Another Step Forward in Removing NEPA as a Barrier to Building

America’s infrastructure paralysis just got a much-needed nudge. The Supreme Court’s unanimous decision in Seven County Infrastructure Coalition v. Eagle County represents more than new limits on environmental reviews. It’s another step in a long-needed course correction for a nation that has forgotten how to build. Let’s hope for more steps to come.

As is unfortunately typical in many cases involving reviews under the National Environmental Policy Act, the facts are maddening. A proposed 88-mile Utah rail line underwent a 3,600-page, years-long environmental review, yet the DC Circuit Court demanded even more analysis of “upstream” drilling and “downstream” refining—all activities the approving federal agency, the Surface Transportation Board, can’t control. 

Justice Brett Kavanaugh rightly called this judicial overreach, emphasizing that NEPA should “inform decision-making, not paralyze it.” This from legal scholar Jonathan Adler:

At first read, the biggest significance of this opinion is that it clarifies that NEPA does not require Environmental Impact Statements to consider upstream and downstream effects of projects that are caused by third-parties. This is particularly significant for infrastructure projects, such as pipelines or transmission lines, and should help reduce NEPA’s burdens (at least at the margins). The opinion will also likely hamper any future efforts, perhaps by Democratic administrations, to expand or restore more fulsome (and burdensome) NEPA requirements.

Kavanaugh also noted that courts should afford “substantial deference” rather than micromanage agencies. The era of activist judges turning every project into a decade-long legal odyssey may finally be ending. 

Again, Adler:

Even more significant is the Court’s declaration that “the central principle of judicial review in NEPA cases is deference.” So there is no confusion, Justice Kavanaugh makes the point again a few pages later: “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.

The court’s ruling couldn’t come at a better time given the energy buildout needed for both climate and technological reasons, an expansion that NEPA would make nearly impossible to do in any sort of timely or financially sound way.

As I write in my 2023 book, “The Conservative Futurist: How To Create the Sci-Fi World We Were Promised,” NEPA-spawned environmental impact statements have ballooned from dozens of pages in the 1970s to nearly 2,000 pages today, taking some 4.5 years to complete. The study “NEPA Litigation Over Large Energy and Transport Infrastructure Projects” looked at nearly 400 projects—including highways, railroads, airports, pipelines, transmission lines, and solar and wind energy—and found that 28 percent of major projects face litigation, with 89 percent citing NEPA violations. Solar projects get sued at a 64 percent rate, pipelines at 50 percent. America’s clean energy transition and expansion depends on building things, not studying and litigating them to death.

But the Supreme Court can only do so much. The real opportunity lies with Congress, which created this mess in 1970 and can fix it in 2025. One smart NEPA reform: Impose time limits on judicial injunctions for infrastructure projects, such as capping courts’ power to halt construction after a few years of environmental review, ensuring critical projects aren’t indefinitely stalled by litigation.

Congress should grab this moment and build upon the momentum generated by this court ruling.