Amicus Curiae Brief — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.
Supreme Court briefOct 25, 2024
Ask Donna
What actually matters in this document.
Text
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 Appeals for the
District of Columbia Circuit
________________
BRIEF OF THE STATES OF COLORADO,
WASHINGTON, THIRTEEN OTHER STATES,
AND THE DISTRICT OF COLUMBIA
AMICI CURIAE IN SUPPORT OF RESPONDENTS
________________
PHILIP J. WEISER
Attorney General
KURTIS T. MORRISON
Deputy Attorney General
NATALIE HANLON LEH
SCOTT STEINBRECHER
Chief Deputy Attorney General Deputy Attorney General
SHANNON W. STEVENSON
Solicitor General
Counsel of Record
CARRIE NOTEBOOM
Assistant Deputy Attorney
General
Office of the Attorney General CORY HALLER
Department of Law
Assistant Solicitor General
State of Colorado
BREA HINRICKS
1300 Broadway, 10th Floor
Assistant Attorney General
Denver, Colorado 80203
Shannon.Stevenson@coag.gov
(720) 508-6000
(Additional counsel listed on the signature page.)
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTERESTS OF AMICI CURIAE ............................. 1
SUMMARY OF THE ARGUMENT ........................... 6
ARGUMENT ............................................................... 8
I.
Federal agency decisions implicate important
State interests. .................................................... 8
II. NEPA requires and advances cooperative
federalism. ......................................................... 10
III. Consideration of reasonably foreseeable
effects outside an agency’s control is
consistent with NEPA’s text and supports
states’ interests.................................................. 14
IV. Requiring federal agencies to consider
reasonably foreseeable effects of their actions,
even those outside their authority, does not
harm states’ sovereign and quasi-sovereign
interests or cooperative federalism................... 23
CONCLUSION ......................................................... 29
ii
TABLE OF AUTHORITIES
CASES
Alden v. Maine,
527 U.S. 706 (1999) ................................................. 9
Arkansas v. Oklahoma,
503 U.S. 91 (1992) ................................................... 9
Baltimore Gas & Electric v. NRDC,
462 U.S. 87 (1983) ................................................. 12
California v. United States,
438 U.S. 645, (1978) ................................................ 8
Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752 (2004) ............................. 11, 13, 14, 26
Flint Ridge Dev. v. Scenic Rivers Ass’n,
426 U.S. 776 (1976) ............................................... 11
Georgia v. Tennessee Copper Co.,
206 U.S. 230, 237 (1907) .................................... 8, 9
Gregory v. Ashcroft, 501 U.S. 452 (1991) .................. 8
Health & Hosp. Corp. of Marion Cnty. v. Talevski,
599 U.S. 166 (2023) ............................................... 10
Kleppe v. New Mexico,
426 U.S. 529 (1976) ................................................. 9
iii
Kleppe v. Sierra Club,
427 U.S. 390 (1976) ............................................... 12
Ohio v. Environmental Protection Agency,
603 U.S. ____; 144 S. Ct. 2040 (2024) .................... 9
Robertson v. Methow Valley Citizens’ Council
(Methow Valley),
490 U.S. 332 (1989) ..............9, 11, 12, 16, 17, 20, 24
STATUTES
15 U.S.C. § 2605 ...................................................... 10
33 U.S.C. § 1251(a) .................................................. 10
33 U.S.C. § 1341 ........................................................ 8
42 U.S.C § 4321 ....................................................... 13
42 U.S.C § 4332(2)(C) .............................................. 12
42 U.S.C. § 300g-1(b)(1)(A)...................................... 10
42 U.S.C. § 4321) ............................................... 11, 15
42 U.S.C. § 4331 .................................................. 9, 11
42 U.S.C. § 4331(a) ...................................... 11, 12, 15
42 U.S.C. § 4332 ...................................................... 11
42 U.S.C. § 4332(2)(C) ....................................... 15, 16
iv
42 U.S.C. § 4336a(3) & (4) ....................................... 12
42 U.S.C. § 4336a(g) (2023) ..................................... 28
42 U.S.C. § 6901(a)(4) .............................................. 10
42 U.S.C. § 7509 ...................................................... 27
42 U.S.C. §§ 7401(a)(3) .............................................. 8
49 U.S.C. § 10501(b) ................................................ 27
RULES
40 C.F.R. § 1500.1(c) ................................................ 11
40 C.F.R. § 1501.18 (2003) ...................................... 12
40 C.F.R. § 1501.3 .................................................... 13
40 C.F.R. § 1506.2(d) ............................................... 13
40 C.F.R. §§ 1506.2(d) ............................................. 13
C.F.R. § 1508.27(10) (1978) ..................................... 13
REGULATIONS
115 CONG. REC. 40,416 (1969) ................................. 16
115 CONG. REC. 40,420 (1969) ................................. 16
v
CDPHE: Comments on the Seven County
Infrastructure Coalition – Unit Basin Railway
Draft Environmental Impact Statement
(December 9, 2020),
https://uintabasinrailwayeis.com/
comment_submissions/UBR-DEIS-0018853701.pdf. .............................................................. 21
CDPHE: Comments on the Seven County
Infrastructure Coalition – Unita Basin Railway
Draft Environmental Impact Statement
(December 9, 2020),
https://uintabasinrailwayeis.com/
comment_submissions/UBR-DEIS-0018853701.pdf. .............................................................. 19
CEQ, National Environmental Policy Act: A Study
of Its Effectiveness After Twenty-five Years (Jan.
1997), https://ceq.doe.gov/docs/ceqpublications/nepa25fn.pdf .................................... 29
Colorado Handbook: Colorado Watter Supply
Planning and Permitting (October 2017),
https://dnrweblink.state.co.us/CWCB/0/edoc/20474
2/ColoradoWaterSupplyPlanningAndPermittingH
andbookOct2017.pdf ............................................... 4
Colorado River States Submit a Consensus-Based
Modeling Alternative to Bureau of Reclamation,
Colo. Water Conservation Bd., Colo. Dep’t of Nat.
Res. (Jan. 30, 2023),
vi
https://cwcb.colorado.gov/news-articles/coloradoriver-states-SEIS .................................................... 3
Congressional Research Service, Federal Land
Ownership: Overview and Data, Feb. 21, 2020,
https://sgp.fas.org/crs/misc/R42346.pdf. ................. 1
Department of Ecology State of Washington: Custer
Crude Oil Derailment 2020,
https://ecology.wa.gov/Spills-Cleanup/Spills/Spillpreparedness-response/Responding-to-spillincidents/Spill-incidents/Custer-Crude-OilDerailment-2020 ..................................................... 6
Economic Analysis of Outdoor Recreation in
Washington State, https://rco.wa.gov/wpcontent/uploads/2020/07/EconomicReportOutdoorR
ecreation2020.pdf .................................................... 2
Final Record of Decision for the Revised Land
Management Plan, Grand Mesa, Uncompahgre,
and Gunnison National Forests (USDA, U.S.
Forest Service, June 2024), https://usfspublic.app.box.com/s/q1ynrmqbv90hrzp9rpxanxgw
tk2rxq70/file/1560805849306 ................................. 3
Philip J. Weiser, Towards a Constitutional
Architecture for Cooperative Federalism, 79 N.C. L.
REV. 663 (2001) ..................................................... 10
Quality Management Plan, Tech. Servs. Program,
Colo. Dep’t of Pub. Health and Env’t (Jan. 2023),
https://www.colorado.gov/airquality/tech_doc_repo
vii
sitory.aspx?action=open&file=QMP_2023.pdf;
Colorado Department of Public Health &
Environment, 401 water quality certification, at
https://cdphe.colorado.gov/401-Certification (last
visited Aug. 27, 2024) ............................................. 4
Record of Decision and Approved Eastern Colorado
Resource Management Plan (U.S. Department of
Interior, Bureau of Land Management) (Jan.
2024), https://tinyurl.com/y8ytftvp......................... 3
Robert L. Glicksman, From Cooperative to
Inoperative Federalism: The Perverse Mutation of
Environmental Law and Policy, 41 WAKE FOREST
L. REV. 719 (2006) ............................................. 9, 10
Robert W. Adler, In Defense of NEPA: The Case of
the Legacy Parkway, 26 J. LAND RES. & ENVTL. L.
297 (2006) .............................................................. 28
Sweetwater Partnership continues collaboration on
long-term planning process at Sweetwater Lake,
Colo. Parks and Wildlife,
https://cpw.state.co.us/news/07202023/sweetwaterpartnership-continues-collaboration-long-termplanning-process-sweetwater (last visited Aug. 27,
2024). ....................................................................... 3
The 2023 Economic Contributions of Outdoor
Recreation in Colorado (Sept. 2024),
https://tinyurl.com/57tntkps. .................................. 1
viii
Unita Basin Railway: Environmental Impact
Statement (EIS) at 3.4-58, (August 2021),
https://icfbiometrics.blob.core.windows.net/uintabasin/03_04_Bio_Resources_FEIS.pdf ................. 18
Unita Basin Railway: Environmental Impact
Statement (EIS),
at 5-5 to 5-6 (August 2021), https://icfbiometrics.
blob.core.windows.net/uintabasin/05_Consultation_Coordination_FEIS.pdf .. 18
Washington Department of Natural Resources,
https://www.dnr.wa.gov/publications/em_annual_r
eport_2023.pdf......................................................... 2
1
INTERESTS OF AMICI CURIAE
Amici are the States of Colorado, Washington,
Connecticut, Delaware, Illinois, Maine, Michigan,
Minnesota, Nevada, New Jersey, New York, Oregon,
Rhode Island, Vermont, the Commonwealth of Massachusetts, and the District of Columbia.
Amici are sovereign entities that regulate land
use, water and air quality, fish and wildlife, and water
resources within their borders through duly enacted
state laws. Many amici are also authorized by federal
law to administer an array of federal environmental
statutes, including the Clean Air Act, Clean Water
Act, Safe Drinking Water Act, Resource Conservation
and Recovery Act, and the Surface Mining Control and
Reclamation Act. And large portions of several amici
are public lands owned and managed by the federal
government.1
Colorado’s economy is reliant on its outdoor industries. Clean air, land, and water provide ecologically
vibrant habitats that undergird Colorado’s robust outdoor recreation economy, which includes fishing, hunting, hiking, skiing, and other outdoor activities. In
total, such activities contributed $65.8 billion dollars
to Colorado’s economy, supported over 404,000 jobs,
and provided more than $11 billion in local, state, and
federal tax revenue in 2023 alone. Colo. Parks & Wildlife, The 2023 Economic Contributions of Outdoor Recreation in Colorado (Sept. 2024), https://tinyurl.com/
57tntkps. A core state interest of Colorado is ensuring
1 Congressional Research Service, Federal Land Ownership:
Overview and Data, Feb. 21, 2020, https://sgp.fas.org/crs/misc/
R42346.pdf.
2
that harm to the natural environment caused by development projects is avoided, minimized, and mitigated, and that Colorado’s natural resources are
preserved for the state’s economic vitality as well as
for the enjoyment of current and future generations.
Similarly, Washington’s natural resources, including aquatic leases in the Puget Sound, generate
more than $300 million in annual financial benefits to
state public schools, institutions, and county services
every year. 2023 Annual Report, Washington Department of Natural Resources, https://www.dnr.wa.gov/
publications/em_annual_report_2023.pdf. They also
generate billions of dollars’ worth of ecosystem services to surrounding communities by filtering drinking water, purifying air, and providing space for
recreation. Washington’s natural areas generate commercial and recreational opportunities, ranging from
hunting and fishing to skiing and camping, that put
billions of dollars into the Washington economy annually.2 This industry supports 264,000 jobs across
Washington State.3
Amici are actively and regularly involved in a
broad range of federal environmental reviews required by the National Environmental Policy Act
(“NEPA”) as cooperating agencies, and they also rely
on the NEPA process to provide meaningful state-level
input in federal decisions that impact their sovereign
2 Economic Analysis of Outdoor Recreation in Washington
State, https://rco.wa.gov/wp-content/uploads/2020/07/EconomicReportOutdoorRecreation2020.pdf.
3 Id.
3
and quasi-sovereign interests in resource management and the protection of public health and the environment. The Colorado Department of Natural
Resources and Department of Agriculture participate
in NEPA-required environmental reviews for plans
governing the use and management of public lands,
including Bureau of Land Management resource management plans, U.S. Forest Service land management
plans, public-land grazing permit renewals, range improvement projects involving water distribution systems and habitat management,4 and for actions
involving water planning5 and fish and wildlife protection.6 The Colorado Department of Public Health and
4 See, e.g., Final Record of Decision for the Revised Land Man-
agement Plan, Grand Mesa, Uncompahgre, and Gunnison National Forests (USDA, U.S. Forest Service, June 2024),
https://usfs-public.app.box.com/s/q1ynrmqbv90hrzp9
rpxanxgwtk2rxq70/file/1560805849306 (listing Colorado’s Department of Agriculture, Department of Natural Resources, Colorado Parks and Wildlife, and the Colorado Water Conservation
Board as cooperating agencies); Record of Decision and Approved
Eastern Colorado Resource Management Plan (U.S. Department
of Interior, Bureau of Land Management) (Jan. 2024), https://tinyurl.com/y8ytftvp (cooperating agencies include Colorado Departments of Agriculture, Natural Resources, and Public Health
and Environment).
5 See, e.g., Colorado River States Submit a Consensus-Based
Modeling Alternative to Bureau of Reclamation, Colo. Water
Conservation Bd., Colo. Dep’t of Nat. Res. (Jan. 30, 2023),
https://cwcb.colorado.gov/news-articles/colorado-river-statesSEIS.
6 See, e.g., Sweetwater Partnership continues collaboration on
long-term planning process at Sweetwater Lake, Colo. Parks and
Wildlife,
https://cpw.state.co.us/news/07202023/sweetwaterpartnership-continues-collaboration-long-term-planning-process-sweetwater (last visited Aug. 27, 2024).
4
Environment reviews projects for transportation and
water supply infrastructure as part of the NEPA process, including federal permits and licenses that involve discharges to Colorado waters.7 And although
Colorado does not have its own state-level environmental review statute, it has adopted processes to
streamline the review and permitting for construction
and expansion of water supply reservoirs and related
infrastructure subject to NEPA.8
The ability of Colorado state agencies to participate in NEPA processes improves the efficiency and
coordination of the water supply permitting process.
Notably, such participation helps project proponents
incorporate both state and federal regulatory requirements into initial water supply planning phases long
before permitting requests are submitted.9 By coordinating with federal agencies to ensure their NEPA review includes consideration of statewide visions for
7 See Quality Management Plan, Tech. Servs. Program, Colo.
Dep’t of Pub. Health and Env’t (Jan. 2023), https://www.colorado.gov/airquality/tech_doc_repository.aspx?action=open&file=QMP_2023.pdf; Colorado Department of Public
Health & Environment, 401 water quality certification, at
https://cdphe.colorado.gov/401-Certification (last visited Aug. 27,
2024)
8Colorado Handbook: Colorado Water Supply Planning and
Permitting (October 2017),
https://dnrweblink.state.co.us/CWCB/0/edoc/204742/
ColoradoWaterSupplyPlanningAndPermittingHandbookOct2017.pdf
9https://dnrweblink.state.co.us/CWCB/0/edoc/204742/
ColoradoWaterSupplyPlanningAndPermittingHandbookOct2017.pdf
5
managing Colorado’s finite water resources, this process helps avoid costly delays for project sponsors.
Similarly, Washington state agencies, including the
Department of Ecology, the Department of Fish and
Wildlife, the Department of Transportation, the Department of Natural Resources, and the Department
of Health regularly engage in the federal NEPA process as cooperating and commenting agencies or as
agencies with special expertise highlighting potential
impacts to the state’s natural resources and public
health.
Likewise, the other amici states have a strong interest in ensuring comprehensive environmental reviews inform federal actions in their jurisdictions. For
instance, Massachusetts is home to fifteen units and
three national trails managed by the National Park
Service, eleven National Wildlife Refuges, and twelve
recreation areas managed by the U.S. Army Corps of
Engineers. Numerous federal agencies operate, license, or permit activities in Massachusetts waterways and off Massachusetts’ coastline impacting
Massachusetts fisheries, other valuable resources,
and maritime uses, which are critical to the health and
economic vitality of the Commonwealth. Similarly,
New Jersey is home to Joint Base McGuire-Dix-Lakehurst and is the site of several current and anticipated
energy and infrastructure projects with numerous federal agencies.
The proposed Uinta Basin Rail Line at issue in
this case is squarely within Colorado’s and Washington’s interests. The proposed route and its connection
to existing rail lines in Colorado would transport hundreds of thousands of barrels of waxy crude oil per day
6
through the state. The project raises the risk of leaks,
spills, or rail car accidents immediately adjacent to the
headwaters of the Colorado River, the most critical
water source for the state’s residential communities,
and agricultural and outdoor recreation sectors. The
project’s risks to Colorado’s residents and natural resources have generated deep concern and strong opposition from across the state. Similarly for Washington,
approximately 10% of the Uinta Basin waxy crude
could be transported to the Puget Sound for refining.
J.A. 478, 481 These refineries are all located along the
coast of the Puget Sound, an iconic and critical resource for the people of the State of Washington. The
additional oil from the Uinta Basin travelling through
Washington increases the risk of spills into the Puget
Sound and along rail lines leading to the refineries.
These very real risks affect the people and the environment of Washington State.10
SUMMARY OF THE ARGUMENT
The Court should reject the invitation from Petitioners and several amici to curtail the scope of federal
agencies’ NEPA reviews by allowing federal agencies
to disregard in their environmental analyses reasonably foreseeable environmental effects for which the
agencies are not directly responsible. Pet’rs Brief at 12.
10 Washington experienced just such a rail accident on December 22, 2020, when an oil train derailed and caught fire in Custer,
Washington, spilling over 28,000 gallons of oil. Department of
Ecology State of Washington: Custer Crude Oil Derailment 2020,
https://ecology.wa.gov/Spills-Cleanup/Spills/Spill-preparednessresponse/Responding-to-spill-incidents/Spill-incidents/CusterCrude-Oil-Derailment-2020.
7
We agree Petitioners’ argument implicates “basic
principles of cooperative federalism,” which requires
“States and the federal government [to] work together
in harmony for the good of the people and our environment.” Louisiana et al. Amicus Brief at 1. But the undersigned states disagree that Petitioner’s bright-line
rule, which would allow federal agencies to turn a
blind eye to reasonably foreseeable effects regulated
by other federal agencies, states, and local governments, will protect states’ sovereign and quasi-sovereign interests or enhance cooperative federalism.
On the contrary, as this case demonstrates, Petitioners’ proposed bright-line rule would undermine
states’ ability to ensure that proposed federal actions:
(1) protect states’ sovereign and quasi-sovereign interests, (2) preserve states’ ability to meet their obligation to comply with federal environmental laws, and
(3) account for states’ interests in advancing the economic and environmental well-being of their citizens.
The undersigned states submit this amicus brief
to demonstrate that the Court’s adoption of the Petitioners’ interpretation of Department of Transportation v. Public Citizen would contravene the text and
fundamental purpose of NEPA, harm the states’ sovereign and quasi-sovereign interests, and undermine
cooperative federalism. The Court should reject Petitioners’ proposed rule and affirm that the Surface
Transportation Board (STB) was required to consider
all of the reasonably foreseeable upstream and downstream effects of its proposed approval of the Uinta
Basin Rail Line—even those regulated by other enti-
8
ties—where the STB has statutory authority to consider those effects in its determination to approve the
rail line.
ARGUMENT
I.
Federal agency decisions implicate important State interests.
State sovereignty is a cornerstone of our federal
system. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
Our Nation’s federalist structure of dual sovereigns
empowers each state to champion the health, safety,
and well-being of its citizens as necessary based on
states’ differing needs and unique resources. Indeed,
as this Court noted over a century ago, a “state has an
interest . . . in all the earth and air within its domain.
It has the last word as to whether its mountains shall
be stripped of their forests and its inhabitants shall
breathe pure air.” Georgia v. Tennessee Copper Co.,
206 U.S. 230, 237 (1907).
1. Today, states maintain important sovereign
and quasi-sovereign interest over several aspects of
natural resources and environmental quality within
their borders, including: (1) water quantity, California
v. United States, 438 U.S. 645, 654 (1978) (describing
the long history of Congressional deference to state
laws regarding the appropriation of water); (2) water
quality, 33 U.S.C. § 1341 (reserving to the states the
authority to determine whether discharges to navigable waters associated with activities requiring a federal license or permit comply with state water quality
requirements); (3) air quality, 42 U.S.C. §§ 7401(a)(3)
(noting that “air pollution prevention . . . and air pollution control at its source is the primary responsibility of States and local governments”) and 7407(a)
9
(“Each State shall have primary responsibility for assuring air quality within the entire geographic area
comprising such State . . .”); and (4) fish and wildlife,
Kleppe v. New Mexico, 426 U.S. 529, 545 (1976) (“Unquestionably the States have broad trustee and police
powers over wild animals within their jurisdictions”).
The states’ exercise of sovereign and quasi-sovereign authority over these resources, grounded in their
status as “residuary sovereigns” under the U.S. Constitution’s federal system, is fundamental to their
statehood and their right to protect their citizens.
Alden v. Maine, 527 U.S. 706, 715 (1999); Tennessee
Copper Co., 206 U.S. at 237. Land, water, air, and fish
and wildlife are particularly important to the public,
and states are well-positioned to protect their residents’ interests in these resources.
2. At the same time, the federal government has a
significant interest in “protecting and promoting environmental quality” and natural resources. Robertson
v. Methow Valley Citizens’ Council (Methow Valley),
490 U.S. 332, 348 (1989); 42 U.S.C. § 4331. Advancing
those interests while respecting traditional state authority, Congress relied upon cooperative federalism
as a core feature for many of the foundational environmental laws enacted in the 1970s. Robert L. Glicksman, From Cooperative to Inoperative Federalism: The
Perverse Mutation of Environmental Law and Policy,
41 WAKE FOREST L. REV. 719, 738 (2006); see also, e.g.,
Ohio v. Environmental Protection Agency, 603 U.S.
____; 144 S. Ct. 2040, 2048 (2024) (noting “the Clean
Air Act envisions States and the federal government
working together to improve air quality”); Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992) (“The Clean Water
10
Act anticipates a partnership between the States and
the Federal Government, animated by a shared objective: ‘to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters”’ (quoting 33 U.S.C. § 1251(a))).11 Cooperative federalism refers to “those instances in which a federal statute
provides for state regulation or implementation to
achieve federally proscribed policy goals.” Philip J.
Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663, 668 (2001).
Unlike dual federalism, in which state and federal actors “regulate[] in [their] own distinct sphere of authority without coordinating with the other,” id. at
664, “cooperative federalism” requires “federal and
state actors [to] work[] together,” Health & Hosp.
Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 182
(2023).
The result of this cooperative, intergovernmental
approach is a regulatory system in which “both levels
of government . . . contribute to the common goal of
minimizing the degree to which human activities
threaten harm to health and to valuable natural resources.” Glicksman, supra, at 720.
II. NEPA requires and advances cooperative
federalism.
NEPA fits within and advances cooperative federalism by requiring cooperation between the federal
11 Several other environmental laws rely on a similar framework. See, e.g., 42 U.S.C. § 6901(a)(4) (Resource Conservation and
Recovery Act); 42 U.S.C. § 300g-1(b)(1)(A) (Safe Drinking Water
Act); 15 U.S.C. § 2605 (Toxic Substances Control Act).
11
government and states to “reduce or eliminate environmental damage and to promote ‘the understanding
of the ecological systems and natural resources important to’ the United States.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C.
§ 4321); 42 U.S.C. § 4331(a).
1. NEPA does not impose any substantive environmental requirements. Methow Valley, 490 U.S. at
351. “Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on
requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Public Citizen, 541 U.S. at 756-57 (citing Methow Valley,
490 U.S. at 349–50). While the Act does not dictate
particular results, its procedures, which require federal agencies to take a “hard look” at the potential direct and environmental effects of their proposed
actions, often “affect the agency’s substantive decision.” Methow Valley at 349-50.
NEPA directs federal agencies to comply with its
requirements “to the fullest extent possible.” 42 U.S.C.
§ 4332. This “is neither accidental nor hyperbolic”; instead, it is “a deliberate command,” Flint Ridge Dev.
v. Scenic Rivers Ass’n, 426 U.S. 776, 787 (1976). And
that directive seeks to ensure that federal agencies understand the potential environmental consequences of
their proposed actions, 42 U.S.C. § 4331, and use that
knowledge to “take actions that protect, restore, and
enhance the environment,” 40 C.F.R. § 1500.1(c). In
that regard NEPA imposes action-forcing requirements, which obligate agencies to consider, among
other things: (1) the direct effects of their actions, that
is effects that “are caused by the action and occur at
12
the same time and place,” and (2) the indirect effects
of their actions, “which are caused by the action and
are later in time or farther removed in distance, but
are still reasonably foreseeable.” Public Citizen, 541
U.S. at 764 (quoting 40 C.F.R. § 1501.18 (2003)).
These action-forcing requirements are essential to
NEPA’s informational purposes. By requiring analysis
of these effects, NEPA “ensures that the [federal]
agency, in reaching its decision, will have available,
and will carefully consider, detailed information concerning significant environmental impacts; it also
guarantees that the relevant information will be made
available to the larger audience that may also play a
role in both the decisionmaking process and the implementation of that decision.” Methow Valley, 490 U.S.
at 349; see also Baltimore Gas & Electric v. NRDC, 462
U.S. 87, 97 (1983) (discussing NEPA’s “twin aims”);
Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976) (discussing NEPA’s action-forcing requirements
2. Congress reserved a special role for states in
advancing NEPA’s mandates, requiring federal agencies to achieve NEPA’s goals “in cooperation with
State and local governments.” 42 U.S.C. § 4331(a). To
that end, NEPA expressly requires agencies to include
with environmental impact statements the comments
and viewpoints of state agencies with jurisdiction over
the environmental effects of major federal actions. Id.
§ 4332(2)(C). And NEPA allows federal agencies to include state agencies with jurisdiction over such effects
as cooperating agencies in their NEPA review. Id. §§
4336a(3) & (4). These provisions reflect Congress’ intent to ensure cooperation between state and federal
13
actors to achieve their shared interest in “encourag[ing] productive and enjoyable harmony between man and his environment.” Id. § 4321.
The Council on Environmental Quality (CEQ) is
tasked with developing implementing regulations for
NEPA. Pub. Citizen, 541 U.S. at 757. CEQ’s NEPA
regulations build upon the statutory requirement for
federal agencies to involve state and local governments in their NEPA processes. Those regulations require federal agencies to assess whether a proposed
federal agency action either violates state law or is inconsistent with state policies designed for the protection of the environment. 40 C.F.R. § 1501.3.12 Any such
violations or inconsistencies may lead the agency to
determine that those impacts are significant and require more in-depth environmental analysis. And,
when drafting an environmental impact statement,
the agency must discuss whether a proposed action is
inconsistent with any approved state law or plan. 40
C.F.R. § 1506.2(d). These requirements illustrate
NEPA’s consideration of and respect for impacts that
are explicitly under the control of other federal, state
or local government agencies, not just the federal
agency taking the action under review.
NEPA’s cooperative federalism approach ensures
robust coordination between federal agencies and the
states in evaluating the environmental impacts of federal actions. It also provides states with an important
12 Although CEQ’s regulations have been amended several
times over the past few years, the regulatory provisions cited in
this paragraph are largely unchanged from the provisions originally adopted by CEQ in 1978. See 40 C.F.R. §§ 1506.2(d) and
1508.27(10) (1978).
14
opportunity to protect their sovereign and quasi-sovereign interests and ensure their ability to comply
with their delegated responsibilities, helping federal
agencies in reaching better informed decisions in the
process. Thus, NEPA serves to safeguard states’ sovereign and quasi-sovereign interests, as Congress intended.
III. Consideration of reasonably foreseeable effects outside an agency’s control is consistent with NEPA’s text and supports states’
interests.
Petitioners urge the Court to read NEPA and Public Citizen to allow federal agencies to disregard reasonably foreseeable impacts regulated by other federal
agencies, states, or local governments—on the rationale that addressing or mitigating such impacts is
beyond the scope of the federal agency’s regulatory authority. Pet’rs Brief at 1-2.
As a threshold matter, this argument mischaracterizes this Court’s holding in Public Citizen. Petitioners erroneously rely on Public Citizen for the
proposition that an agency’s NEPA review is limited
to the scope of its regulatory authority over environmental harms. Pet’rs Brief at 2. But Public Citizen
merely held that the scope of the agency’s ability to
consider and act upon the effects of a proposed agency
action is what informs the scope of the agency’s NEPA
review. Public Citizen at 770. An agency’s regulatory
jurisdiction is irrelevant to the Public Citizen analysis.
Even if Public Citizen did not contradict Petitioners’ argument, their proposed bright-line rule is exceedingly and unworkably broad and contradicts the
15
text and purpose of NEPA. It does not distinguish between direct and indirect effects. And it does not require federal agencies to assess important qualitative
factors (e.g., the ability to identify and quantify the effects, the anticipated magnitude of the effects, or the
relative probability that such effects will be caused by
the proposed action) in determining the appropriate
weight to be given to effects regulated by other entities
in their NEPA analyses.
On Petitioners’ approach, federal agencies would
be allowed to ignore harmful effects to land, air, or water, even those directly caused by the federal agency
action, simply because those effects are subject to regulation by other federal agencies, local governments,
or states exercising their sovereign and/or delegated
authority. Essentially, Petitioners seek to impose a
standard of enforced ignorance on federal agencies,
hamstringing the agencies’ ability to make reasoned
and informed decisions that protect human health and
the environment on the theory that it could potentially
be addressed elsewhere. This approach not only violates NEPA, but also harms states’ ability to collaborate on and influence federal decisions that implicate
core state interests and seek appropriate mitigation of
potential harmful impacts. In other words, Petitioners’ argument represents the opposite of cooperative
federalism. The Court should reject this approach for
the following reasons.
1. Such an approach is wholly out of step with the
express language of NEPA, which explicitly provides
for participation by other governmental entities, including state and local government agencies, in the environmental review process. See 42 U.S.C. §§ 4331(a),
16
4332(2)(C), 4336a(3) & (4); see also supra at 13-14.
NEPA requires federal agencies to “consult with and
obtain the comments of” other federal, state, and local
agencies with jurisdiction over the environmental effects of major federal actions. Id. § 4332(2)(C). The requirement to consult with other agencies with
“jurisdiction by law with respect to any environment
[sic] impact” was intended to be a prerequisite to the
preparation of the required analysis of environmental
effects. 115 CONG. REC. 40,420 (1969).
Petitioners’ proposed bright-line rule would eliminate that textual directive from the statute, allowing
agencies to solicit but then ignore input provided by
other agencies regarding such reasonably foreseeable
effects. This is inconsistent with both NEPA’s text and
Congress’ intent to require a comprehensive assessment of the environmental effects of federal agency actions. Methow Valley, 490 U.S. at 348 (citing 115
CONG. REC. 40,416 (1969)) (in enacting NEPA, Congress intended to infuse a commitment to protect and
promote environmental quality into federal decision
making). The Court should reject Petitioners’ invitation to disregard NEPA’s plain language.
2. Petitioners’ proposed bright-line rule is inconsistent with this Court’s precedent. Petitioners cite
Methow Valley for the proposition that agencies “need
not consider remote environmental effects, non-environmental effects, pure risk, or matters beyond the
agency’s remit.” Petitioners’ Brief at 23. But Methow
Valley involved consideration of not just direct effects
caused by development of a ski resort, but also indirect
effects regulated by state and local governments and
caused by off-site development driven by the proposed
17
project. Methow Valley at 342. In fact, the Forest Service’s environmental impact statement in that case
considered several categories of direct and indirect effects regulated by state and local governments, paying
“particular attention” to air quality and wildlife, and
included input from the Washington State Department of Game with respect to impacts to the state’s
mule deer population from off-site developments.
Methow Valley at 349. And, indeed, the Court recognized that state and local input serves an important
“informational role.” Id. at 342.
Critically, in Methow Valley the responsible decision-maker’s consideration of direct and indirect effects regulated by Washington State and local
governments directly informed and improved the ultimate decision and protected the state’s sovereign and
quasi-sovereign interests. The Regional Forester directed the Forest Supervisor to implement mitigation
measures to address state and local agency comments
identifying reasonably foreseeable effects the proposed action would have on air quality and mule deer
wintering range, effects outside the regulatory authority of the Forest Service but within the jurisdiction of
state and local governments. Id. at 345. The position
Petitioners seem to be taking in the instant case asks
the Court to cut off NEPA review of the very type of
impacts considered by the Forest Service and the input provided by Washington State and local governments in Methow Valley.
3. The facts of this case demonstrate the negative
consequences of Petitioner’s proposed bright-line rule.
As required by NEPA, in the environmental review at
18
issue in this action the STB solicited input from several state agencies with jurisdictional authority over
environmental effects of the STB’s action, including
the Colorado Department of Public Health & Environment and Colorado Parks and Wildlife.13 Unita Basin
Railway: Environmental Impact Statement (EIS),
at 5-5 to 5-6 (August 2021), https://icfbiometrics.
blob.core.windows.net/uinta-basin/05_Consultation_Coordination_FEIS.pdf. Those state agencies
provided extensive comments on the anticipated environmental effects for which they would be responsible
should the STB adopt one of the proposed alternatives
identified through the NEPA process.
For instance, Colorado Parks and Wildlife commented on direct effects of the STB’s action, including
the anticipated impacts of the alternatives on stateadministered fish and wildlife resources. JA 151-52.
Similarly, the Colorado Department of Public Health
& Environment commented on indirect effects of the
STB’s approval of the rail line, namely the anticipated
downline air quality impacts of the various alternatives. CDPHE: Comments on the Seven County Infrastructure Coalition – Unita Basin Railway Draft
Environmental Impact Statement (December 9, 2020),
13 The STB also solicited comments from several tribal and lo-
cal governments, whose participation added significant value to
the STB’s NEPA process. EIS at 5-5 to 5-6 (listing other agencies
with whom STB consulted); see also, e.g., JA 152-53 (summarizing comments provided by Moffat County, Colorado, in discussion
of alternatives); EIS at 3.4-58, https://icfbiometrics.blob.core.windows.net/uinta-basin/03_04_Bio_Resources_FEIS.pdf (“recommending mitigation requiring the Coalition implement the
reasonable requirements of the Ute Indian Tribe for minimizing
impacts on wildlife, fish, and vegetation on Tribal trust lands”).
19
https://uintabasinrailwayeis.com/
comment_submissions/UBR-DEIS-00188-53701.pdf.
Those comments noted the project’s potential to impact the state’s ability to comply with the federal
standards for ozone in the Denver Metro/North Front
Range nonattainment area and requested inclusion of
several mitigation measures to address those potential impacts, including adoption of anti-idling programs and use of electric equipment where feasible.
Id.
Those state agency comments helped inform the
STB’s environmental analysis and, by extension, its
ultimate decision, which weighed the project’s transportation benefits against the environmental harms
identified in the NEPA process. The STB cited Colorado Parks and Wildlife’s concerns regarding the proposed rail route’s potential harm to high quality
wildlife habitat—including crucial winter range and
migration routes for big game species—in declining to
carry forward one alternative it deemed unreasonable
due in part to “the potential for disproportionately significant environmental impacts.” JA 153. And like the
U.S. Forest Service did in the environmental impact
statement analyzed in Methow Valley, the STB directed the proponents to consider several of the mitigation measures requested by the Colorado
Department of Public Health & Environment to minimize the rail line’s impact on Colorado’s ability to comply with the Clean Air Act’s air quality standards. Pet.
App. 177a, 178a (AQ-MM-3, requiring the proponent
“to develop and implement an anti-idling policy”; and
AQ-MM-5, requiring the proponent “to consider procuring alternative engine and fuel technologies”).
20
By including effects regulated by state and local
governments in its analysis of the proposal and other
potential alternatives, even indirect effects geographically distant from the proposed rail line, the STB was
able to identify an alternative that minimized some of
the unavoidable environmental impacts while delivering substantial transportation and economic benefits.
Pet. App. 118a-119a. To be clear, the STB was not required to adopt the Environmentally Preferable Alternative identified in its environmental impact
statement. Methow Valley, 490 U.S. at 350 (“If the adverse environmental effects of the proposed action are
adequately identified and evaluated, the agency is not
constrained by NEPA from deciding that other values
outweigh the environmental costs”). But the fact that
it chose an alternative supported by input from states
on effects outside of STB’s regulatory authority shows
the value a robust, cooperative NEPA process adds to
federal decision making.14 Supra at 13 and infra at 21.
Petitioners concede it was appropriate for the STB
to consider certain direct effects regulated by states in
its environmental impact statement for the proposed
Uinta Basin Rail Line. Pet’rs Brief at 1, 41-42. But,
taken to its logical end, the rule they ask the Court to
adopt would allow federal agencies like the STB to ignore both direct and indirect effects simply because
they are regulated by other governmental entities.
Had the STB applied Petitioners’ bright-line rule and
14 As noted above, the value added by the STB’s incorporation
of certain state-regulated effects into its environmental analysis
and decision-making process underscores the damage caused by
its inconsistent decision to then ignore the downstream and upstream effects at issue here.
21
ignored effects regulated by Colorado here, it would
likely have reached a different decision—one that
failed to account for significant impacts to Colorado’s
interest in protecting and preserving the state’s fish
and wildlife. See supra at 20. This also would likely
have impacted Colorado’s ability to comply with its obligations under the Clean Air Act. See id. If the STB
had not considered the indirect air quality effects identified by the Colorado Department of Public Health &
Environment, it might not have identified and recommended mitigation measures designed to address
those effects, which could have contributed to violations of the federal ozone standards and hampered the
state’s ability to comply with those standards.
CDPHE: Comments on the Seven County Infrastructure Coalition – Unit Basin Railway Draft Environmental Impact Statement (December 9, 2020),
https://uintabasinrailwayeis.com/
comment_submissions/UBR-DEIS-00188-53701.pdf.
This highlights the impacts of STB’s refusal to
consider the upstream and downstream effects at issue here because some of those effects, once they come
to pass, are then regulated by other entities. Pet. App.
107a-108a, 112a. The STB’s failure to account for all
of the reasonably foreseeable direct and indirect effects regulated by other entities here missed important, and legally required, opportunities to
understand and enable response to environmental
harms resulting from the STB’s action. Had the STB
considered such effects, instead of dismissing them because they are regulated by other entities, its decision
would have been fully informed as to all of the reasonably foreseeable environmental impacts it was statutorily authorized to consider. In addition, the decision
22
could likely have been further refined and improved to
consider those effects while still achieving the benefits
sought by the project proponents. The STB thus departed from NEPA’s cooperative federalism approach,
disregarding important environmental impacts that
harm state interests merely because other actors could
theoretically address them.
Perhaps anticipating the legal obstacles to a
bright-line rule allowing agencies to ignore effects regulated by other governmental entities, Petitioners appear to have broadened their argument to advocate for
a bright-line rule equating the scope of NEPA review
with the boundary of tort liability. As addressed in the
Respondents’ briefs, this argument is inconsistent
with this Court’s precedent and ignores the difference
between NEPA’s forward-looking, informational purpose and tort law’s backward-looking liability-limiting
focus. Regardless, Petitioners’ rhetorical pivot does
not meaningfully change the impact their proposed
rule would have on states. Whether Petitioners’ proposed rule is based on a lack of regulatory authority or
an artificial comparison to tort law principles, it would
undermine states’ ability to protect their sovereign
and quasi-sovereign interests, comply with federal environmental laws, and account for states’ interests in
advancing the economic and environmental well-being
of their citizens.
Adopting such a rule would be at odds with
NEPA’s goal of protecting and preserving environmental quality by requiring federal agencies to make decisions fully informed by the environmental impacts of
their actions, supra at 12-13, as well as its requirement that federal agencies cooperate with state and
23
local governments in determining the scope of those
same impacts, supra at 13-15. And there is no basis for
allowing federal agencies to ignore either the direct or
indirect effects of their actions because other federal
agencies, states, or local governments have regulatory
authority to potentially address the relevant impacts,
or because those effects do not satisfy an ill-defined
tort-law standard.
For the same reason STB considered reasonably
foreseeable effects regulated by Colorado and Utah, it
should have also considered the upstream and downstream effects of the proposed rail line project at issue
here. Because the purpose of the proposed rail line is
to allow increased development and transportation of
crude oil, the effects of increased development and oil
refining are reasonably foreseeable. Thus, these effects are not too far attenuated from the proposed project and should have been considered by STB.
IV. Requiring federal agencies to consider reasonably foreseeable effects of their actions,
even those outside their authority, does not
harm states’ sovereign and quasi-sovereign
interests or cooperative federalism.
Notwithstanding the benefits of considering reasonably foreseeable effects regulated by state and local
governments in the environmental analysis of proposed federal agency actions—and the significant
drawbacks of failing to do so—other state amici suggest that Petitioners’ proposed rule best advances
states’ sovereign and quasi-sovereign interests and cooperative federalism. These arguments fail for several
reasons.
24
1. The other state amici misinterpret NEPA’s requirements. They argue, for example, that by requiring the STB to consider downstream effects of refining
oil brought to market via the proposed Uinta Basin
Rail Line, the court of appeals’ opinion requires the
STB to determine how best to regulate those effects.
Louisiana et al. Amicus Brief at 18 (requiring the STB
to consider downstream effects regulated by Louisiana
would require the agency “to figure out how to regulate Louisiana activities based on a Utah project”).
That argument fundamentally misconstrues NEPA.
NEPA “does not mandate particular results”; it
“simply prescribes necessary process,” which often
does, but is not required to, affect the agency’s substantive decision. Methow Valley, 490 U.S. at 350.
NEPA requires an agency to identify and evaluate the
environmental effects of a proposed action; it does not
constrain the agency “from deciding that other values
outweigh the environmental costs.” Id. “Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits
uninformed—rather than unwise—agency action.” Id.
at 351. Requiring federal agencies to consider reasonably foreseeable effects regulated by other federal
agencies, states, or local governments does not, as
other state amici suggest, overlook and undercut federal and state regulation of “non-STB regulated” effects and render state regulations superfluous or
delegated authority meaningless. Louisiana et al.
Amicus Brief at 4, 12, 15. To the contrary, it fulfills
NEPA’s action-forcing requirements. Supra at 12.
25
As the record in this case demonstrates, a federal
agency’s consideration of reasonably foreseeable effects regulated by a state in its NEPA analysis enhances, and does not override, the state’s regulation of
those effects. For example, in its environmental impact statement for this rail line, the STB considered
certain water quality effects regulated by the Utah Department of Environmental Quality. JA 213, 214-15.
In assessing the environmental impacts of the proposed rail line, the STB acknowledged the state’s role
in regulating those effects and expressly relied on the
state’s permitting authority in concluding that those
effects would be insignificant. JA 213-14;EIS at 4-6,
https://icfbiometrics.blob.core.windows.net/uinta-basin/04_Mitigation_FEIS.pdf (identifying requirement
to obtain CWA Section 401 permit from the State of
Utah as a mitigation measure). It also adopted mitigation measures designed to help Utah meet its obligations under the Clean Air Act. Pet. App. 179a
(directing proponent to avoid construction in January
and February, to the extent possible, to minimize
ozone precursor chemicals in the Uinta Basin Ozone
nonattainment area).
These examples show how NEPA advances state
sovereignty and how the process could have worked in
states’ favor if the STB had considered the upstream
and downstream effects at issue here. If the court of
appeals’ opinion is upheld, STB will need to evaluate
the specific upstream and downstream effects identified by that court. The STB can make reasonable educated assumptions regarding the upstream and
downstream consequences of oil and gas development
and refining caused by the proposed project. In fact, it
has already prepared estimates of how much potential
26
oil development might result from construction of the
rail line, J.A. 351-58, and estimated a reasonable “distribution of destinations for Uinta Basin crude oil
transported on the proposed rail line.” J.A. 481-482.
Moreover, as long as the STB explains these assumptions so the public is aware, STB will have complied
with NEPA. STB started this analysis and unreasonably stopped. We simply request that STB analyze
these reasonably foreseeable effects to ensure a thorough environmental review of its proposed approval of
the rail line.
2. Other state amici misapprehend the relationship between NEPA and federal agencies’ organic statutes. They suggest that requiring federal agencies to
consider effects regulated by states or other entities in
their NEPA analyses will somehow expand the scope
of agencies’ authority to consider such effects in reaching their ultimate decision. Louisiana et al. Amicus
Brief at 11-12. But this argument is backward. As the
Court held in Public Citizen, NEPA does not define the
scope of an agency’s statutory authority to make decisions delegated to it by Congress; the scope of an
agency’s statutory authority to act informs whether
the agency can properly consider an impact under
NEPA. Public Citizen, 541 U.S. at 770; see also Pet.
App. 36a-37a (holding that the STB’s broad authority
to consider environmental harm in making licensing
determination informed scope of required NEPA review). The Interstate Commerce Commission Termination Act of 1995 authorizes the STB to consider the
upstream and downstream effects at issue in deciding
whether to approve the proposed rail line, not NEPA.
Pet. App. 4a. And as the court of appeals properly held,
the scope of the STB’s statutory authority under the
27
ICC Termination Act of 1995 informs the appropriate
scope of its NEPA review. Pet. App. 36a-37a.
3. Allowing federal agencies to ignore in their
NEPA analyses reasonably foreseeable effects regulated by other governmental entities defies cooperative federalism and undermines the sovereign and
quasi-sovereign interests of the states. This approach
would complicate, or even render impossible, the ability of states to protect their sovereign and quasi-sovereign interests during environmental reviews and to
work with the federal government to fulfill their delegated authorities.
Consider states’ exercise of their authority to regulate air quality to comply with the standards set by
the U.S. Environmental Protection Agency under the
Clean Air Act. If federal agencies could ignore the reasonably foreseeable but geographically remote effects
of their actions on state-regulated air quality, they
could undermine states’ ability to meet federally imposed standards, such as ozone standards on Colorado’s Front Range. See supra at 22. In addition to
harming public health and the environment and imposing regulatory costs on state agencies, such violations can lead to serious penalties and restrictions. 42
U.S.C. § 7509 (providing for penalties imposed for failure to attain federal ozone standards, including loss of
federal highway funding). This risk is magnified for
federal projects over which states have limited authority, like the STB’s approval of the Uinta Basin Rail
Line. See 49 U.S.C. § 10501(b) (preempting state regulation of rail transportation). The Clean Air Act’s
sanctions for non-compliance are mandatory. 42
U.S.C. § 7509. Thus, the state is subject to sanctions if
28
it cannot mitigate a federal project’s air quality impacts by regulating other sources under the state’s
control, even if the state has no authority to directly
regulate the project’s emissions.
4. Other state amici also suggest that requiring
federal agencies to consider in their NEPA analyses
effects regulated by states introduces additional delay.
Louisiana et al. Amicus Brief at 18. As an initial matter, some delay is inherent in requiring agencies to
identify and analyze the environmental effects of their
decisions before acting. See Robert W. Adler, In Defense of NEPA: The Case of the Legacy Parkway, 26 J.
LAND RES. & ENVTL. L. 297. 299 (2006). By its very nature, NEPA reflects Congress’ determination that the
drawbacks of some potential delay in federal decision
making are outweighed by the benefits of infusing environmental considerations into these decisions.15
But even assuming any delay caused by NEPA review is problematic, there is no evidence that requiring agencies to consider effects regulated by other
governmental entities exacerbates that delay. And
there is reason to believe otherwise: “Experience has
shown that where agencies use NEPA to share information and planning responsibilities with other affected agencies early on, the environmental review
process will take less time and lead to decisions that
enjoy greater support.” CEQ, National Environmental
Policy Act: A Study of Its Effectiveness After Twenty15 As noted in the Brief for Respondent Eagle County, Congress
spoke to these concerns in the BUILDER Act, in which it imposed
time limitations on agencies’ NEPA review processes. Brief for
Respondent Eagle County at 25 (citing 42 U.S.C. § 4336a(g)
(2023)).
29
five Years, at 21-22 (Jan. 1997), https://ceq.doe.gov/
docs/ceq-publications/nepa25fn.pdf. In contrast, the
limited, piecemeal review championed by other state
amici would “put agencies — and the public — in adversarial positions and delay federal actions that are
important to local and regional economies, as well as
actions that are intended to improve the environment.” Id.; see also Adler, supra, at 307.
5. Finally, other state amici argue that requiring
federal agencies to consider effects regulated by other
governmental entities in their NEPA analyses threatens state economies. Louisiana et al. Amicus Brief at
16. This argument ignores the economic benefits of ensuring that federal decisions account for environmental quality and natural resources impacts. Supra at 12. In addition to the significant public health, ecosystem services, and regulatory benefits of ensuring federal
decisions
account
for
state-regulated
environmental quality effects, accounting for potential
impacts to state-regulated natural resources directly
contributes to outdoor industries of critical importance
to many states’ economies. Id.
Simply put, requiring federal agencies to consider
all reasonably foreseeable impacts of their actions that
they are statutorily authorized to weigh in taking a
proposed action, even indirect effects regulated by
other governmental entities, not only honors the text
of NEPA but also protects states’ sovereign and quasisovereign interests and advances cooperative federalism.
CONCLUSION
The judgment of the U.S. Court of Appeals for
the District of Columbia Circuit should be affirmed.
30
Respectfully submitted,
PHILIP J. WEISER
Attorney General
NATALIE HANLON
LEH
Chief Deputy
Attorney General
SHANNON W.
STEVENSON
Solicitor General
Counsel of Record
KURTIS T.
MORRISON
Deputy Attorney
General
SCOTT
STEINBRECHER
Deputy Attorney
General
CARRIE NOTEBOOM
Assistant Deputy
Attorney General
CORY HALLER
Assistant Solicitor
General
BREA HINRICKS
Assistant Attorney
General
Office of the
Attorney General
Department of
Law
State of Colorado
1300 Broadway,
10th Floor
Denver, Colorado
80203
Shannon.Stevenson@coag.gov
(720) 508-6000
Counsel for Amicus Curiae State of Colorado
(additional counsel listed below)
October 25, 2024
ADDITIONAL COUNSEL
ROBERT W. FERGUSON
Attorney General
STATE OF WASHINGTON
AARON D. FORD
Attorney General
STATE OF NEVADA
WILLIAM TONG
Attorney General
STATE OF CONNECTICUT
MATTHEW J. PLATKIN
Attorney General
STATE OF NEW JERSEY
KATHY JENNINGS
Attorney General
STATE OF DELAWARE
LETITIA JAMES
Attorney General
STATE OF NEW YORK
KWAME RAOUL
Attorney General
STATE OF ILLINOIS
ELLEN ROSENBLUM
Attorney General
STATE OF OREGON
AARON M. FREY
Attorney General
STATE OF MAINE
PETER NERONHA
Attorney General
STATE OF RHODE ISLAND
ANDREA JOY CAMPBELL
Attorney General
COMMONWEALTH OF
MASSACHUSETTS
CHARITY R. CLARK
Attorney General
STATE OF VERMONT
DANA NESSEL
Attorney General
STATE OF MICHIGAN
KEITH ELLISON
Attorney General
STATE OF MINNESOTA
BRIAN SCHWALB
Attorney General
DISTRICT OF COLUMBIA
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.