Friends,

This email contains my candid take on the Supreme Court’s Seven County decision. It’s a long email, but it’s an important one. At the end, I’ll tell you how you can support our fight.

Here’s an overview: Last week, the Court issued its decision in Seven County Infrastructure Coalition v. Eagle County, a case in which we were lead counsel for environmental groups. The decision significantly narrows the scope of the National Environmental Policy Act (NEPA), and — perhaps more importantly — tells courts to give a great deal of deference to federal agencies who say they have complied with that law. There’s no sugarcoating it. This is a bad decision that will have important ripple effects.

1. Remind me what “NEPA” is again?

NEPA was the first of our bedrock environmental laws. While it doesn’t dictate outcomes, it does — sensibly — tell agencies to consider the reasonably foreseeable environmental consequences of their actions before taking them. As Congress anticipated, requiring agencies to think about environmental impacts generally leads to better decisions.

NEPA is an important tool for the public too. It has allowed communities and NGOs to influence and inform government decisions and allows people to go to court to challenge an agency’s actions.

2. And what was this case about?

Seven County came to the Court from Utah’s remote Uinta Basin, where industry allies proposed to build an 88-mile stretch of railroad that would connect the Basin to other rail networks. Because the Basin’s oil is a particularly heavy “waxy” crude, the project proponents knew where they had to take it: to a few specific refineries far away in the Gulf that could process it.

In doing its NEPA analysis, the approving federal agency ignored the fact that the only purpose of the railway would be to facilitate the extraction of oil in the Basin and its transport to specific refineries. It also excused itself from considering environmental degradation in the basin and more air pollution in communities around the receiving refineries. So, the Center for Biological Diversity, Living Rivers, Sierra Club, Utah Physicians for a Healthy Environment, and WildEarth Guardians challenged the Board’s decision. The Colorado county through which the railway would run also challenged it.

The lower courts saw the error in the agency’s approach right away and ordered it to re-do its analysis. But then the proponents of the railway asked the Supreme Court to review the case. We at Earthjustice had been watching the case all along, and once that happened, we offered to help out. The environmental groups agreed to let us take over as lead counsel in the SCOTUS proceedings. (We did not argue the case; we lost that honor in a coin toss with our county co-respondent.)

3. What did SCOTUS say?

We lost. We weren’t really surprised about that: this Court is hostile to environmental laws generally and we knew all along that we had an uphill battle with them on the facts of this case. But we had hoped that the Court would issue a relatively narrow decision about these particular circumstances. Instead, it did the opposite. It used the case to take an enormous swing at NEPA itself.

In the narrow part of the opinion, the Court’s conservative wing (minus Justice Gorsuch, who recused himself), held that NEPA allowed the government to consider the environmental impacts of the railroad in isolation. So even though the sole purpose of the railroad was to enable the extraction of up to 350,000 barrels of oil a day, the Court said that the government was free to ignore the impacts of that extraction. And even though we knew exactly where all that oil was headed, the Court said that the government was free to ignore the journey, or what would happen once the oil arrived.

Anyone who has planned infrastructure knows that’s nonsensical. Imagine deciding to build a logging road to an old growth forest without thinking about the clearcuts that come next. Or building a highway without thinking about the sprawl it will encourage. The Court seems to think that’s how NEPA should work. That part of the holding was bad, and more than sufficient to decide the case. But the Court went further, undercutting NEPA itself.

Justice Kavanaugh, writing for the five conservatives, unleashed a lengthy, ideological attack on environmental review, which amounted to this: NEPA is too cumbersome, it’s costing us time, jobs, and money, and it’s all because of litigation. Justice Kavanaugh cited little to no precedent, statute, nor prior case law. Worse still, Justice Kavanaugh imposed a highly problematic solution. From now on, he ruled, courts “should afford substantial deference” to federal agencies’ NEPA analyses.

4. What’s this going to mean for NEPA litigation?

We are already reevaluating the NEPA lawsuits we are litigating. And there are a lot of them; NEPA is one of Earthjustice’s most important tools for fighting bad fossil infrastructure. We used it to force agencies to reconsider terrible ideas proposed by the first Trump administration, and we have already been using it against the second. Many of those cases will be tougher to win under this new “NEPA deference” approach.

We have experience with bad SCOTUS decisions, so we already see where there are opportunities to limit the damage. This is not just about Earthjustice; just hours after the decision, we convened the NGOs that litigate the most NEPA cases, and all of us were aligned on our plan.

The decision is going to further encourage the Trump administration to ignore the environmental consequences of its agenda. Donald Trump has signed orders instructing agencies like the BLM, Forest Service, and BOEM to do whatever it takes to help the fossil fuel, mining, and timber industries. He is telling the EPA to roll back regulations as fast as possible. Justice Kavanaugh has just told courts to “trust the government when it evaluates environmental impacts” at a time when the government is being run by the least trustworthy President we’ve ever had. This administration will waste no time treating Seven County as a blank check to promote fossil fuels, kill off renewable energy, and destroy sensible pollution regulations without seriously considering what that will do to public health and ecosystems.

In some ways, that’s an opportunity. This administration is all about overreach, and this decision will encourage it to turbocharge its plan to develop “alternative NEPA procedures.” We expect to see some 10-page, no-public-input NEPA documents, which will be vulnerable to litigation.

We’ll rebuild not just in courts of law, but in courts of public opinion. People don’t like being cut out of decisions that affect them, let alone living with new pollution when asthma and cancer are already major concerns.

5. Some observations

Don’t think of this as a unanimous decision. Officially, this case was 8-0. But here’s the thing — the three liberals only ruled against us on the very narrow grounds we had tried to steer the entire court towards. To speculate: They may well have written this opinion hoping to draw off one of the less radical conservatives, leaving a 4-4 split that would have affirmed our win without setting any precedent.

This isn’t good for those of us who want more clean infrastructure. Clean energy proponents who have been arguing that NEPA does more harm than good may be in for a shock. While we do see some problems with the NEPA process, and have advocated for changes to address them, Seven County is not going to suddenly unleash transmission lines or solar and wind farms. Cutting back on NEPA review at this point will just encourage the Trump administration to pay off its fossil patrons by greenlighting more fossil infrastructure fast. We’re going to need to fight harder than ever.

This Court’s use of “deference” is not a silver lining. At first glance, one part of the decision could seem positive: The Court recognized that when it comes to hard line-drawing or technical calls, courts should defer to agencies. But if something about that sounds strange to you, it’s because this Supreme Court has spent the last few years saying just the opposite. In cases like Loper Bright, the Court has declared that it’s the job of courts — not agencies — to interpret and apply the law. In doing so, it has taken power away from agencies like the EPA that are tasked with regulating industries. It might seem inconsistent for Seven County to hand that power right back, but from another perspective, it all makes sense. The Court wants to undercut environmental protections. So, it doesn’t defer when agencies try to regulate industries. But it does defer when they greenlight industry projects.

This is a starting gun for more litigation. This Court has a habit of announcing simple rules to solve complex problems. It often says that its rulings will reduce litigation, but just as often, the decisions do the opposite. Seven County will fall into the latter category. As I said above, the opinion includes a lot of vague language that lower courts are going to have to sort out… through litigation. For example, the Court wants agencies to restrict their analyses to specific “projects.” But what exactly counts as a project? Are the multiple stages of a bridge-and-tunnel system each a single project? Or do we think of them all together?

We can still use NEPA and we still have other weapons. Again, this administration is likely to fail even Seven County’s deferential NEPA standard. Moreover, the vast majority of our NEPA cases contain other claims too: most bad projects are also governed by federal laws like the Clean Air Act as well as state and local planning laws. NEPA is an important law, and we need to rebuild on the rubble of this decision, but we have other tools too, and we’re going to sharpen them up and get right back to work.

*   *   *

Like I said: this decision is bad. We’re working fast to understand and adapt to it. We promise to keep you up to date on our thinking and to keep fighting. For NEPA, our partners, and the planet.

You can help us. First, in the court of public opinion: Tell a friend or family member about NEPA — the people’s environmental law! How important it is, and how it’s under threat.

Or, you can tell them about Earthjustice: A nonprofit with the best environmental lawyers in the country. We win a lot of big cases, and we lose some too. But no matter what, we are fighting like hell.

Lastly, keep supporting us. We represent our clients for free, so your gifts power our work. Every lawsuit we file, every brief we write, every argument in front of state courts, federal courts, and the Supreme Court — is thanks to you. So thank you.

~Sam

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Sincerely,

Sam Sankar,
SVP of Program, Earthjustice

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