It has long been a complex and time-consuming process for obtaining federal approval to build bridges, wind farms, highways and other major infrastructure projects. Despite the calls for Congress and federal institutional reforms to this process, so far there have been few major revisions.
In one breath, the U.S. Supreme Court changed a large part of the game.
Whether the effect is good or bad depends on the viewer's point of view. Either way, there is a new interpretation of the law, which is at the heart of the debate about licensing - the National Environmental Policy Act of 1969, known as the NEPA.
Appreciate the huge appearance
NEPA requires federal agencies to document and describe the environmental impact of any proposed action, including the construction of oil pipelines, renewable energy and other infrastructure projects.
Only after the work is completed will the agency make a final decision to approve or reject the project. These reports must assess direct effects, such as destroying habitats to make room for new highways, and indirect effects, such as air pollution from using cars after the construction of highways.
Decades of litigation regarding the scope of indirect impact have expanded the assessment required. As I explained to my students, the advances in logic and law are reminiscent of the popular children's book If You Give a Cookie in the Mouse, where the request for cookies triggers an endless series of further requests - a glass of milk, napkins, napkins, and more. In the case of a highway, new segments, shopping malls and jobs must be considered even if the agency correctly assesses the pollution of a car, and even if a new highway may cause new partitions, shopping malls and jobs must be considered.
The challenge for federal agencies is to know a range of unlimited indirect effects that courts may need to evaluate. In recent lawsuits, in particular, the issue is that a range of impacts on climate change and climate change may be related to any one particular project and therefore requires assessment.
According to the court's ruling, the uncertainty day for federal agencies has ended.
The biggest NEPA case in decades
On May 29, 2025, Supreme Court - Withdrawing its own Justice Neil Gorsuch ruled the case of the Seven County Infrastructure Alliance v. Eagle County, Colorado, the first NEPA dispute in court in 20 years.
In dispute is an 85-mile rail line, a group of developers proposed building in Utah to connect the wells to the interstate rail network from where waxy crude oil is transported to refineries in Louisiana, Texas and elsewhere. The Federal Ground Transport Commission reviewed the environmental impact and approved the required permits in 2021.
The report is 637 pages long, with more than 3,000 pages of the appendix containing additional information. It acknowledged, but did not conduct detailed assessments of the indirect “upstream” effects of building rail lines, such as stimulating new oil drilling, and the indirect “downstream” effects of ending waxy oils as far as louisiana.
In February 2022, in Eagle County, Colorado, trains from the new railroad will pass, the Center for Biodiversity appealed the federal court’s decision, deciding that the board failed to properly explain why it did not evaluate these effects. Therefore, the county believes that the report is incomplete and the board of directors should be revoked.
In August 2023, the U.S. DC Circuit Court of Appeals agreed and found that the agency failed to fully explain why it could not use “a measure of prediction” to determine these effects and that the board could prevent them by exercising its denial license.
The railway developer appealed to the Supreme Court to ask whether NEPA requires federal agencies to go beyond the proposed lawsuit to assess indirect effects outside of its own jurisdiction.
A loud statement
Justice Brett Kavanaugh wrote five agreed majority seats, delivering a speech on the sound of the court campaign, desk-top.
Kavanaugh did not stop providing specific support for each kind of advice, describing NEPA as a “legislative acorn” that “growed into a judicial oak over the years, hindering the development of infrastructure.” He lamented that "delay delay" NEPA's imposition to the project is so complicated that it borders "Kafkaesque".
He believes that “NEPA has shifted from a moderate procedural requirement to a blunt and random tool used by project opponents.” He called for “conducting course corrections…to align judicial review under NEPA with statutory texts and common sense.” His opinion resets the course in three ways.
First, although the Supreme Court has recently reduced its respect for the decisions that the court must make on the federal agency’s rulings in other cases, Kavanaugh wrote that the court should strongly respect the agency when reviewing the agency’s NEPA effectiveness analysis. Because these assessments are “options about factual dependence, context-specific and policy-specific choices regarding the depth and breadth of their inquiry… (c) Our the should have substantial respect and should not be micromanaged by these agents as long as they belong to broad rationality.”
Second, Kavanaugh has formulated a new rule that a project’s review does not need to consider the potential indirect effects of other related projects it may induce, such as rail lines that encourage more drilling of oil. Kavanaugh stressed that when reviewing projects without jurisdiction, Kavanaugh stressed that such restrictions were particularly relevant. In this case, this applies to this case because the board does not adjust the well or oil drilling.
Third, Kavanaugh created something like the “harmless-no foul” rule, under which “even if (the statement of environmental impact) is insufficient in some respects, this flaw may not necessarily require the court to revoke the agency’s final approval of the project.” The strong implication is that the court should not overturn the agency’s decision unless its NEPA assessment is seriously flawed.
The current result of the project is that the Supreme Court has postponed the board’s decision to be unable to reliably predict the impact of rail lines on oil drilling or use of transport. And the fact that the agency has no regulatory authority over these separate issues reinforces the idea that these issues are beyond the scope of review required by the Board.
A split court
Although Justice Sonia Sotomayor, along with Justices Elena Kagan and Ketanji Brown Jackson, she will achieve the same end result and maintain agency license, her proposed test is narrower.
By reading, federal laws that formulate the Ground Transport Commission limit it to consider the wider indirect impact of rail lines. However, her findings are only related to any federal agency with the same restrictions. Kavanaugh's "Course Correction" applies to judicial review of the findings of NEPA investigations of all federal agencies.
Although the full impact remains to be seen, the decision significantly changed the legal landscape of environmental reviews for major projects. Institutions will have more freedom to shorten the causal chain of indirect effects they consider – if they flow out of separate projects outside of the agency’s regulatory control, they are completely excluded.
Now, for example, if federal agencies are considering an application to build a new gas power plant, the review must still include its direct greenhouse gas emissions and its impact on the climate. However, due to the possible promotion of additional gas extraction and transportation projects at power plants, as well as the climate impact of any produced electricity, it is now clearly beyond the review required by the agency. And if the institution voluntarily considers any of these effects, the court will have to comply with its analysis and any minor flaws will be irrelevant.
This is far from how the National Environmental Policy Act works around decades of legal structure. For lawyers, industry, advocacy groups and courts, the Eagle County post-judgment environmental review is not just a new goal;