On May 29, 2025, the Supreme Court—minus recused Justice Neil Gorsuch—decided Seven County Infrastructure Coalition v. Eagle County, the first major NEPA dispute before the Court in 20 years. It’s a really big deal—coverage is all over the headlines and blogs—but it’s potentially an even bigger deal than that. I’m skipping over most of the case background and Court’s reasoning (no doubt other Fellows will give us that coverage, right Seth?) and cutting straight to the broader potential implications of the majority’s opinion.
At stake was how far “upstream” and “downstream” the Surface Transportation Board had to go in its EIS when licensing a new rail line for transporting crude. The Court’s answer: Not far. In a nutshell, Justice Kavanaugh, writing for the five-Justice majority, handed the D.C. Circuit—and, make no mistake, all the lower federal courts—a stinging parental lecture on courts gone awry. Calling for “a course correction…to bring judicial review under NEPA back in line with the statutory text and common sense,” his opinion delivers through a trio of targeted reforms.
First, amidst the Court’s recent decisions reducing the deference courts owe to agencies, Justice Kavanaugh stresses that “NEPA is purely procedural,” and thus the “bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” (His opinion uses the word eleven times.) When it comes to the nitty-gritty of what a project’s indirect effects agencies must assess, “[c]ourts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.” In short, courts, back off!
Second, among the indirect environmental effects a project might induce are those emanating from other projects separate in time or place from the project at hand. For those effects Justice Kavanaugh crafted a hard rule: “NEPA does not require the agency to evaluate the effects of that separate project.” And this limit is especially in play, Justice Kavanaugh emphasizes, when the effects are from projects over which the action agency does not exercise regulatory authority.
Third, Justice Kavanaugh adopted a “no harm-no foul” rule under which“even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project…absent reason to believe that the agency might disapprove the project if it added more to the EIS.” While he does not provide criteria for making that determination, the strong message is to leave the agency decision intact unless its EIS has a serious hole.
This trio of strong deference, other projects don’t count, and no harm-no foul made the case a slam dunk win for the Board, which had declined to go deep into the questions of whether the rail line would induce new drilling and the effects of burning the oil.
But how far does the trio go in the broader NEPA realm? I see several looming implications:
- The rail line’s “upstream/downstream” effects are a subset of the broader induced effects analysis conducted under NEPA, such as whether a new highway induces new development. There is nothing in Justice Kavanaugh’s opinion to suggest the trio of reforms doesn’t apply across the board to all induced indirect effects.
- The opinion’s reasoning behind the deference and no-harm no-foul reforms also appears to map onto the direct effects and cumulative effects analyses agencies conduct under NEPA. They fall into the same category of fact-based assessments as do indirect effects, and there’s no apparent reason why they aren’t entitled deference and no harm-no foul.
- The categorical rule excluding effects from other separate projects that the “project at hand” foreseeably induces presumably does not apply only at the EIS stage—it also would apply to the environmental assessment (EA) stage at which an agency decides whether an EIS is necessary in the first place and, if not, makes its finding of no significant impact (FONSI).
- With the scope of the effects required to be assessed so reduced and the agency EA and FONSI findings entitled to strong deference, we are likely to see far fewer EISs in the making.
- On the other hand, nothing in the opinion precludes an agency from going above the minimum required when assessing effects, so it could consider induced effects of other projects, including those over which it has no regulatory control at both the EA and EIS stages. In that case, strong deference and no harm-no foul should apply to the NEPA findings, including a decision to advance from EA to a full EIS. Beyond that, however, Justice Kavanaugh made clear his trio of reforms has no effect on review of the agency’s substantive decision under its governing statute.
Putting these implications together, Eagle County has the potential to substantially transform how NEPA is practiced and litigated. The greatest impact is likely to be for infrastructure projects with a federal connection, as these inherently present induced “other project” effects now categorically insulated from required assessment. On the other hand, federal public land management agencies, because they retain control over effects induced within their land management units, cannot simply categorically exclude them, but will enjoy the benefit of the deference and no harm-no foul reforms. In both contexts, we are likely to see fewer EISs and much less to fight over in NEPA litigation.
