Nicholas Bagley, the Thomas G. Long Professor of Law, said that while the decision is a loss for environmental groups, it is not necessarily a loss for the environment. 

Read further for his insights into the court’s decision.

1. What was the key issue the court was considering?

Narrowly, the case was about an 88-mile railroad spur connecting oil drilling sites in the Utah desert to the interstate railroad system, which would then deliver oil to refineries on the Gulf of Mexico. The question in the case was whether the federal government could give a permit for this railroad line to be built and whether the line has to comply with NEPA, which states that federal agencies have to consider the environmental consequences of any of major actions.

The federal agency here—the Surface Transportation Board—conducted extensive studies into the railroad and acknowledged that building it would probably lead to some increased oil production, which would have effects on the climate and on the refining activities downstream of the Gulf of Mexico. But those effects were remote.

The US Court of Appeals for the DC Circuit heard a challenge brought by environmental groups, who said that the federal agency had to consider the environmental consequences of increased drilling for oil. Some upstream consequences include the climate impact associated with burning fossil fuels. And some downstream consequences would be the effect on the communities from increased pollution from oil refineries associated with the uptick in oil production. 

The environmental groups won. The court said the upstream and downstream consequences of building the railroad needed to be considered. It wasn’t enough to think only about the effects to wildlife from constructing the railroad line. 

The federal government said the court went too far and brought the case to the Supreme Court.

2. What did the court rule?

The Supreme Court said, in considering compliance with NEPA, that only the direct consequences of the project need to be considered. So you have to think about the possible effects of actually building the railroad through the desert, such as the effect on wildlife and on the water table in the area where you’re building. But you don’t need to think about all the consequences that might happen to third parties far down the line; there’s a reasonable point at which your job is done. 

That portion of the ruling was unanimous. In a very long opinion, the six conservative justices said that NEPA was never meant to impose a justificatory burden on agencies as stiff as what the courts had assumed in many cases. The Supreme Court said that it has taken something like 18 NEPA cases in its history, and in every one of those cases the government wins. It wants the lower courts to stop making an overly stringent application of what is, after all, a purely procedural statute.

So this opinion, in very strident language, was extremely clear that the watchword in NEPA cases was “deference,” that agencies should not have to answer hyper-detailed questions about every aspect of possible environmental consequences.

The three liberal justices agreed with the decision but would have ruled in favor of the government on narrower grounds. What they said is, basically, when the agency that approved this railroad did so, it wasn’t allowed under its statute to consider upstream or downstream consequences. Forcing it to consider those consequences that couldn’t possibly have affected its decision went too far. And therefore the government clearly should have won this case. 

3. What are the near- and far-term implications of this ruling?

Most directly, the challenge to the approval of this railroad has now been turned aside, so construction is likely to commence.

When it comes to NEPA more generally, it’s a little too soon to say for sure what the effect will be. On the one hand, this was a ringing endorsement of judicial deference, and that ought to give agencies a little bit more room to breathe and a little bit more confidence that when they don’t investigate that particular alternative or where they don’t hire that consultant, they’re going to be okay. And that may reduce the NEPA burden on agencies. It may increase the speed of environmental reviews. It may get government moving a little bit again.

That said, agencies are really risk averse. They really don’t like to lose in court for all sorts of reasons, not least of which they’ve often devoted a great deal of time and energy into whatever decisions they’re making. And they don’t want to see that go for naught. They also don’t want the black eye of losing in court. So what that means is for an agency not to spend all its time and effort bulletproofing its environmental reviews, an agency would have to be pretty confident that it will win in court; I don’t know if they’re going to be a whole lot more confident after this decision than they were before. I think they’ll still be pretty concerned.

So they may end up continuing in the same patterns as existed before. On the one hand, it’s an endorsement of deference that ought to help. On the other hand, it still keeps courts in the picture, and that’s still going to make agencies nervous.

4. Do you think the court got it right?

I’m pretty sympathetic to where the court landed. The decision is highly controversial in the environmental community. And environmental groups in particular are upset because NEPA is one of the primary tools that they use to block projects that they dislike and to extract environmental concessions on projects that they can’t stop. 

But I think they have really lost the plot in the early 21st century. And I say that because, back in the 1970s or ’80s, it was plausible to think that the way to best protect the environment was to stop development from occurring. But at a time when climate change is a major concern, preventing government action is actually inimical to environmental goals. 

For example, we have the US Forest Service, which has to study whether it can eliminate “fuel” from national forests for so long that very often the forests it’s studying burn down in the interim. So it doesn’t even get an opportunity to try to protect these forests.

More generally, getting out of the climate crisis is going to require us to build solar and wind facilities and interstate electricity transmission lines at a scale and a pace of national development that we haven’t seen since World War II. And trying to do that while we hamstring the federal government with NEPA is really impossible. 

So, although this is a big blow to the environmental groups, I think it’s potentially positive for the environment.

I also think that the court’s message here is the right one, which is that courts shouldn’t be in the business of scrutinizing government action. That’s true in the environmental context, and it’s true outside the environmental context. At the end of the day, it’s not the court’s job to do policy in the United States. It’s agencies’ job, and courts have become much too willing to intervene in basic policy making. And any decision that gets them out of that kind of policy making counts as a win.

5. Did any element of the ruling surprise you?

I think the stridency of the language about the importance of deference. It was the first really full-throated recognition of the damage that close review of agency action can have. The decision itself looked like the kind of op-ed you might see these days from Ezra Klein, who just co-authored a book called Abundance about the need to get government building again. And Justice Kavanaugh’s decision for the court amplified at great length on the way that the NEPA lawsuits have made it very hard for us to build anything in the real world.

To that extent, it’s pretty interesting to see the conservative justices embrace that sort of criticism that we’re now seeing from left-leaning journalists and advocates. So that was a little bit of a surprise.