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

Supreme Court briefOct 25, 2024

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NO. 23-975

In the

Supreme Court of the United States

_______________________

SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,

Petitioners,

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.

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