On May 29, 2025, the U.S. Supreme Court issued a decision in Seven County Infrastructure Coalition v. Eagle County (No. 23-975) in which it perhaps clarified, perhaps modified, or perhaps announced entirely new standards for judicial review of agency obligations under the National Environmental Policy Act (NEPA). Justice Kavanaugh delivered the majority opinion, holding that federal agencies are now entitled to “substantial deference” when making decisions about the scope and content of an environmental impact statement (EIS). This holding was predicated on the majority’s view that NEPA is a “procedural cross-check, not a substantive roadblock” to agency action, and thus courts should not “micromanage” agency decisions about EIS scope and detail as long as the agency’s final decision is “reasonable and reasonably explained.” Applying this standard, the majority held the U.S. Surface Transportation Board (STB) was not required to analyze potential upstream and downstream effects from “separate projects” over which it had no regulatory authority. In a concurring opinion authored by Justice Sotomayor, the liberal minority on the Court reached the same result, for some of the same reasons, but under a non-deferential standard of review.
The majority opinion emphasizes the central role of deference in NEPA litigation, and undoubtedly seeks to change the mood of adjudication of NEPA claims. Many commentators have characterized this as a major shift in legal standards of review (see, e.g., here and here), and some lower courts may read in it a signal to curtail scrutiny. However, as explained below, the impact of the “substantial deference” standard is uncertain; in some ways, it resembles deferential standards of review that have governed aspects of past NEPA litigation, and arguably the case can be best understood as a restatement, maybe a tightening, of the “rule of reason” and the principle that agencies need only consider environmental information in an EIS that is relevant and useful to the decision-making process. In our view, the decision does not foreclose meaningful judicial review of agency obligations under NEPA. To the contrary, courts should continue enforcing agency obligations to evaluate upstream and downstream effects when that information is necessary in order for the agency to reach a final decision that is “reasonable and reasonably explained.”
Background
This case involved an EIS for an 88-mile rail line intended to transport crude oil from the Uinta Basin in Utah to the national railway system, where it could then be carried by train to oil refineries in Louisiana, Texas, and other states. In the EIS, STB acknowledged that increased oil production was a foreseeable result of the project, and included estimates of the greenhouse gas (GHG) emissions attributable to the combustion of fuels refined from the crude oil transported on the line. However, STB did not conduct a detailed analysis of GHG emissions or other environmental impacts attributable to oil production and refining. STB maintained that it lacked authority to even consider such effects when issuing a rail certificate because: (i) it “generally cannot restrict the types of products and commodities that are transported on rail lines, and in fact, has held that railroads have a common carrier obligation to carry all commodities, including hazardous materials”, and (ii) it has “no role in determining or controlling the final destinations or end uses of any products or commodities transported on the proposed rail line.”
After STB approved the construction and operation of the Uinta Basin Railway, Eagle County, Colorado, and seven environmental organizations filed a lawsuit alleging that STB had arbitrarily limited the scope of its assessment, and had failed to take a “hard look” at upstream and downstream effects of the crude oil supply chain, among other things. The D.C. Circuit Court of Appeals issued a decision in 2023 finding that the EIS was deficient because it did not include estimates of GHG emissions and other impacts from induced oil production or oil refining. The court vacated the EIS and the STB’s approval on these grounds.
The Supreme Court’s Decision
In an 8-0 decision, with Justice Gorsuch recused, the Supreme Court reversed and remanded the D.C. Circuit Court’s decision. The majority held that the D.C. Circuit Court had not afforded STB the “substantial judicial deference” it declared is required in NEPA cases (Part II.A), and that STB had rightly concluded that it need not evaluate the effects of oil drilling and refining in its EIS (Part II.B). The majority opinion lashes out at NEPA in a variety of ways, yet we think that these holdings should be interpreted somewhat narrowly, for the following reasons:
First, the majority’s holding on substantial deference was based on its view that NEPA was a “purely procedural” statute and that the “ultimate question” for courts in NEPA cases is not “whether an EIS in and of itself is inadequate, but whether the agency’s final decision was reasonable and reasonably explained.” This suggests that courts should afford substantial deference to agencies in the context of standalone NEPA claims that do not implicate the agency’s obligations under the substantive statutory framework governing the action. However, if the alleged deficiencies in the EIS may result in a breach of the agency’s obligations to “consider all relevant factors” and provide a “reasonable explanation” for its action, then presumably the standard level of deference under Administrative Procedure Act (APA) arbitrary-and-capricious review should apply.
As for standalone NEPA claims, things are a bit hazy: The Supreme Court has previously recognized that heightened deference is warranted in the context of some NEPA decisions, for example where an agency is making “speculative assessments or predictive or scientific judgments, and decides what qualifies as significant or feasible or the like.” Baltimore Gas & Electric Co. v. NRDC (1983). But the majority opinion goes beyond precedent by directing courts to afford substantial deference to agencies across essentially all areas of NEPA decision-making, including decisions about scope, level of detail, significance determinations, and choice of alternatives. Most of these NEPA decisions entail mixed questions of law and fact. The majority seemed to recognize this, and at one point even asserted that agencies are entitled to substantial deference when determining the scope of their legal authority for the purpose of NEPA scoping decisions (see p. 20). This is not an obvious result, especially in the wake of the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (overturning Chevron deference). The concurring opinion viewed the matter differently, as discussed below.
Importantly, the majority does not suggest that substantial deference is absolute. It recognizes that courts will still play a role in enforcing NEPA (see FN1), that there are instances where agencies will have obligations to assess indirect effects and effects from related projects (see pp. 16, 19-20), and that courts should only defer to NEPA decisions that fall within a “zone of reasonableness.”
Second, the majority’s holding on STB’s NEPA obligations in part II.B. of the opinion should be understood in the context of the substantial deference standard that the majority announced in part II.A and the specific facts of the case. As noted above, STB maintained that it did not need to further analyze the effects of oil drilling and refining because it had no authority to prevent those effects and thus they were irrelevant to its decision-making process. The majority found that this was a reasonable determination, as it was undisputed that STB had “no authority or control over future oil and gas development” in the Uinta Basin, and, moreover, STB “cannot decline to provide ‘common carrier’ transport based on the product or commodity to be carried” (see FN 6). Accordingly, the majority held that STB was not the legally relevant cause of the effects and not required to evaluate those effects, consistent with the rule articulated in Department of Transportation v. Public Citizen (“where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect.”)
The majority noted that the question of whether STB’s determination was reasonable was “not close” – and so this dispute did not test the limits of the “substantial deference” standard. Indeed, the concurring opinion arrived at the same result applying the Loper Bright standard of review, and ultimately agreed that STB could not lawfully consider the contested upstream and downstream effects as part of the approval process, and therefore did not need to include further assessment of those effects in the EIS, also as per the Court’s ruling in Public Citizen.
In its application, then, the decision is not a major departure from past NEPA precedent, but merely a clarification and more modest expansion of preexisting standards, specifically: (i) the “rule of reason” – agencies need only consider environmental information in NEPA reviews that is relevant and useful to the action under review; (ii) the “legally relevant cause” standard – agencies are not responsible for effects that they have no ability to control or prevent; and (iii) courts should afford some amount of deference to agency decisions about the breadth and depth of an EIS.[1]
But What About the Rhetoric?
Now, the Seven County majority opinion is laden with sweeping generalizations and unsupported assertions about the negative effects of NEPA litigation.[2] Chief among those statements is that “NEPA does not require the agency to evaluate the effects of [a] separate project” that is separate in time or place from the action under review. But the import of these statements may be more limited than it at first blush seems.
First, the “separate projects” at issue in this case were structured activities that are regulated by other agencies, and STB had no ability to prevent or influence those activities due to its limited statutory authority. The majority also explicitly recognized that agencies may still have obligations to evaluate environmental effects that “extend outside the geographical territory of the project or might materialize later in time.” The distinction between “separate projects” and “effects” is important, as the majority does not at any point suggest that agencies do not have obligations to consider indirect effects that are caused by their actions but further removed in time or distance.
Second, the majority invokes the tort law concept of proximate cause as the guiding principle for NEPA scoping decisions, consistent with the Court’s prior holding in Public Citizen (“NEPA requires a ‘reasonably close causal relationship’ akin to proximate cause in tort law”). However, as other legal scholars have noted, the doctrine of proximate cause is context-specific, and should not be construed as imposing “artificial limits” on the scope of an agency’s NEPA analysis. Generally speaking, the doctrine of proximate cause is concerned with ensuring a reasonably close relationship between conduct and consequence, but this does not necessarily hinge on issues such as geographical or temporal proximity, or even the fact that intervening actions may occur on a causal chain. Rather, the essential question is whether it is reasonable to hold an agent responsible for a given outcome, which in turn depends on what a reasonable agent would have considered before taking action.[3]
Foreseeability is a major component of proximate cause analysis, but the majority notes that this is not sufficient to establish an adequate causal connection for NEPA purposes, because foreseeability alone “does not mean that those effects are relevant to the agency’s decision-making process or that it is reasonable to hold the agency responsible for those effects.” This statement suggests that proximate cause, for NEPA purposes, should be assessed in relation to: (i) whether the impact is relevant to the decision, and (ii) whether the agency is responsible for the effect, i.e., whether the agency has any authority to undertake a course of action that would prevent or mitigate the effect. That framework is consistent with the tort law principles noted above; however, as other legal scholars have noted, the majority’s application of those principles is somewhat incoherent and inconsistent with tort law application.
Third, in light of the above, the majority’s statements about “separate projects” should not be read to create some kind of categorical bar. The holding in Part II.B specifically dealt with STB’s obligations to consider separate projects that it had no ability to influence due to its limited statutory authority (see FN 6). The majority acknowledged that there are other contexts where agencies may need to consider the effects of separate projects (e.g., “a residential development next door to and built at the same time as a ski resort”). Thus, to the extent the majority has made sweeping, arguably absolute claims about agency obligations that are divorced from context – and ultimately unnecessary to the resolution of the case – we think these are best understood as dictum. Courts should continue to interpret agency obligations to evaluate effects from activities that fall outside of their jurisdiction in light of the overarching legal standards articulated in this case, most notably the rule of reason, the legally relevant cause standard, and the standard of substantial deference.
Implications for Future Actions
How important will Seven County be? How will courts apply the “substantial deference” standard in future NEPA cases? What will be the limits on indirect (and cumulative) effects analysis? In our reading, post-Seven County courts should continue to apply the basic principles of “arbitrary and capricious” review used in APA and NEPA claims: judicial review should focus on whether the agency has considered all relevant factors and provided a reasonable explanation of its decision in light of its NEPA analysis. Although courts should afford “substantial deference” to agency determinations about the scope of environmental review, and to the agencies’ technical analyses, there are limits to deference. The scope inquiry should ultimately depend on both the statutory framework that governs the agency action as well as the nature of the action itself. The adequacy inquiry should ultimately depend, as it always has, on whether the agency missed something major, conducted an assessment that could plausibly be read as in bad faith, or otherwise messed up in a significant way.
Seven County involved a relatively small project (88 miles of railway) that was approved by an agency with limited statutory authority. Other agencies are responsible for different types of projects and operate under different statutory mandates, and unlike STB, agencies often have discretion to account for and respond to environmental impacts that may fall outside of their immediate jurisdiction. There are some contexts where consideration of upstream and/or downstream effects, including effects from activities undertaken by third parties, may be essential to the decision-making processes. For example, the agencies that are responsible for managing public lands and approving fossil fuel development on those lands operate under much broader mandates than the STB, including mandates related to multiple use, sustainable use, conservation, and environmental protection. These agencies have both the authority and an obligation to weigh various policy considerations, including environmental considerations, when making decisions about the utilization of public lands and resources. They also need to account for actions undertaken by other agencies and entities to accurately characterize baseline conditions for their environmental and land management decisions.
Perhaps most importantly, climate change is an obviously salient environmental consideration for agencies tasked with considering whether and to what extent public lands should be used for fossil fuel development. The fact that fossil fuels will be combusted, generating GHG emissions, is a direct and foreseeable consequence of fossil fuel production. As we have discussed in previous articles, many courts have recognized agency obligations to account for those downstream impacts in their NEPA reviews (see here and here for further discussion). Moreover, fossil fuel use – a highly diffuse activity – does not clearly qualify as the type of “separate project” contemplated in the Court’s decision. Finally, and critically the agencies responsible for fossil fuel leasing decisions have the authority to account for environmental impacts that fall outside of their immediate jurisdiction when making decisions about land and resource uses.[4] So courts should not assume that Seven Counties forecloses judicial review of agency obligations to assess downstream emissions from fossil fuel production. To the contrary, the guiding principle, as stated by the Court, is “whether the agency’s final decision was reasonable and reasonably explained” in light of its NEPA analysis. And reasonableness sometimes requires looking at those foreseeable indirect effects, from separate projects, remote in time and place, that are approximately proximately caused by, and legally relevant to, to the action under review.
[1] The majority asserts that it is necessary to reiterate and clarify the deference owed to agencies because some courts have assumed an overly “aggressive” role in enforcing NEPA requirements. However, litigation surveys have demonstrated that courts are already highly deferential to agencies in NEPA litigation, and agencies win the majority of these cases. See National Association of Environmental Professionals, National Environmental Policy Act (NEPA) Annual Reports , https://www.naep.org/nepa-annual-reports.
[2] The majority opinion is rooted in concern that NEPA litigation poses a major hurdle to federal projects, but recent scholarship suggests that this is not the case. See David E. Adelman, Permitting Reform’s False Choice, 51 Ecology Law Quarterly 129 (2024) (finding that most federal energy infrastructure projects are subject to streamlined review procedures or avoid federal regulation altogether); John C. Ruple & Kayla Race, Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases, 50(2) Environmental Law 479 (2020) (finding that, between 2001 and 2013, only one in 450 NEPA decisions were litigated, and the amount of NEPA litigation was declining).
[3] See Prosser & Keeton on Torts, 5th Ed. 1984; Knobe & Shapiro (2021).
[4] For example, the Bureau of Land Management (BLM) operates under a broad mandate to ensure the sustainable use of resources on public lands in a manner that will best serve the public interest for both present and future generations. See Federal Lands Policy and Management Act, 43 U.S.C. §§ 1701 et seq. Pursuant to this mandate, BLM must consider how land management decisions will affect broad environmental, economic, and social interests in both the short- and long-term, and this requires consideration of effects that are removed in time and distance from the immediate land use decision. See 43 U.S.C. § 1702(c) (defining the “multiple use” objective for public land management).