AMICUS CURIAE

The Institute for Policy Integrity at New York

University School of Law (Policy Integ rity)1 is a

nonpartisan, not-for-profit think tank dedicated to

improving the quality of government decisionmaking

through advocacy and scholarship in the fields of

administrative law, economics, and public policy, focusing

primarily on environmental issues. 2

Policy Integrity has worked extensively with the

National Environmental Policy Act (NEPA), including

submitting comments on environmental impact statements

on federal permits for energy infrastructure, and on

implementing the “reasonable foreseeability” test in

NEPA regulations. See, e.g., Inst. for Pol’y Integrity,

Comment Letter on FERC’s Draft Environmental

Impact Statement for the Regional Energy Access

Expansion Project (Apr. 25, 2022), https://perma.

cc/5UYS-9GBW; Inst. for Pol’y Integrity, Comments

on NEPA Implementing Regulations Revisions Phase 2

(Sept. 29, 2023), https://perma.cc/5U8D-DUH5.

Policy Integrity’s expertise in environmental and

administrative law, especially in best analytical practices

across a range of agency decisionmaking contexts, provides

a unique perspective on this case. Policy Integrity submits

1. Per Supreme Court Rule 37.6, no party’s counsel authored

this brief wholly or partly, and no entity or person outside of

amicus curiae contributed money intended to fund its preparation

or submission.

2. This brief does not purport to represent the views, if any,

of New York University School of Law.

this amicus curiae brief to address how NEPA aligns with

general tenants of rational decisionmaking.

SUMMARY OF ARGUMENT

The National Environmental and Policy Act (NEPA)

requires agencies to consider indirect environmental

effects that are reasonably foreseeable. Env’t Resps. Br.

8. That requirement makes sense for the many reasons

Environmental Respondents and Eagle County provide.

Id. at 23–30; County Br. 22–39. But it also makes sense

for another salient reason: the longstanding “reasonable

foreseeability” test produces environmental assessments

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that prevail across a wide range of agency decisionmaking

contexts. The novel approaches offered by Petitioners and

the Government, Petrs. Br. 37, Gov’t Br. 41, by contrast

would promote arbitrary analyses inconsistent with those

general best practices, by allowing agencies to count

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similarly foreseeable indirect environmental costs.

The Surface Transportation Board (Board)’s actions

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capable of evaluating indirect regional economic growth

and job creation EHQHÀWV but professed inability to evaluate

indirect environmental costs that would accompany those

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I. NEPA commands agencies to “develop methods”

to ensure environmental harms are given “appropriate

consideration in decisionmaking along with economic and

technical considerations.” 42 U.S.C. § 4332(2)(B). Best

analytical practices across the federal government require

agencies to evenhandedly consider important indirect or

less-than-certain effects of their actions. Courts have

consistently—and correctly—criticized agencies for

failing to do so. NEPA regulations and caselaw require

agencies to engage in these same best practices. An

interpretation of NEPA that invites agencies to behave

irrationally by ignoring foreseeable environmental costs

would run contrary to Congress’ clear command to give

such effects “appropriate consideration.” Id.

II. Petitioners’ contortions of NEPA doctrine would

leave environmental reviews incomplete compared to nonenvironmental analyses, allowing agencies to disregard

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an imbalance between how agencies treat environmental

effects versus economic and technical effects. Meanwhile,

the Government’s approach elides the fact that the Board

arbitrarily minimized indirect environmental costs, while

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NEPA cannot be interpreted to bless such irrational

approaches to decisionmaking.

III. The Board’s environmental impact statement

(EIS) touts many indirect economic EHQHÀWV—including

hundreds of “induced” jobs, millions in local tax revenue,

and projected economic growth based on assumed new

oil production—but fails to account for environmental

impacts that result from the same assumptions. Other

EISs demonstrate that the Board could have readily

accounted for the environmental impacts of, for example,

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qualitatively. The Board’s imbalanced approach violates

best analytical practices.

For these reasons, this Court should affirm the

judgment below.

ARGUMENT

Best Analytical Practices Require Agencies To

Fully Consider Reasonably Foreseeable Indirect

Effects, And NEPA Requires Best Practices.

Best analytical practices—both under NEPA and

in other contexts—require agencies to evenhandedly

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including effects that may not be certain but are still

reasonably foreseeable. It is biased to tout indirect

and uncertain economic benefits—as the Board did

here—while ignoring similarly indirect but foreseeable

environmental costs. The longstanding approach to

interpreting “reasonably foreseeable” as summarized

by Environmental Respondents, Env’t Resps. Br. 23–30,

SURGXFHVHQYLURQPHQWDODVVHVVPHQWVWKDWUHÁHFWWKHEHVW

practices for government analysis that prevail across

a wide range of agency decisionmaking contexts. New

approaches offered by Petitioners and the Government,

Petrs. Br. 21–23, Gov’t Br. 18, by contrast would promote

arbitrary analyses inconsistent with those general best

practices.

NEPA requires sound analytical practices.

NEPA prescribes that “all agencies . . . shall . . .

develop methods” to “ensure presently unquantified

environmental” effects can receive “appropr iate

consideration in decisionmaking along with economic

and technical considerations.” 42 U.S.C. § 4332(2)(B)

(emphases added).

“Appropr iat e” is “ the classic broad and a llencompassing term that naturally and traditionally

includes consideration of all the relevant factors, health

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White Stallion Energy Ctr. v. EPA, 748 F.3d 1222, 1266

(D.C. Cir.) (Kavanaugh, J., concurring); accord Michigan

v. EPA, 576 U.S. 743, 752–53 (2015) (endorsing that

quote, and interpreting “appropriate” to require “paying

attention to the advantages and disadvantages of agency

decisions,” including “harms . . . to human health or the

environment”).

“Along with” means “together with” or “side by side

with,” 1 Oxford Eng. Dictionary 358 (2d ed. 1989), and so

implies parity. NEPA’s call for agencies to appropriately

FRQVLGHUXQTXDQWLÀHGHQYLURQPHQWDOHIIHFWValong with

economic factors therefore requires developing methods

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reasonably comparable to the methods that agencies use

to assess economic factors. Indeed, Congress intended

NEPA to rectify how, “[i]n the past, environmental

factors have frequently been ignored and omitted from

consideration in the early stages of planning because of the

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and technical factors.” S. Rep. No. 91-296 at 20 (1969);

see also H.R. Rep. No. 91-765 at 8 (1969) (Conference

Report, adopting the Senate bill and emphasizing that the

provisions apply “to the fullest extent possible”).

Given this clear articulation of sound analytical

practices, it would be odd to interpret NEPA’s “reasonably

foreseeable” criteria in a way that instead produces

arbitrary, biased analyses. “[R]easonably foreseeable

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FDSDEOH RI EHLQJ FRQVLGHUHG LQ VXIÀFLHQW GHWDLOµ (QY·W

Resps. Br. 1. Agencies need reasonable, non-arbitrary

reasons for determining which effects are foreseeable. Id.

at 27. Agencies should not, for example, apply inconsistent

assumptions and methodologies to count indirect economic

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costs as unforeseeable. The proper understanding

of “reasonably foreseeable” should produce analyses

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subsections show, the best analytical practices that prevail

across NEPA and many other agency decisionmaking

contexts require appropriate consideration of indirect

and less-than-certain effects, as well as evenhanded

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B. Best analytical practices require consideration

of indirect effects.

Agency decisions inevitably result in direct and

indirect effects. 3 To engage in rational decisionmaking,

agencies must consider both types of effects. This

fundamental, longstanding principle prevails across a

wide range of decisionmaking contexts.

The line between direct and indirect effects in agency

analyses can be blurry. Generally, direct effects tie more

closely to agency actions, while indirect effects are more

removed. This general definition applies both within

NEPA, see 40 C.F.R. § 1508.1(i)(1), (2), and within the

3. Indirect effects are sometimes called additional or

DQFLOODU\FRVWVRUEHQHÀWVFRXQWHUYDLOLQJULVNVRUFREHQHÀWVSee,

e.g., Off. of Mgmt. & Budget, Circular A-4: Regulatory Analysis 40

(2023), https://perma.cc/CH4U-LA5C [hereinafter Circular A-4].

context of agency decisionmaking writ large, see, e.g.,

Circular A-4, supra, at 39–40. Indirect effects include

effects that may arise from intermediary actions between

DJHQF\GHFLVLRQVDQGÀQDORXWFRPHVId. at 40.

Critically, indirect effects may or may not be related

to the primary purpose of agency actions. For example,

when an agency regulates vehicle fuel economy, an

important but indirect countervailing risk could be effects

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fuel economy and safety. See Competitive Enter. Inst. v.

1DW·O+LJKZD\7UDIÀF6DIHW\$GPLQ (CEI II), 956 F.2d

321, 326–27 (D.C. Cir. 1992). Nobody would insist that an

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it is an indirect effect and outside the agency’s primary

goal to increase fuel economy.

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indirect effects is a necessary component of rational

decisionmaking. As discussed below, the direct effect of

the Board’s action here is railway construction. But the

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as promoting local economic growth and creating jobs

thanks to additional economic activity that the railway

supports. Some types of job creation can be rather

removed from the railway’s approval: if the railway

spurs new drilling operations, newly hired workers could

increase demand at nearby restaurants, which, in turn,

could lead businesses to hire additional employees. These

EHQHÀWVDUHLQGLUHFWDQGSUHVHQWDGHJUHHRIXQFHUWDLQW\

But the Board can, should, and does consider them when

deciding whether to approve railways. See infra Section

III.

Indeed, failing to consider indirect effects would

often lead to agencies “entirely fail[ing] to consider an

important aspect of the problem.” See Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). Experts from both Democratic

and Republican administrations agree that indirect costs

DQGLQGLUHFWEHQHÀWVDUHLPSRUWDQWIDFWRUVXQGHUUDWLRQDO

decisionmaking. See, e.g., Christopher C. DeMuth &

Douglas H. Ginsburg, Rationalism in Regulation, 108

Mich. L. Rev. 877, 887–88 (2010) (reviewing Richard L.

Revesz & Michael A. Livermore, Retaking Rationality:

How Cost-Benefit Analysis Can Better Protect the

Environment and Our Health (2008)) (“There appear

to be no legal, political, or intellectual (certainly not

IURPXV LPSHGLPHQWVWRWUHDWLQJDQFLOODU\EHQHÀWVDQG

FRXQWHUYDLOLQJULVNVHTXDOO\LQFRVWEHQHÀWDQDO\VLV>@µ

Revesz & Livermore, Retaking Rationality, supra,

at 55–65 (similar); see also Inst. for Pol’y Integrity,

Strengthening Regulatory Review: Recommendations for

the Trump Administration from Former OIRA Leaders

5–6 (2016), https://perma.cc/RZR6-9EXD [hereinafter

Strengthening Regulatory Review] (ref lecting the

FRQVHQVXVRIHLJKWIRUPHUWRSRIÀFLDOVIURPWKH2IÀFHRI

Information and Regulatory Affairs (OIRA)).4

Considering indirect effects is a best practice across a

ZLGHDUUD\RIIHGHUDODQDO\VHV7KH2IÀFHRI0DQDJHPHQW

and Budget (OMB) is consistent throughout its guidance

on diverse topics—including regulatory impact analyses,

programmatic cost-effectiveness analyses, lease-purchase

4. Richard L. Revesz is the current OIRA Administrator

under President Biden. Christopher DeMuth and the Honorable

Douglas Ginsburg ser ved as OIRA Administrators under

President Reagan. Strengthening Regulatory Review, supra at 5.

analyses, and capital asset valuations—that agencies

should consider indirect costs and benefits. See, e.g.,

Circular A-4, supra, at 1, 39–40 (describing best practices

in federal regulatory decisionmaking after undergoing

expert peer review, interagency review, and public

comment); OMB, Circular A-94: Guidelines and Discount

5DWHV IRU %HQHÀW&RVW $QDO\VLV RI )HGHUDO 3URJUDPV

7 (2023), https://perma.cc/Q8BG-GVSQ [hereinafter

Circular A-94] (federal program analysis) (explaining

WKDW´ERWKGLUHFWDQGLQGLUHFWEHQHÀWVDQGFRVWVµVKRXOG

EH LGHQWLÀHG id. at 18–19, 24 (federal lease-purchase

analysis) (explaining “[l]ife [c]ycle [c]ost” includes “direct

and indirect initial costs plus any periodic or continuing

costs”); OMB, Circular A-11: Preparation, Submission,

and Execution of the Budget, Capital Programming

Guide, app. 1, at 54 (2024), https://perma.cc/NU4Y-76P2

[hereinafter Capital Programming Guide] (“The cost of a

capital asset is its full life-cycle costs, including all direct

and indirect costs. . . .”).

The best practice of considering indirect effects is

also recognized beyond OMB’s guidance. For example,

the regulations governing federal energy management

and planning programs include the following required

SURPSWIRUHYDOXDWLQJHQHUJ\HIÀFLHQF\SURJUDPV´:KDW

are the direct and indirect impacts of this measure?” 10

C.F.R. § 436.104(b)(3). Agencies similarly account for

indirect upstream and downstream effects when assessing

federal water investments. See Council on Env’t Quality,

Principles and Requirements for Federal Investments

in Water Resources 1, 6 (2013), https://perma.cc/LX2PD8BC (encouraging a watershed approach that “allows

for consideration of upstream and downstream conditions,

needs, and potential impacts”).

As these examples demonstrate, the consensus view

across a range of contexts and peer-reviewed federal

guidelines is that agencies should typically consider

indirect effects. But Congress knows how to draft

statutes that depart from this default rule when it wants

to. For example, when Congress required agencies to

DQDO\]HUHJXODWRU\LPSDFWVVSHFLÀFDOO\WRVPDOOHQWLWLHV

it obligated them to consider only direct costs to

regulated small entities and to exclude indirect costs. See

5 U.S.C. § 603(b)(4) (requiring “a description of the

projected reporting, recordkeeping and other compliance

requirements of the proposed rule”); Mid-Tex Elec. Coop.,

Inc. v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (interpreting

the Regulatory Flexibility Act to exclude consideration

of effects on small businesses affected only indirectly

by the regulation). Congress drew similar distinctions

between direct and indirect costs in setting requirements

for analyzing “unfunded mandates.” Compare 2 U.S.C.

§ 1551(b)(1) (distinguishing between “indirect costs and

EHQHÀWVµDQG´GLUHFWFRVWVDQGEHQHÀWVµ with 2 U.S.C.

D XVLQJWKHEURDGHU´FRVWVDQGEHQHÀWVµ <HW

Congress made no such distinction in NEPA.

Best analytical practices require consideration

of less-than-certain effects, provided they are

reasonably foreseeable and not speculative.

Direct and indirect effects often present a degree of

uncertainty about the effect’s magnitude or likelihood.

Both legal principles of rationality and best analytical

practices distinguish between less-than-certain but

still reasonably foreseeable effects, versus effects

too “speculative” to be assessed with quantitative or

qualitative methods.

As a legal matter, while agencies may reasonably

exclude effects that are “too speculative to permit

meaningful consideration,” Env’t Resps. Br. 23, it is

generally arbitrary to “put a thumb on the scale” by

LJQRULQJ DQ RWKHUZLVH VLJQLÀFDQW HIIHFW MXVW EHFDXVH

its estimated range is somewhat uncertain. Ctr. for

%LRORJLFDO 'LYHUVLW\ Y 1DW·O +LJKZD\ 7UDIÀF 6DIHW\

Admin., 538 F.3d 1172, 1199–1200 (9th Cir. 2008). As

discussed above, NEPA addresses agencies’ tendency to

ignore environmental effects simply because they were

WRR´GLIÀFXOWµWRTXDQWLI\Supra Section I.A.

Best analytical practices also distinguish between two

categories: (1) effects that are “not . . . known for certain”

but can still be “reasonabl[y] estimate[d]” or qualitatively

assessed, Circular A-4, supra, at 67, versus (2) effects that

are “highly speculative,” such that assessments would

QRW EH ´FUHGLEOH REMHFWLYH UHDOLVWLF DQG VFLHQWLÀFDOO\

balanced.” Id. at 67–68. Because uncertain costs and

benefits may be “an important contributor” to the

overall effects of agency action, when it is “possible to

use available evidence” to assess such uncertain effects,

analytical “robustness” depends on their inclusion. Id. at

67; see also Circular A-94, supra, at 13–15 (explaining

how to treat uncertainty in federal program assessments);

10 C.F.R. § 436.24 (same in life-cycle cost analyses);

Capital Programming Guide, supra, at 15 (same in capital

programming).

Agencies have myriad tools to quantitatively or

qualitatively assess uncertain effects. Options include

statistical techniques to characterize probability

distributions; numerical sensitivity analysis to test

uncertain inputs; formal probabilistic analysis; expert

elicitation to bridge information gaps; breakeven analysis

WRWHVWZKHWKHUDGGLWLRQDOTXDQWLÀFDWLRQFRXOGFKDQJHWKH

decision; or qualitative assessment. Circular A-4, supra, at

68–75. The goal of such tools is not to invite “exhaustive”

analysis but rather to empower agencies to “provide

VXIÀFLHQW LQIRUPDWLRQ IRU GHFLVLRQ PDNHUV WR JUDVS WKH

GHJUHH RI VFLHQWLÀF XQFHUWDLQW\µ Id. at 70. Such tools

are therefore compatible with the bounds of reasonable

foreseeability under NEPA, which extends to effects only

LIWKH\FDQEHGHVFULEHGZLWKVXIÀFLHQWUHOLDEOHGHWDLOWR

be useful. Env’t Resps. Br. 23; County Br. 26.

Be st a n a ly tic a l pr a c tic e s ne c e s sit at e

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Agencies must consider the effects of their decisions—

LQFOXGLQJ LQGLUHFW DQG XQFHUWDLQ FRVWV DQG EHQHÀWV³

evenhandedly. It is irrational to apply one set of

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similar assumptions or methodologies when they might

inconveniently reveal costs—as the Board did here. See

infra Section III.

Agencies may not pick and choose assumptions to

make their analyses look more favorable. When agencies

make reasonable assumptions about the world, those

assumptions must apply evenly to both benefits and

costs. For example, in Air Alliance Houston v. EPA, the

Environmental Protection Agency (EPA) sought to delay

implementation of a rule that would require chemical

facilities to implement safety protocols. 906 F.3d 1049,

1055–57 (D.C. Cir. 2018). EPA claimed that the delay

would yield immediate cost-savings to industry without

VDFULÀFLQJDQ\RIWKHRULJLQDOUXOH·VEHQHÀWVId. at 1068.

The U.S. Court of Appeals for the D.C. Circuit held that

(3$·V FRQÁLFWLQJ DQDO\WLFDO DVVXPSWLRQV IRU FRVWV DQG

EHQHÀWVZDVDUELWUDU\EHFDXVH(3$WRXWHGWKDWWKHGHOD\

would substantially relieve compliance when counting

cost-savings, but downplayed the effect that delayed

FRPSOLDQFHZRXOGKDYHRQIRUJRQHEHQHÀWVId. Agencies

cannot “inconsistently and opportunistically fram[e] the

FRVWV DQG EHQHÀWVµ Bus. Roundtable v. SEC, 647 F.3d

1144, 1148–49 (D.C. Cir. 2011).

E. Courts consistently fault agencies for failing to

appropriately consider indirect and less-thancertain but foreseeable costs in other contexts.

In the cont ex t of non- env i ronmenta l agency

decisionmaking, courts have consistently—and correctly—

criticized agencies for failing to evenhandedly consider

important indirect and less-than-certain effects. And

courts have observed that costs falling outside an agency’s

typical purview, or that cannot be predicted with 100%

certainty, may be among the most important factors to

consider. The following three cases shed light on how

courts assess indirect and less-than-certain effects in

agency decisionmaking processes.

Returning to an example from above, in Competitive

(QWHUSULVH,QVWLWXWHY1DWLRQDO+LJKZD\7UDIÀF6DIHW\

AdministrationWKH'&&LUFXLWIRXQGDIXHOHIÀFLHQF\

VWDQGDUGDUELWUDU\EHFDXVHWKH1DWLRQDO+LJKZD\7UDIÀF

Safety Administration (NHTSA) failed to consider how

the standard might affect traffic fatalities. 956 F.2d

321, 326–27 (D.C. Cir. 1992). The court reasoned that,

because the fuel standards were tied to vehicle weight,

they could incentivize manufacturers to produce lighter

vehicles. Id. As lightweight vehicles were then thought to

be comparatively less safe in crashes, an “uncertain” but

possible indirect effect of the regulation was increased

vehicular fatalities. Id. at 325–27. Despite the relevant

statutory amendment’s focus on energy conservation

(and failure to mention safety5), the court determined

the agency “must exercise its discretion” by “conducting

a serious analysis of the data” to compare fuel savings

versus the fatality risks, even though neither the

lightweighting of vehicles nor the connection to accident

risks were necessarily certain to occur. Id. at 327.

In Corrosion Proof Fittings v. EPA, the U.S. Court

of Appeals for the Fifth Circuit vacated a near-complete

ban on asbestos, which was commonly used in numerous

products. 947 F.2d 1201, 1207–08, 1224–25 (5th Cir. 1991).

EPA issued the ban because asbestos caused “unreasonable

risk to human health[.]” Id. at 1207. But the court focused

on an indirect effect: asbestos was commonly used in

vehicle brakes, and a ban would necessitate switching to

substitute materials. Id. at 1224–25. The court criticized

EPA for failing to consider whether replacement brakes

would perform adequately or present countervailing

health risks. Id. at 1225. Despite EPA’s lack of authority

over either vehicle safety or car manufacturers’ choices

for substitute materials, the court determined EPA should

have considered this indirect and uncertain effect. Id. at

1225–26.

In American Dental Association v. Martin, the U.S.

Court of Appeals for the Seventh Circuit criticized the

5. 6HH &RPSHWLWLYH (QWHU ,QVW Y 1DW·O +LJKZD\ 7UDIÀF

Safety Admin. (CEI I), 901 F.2d 107, 120 (D.C. Cir. 1990)

(“Congress did not directly address safety in the [fuel economy

standard] legislation.”).

Occupational Safety and Health Administration (OSHA)

for failing to consider how a rule designed to protect

healthcare workers from bloodborne pathogens (for

example, by requiring special syringes) might indirectly

increase healthcare costs, ultimately resulting in higher

fatalities caused by decreased access to care. 984 F.2d 823,

826 (7th Cir. 1993) (Posner, J.). The court cautioned that,

because the agency’s “consideration of the indirect costs

of the rule is . . . incomplete,” it is not possible to know

whether the rule would ultimately result in lives saved or

lives lost. Id. at 826.

These cases exemplify the rigor to which agencies

are held in other analytical contexts, but other examples

abound. See, e.g., Mingo Logan Coal Co. v. EPA, 829 F.3d

710, 731–33 (D.C. Cir. 2016) (Kavanaugh, J., dissenting)

(contending EPA’s revocation of a mine’s permit was

arbitrary because it failed to consider indirect costs,

including lost income for businesses selling products

to the mine, lost tax revenues, and possible changes in

electricity prices); but see id. at 719, 723–24 (majority

opinion) (holding the mine forfeited these cost arguments).

When considering non-environmental costs, courts

have consistently required the careful, evenhanded

consideration of indirect and uncertain effects.

Courts interpret NEPA to align with these same

principles of rational agency decisionmaking.

The environmental context is no different. Since

NEPA’s inception, this Court, lower courts, and the

Council on Environmental Quality (CEQ)—which issues

NEPA’s governing regulations—have understood NEPA

to align with general principles of rational agency

decisionmaking, including evenhanded consideration of

indirect and uncertain effects. Even the Board’s own

regulations underscore the importance of considering

indirect effects.

Considering indirect effects has been a core part of

1(3$DQDO\VHVIRURYHUÀIW\\HDUV$VWKLV&RXUWUHFHQWO\

emphasized, “interpretations issued contemporaneously

with the statute at issue, and which have remained

consistent over time, may be especially useful in

determining [a] statute’s meaning.” Loper Bright Enters.

v. Raimondo, 144 S.Ct. 2244, 2262 (2024). CEQ issued

its initial guidance on NEPA in 1971, just one year after

the statute’s passage. Consistent with best practices,

this early guidance called for attention to “secondary

VLJQLÀFDQWFRQVHTXHQFHVµ6WDWHPHQWVRQ3URSRVHG)HGHUDO

Actions Affecting the Environment, 36 Fed. Reg. 7724,

7725, 7727 (Apr. 23, 1971). In 1978, CEQ promulgated its

ÀUVWUHJXODWLRQVZKLFKUHPDLQHGHVVHQWLDOO\XQFKDQJHG

for forty years. Compare National Environmental

Policy Act Regulations: Implementation of Procedural

Provisions, 43 Fed. Reg. 55978, 56004 (Nov. 29, 1978),

with 40 C.F.R. § 1508.8 (2019). Those regulations called

for the consideration of “reasonably foreseeable” effects.

40 C.F.R. § 1508.8(b) (2019). Even the Board’s own

regulations implementing NEPA agree that indirect

effects are critical. 49 C.F.R. §§ 1105.7(e)(11)(v), (vii)

(requiring applicants to “[d]escribe the effects, including

[certain] indirect or down-line impacts” as well as certain

“societal impacts”).

Courts interpreting NEPA also require consideration

of indirect effects, including effects that carry some

uncertainty. In 1976, the U.S. District Court for the

'LVWULFWRI&ROXPELDIRXQGGHÀFLHQWWKH)HGHUDO+LJKZD\

Administration’s EIS for a project to build a road from

Panama to Colombia, linking North and South America.

Sierra Club v. Coleman, 421 F. Supp. 63, 65–66 (D.D.C.

1976). The court held that the agency had erroneously

labelled as “insignificant” a risk that the road could

facilitate the spread of foot-and-mouth disease to the

United States, potentially causing up to $10 billion

in losses in the first year. Id. The Federal Highway

Administration’s lack of authority over agriculture or

animal-borne disease did not excuse its inattention to this

indirect effect.

True, NEPA analyses need not consider every possible

effect, but the longstanding reasonable foreseeability test

does not require them to do so. In determining whether

effects are too attenuated, this Court explained that

NEPA covers indirect effects with a “reasonably close

causal relationship” to the agency action. Metro. Edison

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

(1983). But the Court took great pains to explain that any

analogies to tort law “do not . . . suggest that any causeeffect relation too attenuated to merit damages in a tort

suit would also be too attenuated to merit notice in an

EIS.” Id. at 774 n.7.

Relatedly, NEPA’s rule of reason requires agencies

to assess effects only when useful to inform the

decisionmaking process—an important limitation on

NEPA’s reach. Dep’t of Transp. v. Public Citizen, 541 U.S.

752, 754 (2004). In Public Citizen, the Court held that it

would not “satisfy NEPA’s ‘rule of reason’ to require an

agency to prepare a full EIS due to the environmental

impact of an action it could not refuse to perform.” Id. at

769.6

NEPA’s rule of reason is consistent with best

analytical practices for agencies. While agencies should

FDUHIXOO\ZHLJKWKHHIIHFWVRIWKHLUDFWLRQVLWLVLQHIÀFLHQW

to consider effects that cannot inform the decisionmaking

process. Compare id., with Circular A-4, supra, at 12

(explaining that agency analysis need only highlight

direct and indirect effects stemming from the agency’s

exercise of discretionary authority, with non-discretionary

actions treated as part of the comparative baseline). As

discussed above, however, see supra Section I.E, agencies

are regularly required to consider effects that their

discretionary actions cause either directly or indirectly,

even if they do not have regulatory authority over those

effects.

Finally, NEPA requires—consistent with best

agency practices—evenhanded consideration of costs

DQGEHQHÀWV)RUH[DPSOHLQSierra Club v. Sigler, the

Fifth Circuit found that the Army Corps of Engineers’

lopsided consideration of indirect effects was arbitrary.

695 F.2d 957, 979 (5th Cir. 1983). In Sigler, the Army

Corps permitted a dredging program. Id. at 961. Although

the project was designed to make a channel accessible

to oil supertankers, the agency cited increased bulk

FRPPRGLWLHVWUDGLQJDPRQJWKHEHQHÀWVId. at 979. Such

increased trading could carry environmental harms from

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6. It is uncontested that, here, the Board could have rejected

the application on environmental grounds, Gov’t Br. 40, so there

is no question that the Board had authority to avoid negative

environmental effects.

terminals for bulk commodities, but the Corps ignored

those costs. Id. As the Fifth Circuit aptly summarized,

an agency “cannot tip the scales of an EIS by promoting

SRVVLEOHEHQHÀWVZKLOHLJQRULQJWKHLUFRVWVµId. at 979.

Rather, “[s]imple logic, fairness, and the premises of

FRVWEHQHÀW DQDO\VLV OHW DORQH 1(3$ GHPDQG WKDW D

FRVWEHQHÀWDQDO\VLVEHFDUULHGRXWREMHFWLYHO\µId.; see

also supra Section I.A.

As discussed in the following section, Petitioners’

and the Government’s treatment of NEPA caselaw would

narrow the scope of environmental reviews to be far more

hampered than typical agency analyses.

II. Petitioners’ And The Government’s Approaches

Run Afoul Of General Principles Of Agency

Decisionmaking.

NEPA requires agencies to take a “hard look” at

environmental effects. Robertson v. Methow Valley

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

omitted). Petitioners’ interpretations would prohibit such

hard looks and lead agencies to assess environmental

impacts irrationally and less rigorously than agencies

assess non-environmental impacts. Petitioners’ approach

would create an automatic haircut for environmental costs

UHODWLYHWRRWKHUW\SHVRIFRVWVDQGEHQHÀWVLQDPDQQHU

that does not exist in any other sphere. NEPA’s command

to “appropriate[ly]” assess environmental effects “along

with economic and technical considerations,” 42 U.S.C.

§ 4332(2)(B) (emphasis added), calls agencies to assess

environmental effects comparably with non-environmental

effects. Petitioners’ interpretation is therefore fatally

ÁDZHG

The Government’s treatment also gives agencies too

much leeway to arbitrarily scope their environmental

reviews. Drawing a manageable line to determine which

HIIHFWVDUHUHOHYDQWPD\EHFRQWH[WVSHFLÀF*RY·W%U²

22; nevertheless, across many contexts, courts have long

policed that line and should not permit biased treatment

RIFRVWVYHUVXVEHQHÀWV

Petitioners’ interpretation would create an

imbalanced assessment of environmental costs

UHODWLYHWRQRQHQYLURQPHQWDOEHQHÀWV

Petitioners’ suggested limits on NEPA analysis—an

amorphous test of proximate cause and a re-wired rule

of reason, see Env’t Resps. Br. 38–39 (summarizing

Petitioners’ “eleven formulations” of their test)—would

create an illogical imbalance between the consideration

of environmental and non-environmental harms.

Proximate cause is not the standard for determining

which indirect effects should be considered outside of

the environmental context, nor should it limit agency

considerations within the environmental context. True,

if a decedent’s estate sued OSHA because its pathogen

rule indirectly increased healthcare costs, leading to the

decedent delaying care and, ultimately, to their untimely

death, the estate would surely be “laughed out of court.”

See Petrs. Br. 2, 17, 37. But OSHA, while protected from

tort liability in that setting, should not put on blinders when

considering the effects of its actions. For that reason, and

consistent with general principles of rationality discussed

above, the Seventh Circuit criticized OSHA for failing to

consider the same kind of indirect effect that Petitioners

would now place off limits. Am. Dental Ass’n, 984 F.2d at

826 (7th Cir. 1993). If agencies were permitted to ignore

any environmental effects not proximately caused by their

actions, environmental costs would be treated differently

than non-environmental costs.

Undergirding Petitioners’ proximate cause argument

is the assumption that effects outside proximate cause are

too uncertain. Petrs. Br. 17. But it would be irrational if

agencies could choose to ignore effects merely because

they were not 100% certain. Nor would it be acceptable

in non-environmental contexts. While some effects may

be too speculative to assess, the mere fact that an effect

carries a degree of uncertainty is not alone reason to

disregard it. See Circular A-4, supra, at 67. Returning

to the car example again, the causal connection between

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WUDIÀFIDWDOLWLHVLVXQFHUWDLQEXWDQDJHQF\FDQQRWDVVHVV

whether an uncertain effect is meaningful if it ignores it

altogether. See CEI II, 956 F.2d at 326–27.

Petitioners’ re-wired rule of reason would also fail

scrutiny outside the environmental context. Petitioners

urge that effects outside an agency’s expertise or those

effects an agency could not directly regulate should

not factor into NEPA analyses. Petrs. Br. 31–32. But,

as noted above, EPA’s lack of authority over vehicular

safety did not prevent the Fifth Circuit from holding the

agency accountable for considering potential increases in

WUDIÀFIDWDOLWLHVZKHQEDQQLQJDVEHVWRVIURPFDUEUDNHV

Corrosion Proof, 947 F.2d at 1224. Petitioners seek to

create an environmental carve-out to rational agency

decisionmaking, wherein agencies get a hall-pass from

doing the analytical work that would be required in any

other context.

B. The Government’s approach deviates from

evenhanded consideration of effects.

The Government contends that agencies have

substantial leeway to determine whether effects are

VLJQLÀFDQWHQRXJKWRDVVHVVDQGWKDWWKH%RDUGSURSHUO\

excluded the environmental effects at issue here. Gov’t

Br. 20–21. While determining the reasonable scope of

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fails to acknowledge that common sense, caselaw, and

best analytical practices dictate that agencies should

DSSO\WKHVDPHVWDQGDUGVWRERWKFRVWVDQGEHQHÀWVSee,

e.g., Sigler, 695 F.2d at 979; Circular A-4, supra, at 11–13

H[SODLQLQJ IRU H[DPSOH WKDW FRVWV DQG EHQHÀWV PXVW

be analyzed against the same baseline assumptions).

Because the Board did not do so here and instead

KLJKOLJKWHG LQGLUHFW XQFHUWDLQ EHQHÀWV ZKLOH LJQRULQJ

similarly indirect but foreseeable costs, see infra Section

III, the limits it imposed on its analysis were arbitrary.

An interpretation of NEPA that allows agencies to take

FUHGLWIRULQGLUHFWRUXQFHUWDLQEHQHÀWVZKLOHGLVPLVVLQJ

the related environmental costs as too speculative would

promote irrational decisionmaking. See Sigler, 695 F.2d

at 979.

***

Pet it ioner s a nd t he G over n ment bot h u rge

interpretations of NEPA at odds with best analytical

practices and fundamental tenants of administrative law.

III. Just As It Accounted For Indirect And Uncertain

(FRQRPLF%HQHÀWV7KH%RDUG(DVLO\&RXOG+DYH

Accounted For Similarly Indirect But Foreseeable

Environmental Costs.

The Board’s EIS accounts for numerous indirect and

XQFHUWDLQ HFRQRPLF EHQHÀWV LQFOXGLQJ ´LQGLUHFWµ DQG

´LQGXFHGµ HPSOR\PHQW ORFDO WD[ UHYHQXH DQG EHQHÀWV

from increased oil production stimulated by the project.

JA326–46, Surface Transp. Bd., Uinta Basin Railway

Final Environmental Impact Statement 3.13-9 to -31

(2021), https://perma.cc/B2G4-XMEW [hereinafter

EIS]. Yet the Board refused to assess similarly indirect

but foreseeable environmental costs that are readily

TXDQWLÀDEOHGHVSLWHVRPHGHJUHHRIXQFHUWDLQW\³DVRWKHU

federal agencies’ analogous analyses prove. It is irrational

IRUDJHQFLHVWRVHOHFWLYHO\IRFXVRQEHQHÀWVZKLOHLJQRULQJ

costs. As Board Member Martin Oberman explained in

his Record of Decision dissent, “if the majority is to weigh

WKHHFRQRPLFEHQHÀWVRI>ORFDOHFRQRPLF@GHYHORSPHQWLW

should weigh all of its harms as well.” Pet. App. 142a n.21.

In short, the Board’s imbalanced approach violates best

analytical practices.

The Board quantified and touted multiple

indirect and uncertain economic and other

EHQHÀWV

The Board’s EIS and Record of Decision tout indirect

and induced economic effects by modeling employment,

labor income, local tax revenue, and regional economic

growth, even though these effects are projections and

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The Board relied on “indirect” and

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The Board used the IMPLAN model—an economic

model commonly used by government agencies to calculate

effects from policy changes or actions—to project

economic impacts like employment, largely by applying

“multiplier” rates to the project’s construction cost and

operation cost estimates. Surface Transp. Bd., Uinta

Basin Railway Final Environmental Impact Statement

App. Q at Q-1 to -4 (2021), https://perma.cc/LV9S-SMPL

[hereinafter EIS App. Q]. The EIS reports three types

of employment impacts:

• “Direct” employment includes not just construction,

operation, and management jobs for the railroad itself,

but also “impacts in the primary industries where

. . . expenditures [will be] made,” including jobs with

“railroad track manufacturers. Id. at Q-2.

• “Indirect” employment includes jobs in “industries that

supply or interact with the primary industries,” such

as the lumber industry that provides “source material”

for track manufacturers. Id.

• “Induced” jobs are one step fur ther removed.

They include potential new hires resulting from

“increased spending by workers who earn money due

to the proposed project, such as when construction

workers spend their wages at local restaurants.” Id.

Documentation on IMPLAN’s website elaborates

that induced jobs include new hires that result from

spending by direct employees on groceries and health

care,7 as well as “paying rent, eating out” and even

“buying engagement rings.”8

For the project’s recommended route,9 the EIS estimates

thousands of direct, indirect, and induced job-years created

over the two-year construction period, plus hundreds

of more direct, indirect, and induced jobs continuing

annually for long-term operation and maintenance—all

together worth nearly half a billion dollars in labor income.

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explicitly relies on those EIS estimates of “long-term

employment [and] labor income,” including “indirect and

induced employment,” to justify the project. Pet. App. 28a,

107a & n.14 (citing EIS, supra, at 3.13-26 to -33).

7. Joe Demski, Understanding IMPLAN: Direct, Indirect,

and Induced Effects, IMPLAN Blog (June 18, 2020), https://perma.

cc/X5KZ-EE9A.

8. Candi Clouse, Examining Results & Interpreting Direct,

Indirect, and Induced Effects, Launch IMPLAN (Nov. 12,

2019) (emphasis added), https://support.implan.com/hc/en-us/

articles/360038799153-Examining-Results-Interpreting-DirectIndirect-and-Induced-Effects (last visited Oct. 14, 2024).

9. The EIS considers three alternative routes: the Indian

Canyon Alternative, the Wells Draw Alternative, and the

Whitmore Park Alternative. The Whitmore Park route was the

preferred alternative. JA135–36.

Table: The Board’s Estimates of Direct, Indirect,

and Induced Employment from the Preferred Route

Direct Jobs

Indirect

Jobs

Induced Jobs

Jobs created

if direct

Examples

Construction;

employees

Industries

(given by

rail

spend

that supply

either the

operators;

at “local

primary

EIS or the

jobs at

restaurants,”

industries,

IMPLAN

“track

on groceries,

Model’s

manufacor even when

lumber

website)

turers”

“buying

engagement

rings”

1,510 job3,260 job1,240 jobJob-Year

years, plus

and

up to 120

up to 270

up to 80

Annual Job

annual

annual jobs

Estimates

jobs

Labor

$62

$316 million

$41 million

Income

million

Estimates

10. Data from EIS App. Q, supra, at Q-8 to -9.

11. Data from id. at Q-9.

The Board estimated local tax revenue

based on multiple assumptions.

The Board also took the projected labor income from

direct, indirect, and induced employment, made further

assumptions about the uncertain rate of in-state versus

out-of-state residency for new hires, and estimated $7.3

million in state income tax revenue for the preferred route.

JA340. For sales and use taxes on construction expenses,

the EIS estimates $27 million in state revenue, plus about

another million from operation-related taxes. JA341, 346.

The EIS qualitatively discusses even more indirect tax

revenue, from “county option sales taxes,” local levies to

support transit, right-of-way payments for the Ute Indian

Tribe, operational revenue for the Ute Indian Tribe “[i]f”

they “become an equity partner” in the railway, easement

revenue for the state land trust, business fees, and

“transient room tax revenue” from construction workers

residing in hotels. JA329–30, 340–41. The Record of

Decision relies on the EIS’s estimates of overall “local and

state tax revenue,” among other indirect and uncertain

HFRQRPLFEHQHÀWVWRMXVWLI\VHOHFWLQJWKHSUHIHUUHGURXWH

over other alternatives. Pet. App. 116a (citing EIS).12

12. Although tax revenue is actually one side of a zero-sum

transfer, Circular A-4, supra, at 14, the EIS considers only one

side of the transfer effect and treats “increased local tax revenue”

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from induced oil production, by assuming

Gulf Coast refineries will receive new

crude oil from the Uinta Basin.

Despite the Board’s insistence that induced oil

production is too “unknow n and unknowable” to

qualitatively assess certain upstream environmental

impacts, Pet. App. 31a, the Board had no qualms

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or certain than the environmental costs the Board refused

to calculate. See Pet. App. 123a (Oberman, dissenting)

´UDLV>LQJ@JUDYHFRQFHUQVµDERXWWKHSURMHFW·V´ÀQDQFLDO

viability given the increasingly uncertain global market

for crude oil”).

The EIS estimates that “between 49 and 131 new

wells annually” would be drilled to supply up to 350,000

additional barrels of oil per day to the railway. JA456.

This oil production scenario was developed in a 2018 “prefeasibility study.” Compare JA352–53, with Seven County

Infrastructure Coalition Response to OEA’s September

25, 2019 Information Request No. 2, at 2 & n.4 (Oct. 10,

2019), https://perma.cc/9V6N-53SY. That study conducted

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and then based its 350,000 barrel-per-day estimate on

“an assumed greater acceptance of the Uinta Basin’s

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Coast states.” R.L. Banks & Associates, Pre-Feasibility

Study of a Prospective Railroad Connecting the Uinta

Basin to the National Rail Network vii, 12 (Aug. 9, 2018),

https://perma.cc/A5FS-CC5E. In other words, the EIS’s

prediction of increased oil development—and all the

SURMHFWHGHFRQRPLFEHQHÀWVÁRZLQJIURPWKDWSUHGLFWHG

new development—was derived by assuming that Gulf

Coast refineries in particular would be receptive to

processing additional Uinta crude.

The Board then used that assumed capacity of

VSHFLÀFUHÀQHULHVWRSURMHFWWKDWWKH´HVWLPDWHGLQFUHDVH

in annual oil production would generate long-term

employment . . . , income taxes and sales and use taxes,”

plus “additional revenue for the state through royalties

and lease payments.” JA456. The EIS similarly predicts

P\ULDGHFRQRPLFEHQHÀWVIRUWKH8WH,QGLDQ7ULEHIURP

new oil and gas development stimulated by the railway,

including royalties, lease payments, compensation for

water use agreements, business fees, employment, income

for “Indian-owned businesses,” JA456–57, and “potential

lower transportation costs and access to new markets,”

JA330. The Record of Decision relies on the EIS’s

prediction of such royalty revenue and other “additional

revenue for Utah” from “new wells drilled” to help justify

the project. Pet. App. 107a (citing EIS, supra, at 3.15-51).

The EIS is even more quantitative about indirect

benefits from the subsequent construction of rail

terminals. Though beyond the scope of the Board’s review

authority, the EIS recounts how “shippers of crude oil

or other third parties would construct terminals” at

the railway’s end points. JA140. The EIS estimates that

terminal construction will create jobs for “up to 600

workers,” JA457, and terminal operations will create up

to 250 total long-term jobs, JA458 (providing estimates

for “each of the two rail terminals”). Each job created if

the project induces construction of terminals will in turn

indirectly generate “income taxes” and other economic

EHQHÀWV -$ 7KH (,6 IXUWKHU SURMHFWV WKDW LI WKH

terminals are constructed, “increase[d] employment for

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1,675 truck trips per day” needed to transport oil to the

rail terminals. JA458.

The Board calculated emission reduction

EHQHÀWVIURPGLYHUWHGWUXFNVE\DVVXPLQJ

average emission factors.

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EHQHÀWV WKDW WKH %RDUG SUHGLFWHG ZRXOG UHVXOW LI FUXGH

oil previously transported by heavily polluting trucks was

transported instead by rail. EIS, supra, at 3.7-14. The

EIS estimates annual reductions in particulate matter,

hazardous toxics, and carbon dioxide, in some cases down

to one-thousandth of a ton. Id. at 3.7-15 (calculating a 0.001

ton per year reduction in 1,3-Butadiene). To make these

calculations, the Board estimated the decrease in truck

miles and applied national-average emissions factors for

truck emissions per mile traveled, as well as road dust

emissions per mile traveled. Surface Transp. Bd., Uinta

Basin Railway Final Environmental Impact Statement

App. M at 59 (2021), https://perma.cc/SX4V-97QQ (using

data from EPA’s MOVES model and AP-42, which compile

air emissions factors).

***

The Board thus reported both quantitative and

qualitative estimates of indirect and uncertain economic

EHQHÀWVDQGRWKHUEHQHÀWV³HYHQWKRXJKWKRVHEHQHÀWV

are several steps removed from the railway project. To

do so, the Board made multiple assumptions, including

that: specific refineries would likely receive new oil

production stimulated by the railway, third parties outside

the Board’s jurisdiction would construct terminals, and

average emissions factors applied to local short-haul

trucks. The Board’s refusal to also discuss foreseeable,

if indirect, environmental costs was biased and arbitrary,

particularly because other agency EISs demonstrate how

such costs could have been readily assessed, as shown

next.

B. The Board’s refusal to assess indirect effects

OLNHUHÀQHU\HPLVVLRQVGLYHUJHVIURPLWVRZQ

DSSURDFK WR FDOFXODWLQJ HFRQRPLF EHQHÀWV

other agencies’ NEPA reviews, and best

analytical practices.

The same assumptions and approaches that the

Board relied on to quantitatively or qualitatively estimate

LQGLUHFW XQFHUWDLQ EHQHÀWV³OLNH HPSOR\PHQW WD[HV

or emissions reductions from diverted trucks—could

have been applied to assess environmental effects that

the Board ignored, like emissions from downstream

UHÀQHULHV,QGHHGRWKHUDJHQFLHVURXWLQHO\DVVHVVVXFK

effects in their EISs. The Board’s failure to do so was

inconsistent, biased, and arbitrary.

Other agencies’ analyses routinely assess

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3XEOLFFRPPHQWHUVÁDJJHGKRZDGGLWLRQDOVKLSPHQWV

RIWKRXVDQGVRIEDUUHOVDQQXDOO\WR*XOI&RDVWUHÀQHULHV

could increase air emissions in “some of the most

polluted [areas] in the nation” and in communities

“disproportionately plagued by high levels of toxic

and criteria pollutants.” JA540. The Board responded

that expanding the scope of the EIS “would not be

appropriate.” JA540. The EIS never qualitatively, let alone

TXDQWLWDWLYHO\DVVHVVHVLPSDFWVIURPUHÀQHU\DFWLYLW\

Yet other federal agencies’ EISs demonstrate how

straightforward it would have been for the Board to

assess this important indirect environmental impact.

For example, in a recent EIS on an Alaskan development

plan, the Bureau of Land Management acknowledged that

RLOGHYHORSHGXQGHUWKHSODQZRXOGLQHYLWDEO\EHUHÀQHG

Bureau of Land Mgmt., Willow Master Development Plan

Final Supplemental Environmental Impact Statement,

App. E.3C-6 (2023), https://perma.cc/9T8R-5HG9. It

IXUWKHU QRWHG WKDW RLO UHÀQHULHV LQ JHQHUDO³LQFOXGLQJ

7H[DVUHÀQHULHVIDURXWVLGHWKH$ODVNDQSURMHFWDUHD³

emit various hazardous air pollutants, including “benzene,

toluene, hydrocarbons, and other volatile pollutants,” and

WKDWVXFKUHÀQHU\HPLVVLRQVPD\FRUUHODWHZLWK´VHULRXV

health impacts,” including “elevated risk of cancer

diagnostics across all observed cancer types.” Id. at App.

E.3C-8.

Other agencies go further and quantify changes

in air emissions from oil refineries, even when such

emissions are the indirect and not 100% certain result

of the agency’s action. For example, in 2020, when the

Trump administration’s NHTSA decreased vehicle

fuel economy standards, the agency calculated how the

resulting increased demand for gasoline would lead to

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DGGLWLRQDORLO6SHFLÀFDOO\1+76$SUHVHQWHGDGGLWLRQDO

nationwide emissions of a range of criteria and hazardous

pollutants from indirect “upstream” effects, including

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7KH 6DIHU $IIRUGDEOH )XHO(IÀFLHQW 6$)( 9HKLFOHV

Rule for Model Year 2021–2026 Passenger Cars and Light

Trucks Final Environmental Impact Statement 4-29 to

-46 (2020), https://perma.cc/L6N8-5RMA [hereinafter

SAFE FEIS]; id.DW GHÀQLQJ´XSVWUHDPHPLVVLRQVµ

WRLQFOXGHUHÀQHU\HPLVVLRQV 1+76$HYHQHVWLPDWHGWKH

precise contribution to negative health outcomes per ton of

DGGLWLRQDOUHÀQHU\HPLVVLRQVIURPLQFUHDVHGSUHPDWXUH

mortality to number of work-days lost from exposure

to particulate matter. Id. at 4-28 (showing “incidenceSHUWRQ YDOXHV IRU KHDOWK RXWFRPHVµ IRU WKH ´UHÀQHULHV

sector”). See also, e.g., Bureau of Ocean Energy Mgmt.,

Outer Continental Shelf Oil and Gas Leasing Program:

2017–2022 Final Programmatic Environmental Impact

Statement 4-6 to -7 (2016), https://perma.cc/4R9W-HFJ4

(quantifying particulate emissions from cumulative

activities, including “onshore processing of oil and gas

products”).

The Board could have used comparable

assumptions and tools to assess the

VLJQLÀFDQW FRVW RI LQGLUHFW HIIHFWV OLNH

UHÀQHU\HPLVVLRQV

The Board could have followed the best practices of

WKHVHRWKHUIHGHUDO(,6VDQGDVVHVVHGUHÀQHU\HPLVVLRQV

either quantitatively or qualitatively. Just as the Board

predicted that the railway’s construction would induce

new hiring at local restaurants and hotels as well as

indirect tax revenue, the Board could have reasonably

foreseen that the railway would induce new oil production

WKDWLQHYLWDEO\ZRXOGJRWRUHÀQHULHV-XVWDVWKH%RDUG

DVVXPHG FDSDFLW\ DW VSHFLÀF UHÀQHULHV WR SUHGLFW QHZ

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%RDUGFRXOGKDYHUHDVRQDEO\IRUHVHHQLQFUHDVHGUHÀQHU\

activity in the Gulf Coast. And just as the Board used

national average emission factors to quantify emissions

reduction EHQHÀWVfrom the projected diversion of shorthaul trucks, the Board could have used similar national

average emissions factors to estimate the cost of increased

HPLVVLRQVDWUHÀQHULHV

NHTSA’s methodology to calculate downstream

ref inery emissions from its fuel-economy rule is

instructive. NHTSA used the GREET Fuel-Cycle Model,

a model developed by the Department of Energy’s

(DOE’s) Argonne National Laboratory. SAFE FEIS,

supra, at 2-21. DOE’s GREET Model provides a variety

of free, easy-to-use spreadsheets, online calculators, and

modules to calculate emissions from energy systems and

infrastructure. Argonne National Laboratory, Energy

Systems and Infrastructure Analysis R&D GREET

Model, https://greet.anl.gov/index.php (last visited Oct

14, 2024).

,Q'2(SXEOLVKHGD5HÀQHU\3URGXFWV9RODWLOH

Organic Compounds (VOC) Emissions Estimator tool,

which provides, among other useful outputs, statistics on

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input of number of barrels-per-day of crude petroleum.

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Organic Compounds Emissions Estimator (RP-VOC),

KWWSVJUHHWDQOJRYILOHVUSBYRFBPDQXDO ODVW YLVLWHG

Oct. 14, 2024). That tool, for example, shows that, when

processing 200,000 barrels-per-day,13UHÀQHULHVW\SLFDOO\

would emit about 350 tons per year of VOCs.14

For comparison, 350 tons is nearly ten times the

annual operations-related VOC emissions that the

Board estimated would occur “from locomotives, worker

commuting, and reductions in truck trips,” EIS, supra,

at 3.7-25 to -26 (estimating 40 tons/year in VOCs for the

SUHIHUUHGURXWH·VKLJKWUDIÀFVFHQDULR $QGLW·VRYHU

WLPHVWKH´HPLVVLRQVEHQHÀWVµWKDWWKH%RDUGFDOFXODWHG

from VOC reductions due to “diverted crude oil truck

trips.” Id. at 3.7-15 (estimating a 0.42 ton/year reduction

in VOCs). It is arbitrary for the Board to claim that the

environmental and health costs of hundreds of tons of

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ZDVQRWVXIÀFLHQWO\IRUHVHHDEOHRUDQDO\]DEOHWRLQFOXGHLQ

its EIS, when it used similar assumptions and methods to

TXDQWLI\DQDVVXPHGEHQHÀWIURPUHGXFLQJMXVWWRQV

of VOC emissions from indirect truck diversions.

13. The Board estimated the railway would transport

between 130,000–350,000 barrels-per-day of new, increased

production from Uinta Basin. JA352.

14. The spreadsheet tool, based on copyright-protected

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7KH ´92&B6XPPDU\µ WDE VKRZV ´QDWLRQDO DYHUDJHµ HPLVVLRQV

IRU ´7DQN (PLVVLRQV 5HÀQHU\µ WRQV\U DQG ´)XJLWLYH

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CONCLUSION

Analysis that encompasses full consideration of

indirect and uncertain EHQHÀWV without also attending

to similarly indirect and uncertain—but foreseeable and

non-speculative—environmental costs, as the Board does

KHUHLVQRWUDWLRQDO7KH&RXUWVKRXOGDIÀUP

Respectfully submitted,

JASON A. SCHWARTZ

Counsel of Record

JESSICA H. A RNELL

BRIDGET C. PALS

INSTITUTE FOR POLICY INTEGRITY

139 MacDougal Street, Third Floor

New York, NY 10012

(212) 998-6222

jason.schwartz@nyu.edu

Counsel for Amicus Curiae

Institute for Policy Integrity

October 25, 2024

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.