Petition to the U.S. Supreme Court
After the board issued its approval, the respondents petitioned for review of the board’s decision in the D.C. Circuit, which vacated and remanded the board’s decision because it rejected the board’s reading of Public Citizen. The petitioners timely sought en banc rehearing of the D.C. Circuit’s decision, but the petition was denied on December 4, 2023. The petition for rehearing also did not raise the question presented to the Supreme Court. On March 4, 2024, the petition for a writ of certiorari was filed in the Supreme Court and was ultimately granted on June 24, 2024.
The petitioners framed the issue presented as a circuit split in interpreting Public Citizen between the D.C. Circuit and Ninth Circuit on the one hand, and the rest of the circuit courts on the other. The petitioners described the majority of circuits as taking the view that agencies should limit their NEPA review to only those effects proximately caused by the actions over which they have regulatory responsibility, which the petitioners argue the board did, instead of focusing on the hypothetical distant effects of the main commodity the line would carry, waxy crude oil, over which the board has no power, as the minority of circuits require. The petitioners further noted that the last two administrations implemented conflicting NEPA rules—the first, passed in July 2020, were in line with Public Citizen; and the second set, passed in April 2022, abandoned the majority view of Public Citizen and reinstated the old NEPA rules. The petitioners argued that agencies need a manageable line for guiding their NEPA studies.
The Eagle County respondents’ brief characterized the difference in decisions across circuits not as a circuit split, but instead as simple varying outcomes based on the different statutory and regulatory schemes and the factual context in each of the cases. Specifically, the respondents argued that courts carefully apply Public Citizen to the distinct statutory authorizations and environmental effects at issue in each case before them, and that doing so yields different results in different cases. Interestingly, the respondents also argued that regardless of whether the Court addresses Public Citizen, the D.C. Circuit vacated the board’s decision on other grounds and it should be upheld, which stance was not addressed during oral argument.
Oral Argument Before the U.S. Supreme Court
Petitioners
At oral argument on December 10, 2024, the petitioners opened by stating that NEPA should inform rather than paralyze governmental decision-making and that a 3,600-page environmental impact statement, like the one issued for the project, should not be the standard. The petitioners argued that adopting the D.C. Circuit’s view that because the agency identified or flagged issues, they were foreseeable and further analysis was required, turns NEPA into a substantive roadblock. Justice Sotomayor questioned this characterization, stating that the petitioners’ proposed rule sounded like “I don’t have to think about it if another agency has jurisdiction,” which would be inappropriate under NEPA and lacks sufficient nuance. The petitioners agreed that additional nuance is appropriate and proposed including that the effect was also remote in time or space and in the jurisdiction of another agency. Justice Kagan stated that perhaps the petitioners’ test might sound sufficiently broad in this case, but in others it might be too narrow.
Justice Jackson noted that the petitioners’ brief failed to rely much at all on prior Supreme Court rulings regarding agency deference and pointed out that the Court has previously held in Kleppe v. Sierra Club, 427 U.S. 390 (1976), that NEPA analysis requires a high level of expertise, properly left to the informed discretion of responsible federal agencies. The petitioners responded that a new test, plus deference, was required. The petitioners also argued that other congressional acts have explicitly clarified that environmental impact statements should be truncated to 150 pages, and the petitioners noted that that would be impossible without “reaffirmation” that one need not look at anything outside the immediate ambit of a project and outside the agency’s particular area of expertise. Justice Barrett stated that it would be impossible to continue considering as many environmental effects within the limited page limits passed by Congress. Her questions seemed to indicate skepticism of the applicability of a test that goes beyond proximate cause analysis. The petitioners’ attorney closed by stating that his clients are seeking predictability above all else.
Federal Respondents
The federal respondents opened by stating that the Supreme Court’s decisions in the last 50 years have announced principles to concentrate environmental review on issues that the agency considers useful in its evaluation of the project. The federal respondents pointed to Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), and argued that the Court is not supposed to impose procedures on an agency beyond the scope of any substantive element of NEPA. The federal respondents essentially echoed the test that the petitioners proposed, but suggested that it be framed as a question of whether there is a reasonably close causal connection between the environmental effect considered and the project itself, and the federal respondents agreed with Justice Sotomayor’s point that the impacts of a particular project will vary by situation and may not be localized. Chief Justice Roberts countered with the point that there may also be cases in which there is a lot of uncertainty for the agency and the people appearing before it. Justice Jackson later clarified with the federal respondents that their proposed two-step test was, first, whether the agency properly identified its own purview under the statute and, second, whether the agency was arbitrary and capricious in concluding that anything further than what it reviewed did not have a reasonably close causal connection in time and distance to the challenged action. The federal respondents’ argument closed here.
Respondents Eagle County et al.
Respondents Eagle County et al. then opened by saying that the petitioners are taking a much narrower view of what should have been studied than the board itself did, and, as the petitioners’ positions have shifted, they have lost grounding in NEPA’s text. In furtherance of that position, the respondents differentiated the project from other railway construction because the very purpose of the project is transportation of crude oil for refining, and therefore evaluation of the project required consideration of the environmental effects of refining crude oil. Justice Sotomayor questioned this premise, pointing out that the carrying of crude oil is not what ultimately causes pollution, but rather the refining process, and the board cannot control the refining process. Justice Jackson appeared to share Justice Sotomayor’s stance, further emphasizing the question of why the board should evaluate downstream refining effects when the board and railways are not permitted to discriminate against what is transported by a common carrier. Justice Jackson went on to say that there is a difference between the downline impacts of more train traffic in certain areas and what is being carried on trains or the purpose for which their cargo might be used, implying that the former is more appropriately considered under NEPA.
Respondents Eagle County et al. reemphasized that the standard for both under NEPA is foreseeability and that in this instance, because the entire purpose is to carry waxy crude oil, the board appropriately calculated the amount of oil that would make the project financially viable and determined where the oil would go to be refined and the consequences of such refinement. Justice Kagan questioned this premise, stating that the respondents’ test would seem to make foreseeability the entire standard for evaluation, which might overly broaden the considerations required under NEPA, as delineated in Public Citizen. The respondents then framed the petitioners’ test as a “not my problem” standard that deviates from the statute and, after some largely repetitive back and forth with the other justices, closed by reiterating that the risk of the petitioners’ stance is that one agency passes “the buck” to another agency with no accountability at the first agency for enforcing review by the second agency, whereas the teeth of NEPA currently exist in the fact that it requires all agencies with expertise or jurisdiction to participate in the NEPA review.
Petitioners’ Rebuttal
The petitioners made a brief rebuttal before the conclusion of oral arguments, arguing that (1) the test the petitioners espouse does not remove cooperation and consultation with other agencies and just would put review on another agency when the impact at issue is remote in time and space and within the other agency’s jurisdiction; (2) the reasonable foreseeability standard is far too broad and results in consideration of impacts that are far outside the petitioners’ jurisdiction, causing a situation where an agency must “study it to death”; (3) the question of whether or not an agency must consider effects that are not proximate and are in another agency’s jurisdiction is properly before the Court; and (4) to the extent the Court is worried about what remote in space and time means, the scope of reasonable alternatives and mitigation measures provides a good guide, but in the present case the one thing the board could not do as a common carrier agency is refuse all waxy oil on the trains. The petitioners closed by stating that the board should not be made responsible for combustion activities in the Gulf.
Conclusion
A decision in this case is not expected until June, and it is not clear from oral argument how the justices will rule. Regardless of the outcome, the decision will have far-reaching consequences for future interpretation of Public Citizen and the required considerations under NEPA. The short 88 miles of railway at issue could change forever the way in which we evaluate environmental effects of new projects nationwide.
