The scope of federal environmental reviews is at stake when the Supreme Court decides the just-argued case Seven County Infrastructure Coalition v. Eagle County. Under the National Environmental Policy Act (NEPA), agencies must analyze the environmental impacts of actions they fund, authorize, or carry out. Those impacts may include both direct impacts from a project as well as upstream and downstream impacts. For instance, the downstream impacts of construction of an airport runway may include those caused by subsequent flights, and construction of gas pipelines may lead to upstream impacts from extraction and downstream impacts from refining. Significantly, most of a project’s climate impacts often result from upstream and downstream activities. The outcome of Seven County Infrastructure will determine whether those impacts remain within NEPA’s scope.

NEPA and the Seven County Infrastructure Case

The purpose of NEPA is “to promote efforts which will prevent or eliminate damage to the environment and biosphere.” It does so by mandating the integration of “environmental concerns … into the very process of agency decisionmaking” and promoting public notice and participation. Agencies accomplish those goals by taking a “hard look” at the environmental consequences of major federal actions and publishing that analysis. 

The Seven County Infrastructure case involves the Surface Transportation Board’s environmental impact statement for a railway in the Uinta Basin in Utah that would connect that area to existing rail lines stretching to the Gulf Coast. The “undisputed purpose of the railway is to expand oil production in the Uinta Basin.” Below, the D.C. Circuit held that the Board “cannot avoid its responsibility under NEPA to identify and describe the environmental effects of increased oil drilling and refining”—in other words, the upstream and downstream effects—“on the ground that it lacks authority to prevent, control, or mitigate those developments.” Petitioners challenge that holding.

The legal question here has broad practical implications. Although the rail line at issue in Seven County Infrastructure supports fossil fuel extraction, Petitioners and their amici in the case argue that the D.C. Circuit’s test presents a barrier to all manner of infrastructure projects, including projects supporting the clean energy transition such as the construction of high-voltage electric transmission lines. Contrary to amici’s arguments, however, electric transmission lines illustrate the benefits of the D.C. Circuit’s approach. That court’s test implements NEPA’s purposes and is workable in practice. The Supreme Court would be remiss to disrupt the D.C. Circuit’s caselaw on NEPA’s scope and thereby weaken the quality of agency decision making.

In this case, the D.C. Circuit applied a framework that it has developed in a series of decisions involving Federal Energy Regulatory Commission (FERC) environmental reviews of gas pipelines. In those cases, the court had “previously considered when an agency may draw the line and find that it cannot engage in reasonable forecasting to determine certain environmental effects.” The lines drawn in the FERC gas pipeline cases have depended on whether the end destinations and uses of the gas were reasonably foreseeable. For instance, in Sierra Club v. FERC, better known as Sabal Trail, the D.C. Circuit ruled it was “not just ‘reasonably foreseeable’” that the authorization of a pipeline to transport natural gas would result in that gas being burned, “it is the project’s entire purpose.” So too was it “foreseeable … that burning natural gas will release into the atmosphere the sorts of carbon compounds that contribute to climate change.” Therefore, the agency had to consider those foreseeable effects. On the other side of the foreseeability line, FERC has explained that emissions associated with a natural gas pipeline were not foreseeable where the conveyed natural gas would be “further transport[ed] on the interstate grid to an unknown destination and for an unknown end use.”

The requirement to evaluate reasonably foreseeable effects is found in long-standing NEPA regulations, caselaw that predates the original 1978 version of those regulations, and, after passage of the Fiscal Responsibility Act last year, the text of NEPA itself. As a result, determining what impacts are reasonably foreseeable is necessary even notwithstanding the D.C. Circuit’s recent decision in Marin Audubon Society v. FAA that called into question the ongoing validity of government-wide NEPA regulations.

In the decision below, the D.C. Circuit ruled the emissions effects from the rail line were reasonably foreseeable. The court reinforced the principle from its earlier cases that evaluation of indirect environmental impacts associated with the use of oil or gas after its transportation “is necessarily contextual. But because the end destinations and uses of the oil the rail line would facilitate the transport of were relatively certain, the agency could not “shirk its responsibilities under NEPA by labelling these reasonably foreseeable upstream and downstream environmental effects as ‘crystal ball inquiry.’”

Petitioners seek to jettison this approach. Under their reading of NEPA, downstream impacts—including those that are readily apparent—are beyond the scope of what is required for environmental reviews. That argument, which draws supposedly on tort law limitations and geographic and temporal proximity, conflicts with NEPA’s purposes and text. If adopted, it would overly restrict what information about the impacts of federal project approvals and actions would be available to the public and decision makers, undermining the statute’s goals.

The D.C. Circuit’s test for when downstream emissions are reasonably foreseeable—and therefore must be considered in NEPA reviews—provides agencies with the information they need to make informed decisions without requiring unnecessary speculation. Its implementation is workable for both courts and agencies. Indeed, the D.C. Circuit has continued to sort reviews on either side of that line in cases even as Seven County Infrastructure percolated to the Supreme Court. It accomplishes NEPA’s purposes without slowing project deployment through unnecessary reviews.

The D.C. Circuit’s Test is Manageable for Transmission Projects

The outcome of Seven County Infrastructure will determine whether and how agencies must evaluate upstream and downstream effects of their actions. As the case illustrates, the analysis of downstream emissions is particularly important for evaluating climate impacts. Even with the importance of considering downstream impacts for climate, though, the scope of NEPA review might be concerning if, as petitioners their amici argue, it tripped up clean energy deployment and associated infrastructure needs, such as for electric transmission. To the contrary, transmission provides an example of why the legal principles applied by the D.C. Circuit work well in practice, and that conclusion is supported by evidence-based analysis from our organization.

Rapidly and greatly expanding electric transmission in the United States is crucial to reducing greenhouse gas emissions. Studies indicate that meeting the nation’s climate goals by 2050 may require the construction of nearly 400 million megawatt-miles of electricity transmission. The North American Electric Reliability Corporation recently recommended 35 gigawatts of prudent additions for interregional electric power transfer capability to improve the reliability of the grid.

The D.C. Circuit’s existing legal principles on reasonable foreseeability apply to the complex, highly interconnected nature of electric transmission facilities in the bulk power system similarly to how that court has evaluated natural gas pipelines and networks. An application of these principles could distinguish between two main types of electric transmission projects: (1) generator interconnection facilities designed to connect specific generation resources to the bulk power system, also known as “generation tie” or “gen-tie” lines, and (2) transmission lines not associated with specific generation resources. For gen-tie lines, the associated generation resources could be fairly estimated and any emissions from them would be reasonably foreseeable and therefore within NEPA’s scope. For other lines, the interconnected nature of the grid would make any analysis of associated emissions speculative and of limited value to decision-makers. These emissions would be on the other side of the line and outside of NEPA’s scope.

Courts have already been able to distinguish between these types of lines. For instance, one district court distinguished between requiring analysis of power generation where a line is a “but-for” cause of a generation resource with those where the generation would likely have occurred absent construction of the line. Recognizing the complexity of the electric transmission system, another court accepted that a prediction of the number of wind turbines that would be built to use a certain transmission line was impossible based on everything else the transmission system was already accommodating.

Following these examples, courts should have no difficulty distinguishing the different types of electric transmission lines when determining the necessary scope of environmental reviews. As a result, there is no need to disturb the D.C. Circuit’s caselaw on reasonable foreseeability for the sake of transmission lines.

NEPA is Not a Major Barrier to Transmission Projects, Contrary to Amici’s Assertions

If you read the amicus briefs supporting petitioners, you may think the requirement to consider upstream effects is “particularly threatening to transmission development.” Without pointing to any cases or specific examples, they argue that NEPA analysis for transmission lines would have to account for rate changes, reliability changes, and the “effects of the new generation that will be able to connect to the transmission system.” As already shown, courts can readily distinguish—and already have distinguished—between types of transmission lines and avoid this seemingly endless analysis.

Amici also argue that NEPA litigation slows transmission line development, even citing a report by our organization, Clean Air Task Force (CATF), along with the Niskanen Center. To the contrary, that report rebuts the notion that NEPA—whether the scope of review, or more broadly—is a major barrier to electric transmission buildout. As that study found, even when transmission projects faced litigation or non-litigation opposition, transmission lines mostly continued to construction or completion. Of the 37 lines studied, only four were canceled. And of the 18 lawsuits filed challenging these lines, only two were resolved in favor of opponents. Furthermore, the average timeline for NEPA reviews of high-voltage transmission lines was roughly the same as that across the entire government. Nonetheless, the amicus brief mischaracterized the report by omitting that the findings were only for a subset of projects and also by alleging this opposition “slow[ed] development.”

One reason NEPA litigation has not proven a significant barrier to or cause of delay for transmission lines is the infrequency with which plaintiffs have succeeded in obtaining preliminary injunctions. In the study’s data, of seven preliminary injunctions filed, five were denied, one was granted but never went into effect, and one motion was still pending when the report was published. Without a preliminary injunction, what then-Judge Breyer famously called the “bureaucratic steam roller” can roll on. And that metaphorical steam roller is soon followed by its physical manifestation.

Several amici ignore the significance of preliminary injunctions in this context and instead cite the total length of NEPA litigation as evidence of delay. They rely heavily on a flawed study that generated an average length of litigation for cases that reach appeals courts—a dataset of only the lengthiest cases—and that ignores that projects can continue to be built during that period of litigation absent a preliminary injunction. As a result, that report creates a misleading perception that NEPA litigation causes years of delay to project deployment. But, as the CATF and Niskanen report found, the actual impact of opposition to infrastructure projects, including NEPA-based litigation, is far more complex than that story. Although some NEPA reviews for transmission lines take too long, reforms like FAST-41, sufficient agency staffing and capacity, and better coordination among decision makers can improve the timing and quality of reviews. But those issues are beyond the Supreme Court’s reach in Seven County Infrastructure, and it would be a mistake to think that limiting the scope of NEPA review would improve agency decision making or the time needed for reviews.

Conclusion

The D.C. Circuit’s framework for deciding which downstream effects must be evaluated in environmental reviews strikes a workable balance between ensuring thorough review of climate impacts and avoiding unnecessary analyses. Electric transmission lines clearly illustrate why the scope of analysis, and the potential for legal challenges, are not the barrier some claim NEPA is to the necessary infrastructure buildout for the clean energy transition. The Supreme Court should not disrupt the D.C. Circuit’s legal principles on reasonable foreseeability under NEPA that ensure agencies consider foreseeable impacts of their actions without burdening reviews with unnecessary analysis.

Frank Sturges is an attorney, and Shaun Goho is the legal director, at the Clean Air Task Force.