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

No. 23-975

IN THE

Supreme Court of the United States

SEVEN COUNTY INFRASTRUCTURE

COALITION, et al.,

Petitioners,

v.

EAGLE COUNTY, COLORADO, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF A PPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF FORMER COUNCIL ON

ENVIRONMENTAL QUALITY OFFICIALS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

DAVID T. GOLDBERG

DONAHUE, GOLDBERG

& HERZOG

240 Kent Avenue

Brooklyn, NY 11249

SEAN H. DONAHUE

Counsel of Record

*MEGAN M. HERZOG

*KERI R. DAVIDSON

DONAHUE, GOLDBERG

& HERZOG

1008 Pennsylvania Avenue,

Southeast

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

6XSHUYLVHGE\PHPEHUVRIWKHÀUPZKRDUHPHPEHUVRI

the D.C. Bar

Counsel for Amici Curiae

333888

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................... 6

I.

Reasonable Foreseeability, as Long

Understood by CEQ, Guides the Range of

Effects Analyzed Under NEPA...................... 6

II. Petitioners’ Various Proposals to Broadly

Exempt Otherwise Reasonably Foreseeable

Effects from Environmental Review Would

Contravene NEPA........................................ 15

A. Limiting Environmental Review to

Effects Under the Agency’s Regulatory

Authority Makes No Statutory Sense.... 15

B. Neither NEPA’s “Rule of Reason” Nor Ad

Hoc Assertions of “[Im]materiality”

Entitle Agencies to Disregard Significant,

Reasonably Foreseeable Environmental

Effects They Would Prefer Not to

Study. ...................................................... 23

III. Congress’s Recent NEPA Amendments

Require Agencies to Analyze All Reasonably

Foreseeable Effects—Not Merely Direct

Effects Within the Agency’s Regulatory

Jurisdiction or Traditional Expertise. ........ 27

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrus v. Sierra Club,

442 U.S. 347 (1979)............................................ 9, 20

Calvert Cliffs’ Coordinating Comm., Inc. v. U.S.

Atomic Energy Comm’n,

449 F.2d 1109 (D.C. Cir. 1971) .................. 16, 17, 21

Carolina Envtl. Study Group v. United States,

510 F.2d 796 (D.C. Cir. 1975) .................................9

Chelsea Neighborhood Ass’ns v. U.S. Postal Serv.,

516 F.2d 378 (2d Cir. 1975) ................................... 13

Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752 (2004).................... 9, 10, 11, 12, 25, 26

George v. McDonough,

596 U.S. 740 (2022)................................................ 28

Harrison v. Missouri Pac. R.R. Co.,

372 U.S. 248 (1963)................................................ 12

Louisiana Power & Light Co. v. Federal Power

Comm’n,

557 F.2d 1122 (5th Cir. 1977) .................................9

Luna Perez v. Sturgis Public Schools,

598 U.S. 142 (2023)................................................ 31

Marsh v. Or. Nat. Res. Council,

490 U.S. 360 (1989)................................................ 24

Metro. Edison Co. v. People Against

Nuclear Energy,

460 U.S. 766 (1983)........................ 13, 14, 26, 30, 32

iii

Motor Vehicle Mfrs. Ass’n of U.S. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983).................................................. 23

Nat’l Helium Corp. v. Morton,

486 F.2d 995 (10th Cir. 1973) ..................................9

NRDC v. Morton,

458 F.2d 827 (D.C. Cir. 1972) ................................ 21

Piedmont Envtl. Council v. FERC,

558 F.3d 304 (D.C. Cir. 2009) ................................ 10

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989).................................... 10, 22, 26

Scientists’ Inst. for Public Info., Inc. v.

Atomic Energy Comm’n,

481 F.2d 1079 (D.C. Cir. 1973) ................ 8, 9, 14, 24

Sierra Club v. Marsh,

769 F.2d 868 (1st Cir. 1985) .................................. 21

Sierra Club v. Marsh,

976 F.2d 763 (1st Cir. 1992) ...................... 10, 12, 28

Sierra Club v. Morton,

379 F. Supp. 1254 (D. Colo. 1974) ..........................9

Sierra Club v. Sigler,

695 F.2d 957 (5th Cir. 1983).................................. 13

Swain v. Brinegar,

542 F.2d 364 (7th Cir. 1976) ...................................9

Statutes

33 U.S.C. § 1371(c)..................................................... 19

42 U.S.C. § 4321 ...................................................... 3, 7

iv

42 U.S.C. § 4331 ..........................................................7

42 U.S.C. § 4331(b) ................................................ 3, 19

42 U.S.C. § 4332. ............................... 3, 4, 7, 16, 20, 31

42 U.S.C. § 4332(2)(B) ............................................... 18

42 U.S.C. § 4332(2)(C) ..................................... 4, 17, 20

42 U.S.C. § 4332(2)(C)(i) ........................................ 6, 28

42 U.S.C. § 4332(2)(C)(ii)....................................... 6, 28

42 U.S.C. § 4332(2)(C)(iii) ..................................... 7, 20

42 U.S.C. § 4332(2)(C)(v) ........................................... 21

42 U.S.C. § 4333 .................................................... 7, 16

42 U.S.C. § 4335 .................................................... 7, 16

42 U.S.C. § 4336(a)(3) ............................................... 17

42 U.S.C. § 4336(a)(4) ......................................... 17, 28

42 U.S.C. § 4336(b) .................................................... 28

42 U.S.C. § 4336a(a)(3) ............................................. 17

42 U.S.C. § 4336a(e) .................................................. 27

42 U.S.C. § 4336a(g) .................................................. 27

42 U.S.C. § 4342 ..........................................................1

42 U.S.C. § 5159 ........................................................ 20

42 U.S.C. § 7609(a) .................................................... 20

42 U.S.C. § 7609(a)(2) ................................................ 17

42 U.S.C. § 7609(b) .................................................... 20

Pub. L. No. 91-190, 83 Stat. 852 (1970)......................1

Pub. L. No. 94-83, 89 Stat. 424 (1975)...................... 27

v

Pub. L. No. 117-58 (2021).......................................... 31

Pub. L. No. 118-5, 137 Stat. 38 (2023)...................... 27

Pub. L. No. 118-105 (2024)........................................ 31

Rules

35 Fed. Reg. 7,390 (Apr. 30, 1970) ..............................7

36 Fed. Reg. 7,724 (Apr. 23, 1971) ..............................8

40 C.F.R. § 1500.3(a) ...................................................9

40 C.F.R. § 1501.5(f) .................................................. 18

40 C.F.R. § 1501.8 ...................................................... 18

40 C.F.R. § 1502.22 .................................................... 10

40 C.F.R. § 1508.1(aa) (July 16, 2020). ..................... 10

40 C.F.R. § 1508.1(aa) (2021) .................................... 29

40 C.F.R. § 1508.1(g) (2020) ...................................... 29

40 C.F.R. § 1508.1(g)(2) (2020) .................................. 29

40 C.F.R. § 1508.1(i)(3) .............................................. 19

40 C.F.R. § 1508.8 ...................................................... 11

40 C.F.R. § 1508.8(b) (1979) ................................ 2, 6, 9

43 Fed. Reg. 55,978 (Nov. 29, 1978) ....................... 6, 9

51 Fed. Reg. 15,625 (Apr. 25, 1986) ...................... 9, 10

85 Fed. Reg. 43,304 (July 16, 2020) .................... 10, 29

87 Fed. Reg. 23,453 (Apr. 20, 2022) .......................... 29

vi

Other Authorities

169 Cong. Rec. H2704 (daily ed. May 31, 2023) ....... 28

CEQ Memorandum for Heads of Federal Agencies:

Designation of Non-Federal Agencies to be

Cooperating Agencies in Implementing the

Procedural Requirements of NEPA

(July, 28, 1999)....................................................... 18

CEQ Memorandum for Deputy/Assistant Heads of

Federal Agencies: Identifying Non-Federal

Cooperating Agencies in Implementing the

Procedural Requirements of the National

Environmental Policy Act (Sept. 25, 2000) ........... 18

CEQ Memorandum for Heads of Federal Agencies:

Cooperating Agencies in Implementing the

Procedural Requirements of the National

Environmental Policy Act, (Jan. 30, 2002) ........... 18

Conf. Rept. 91-765 (1969).......................................... 17

Exec. Order No. 11514 (1970) .....................................9

Exec. Order No. 11991 (1977) .....................................9

Exec. Order No. 13807 (2017) ................................... 10

Forty Most Asked Questions Concerning CEQ’s

National Environmental Policy Act Regulations,

46 Fed. Reg. 18,026 (Mar. 23, 1981) ......... 12, 13, 18

H.R. 1577, 118th Cong. (2023) .................................. 30

H.R. 2515, 117th Cong. (2021) .................................. 30

H.R. 8333, 116th Cong. (2020) .................................. 30

Hearing Memorandum, House Committee on Natural

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

vii

Hearings on S.1075, S. 237 and S. 1752 before Sen.

Comm. on Interior and Insular Affairs, 91st Cong.,

1st Sess. 206 (1969) ............................................... 16

Joint House-Senate Colloquium to discuss a National

Policy for the Environment: Hearings Before the

Senate Comm. on Interior and Insular Affairs, and

the House Comm. on Science and Astronautics,

90th Cong., 2d Sess. 15 (1968) .............................. 15

Letter from Members of U.S. House of

Representatives, to the Honorable Brenda Mallory,

CEQ Chair (Dec. 10, 2021), available at

https://naturalresources.house.gov/uploadedfiles/w

esterman_et_al_to_mallory_re_nepa_

revisions.pdf ........................................................... 29

Memorandum from Kathleen A. McGinty, CEQ

Chair, to Heads of Agencies on the Application of

the National Environmental Policy Act to Proposed

Federal Actions in the United States with

Transboundary Effects (July 1, 1997) ................... 19

Memorandum from Timothy Atkeson, General

Counsel, CEQ, to Agency and General Counsel

Liaison on NEPA Matters (May 16, 1972),

available at https://bit.ly/3NF4Ctz..........................8

S. Rep. No. 91-296, Comm. on Interior & Insular

Affairs, on S. 1075 (July 9, 1969) ................ 3, 16, 21

The White House, Fact Sheet: Biden Harris

Administration Takes Action to Deliver More

Projects More Quickly, Accelerates Federal

Permitting (Aug. 29, 2024) .................................... 32

Third Restatement of Torts ch. 6 (2010) (Special Note

on Proximate Cause).............................................. 14

viii

Third Restatement of Torts § 29,

Comment b (2010).................................................. 14

1

INTEREST OF AMICI CURIAE 1

In the National Environmental Policy Act of 1969

(NEPA), Congress established the Council on Environmental Quality (CEQ), an agency within the Executive Office of the President, to oversee the statute’s

administration and guide its implementation across

the federal government. 42 U.S.C. § 4342; Pub. L. No.

91-190, 83 Stat. 852 (1970). Since 1977, CEQ has been

tasked with developing regulations concerning

NEPA’s administration that are uniform and binding

on all federal agencies. Amici are former CEQ officials

who collectively served in every Presidential Administration from 1974 to 2007.

Gary Widman was CEQ’s General Counsel during the Nixon and Ford Administrations (1974-77);

Kenneth Weiner was CEQ counsel during the Ford

and Carter Administrations (1976-78) and Deputy Executive Director during the Carter Administration

(1978-80); Gus Speth was a Member of CEQ (197779) and Chair (1979-81) during the Carter Administration; Nicholas C. Yost was CEQ’s General

Counsel during the Carter Administration (1977-81);

Dinah Bear was CEQ’s Deputy General Counsel during the Reagan Administration (1981-83) and General

Counsel during the Reagan and George H.W. Bush administrations (1983-93) and the Clinton and George

W. Bush Administrations (1995-2007); Lucinda Low

Swartz was CEQ’s Deputy General Counsel during

1 No party’s counsel authored this brief in whole or in part,

and no person or entity other than amici curiae or their counsel

contributed monetarily to the preparation or submission of this

brief.

2

the Reagan and George H.W. Bush Administrations

(1986-89; 1990-93); Ray Clark was CEQ’s Associate

Director for NEPA during the George H.W. Bush and

Clinton Administrations (1992-99); and George

Frampton was Chair of CEQ during the Clinton Administration (1998-2001).

Petitioners and other parties have made claims

about the statute’s history and meaning—including

about CEQ’s longstanding interpretation of which environmental effects agencies must consider in their

NEPA analyses. Amici, as officials involved in CEQ’s

original 1978 regulation and its 1986 amendments,

and having had responsibility for interpreting, implementing, and overseeing the statute within the Executive Branch, have significant experience regarding

NEPA administration over time and aim to assist the

Court in understanding these issues.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This case implicates questions about the scope of

federal agencies’ responsibility under NEPA to ascertain, consider, and disclose the effects of actions they

propose. Since early on, the courts and CEQ have implemented NEPA’s review provisions to require agencies to analyze not only the significant direct effects of

proposed actions and reasonable alternatives but also

those more remote in time and place, if still “reasonably foreseeable,” 40 C.F.R. § 1508.8(b) (1979), irrespective of whether such effects may fall within another

agency’s regulatory authority.

That understanding flows from the statute.

NEPA’s environmental review process grew out of

3

Congress’s deep and well-informed conviction by the

late 1960s that national policies were critical to preventing and minimizing future environmental damage, to mitigating prior damage, and to institutionalizing a policy of environmental stewardship across all

arms of the federal government. Confronting a world

in which economic and technological growth had produced a range of serious threats to public health and

natural resources, Congress overwhelmingly concluded that it was time to elevate environmental quality to a central consideration in national decisionmaking. The stakes were high:

The survival of man, in a world in which decency

and dignity are possible, is the basic reason for

bringing man’s impact on his environment under informed and responsible control…. Today

we have the option of channeling some of our

wealth into the protection of our future. If we fail

to do this in an adequate and timely manner, we

may find ourselves confronted … with an environmental catastrophe that could render our

wealth meaningless and which no amount of

money could ever cure.

S. Rep. No. 91-296, Comm. on Interior & Insular Affairs, on S. 1075, at 17 (July 9, 1969).

The statute Congress enacted commits the entire

Executive Branch and each of its individual agencies

to preventing, limiting, and undoing environmental

damage. 42 U.S.C. §§ 4321, 4331(b), 4332. NEPA’s

primary procedural mandate is an environmental review process, whereby every federal agency proposing

major federal actions with potentially significant environmental impacts must remove its mission-

4

oriented blinders and identify and study the full range

of potential adverse and beneficial impacts and reasonable alternatives—and must inform and actively

involve other agencies, state, local, and tribal governments, and the public in that process. Id. § 4332(2)(C).

Congress emphasized the high priority of compliance

by “all agencies of the Federal Government” by commanding that the environmental review provisions be

carried out “to the fullest extent possible.” Id. § 4332.

The concept of reasonable foreseeability guides the

scope of that environmental review process. This understanding was articulated in early NEPA case law

and CEQ’s earliest guidance, then codified in the text

of CEQ regulations that have been in effect since

1978. As Amici can attest, this understanding has informed Executive Branch practice across presidential

Administrations over decades, guiding thousands of

NEPA decisions. It continues to be consistent with

courts’ interpretation of the statute. And the regulation’s operative all “reasonably foreseeable” effects

language has been codified in the statute, 42 U.S.C.

§ 4332(2)(C) (2023), since this case was decided below.

Petitioners do not dispute that “reasonable foreseeability” is the standard, but, citing a litany of complaints about delays in the NEPA process, ask the

Court to drastically reinterpret the well-settled, commonsense concept, effectively creating new rules exempting agencies from taking account of environmental effects that are reasonably foreseeable (or even certain) because those effects are outside the agency’s direct regulatory control or expertise, or because they

would not support damages liability in a common-law

tort suit. Pet. Br. 1. Reasonable foreseeability is not—

5

and consistently with the statute, cannot be—

freighted with the restrictive meanings petitioners ascribe to it.

As respondents explain, these various requests

have reached the Court in irregular fashion: None of

them was relied on by the agency below, nor was the

court of appeals’ remand premised on a judgment that

the agency had misunderstood or misapplied the “reasonable foreseeability” principle; and most were not

raised below or in the certiorari petition. Eagle

County Br. 16-17, 19-21.

But in any event, each of the proposed innovations

is at odds with the statute, as it has been consistently

and correctly understood over decades. “Reasonably

foreseeable effects” is not a license for excluding indirect or geographically distant effects; rather, it long

has been recognized, and now is explicitly codified in

statute, that agencies must consider all effects that a

reasonable person would think germane to the decision. Likewise, contentions that agencies need only

consider effects within their own authority is starkly

incompatible with NEPA. Nor does the “rule of reason”—a mandate to administer and interpret NEPA

sensibly, in light of its stated purposes and design—

endow agencies (or courts) with authority to impose

limitations that contravene the statute.

Finally, Congress’s recent amendments to NEPA

not only serve as a reminder of the proper forum to

work out policy arguments like those which populate

petitioners’ brief, but point in substance directly

against petitioners’ arguments. While Congress enacted provisions directly addressing the length and

timing of Environmental Impact Statements (EISs), it

6

rejected proposals to enact a test indistinguishable

from what petitioners seek here—instead enacting

text that explicitly confirms the reasonable foreseeability standard with more than fifty years of settled

usage in NEPA law. 42 U.S.C. § 4332(2)(C)(i)-(ii).

Those very recent amendments (and other measures

currently under consideration in the Legislative

Branch) only underline that Congress is the proper forum for the kinds of abrupt changes petitioners seek

here and show their plea that the Court step into the

NEPA reform business to be peculiarly ill-timed.

ARGUMENT

I.

Reasonable Foreseeability, as Long Understood by CEQ, Guides the Range of Effects

Analyzed Under NEPA.

Since shortly after NEPA’s enactment, CEQ has

understood its environmental-review provision to require federal agencies to consider all “reasonably foreseeable” consequences of proposed actions—including

not only a project’s “[d]irect effects,” e.g., its immediate disturbance of the surrounding environment, but

also significant “[i]ndirect” consequences that “are

later in time or farther removed in distance” but could

ensue if the project proceeded. 40 C.F.R. § 1508.8(b)

(1979) (defining “[e]ffects” to be analyzed under

NEPA). This understanding is expressed in CEQ’s

earliest guidance and in the first judicial decisions addressing the scope of NEPA’s effects analysis. And

since 1978, it has been codified in CEQ regulations

that have long guided Executive Branch practice. See

43 Fed. Reg. 55,978, 56,004 (Nov. 29, 1978).

7

The concept of reasonable foreseeability follows

from NEPA’s central premise: Degradation of the Nation’s environment is unlikely to be arrested if agencies act heedless of damaging environmental consequences. See 42 U.S.C. §§ 4321, 4331, 4332. Congress

understood the challenges to its goals posed by the siloing effect of agency missions and the often incremental and cumulative character of the most serious and

intractable environmental problems. The statute

makes environmental protection the concern of every

agency, see id. §§ 4332, 4333, 4335, and directs implementation of its policies “to the fullest extent possible.” Id. § 4332. Critically, Congress recognized that

the best opportunities for avoiding or at least limiting

environmental harm are lost when agencies commit to

a course of action without first identifying and examining alternatives that serve legitimate agency objectives at lesser environmental cost. Id. § 4332(2)(C)(iii).

Consistent with that statutory design, CEQ has always counseled federal agencies that an EIS must discuss significant environmental effects even if they will

manifest in the future or outside the project area or

will result from several interacting activities. But

from the beginning, CEQ has also made clear that

agencies need not venture into speculation or conjecture. Four months after NEPA was enacted, CEQ

guidance explained that agencies must consider their

proposed actions’ “primary and secondary significant

consequences for the environment.” Statements on

Proposed Federal Actions Affecting the Environment:

Interim Guidelines, 35 Fed. Reg. 7,390, 7,391 (Apr. 30,

1970). And a 1972 CEQ memorandum to all agencies

explained that NEPA requires each EIS to discuss the

“full range of …reasonably foreseeable impacts.”

8

Memorandum from Timothy Atkeson, General Counsel, CEQ, to Agency and General Counsel Liaison on

NEPA Matters (May 16, 1972). 2

Early judicial decisions are to the same effect. For

instance, in Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, the D.C.

Circuit rejected the agency’s contention that a nuclear

reactor development “program ha[d] not yet reached

th[e] stage where a NEPA statement … would be either feasible or meaningful.” 481 F.2d 1079, 1086

(D.C. Cir. 1973). The court agreed that NEPA does not

require an agency “to look into [a] crystal ball” or analyze events that are truly “remote and speculative.”

Id. at 1086 (internal quotations omitted). But NEPA

“plainly contemplates consideration of ‘both the longand short-range implications to man, his physical and

social surroundings, and to nature.’” Id. at 1090 (quoting CEQ, NEPA Guidelines, 36 Fed. Reg. 7,724 (Apr.

23, 1971)). NEPA, the court then explained, “is not a

paper tiger, but neither is it a straightjacket,” id. at

1091-92 (cleaned up). It did “not require the Commission to forecast the deployment and effects of [the subject] power reactors [30 years in the future] in the

same detail or with the same degree of accuracy as another agency might have to forecast the increased

traffic congestion likely to be caused by a proposed

highway.” Id. at 1092. If an agency were to “make[] a

good faith effort … to describe the reasonably foreseeable environmental impact[s] of [its] program,” and

2 Available at https://bit.ly/3NF4Ctz.

9

alternatives, its analysis likely would satisfy NEPA.

Id. 3

In 1978, following extensive public comment and

interagency consultation, CEQ’s initial implementing

regulations codified this settled understanding of the

scope of NEPA’s environmental review process. See 43

Fed. Reg. at 55,980, 56,004; 40 C.F.R. § 1508.8(b)

(1979). 4 For decades, spanning Administrations of

3 Accord Nat’l Helium Corp. v. Morton, 486 F.2d 995, 1002

(10th Cir. 1973); Sierra Club v. Morton, 379 F. Supp. 1254, 1259

(D. Colo. 1974); Louisiana Power & Light Co. v. Federal Power

Comm’n, 557 F.2d 1122, 1124 (5th Cir. 1977) (agency “must make

a good faith effort to describe the reasonably foreseeable environmental impact” of plans); Swain v. Brinegar, 542 F.2d 364, 368

(7th Cir. 1976) (“An EIS need not review all possible environmental effects of a project. It is sufficient if it considers only those

which are ‘reasonably foreseeable.’”) (quoting Carolina Envtl.

Study Group v. United States, 510 F.2d 796, 798-99 (D.C. Cir.

1975)); 51 Fed. Reg. 15,617, 15,622 (Apr. 25, 1986) (describing

the “long history of use” of the term “reasonably foreseeable” “to

describe what kind of environmental impacts federal agencies

must analyze in an EIS” and citing cases).

4 Other amici seek to draw into question CEQ’s authority to

promulgate NEPA regulations implementing NEPA’s procedural

provisions or argue that regulations do not deserve weight in judicial analyses. See, e.g., NextDecade LNG, LLC Br. 2-3, 8, 1116. But their promulgation implemented presidential directives.

40 C.F.R. § 1500.3(a); Exec. Order No. 11991, §3(h) (1977) (order

of President Carter directing CEQ to issue regulations binding

on all federal agencies, including procedures to refer interagency

conflicts concerning environmental impact assessment to CEQ);

see also Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) (applying

CEQ’s regulations); Dep’t of Transp. v. Pub. Citizen, 541 U.S.

752, 757 (2004) (CEQ was “established by NEPA with authority

to issue regulations interpreting it”); Exec. Order No. 11514

(1970) (order of President Nixon directing CEQ to issue guidelines on environmental impact assessment); Exec. Order No.

10

different political parties, CEQ has consistently adhered to its interpretation. Other than an amendment

to a single regulatory provision in 1986, 51 Fed. Reg.

15,625 (Apr. 25, 1986) (amending 40 C.F.R.

§ 1502.22), see Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 356 (1989), the 1978 regulations remained unchanged for four decades. In 2020,

CEQ defined “[r]easonably foreseeable” to mean “sufficiently likely to occur such that a person of ordinary

prudence would take it into account in reaching a decision,” 40 C.F.R. § 1508.1(aa) (July 16, 2020). See 85

Fed. Reg. 43,304, 43,351 (July 16, 2020) (citing Sierra

Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992)); see

also infra p. 29 (discussing other, since-withdrawn

regulatory modifications from 2020). The operative

regulatory language requiring consideration of reasonably foreseeable effects of proposed actions, including indirect ones, remains in effect.

That fundamental understanding of what is and is

not required to be in an EIS has guided thousands of

federal agency actions implementing NEPA—

including Environmental Impact Statements as well

as Environmental Assessments, scoping decisions,

and many others. Countless judicial decisions—including this Court’s decisions—have embraced and

applied CEQ’s understanding. See, e.g., Public

13807, §5(e) (2017) (order of President Trump directing that CEQ

use its authority to interpret NEPA to “reduce[] unnecessary burdens and delays”); Piedmont Envtl. Council v. FERC, 558 F.3d

304 (D.C. Cir. 2009) (agencies must consult CEQ prior to promulgating and finalizing NEPA procedures or amendments).

11

Citizen, 541 U.S. at 757, 766 (quoting and applying 40

C.F.R. § 1508.8).

Petitioners ostensibly recognize that NEPA requires agencies to “consider ‘reasonably foreseeable

environmental effects of the proposed agency action,’”

that this Court has affirmed that understanding, and

that Congress has since codified it. Pet. Br. 8. But they

nonetheless assert that the settled principle of reasonable foreseeability limits agencies’ consideration to

the “actual environmental effects that are … consequences of the project itself,” id. at 41 (emphasis

added), and does not extend to eminently foreseeable

environmental effects that are removed in time and

place or entail some intervening “non-environmental”

action—such as contamination attributable to “new

development [of oil drilling] in the Uinta Basin” that

the project here was meant to “spur[]” or an environmentally catastrophic “rail accident[]” resulting from

unsafe operation of an oil-filled train. Id. at 38, 41. 5

That contention contravenes NEPA fundamentals

and CEQ’s understanding over decades. To begin, the

phrase “reasonably foreseeable” does not suggest a

distinction between direct and indirect environmental

effects, let alone the exemptions petitioners urge.

5 Notably, despite Petitioners’ myriad references (e.g., Pet.

Br. 30, 31, 34, 39, 41, 44, 46, 48), the nature and scope of agencies’

obligations under NEPA to consider climate impacts are not at

issue here. The Surface Transportation Board did quantify the

greenhouse-gas emissions expected to result from the project,

Pet.App.28a, and the court below upheld that analysis, id. 66a.

The court of appeals found fault only with the agency’s discharge

of its separate obligations under the ICC Termination Act,

Pet.App.68a. See also Env. Resp. Br. 16-17 & n.17.

12

Rather, it focuses principally on whether one should

fairly expect the harmful effects (however they come

about), and, in the NEPA context, how certain, substantial, and measurable the effect may be. See Sierra

Club v. Marsh, 976 F.2d at 767-71. Cf. Harrison v.

Missouri Pac. R.R. Co., 372 U.S. 248, 249 (1963) (per

curiam) (explaining that “intentional or criminal

[third-party] misconduct” is “irrelevant” to “reasonable foreseeability”). More important, the “reasonably

foreseeable” language petitioner embraces has, for

decades, been associated with a CEQ regulation that

by its terms addresses which indirect effects, i.e., “remote in time and place,” the statute requires agencies

to study. See, e.g., Public Citizen, 541 U.S. at 757.

And the sorts of environmental effects that petitioners maintain the principle excludes have, for decades, been recognized by the Executive Branch and

courts as core examples of what must be studied. Petitioners posit that the environmental effects of the

“development” that the rail connection is meant to

“spur”—that is, the massive increase in oil drilling enabled by providing transport for crude beyond Utah

refineries—does not qualify as a “reasonably foreseeable effect.” Pet. Br. 35-36. But longstanding CEQ

guidance specifically addressed the question of how

uncertainties about indirect effects like these should

be addressed. See Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act

Regulations, 46 Fed. Reg. 18,026 (Mar. 23, 1981). The

guidance made clear that an “agency has the responsibility to make an informed judgment” about the environmental consequences of development, pointing

out that, “in the ordinary course of business, people do

make judgments based upon reasonably foreseeable

13

occurrences.” Id. at 18,031. In decisions involving disposal of federal lands, for example, “[i]t will often be

possible to consider the likely purchasers and the development trends in that area” or “the likelihood that

the land will be used for an energy project, shopping

center, [or] subdivision.” Id. 6 The guidance at the

same time acknowledged that when there is in fact serious uncertainty about the character of future land

uses, NEPA does not require the agency to “engage in

speculation.” 46 Fed. Reg. at 18,031.

Petitioners suggest that Metropolitan Edison supports their restrictive approach: “If NEPA did not require consideration of allegedly direct health consequences of the ripped-from-the-headlines risk of another nuclear meltdown [at] Three Mile Island,” they

argue, it does not “demand that [the] EIS here consider the risk of [environmentally devastating rail] accidents on … tracks hundreds of miles away.” Pet. Br.

21-22 (citing Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)). But Metropolitan

Edison did not hold that NEPA sanctioned disregarding the environmental risks of a meltdown. It recognized that those effects had already been studied, see

460 U.S. at 775 n.9, and held that anxiety induced by

awareness of that carefully studied risk was not an

environmental effect requiring analysis under NEPA.

Id. at 775-778. If, as petitioners imply, “risks” of effects were somehow exempt under NEPA, the EIS process—which is principally concerned with potential

6 See also Chelsea Neighborhood Ass’ns v. U.S. Postal Serv.,

516 F.2d 378, 388 (2d Cir. 1975); Sierra Club v. Sigler, 695 F.2d

957, 979 (5th Cir. 1983).

14

consequences of actions not yet taken—would have

scant work to do. See Scientists’ Inst., 481 F.2d at 109.

Nor do references to tort-style proximate cause

provide a basis for erasing reasonably foreseeable indirect and cumulative effects from the statute, as petitioners posit. See Pet. Br. 17, 20, 27. As respondents

note, what petitioners present as Metropolitan Edison’s holding—that “proximate cause” is coextensive

with reasonable foreseeability, Pet. Br. 16-17—is in

fact precisely what the opinion said it “d[id] not mean

to suggest.” Metro. Edison, 460 U.S. at 774 n.7; see

Env. Resp. Br. 34. Indeed, NEPA’s concern with informing and improving discretionary agency decisionmaking is entirely different from tort law’s role in assigning legal liability and regulating conduct. The

very remoteness in time or space that militates

against tort liability contributes to the agency blindness that Congress sought to counteract in NEPA. See

U.S. Br. 37-38. And even in tort law, the legal causation inquiry does not turn on temporal or geographic

immediacy, and the “proximate cause” phrasing has

been subject to sustained criticism for that reason.

See, e.g., Third Restatement of Torts ch. 6 (2010) (Special Note on Proximate Cause); id. § 29, Comment b.

Finally, doctrinal difficulties aside, the practical consequences of importing the “proximate cause” limitation into NEPA would be grave and far-reaching. Over

the course of fifty years of application and litigation,

“reasonably foreseeable effects” under NEPA has acquired a coherent, stable meaning, even if there are

edge cases where courts or agencies might reach different conclusions. A leap to proximate cause, in its

many guises, would be profoundly disruptive, forcing

agencies, project proponents, and courts to reconcile

15

and assimilate to the NEPA setting a sprawling body

of judge-made law developed for sharply different purposes. See U.S. Br. 36-37.

II.

Petitioners’ Various Proposals to Broadly

Exempt Otherwise Reasonably Foreseeable Effects from Environmental Review

Would Contravene NEPA.

A. Limiting Environmental Review to Effects Under the Agency’s Regulatory

Authority Makes No Statutory Sense.

The text and structure of NEPA plainly require

agencies to analyze and consider environmental effects that fall outside of their regulatory jurisdiction

or “wheelhouse.” Cf. Pet. Br. 1. Indeed, the need to do

so was a central animating purpose of the statute and

is a central feature of its design.

In testimony that helped catalyze NEPA’s enactment, the Secretary of Interior explained that when

he had pressed Tennessee Valley Authority officials

about coal contracts that were destroying the hills of

Eastern Kentucky, “their very blunt and direct answer was that their mission was to produce electric

power as cheaply as possible … and that if this destroyed resources, rivers and hillsides, and ruined

parts of the country outside the TVA area for all time,

this was none of their business.” 7 To address this

problem of environmental harm following from siloed

7 Joint House-Senate Colloquium to discuss a National Policy

for the Environment: Hearings Before the Senate Comm. on Interior and Insular Affairs, and the House Comm. on Science and

Astronautics, 90th Cong., 2d Sess. 15 (1968).

16

agency missions, Congress not only applied NEPA to

all major actions by “all agencies of the Federal Government,” 42 U.S.C. § 4332, and directed that the

“public laws of the United States shall be interpreted

and administered” so as to avoid unnecessary adverse

environmental effects, but also expressly made NEPA

responsibilities “supplementary to those set forth in

existing authorizations of Federal agencies,” id.

§ 4335; accord S. Rep. No. 91-296, Comm. on Interior

& Insular Affairs, on S. 1075, at 14 (July 9, 1969)

(NEPA responded to concern that “many older operating agencies of the Federal Government … do not at

present have a mandate within the body of their enabling laws to allow them to give adequate attention to

environmental values”); see also 42 U.S.C. § 4333 (directing “all agencies” to review “current policies and

procedures” to assure “full compliance” with NEPA

“policies and provisions”).

Thus, it might have been said before NEPA’s enactment that the “job” of an agency was to build dams

or grant mineral leases. But NEPA “ma[de] environmental protection a part of the[ir] mandate,” such that

“no agency [could thereafter] be able to maintain that

[it lacked authority] …to consider the environmental

consequences of its actions.” Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449

F.2d 1109, 1113 (D.C. Cir. 1971) (quoting NEPA’s

principal Senate sponsor, Henry Jackson, Hearings on

S.1075, S. 237 and S. 1752 before Sen. Comm. on Interior and Insular Affairs, 91st Cong., 1st Sess. 206

(1969)). In other words, NEPA put environmental review under every agency’s jurisdiction, save for when

review would “clear[ly] conflict [with its] existing

17

statutory authority,” Conf. Rept. 91-765 at 10 (1969);

see 42 U.S.C. § 4336(a)(3), (4) (2023). In this case, it is

undisputed that the Surface Transportation Board

has both the power and the duty to consider the significant environmental effects of its approvals. See

Pet.App.36a.

NEPA’s text likewise forecloses suggestions that

an agency’s relative lack of environmental expertise

should define and limit its duty to identify and consider the effects of its actions and available alternatives. But see Pet. Br. 1, 26, 47-48. Congress of course

knew that, e.g., the Federal Aviation Administration,

tasked with ensuring that airports are constructed to

make aviation safe and efficient, was not an expert in

evaluating ways that competing designs might affect

air or water pollution—problems whose control was

assigned to other agencies. But the statute explicitly

rejects “abdication” on that basis. Calvert Cliffs, 449

F.2d at 1122-23.

Rather, Congress directed that the acting agency

retains responsibility for considering such effects and

must “consult with and obtain the comments of any

Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact” to which its proposed action will contribute. 42

U.S.C. § 4332(2)(C) (emphasis added); id. § 7609(a)(2)

(charging EPA Administrator with reviewing and

publicly commenting on every EIS prepared for every

“major Federal agency action” to which NEPA applies); see also id. § 4336a(a)(3) (2023) (authorizing

agencies to “designate any Federal, State, Tribal, or

local agency that has jurisdiction by law or special

18

expertise with respect to any environmental impacts

involve[d] … as a cooperating agency”). 8

Such arrangements have been a mainstay of

NEPA process for decades. Indeed, it is unusual to

find an EIS process that does not include active participation by several federal, state, tribal, or local

agencies. 40 C.F.R. §§ 1501.5(f), 1501.8. Here, for example, the U.S. Army Corps of Engineers, the State of

Utah Public Lands Policy Coordination Office, the

Forest Service, the Bureau of Indian Affairs, and the

Bureau of Land Management were all cooperating

agencies on the railway project EIS. JA 111-13. In

such instances, cooperating or joint lead agencies may

assume responsibility for preparation of analyses in

their respective areas of jurisdiction or expertise. 9

The statute’s direction to the Executive Branch to

approach NEPA implementation in a coordinated

8 Tribal governments, often overlooked before NEPA, are in-

dispensable participants in this process. Congress also contemplated that, over time, agencies would develop expertise in assessing environmental effects and issues that arise frequently in

their fields—and tasked CEQ with responsibility for advancing

that objective. See 42 U.S.C. § 4332(2)(B).

9 See, e.g., 46 Fed. Reg. at 18,030; CEQ Memorandum for

Heads of Federal Agencies: Designation of Non-Federal Agencies

to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA (July, 28, 1999); CEQ Memorandum for

Deputy/Assistant Heads of Federal Agencies: Identifying NonFederal Cooperating Agencies in Implementing the Procedural

Requirements of the National Environmental Policy Act (Sept.

25, 2000); CEQ Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, (Jan. 30, 2002)

(all available at https://ceq.doe.gov/guidance/guidance.html).

19

manner also reflects NEPA’s recognition that serious

environmental problems do not respect agency boundaries and often are the result of multiple acts and/or

decisions by multiple actors. See 40 C.F.R.

§ 1508.1(i)(3) (agency must consider “the incremental

effects of [its] action when added to” those from other

actors’ “past, present, and reasonably foreseeable actions”). Because NEPA ultimately is concerned with

the federal government’s power to cause—and prevent—harms, see 42 U.S.C. § 4331(b)), CEQ regulations and guidance have long focused on federal, not

merely agency, responsibility. As CEQ emphasized a

quarter century ago:

Neither NEPA nor the [CEQ] regulations … define agencies’ obligations to analyze effects of actions by administrative boundaries. Rather, the

entire body of NEPA law directs federal agencies

to analyze the effects of proposed actions to the extent they are reasonably foreseeable consequences

of the proposed action, regardless of where those

impacts might occur.

Memorandum from Kathleen A. McGinty, CEQ Chair,

to Heads of Agencies on the Application of the National Environmental Policy Act to Proposed Federal

Actions in the United States with Transboundary Effects 2 (July 1, 1997).

Nor, contrary to petitioners’ drumbeat assertions,

does the action agency’s substantive charge under another statute, e.g., whether or not it has a “pro-development” mandate, determine or limit the extent of its

NEPA responsibilities. Congress may, of course, exempt an agency or a particular project from environmental impact analysis. See, e.g., 33 U.S.C. § 1371(c)

20

(exempting from NEPA review certain EPA permitting actions under the Clean Water Act); 42 U.S.C.

§ 5159 (exempting from NEPA review certain disaster-restoration actions of the Federal Emergency

Management Agency). But such exemptions are uncommon because NEPA does not restrict or prescribe

what development projects an agency may pursue and

approve, but instead aims—by mandating that the

agency reflect carefully on alternatives—to avoid significant environmental harms that should and can be

avoided. See id. § 4332(2)(C)(iii). Agencies ultimately

remain free to decide, after taking a hard look at the

full range of alternatives and reasonably foreseeable

environmental effects, to proceed with the action proposed. See id. § 4332.

Indeed, it was in part because Congress expected

that certain agencies—including those responsible for

undertaking and approving large-scale construction

projects—would be slower to embrace their environmental review responsibilities that it (1) established

CEQ as a centralized repository of expertise and government-wide presidential direction, Andrus, 442

U.S. at 357-58; (2) directed agencies to provide their

analyses (and others’ comments) to CEQ, 42 U.S.C.

§ 4332(2)(C); and (3) allowed agencies with environmental expertise to comment and participate in the

EIS process. Indeed, 1970 legislation required that

the EPA review other agencies’ NEPA analyses and

that any determinations that a proposed undertaking

is “unsatisfactory from the standpoint of public health

or welfare or environmental quality,” be “publish[ed]

… and the matter… referred” to CEQ. Id. § 7609(a),

(b).

21

Petitioners nonetheless insist that restricting

NEPA consideration would beneficially prevent the

action agency from straying into the “lane” of the

agency with responsibility for, e.g., regulating or controlling a particular type of pollution or activity. Pet.

Br. 1. But that fundamentally misunderstands the

statute. NEPA provides for specialist environmental

regulators to bring their expertise to bear on fellow

agencies’ environmental pre-decisional effects analyses. See 42 U.S.C. § 4332(2)(C)(v) (EIS must take account of “irreversible and irretrievable commitments

of Federal resources” that proposed action would entail). And while other agencies—federal and non-federal—may have authority to address these effects, a

premise of NEPA’s design is that such interventions

are often second-best or worse. By the time a project’s

effects find their way to the “lane” of an environmental regulator, that entity’s options are constrained,

and the fact that a different approach would have

been less harmful is moot. NEPA expresses a “determination to face problems of pollution ‘while they are

still of manageable proportions and while alternative

solutions are still available.’” NRDC v. Morton, 458

F.2d 827, 836 (D.C. Cir. 1972) (quoting S. Rep. No. 91296, 91st Cong., 1st Sess. at 5 (1969); accord Sierra

Club v. Marsh, 769 F.2d 868, 879 (1st Cir. 1985)

(Breyer, J.) (“later consideration would be unlikely to

offer the decisionmaker a meaningful choice about

whether to proceed”); Calvert Cliffs, 449 F.2d at 112223 (holding that agency policies that confined environmental review to determining whether an applicant

would “observe [a pollution] regulator’s standards”

missed the “point” of NEPA’s comprehensive, forwardlooking process).

22

Indeed, this Court’s opinion in Robertson, a case

where the project’s most significant environmental effects arose from development activities “subject to regulation by other governmental bodies,” 490 U.S. at

350, identified local authorities’ primary responsibility as a reason why NEPA required the federal

agency’s study: because early information about “expected [development] consequences” would afford

such authorities the best “opportunity to plan and implement corrective measures.” Id.

The Government’s submission here takes a less extreme, but equally erroneous approach. After forcefully showing how petitioners’ jurisdiction-based limits are at odds with the statute, U.S. Br. 31-33, the

Government ultimately proposes letting the same

NEPA-barred considerations in through the back

door. Repeatedly, the Government includes among the

“factors” that should bear on an agency’s responsibility to consider effects “the nature and reach of the

agency’s organic statutes” and “the fact that other

governmental entities authorize, fund, or carry out

the specific conduct.” U.S. Br. 17-18; see also id. at 21

(“nature and scope of the agency’s substantive authority”); id. at 27 (“nature and requirements of the governing statutes”); id. at 45 (citing the Surface Transportation Board’s organic statute as blessing curtailed

analysis). It would have the Court create a sliding

scale, whereby agencies may reduce analysis where

effects’ connection to the agency mission is “less robust,” id. at 27, and would have courts defer to agency

judgments on that score. Id. at 28.

But as we have explained—and as the Government’s brief elsewhere explains—having action

23

agencies consider at the pre-decision stage environmental harms whose control would be another regulator’s responsibility (and having them do so with the

active input of the environmental expert) is a central

feature, not a bug, of the statute Congress enacted.

And statutorily improper considerations do not become appropriate when they are just one factor in a

multi-factor balancing, rather than a categorical bar.

See Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency acts

arbitrarily and capriciously where it relies on “factors

which Congress has not intended it to consider”). (Indeed, the latter type of rules at least have the virtue

of clarity and lend themselves to consistent application.).

B. Neither NEPA’s “Rule of Reason” Nor

Ad Hoc Assertions of “[Im]materiality”

Entitle Agencies to Disregard Significant, Reasonably Foreseeable Environmental Effects They Would Prefer Not

to Study.

Petitioners posit that if the substantive limitations

they seek are unavailable under the statute’s “reasonable foreseeability” test, they may still be imposed

through application of a “rule of reason.” See Pet. Br.

44 (suggesting a “direction” by this Court supports

agencies’ refraining from “studying increasingly remote environmental effects.”). The Government, too,

posits a free-floating non-textual limitation, sometimes ascribed to the “rule of reason,” U.S. Br. at 21,

22, 27. This Court’s and others’ decisions cannot fairly

be read as approving an undefined subset of environmental effects that meet the statute’s reasonable

24

foreseeability test but need not be considered. And

granting such ad hoc power to agencies would be contrary to the statute’s design and sound administration.

Undeniably and unexceptionally, NEPA only requires study of remote effects that are reasonably

foreseeable. No separate “rule” creates a blanket excuse from study of reasonably foreseeable effects, let

alone on the basis that an agency does not want to analyze them or is not accustomed to doing so. To be

sure, reason—and reasonableness—are and always

have been central concepts in NEPA’s administration.

As the earliest decisions recognized, a statute whose

sweeping “any” and “all” commands operate to “the

fullest extent possible,” contemplates that some—reasonable—limits will be drawn. See, e.g., Env. Resp. Br.

7, 8 n.6, 23 (citing cases). But as these cases make

clear, the “rule of reason” is not a freestanding basis

for agencies to disregard significant environmental

consequences that the statutory test requires be analyzed. Thus, the earliest decisions to reference a “rule

of reason” used the phrase to describe their reasonable

foreseeability holding, i.e., that NEPA did not require

agencies to examine harms that were “speculative,”

but neither did uncertainty about whether effects

might occur (or the need to make probabilistic forecasts) supply an excuse for not considering them. Scientists’ Inst., 481 F.2d at 1091-92; see also Marsh v.

Or. Nat. Res. Council, 490 U.S. 360, 373 (1989) (invoking the rule of reason in noting that “an agency need

not supplement an EIS every time new information

comes to light after the EIS is finalized”).

25

This Court’s reference to the “rule of reason” in

Public Citizen provides no support for petitioners’

sweeping statute-nullifying conception, based on effects’ “remoteness.” On the contrary, the Court emphasized that statutory rules of reason exist to implement statutory policies. Thus, “no rule of reason worthy of that title” would support requiring an agency to

study environmental effects attributable to an already-made presidential decision it was without authority to countermand. Public Citizen, 541 U.S. at

767-68. Common-sense recognition that studying

those effects would serve no statutory purpose under

those circumstances falls far short of carte blanche for

excluding effects the statute plainly requires to be

studied, either on a wholesale basis (as petitioners

maintain) or in some ad hoc, sliding-scale fashion, as

the Government proposes.

Here too, the seeming restraint of the Government’s approach should not obscure its fundamental

incompatibility with the statutory design. Although

the Government uses soft-edged language about “context-specific” judgments concerning an effect’s “materiality,” incorrectly attributing it to this Court, see

U.S. Br. 17, 21, 27, 29, 37, its thrust, when combined

with demands of near-complete judicial deference, defies important judgments that NEPA codifies. As with

the rule of reason, “materiality” is descriptive—a synonym, not a substitute for the reasonable foreseeability principle, i.e., an effect is sufficiently likely and

knowable that a reasonable person would rely on it in

reaching a decision.

Nor, for essentially the same reason, can the

Court’s phrase “reasonably close causal relationship”

26

serve as an umbrella test for all questions about when

effects need be studied. See id. at 17-18 (citing Public

Citizen, 541 U.S. at 767, 769). Public Citizen considered only whether an agency could actually change an

effect, not whether an effect that it could avoid merited study. 541 U.S. at 769-70. And Metropolitan Edison used that lens to examine simply whether an effect was sufficiently attributable to a “change in the

physical environment.” 460 U.S. at 774. The Government would conflate that threshold issue of whether

information could help an agency implement NEPA

with the very different question of an effect’s likelihood.

Unlike the settled version, the Government’s approach is essentially subjective, giving practically controlling weight to agencies’ judgments as to what is

relevant to their decision-making process. As Robertson highlighted, NEPA’s other central textual mandate is that information about environmental effects

and alternatives be sought from and provided to those

outside the action agency, whose distinct interests

and expertise qualifies them to also play a role in the

decision-making process. 490 U.S. at 349. Ensuring

such entities and individuals are full, and fully informed, participants in the decision process is not, as

petitioners suggest, a perfunctory box-checking exercise, but rather a linchpin of the statute’s design. Development agencies are expert about what alternatives are practicable but they are unreliable judges of

what is “immaterial” in that broader sense.

27

III.

Congress’s Recent NEPA Amendments

Require Agencies to Analyze All Reasonably

Foreseeable

Effects—Not

Merely Direct Effects Within the

Agency’s Regulatory Jurisdiction or

Traditional Expertise.

Petitioners’ suggestion that Congress’s 2023

amendments to NEPA support their position, see Pet.

Br. 8, 27-29, is plainly incorrect. The text and history

of those amendments are startlingly unhelpful to petitioners—confirming: (1) that Congress can modify

NEPA to respond to policy concerns, (2) including

complaints about the timing and length of EIS documents, see id. at 6, 7, and (3) that Congress considered—but did not enact—the very restrictions on

NEPA’s scope that petitioners seek to have imposed

judicially.

Last year, for only the second time since NEPA’s

December 1969 enactment, Congress substantively

amended Title I, as part of the Fiscal Responsibility

Act, see Pub. L. No. 118-5, Div. C, tit. III,

§ 321(a)(3)(B), 137 Stat. 38 (2023). 10 The statute made

some forty amendments to NEPA, including the addition of new provisions setting time and page limits for

EISs, 42 U.S.C. §§ 4336a(e), (g), and a provision affirming that environmental effects need not be studied if the proposed action is “nondiscretionary,” such

that the agency lacks “authority to take [them] into

10 The first substantive amendment, enacted in 1975, pro-

vided that, under certain circumstances, State agencies could assume responsibility for preparing analyses required by NEPA.

Pub. L. No. 94-83, 89 Stat. 424 (1975).

28

consideration,” id. § 4336(a)(4). Most relevant here,

Congress amended the EIS provision, inserting the

term “reasonably foreseeable,” to describe the “environmental effects” of proposed actions that agencies

are required to analyze. Id. § 4332(2)(C)(i) (emphasis

added); see also id. § 4332(2)(C)(ii) (inserting “reasonably foreseeable” into the provision requiring that an

action’s unavoidable “adverse environmental effects”

be set out); id. § 4336(b) (using “reasonably foreseeable” in provisions addressing when an agency must or

need not prepare an EIS).

Given that Congress chose to enact the precise

“reasonably foreseeable” qualifier language that has

appeared in CEQ regulations and governed administrative practice for decades, the natural inference

would be that the statute codifies the term’s widely

understood, long-settled meaning. George v.

McDonough, 596 U.S. 740, 746 (2022) (When Congress “codif[ied] and adopt[ed]” regulatory doctrine,

using a “term taken from [that] source,” the statutory

term is presumed to “bring[] the old soil with it.”) (citation omitted); see also 169 Cong. Rec. H2704 (daily

ed. May 31, 2023) (remarks of Rep. Westerman) (Committee Chair’s explanation that, “in amending NEPA

to include the concept of reasonable foreseeability,

Congress intends to establish in statute Sierra Club

v. Marsh, 976 F.2d 763 (1st Cir. 1992)”).

Context makes that conclusion even more difficult

to resist: As Congress was aware, CEQ had in 2022,

through notice-and-comment rulemaking, deleted

regulatory language, added less than two years earlier, that narrowed the range of effects agencies were

29

required to consider. 11 (As noted, supra p.10, only the

second time since 1978 that CEQ had revisited any of

the operative language.) One of the short-lived

amendments, see 85 Fed. Reg. 43,304, 43,343-44 (July

16, 2020), directed that environmental effects that are

geographically or temporally “remote” and those with

a “lengthy causal chain” “generally” need not be considered, and that “effects that the agency has no ability to prevent due to its limited statutory authority”

“generally” need not be studied. 40 C.F.R.

§ 1508.1(g)(2) (2020). A second limited consideration

to the subset of “reasonably foreseeable effects” which

“have a reasonably close causal relationship to the

proposed action.” 40 C.F.R. § 1508.1(g) (2020). And another 2020 addition—one that was retained in the

2022 rulemaking, see 87 Fed. Reg. 23,453 (Apr. 20,

2022)—affirmed that an effect is “reasonably foreseeable” if “it is sufficiently likely to occur that a prudent

person would take it into account in reaching a decision.” 40 C.F.R. § 1508.1(aa) (2021).

Petitioners nonetheless maintain that “reasonably

foreseeable” in the amended statute should be read as

codifying substantive restrictions quite similar to

those which CEQ’s very recent and high-profile rulemaking had rejected (not coincidentally the same limitations they purport to locate in “this Court’s decisions,” Pet. Br. 28). That is a bridge too far. In the

11 See, e.g., Letter from Members of U.S. House of Represent-

atives, to the Honorable Brenda Mallory, CEQ Chair (Dec. 10,

2021), available at https://naturalresources.house.gov/uploadedfiles/westerman_et_al_to_mallory_re_nepa_revisions.pdf (detailing some Members’ opposition to decision to revise the 2020

amendments to the NEPA regulations).

30

same three-year period preceding the 2023 “reasonably foreseeable” codification, Congress considered precursor versions of the enacted legislation that would

have expressly endorsed limiting the scope of agencies’ impact assessment responsibilities in the ways

petitioners seek: e.g., (1) by confining consideration to

“reasonably foreseeable environmental effects with a

reasonably close causal relationship to the proposed

agency action,” H.R. 8333, 116th Cong. (2020); H.R.

2515, 117th Cong. (2021), and (2) by defining “reasonably foreseeable” as “likely to occur—(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….” H.R.

1577, 118th Cong. (2023). These bills did not pass. It

is hard to accept that a Congress intent on reviving

limitations that CEQ had jettisoned in 2022 would

have expressed that intention by rejecting proposed

statutory language that would have codified them in

those terms, and instead adopting the language CEQ

had chosen in reinstating its longstanding test. Cf.

Metropolitan Edison, 460 U.S. at 776 (“‘We cannot attribute to Congress the intention to ... open the door

to such obvious incongruities’”) (citation omitted).

Against this, petitioners offer the purpose of Congress’s amendment, emphasizing that “BUILDER” is

“short for ‘Building United States Infrastructure

through Limited Delays and Efficient Reviews,’” Pet.

Br. 2, 7, and urging that it would thwart Congress’s

“pro-development” objectives to interpret the text in

ways that slow down or bulk up the EIS process. See

id. at 29 (invoking principle that “statutory titles

31

provide a “permissible indicator[] of meaning”). 12 But

“no law ‘pursues its ... purpose[s] at all costs,’” Luna

Perez v. Sturgis Public Schools, 598 U.S. 142, 150

(2023) (citation omitted), and that is surely true of the

Fiscal Responsibility Act of which the NEPA amendments were one—indisputably important—component, and holds for the amendments themselves.

When Congress actually passed legislation, it included new provisions directly responsive to the timetable and length objections, see supra p.27, and it declined to enact proposals that would have restricted

the substantive scope of the EIS responsibility. Cf. 42

U.S.C. § 4332 (directing that “to the fullest extent possible,” the “public laws of the United States shall be

interpreted and administered in accordance with the

[NEPA] policies.”) 13 There is thus no warrant here for

revisiting the balance Congress settled on and

12 Notably, it is doubtful that the principle petitioners invoke

actually applies: The statute includes the term “BUILDER Act,”

but the repeatedly-quoted “title” from which petitioners derive

the “purpose” was not enacted into law. Cf. Pet. Br. 2, 29.

13 The Fiscal Responsibility Act was not Congress’s only or

last recent word on the subject of NEPA streamlining. Major legislation enacted in recent years has included provisions that exempted certain projects or that impose deadlines for NEPA review. See, e.g., Building Chips in America Act, Pub. L. No. 118105, § 2 (2024) (excluding or modifying NEPA’s applicability to a

broad swath of semiconductor projects); Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 11317 (2021) (expanding exclusions to cover proposed projects that receive less than

$6,000,000 of federal funding or less than a total estimated cost

of $35 million). But in none of these did Congress choose to pursue efficiency by altering the provision prescribing NEPA’s environmental-review mandate.

32

rejecting the statue that emerged through bicameralism and presentment.

There is evidence that the Fiscal Responsibility

Act and other recent NEPA amendments are having

their intended effect. See The White House, Fact

Sheet: Biden Harris Administration Takes Action to

Deliver More Projects More Quickly, Accelerates Federal Permitting (Aug. 29, 2024) (reporting significant

reductions in the completion time for EIS reviews by

Departments of Energy and Transportation). But if

petitioners and amici believe that the measures enacted to date are insufficient and that the reasonable

foreseeability principle itself needs to be reined in,

their recourse is to the “political process,” not the judicial one. Metropolitan Edison, 460 U.S. at 777. 14

CONCLUSION

This Court should affirm the judgment of the court

of appeals.

14 Cf. Hearing Memorandum, House Committee on Natural

Resources 11 (Sept. 11, 2024) (describing proposed legislation

that would define “Reasonably Foreseeable” to mean that “agencies must only consider environmental effects that are likely to

occur in an area directly affected by the action, are under the

control or jurisdiction of the agency, and have a close relationship

between a change in the environment and the proposed action”).

33

Respectfully submitted,

David T. Goldberg

DONAHUE, GOLDBERG

& HERZOG

240 Kent Avenue

Brooklyn, NY 11249

Sean H. Donahue

Counsel of Record

*Megan M. Herzog

*Keri R. Davidson

DONAHUE, GOLDBERG

& HERZOG

1008 Pennsylvania Ave., SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

Counsel for Amici Curiae

October 25, 2024

*Supervised by members of the firm who are members

of the D.C. Bar