FINAL SEVEN COUNTY SCOTUS FOR C & E v.3
SEVEN COUNTY:
A “WIN/WIN” FOR
THE ENVIRONMENT AND FOR BUSINESS
By
Anthony Michael Sabino
Since the promulgation of the National Environmental Protection Act (“NEPA”) in 1969, the term “Environmental Impact Statement” (“EIS”) has been well entrenched in the lexicon of law and business. As is well known to this readership, the statutory scheme requires an evaluation of the perceived environmental consequences of any project built, funded or authorized by the federal government.
Yet for nearly six decades, federal appellate courts have disagreed over the appropriate level of judicial scrutiny to apply when reviewing a controversial EIS. This discord has led to unpredictability, disparate outcomes, and the always regrettable forum shopping. Only the United States Supreme Court could resolve this internecine conflict.
And now it has. In Seven County Infrastructure Coalition v. Eagle County, Colorado,[1]
the high Court issued a multifaceted ruling, which first verified that the Nation’s initial foray into environmental protection is a “purely procedural” mechanism, one which does not dictate results, but only the process to be followed.
The unified bench further instructed judges reviewing contested environmental impact statements to afford “substantial deference” to regulators’ choices as to what matters the latter deem appropriate for study. Finally, the Justices made it plain that the potential environmental ramifications of projects separate in time and geography from the proposal at hand need not be included in a particular environmental assessment, especially when the regulatory domain of the submitting agency does not extend to those independent undertakings.
Seven County received a chilly reception from those who derided it as deleterious to the cause of environmental preservation, while some wondered if this newly announced “substantial deference” rule was a revival of the recently disabused Chevron doctrine.[2]
We respectfully contend that it is neither; to the contrary, this newest Supreme Court edict represents a classic “win-win” for the environment and for business. How so? For reason that the Justices have now placed agencies and their experts in the forefront of appraising and mitigating environmental harms. Equally so, industry benefits from this reorientation, comforted by the additional knowledge that particular proposals will be judged solely on their own environmental merits—or shortcomings—without speculation as to repercussions from unrelated endeavors. But to explain fully, we must first set out Seven County’s factual predicate.
Connecting the Uinta Basin
The Uinta Basin extends over much of northeastern Utah, and contiguous sections of Wyoming and Colorado. As described in vivid detail by the Seven County Court, this geological formation is a vast “rural territory roughly the size of the State of Maryland.”[3] The area is rich in deposits of “waxy crude” petroleum, which requires heated containers in order to be shipped to refineries. That and the Basin’s inaccessibility made developing this and other natural resources impractical.[4]
Seeking to bring jobs and industry to the region, seven Utah counties formed a coalition to petition the federal Surface Transportation Board (the “STB”) for permission to build an approximately 88-mile railway that would join the Uinta Basin to the nationwide rail network.[5]
This new connection to the national economy would stimulate economic growth in the Beehive State generally, and “facilitate the transportation of crude oil from Utah to refineries in Louisiana, Texas, and elsewhere” specifically.[6]
As a mandatory precursor to approving the rail line’s construction, the STB propounded “an extraordinarily lengthy EIS, spanning more than 3,600 pages of environmental analysis.” Unimpressed by this weighty tome, Eagle County, Colorado and others challenged the agency’s factfinding, alleging that the regulators had given only minimal consideration to the environmental effects of projects independent and geographically distant from the proposal at hand. The dissenters alleged that, once the rail line entered service, there would be an increase in upstream petroleum exploration and production and a concomitant surge in downstream refining, consequentially inflicting extraordinary harm upon the environment.[7]
The United States Court of Appeals for the District of Columbia sided with Eagle County. Vacating the Board’s approval, the panel chided the regulators for “not sufficiently considering the environmental impact of projects separate from the railroad line itself.”[8] The tribunal’s reasoning illustrated a persistent rift amongst the appellate courts as to the appropriate standard for judicial review of environmental impact statements. Whereas some circuit courts delimited their oversight to merely ascertaining compliance with NEPA’s procedural requisites, the D.C. Circuit joined the tribunals who were aggressively demanding that environmental evaluations include any potential harm from independent projects, even where those unrelated endeavors were separated in time and by distance from the proposal then under consideration.
Having determined that it was time to end this balkanization, the Supreme Court’s first step was to clarify the precise role NEPA plays in environmental protection.
The National Environmental Policy Act
Writing for a unified Court,[9] Justice Kavanaugh commenced with postulations that might even be considered a homage of sorts to the cornerstone of contemporary environmental law. NEPA, the Court reminds, was signed into law by then-President Richard Nixon in 1969, and constituted “the first of several landmark environmental laws enacted by Congress in the 1970s,” paving the way for, inter alia, the 1970 amendments to the Clean Air Act, the Clean Water Act of 1972, and the Endangered Species Act of 1973.[10]
With respect to certain infrastructure proposals built, funded or approved by the federal government, “NEPA requires federal agencies to prepare an environmental impact statement…address[ing] the significant environmental effects of a proposed project and identify feasible alternatives that could mitigate those effects.” One of the statutory scheme’s priorities is to assure that both the reporting agency and the public “are aware of the environmental consequences” of planned endeavors, which, in turn, promotes sound decision making and superior project management.[11]
Justice Kavanaugh observed that, notwithstanding some brief, initial uncertainty, judicial review of environmental impact statements has been the norm since NEPA was codified. In sharp contrast, and as exemplified by the case at bar, the appropriate methodology for exercising that oversight has been contentious. Not one for mincing words, the learned Justice acknowledged that there exists a tension between jurists taking “an aggressive role in policing agency compliance” with NEPA, in contradistinction to tribunals which have “adopted a more restrained approach” for EIS review.[12]
NEPA Is Procedural, Not Substantive
Acting to replace this discord with harmony, Seven County’s first action was to proclaim that NEPA “is purely procedural;” it specifies a process, but not particular results.[13] It was the judgment of the high bench that the Nation’s initial foray into environmental protection “imposes no substantive constraints on the agency’s ultimate decision to build, fund, or approve a proposed project,” which distinguishes that enactment from successive legislation (the Clean Air Act, the Clean Water Act, et cetera).[14]
The statutory scheme’s inherently procedural nature also circumscribes the boundaries of judicial inquiry. Since NEPA “does not itself require any particular substantive outcome,” courts are cabined to scrutinizing an environmental impact statement for procedural adequacy, but not substantive accuracy. The supreme tribunal authorized judges to question if a controversial EIS “addressed environmental consequences and feasible alternatives,” and if the agency submitting that report “reasonably explained” its findings—but little beyond that. “Simply stated,” opined Justice Kavanaugh, the environmental statute “is a procedural cross-check, not a substantive roadblock,” designed to “inform agency decisionmaking, not to paralyze it.”[15]
Substantial Deference
Seven County’s second notable postulation was that the text of NEPA decrees substantial deference as the standard for judicial review of environmental impact statements. The judiciary must “afford substantial due deference as to the scope and contents of the EIS,”[16] because that document is “fact-dependent, context-specific, and policy-laden.”[17] And acquiescence shall be the rule, provided that the reporting agency acted reasonably, confined itself to matters within its own purview, and conformed to other, substantive environmental laws. This substantial deference would furthermore be regulated by the “arbitrary and capricious” axiom legislated by the Administrative Procedure Act nearly eight decades ago.[18]
Here, Justice Kavanaugh emphasizes that “it is critical to disaggregate the agency’s role from the court’s role” in the promulgation of environmental assessments, reasoning that the former’s experts “are better equipped to assess what facts are relevant to [their] own decision than a court is.” The supreme tribunal warned that judicial second-guessing was to be scrupulously avoided; rather, the courts below must grant “broad latitude” to the regulators’ choices as to where to draw the line between the proposal at hand and “other projects separate in time and place,” a point of great significance to the case at bar.[19]
The Justices provided the following additional guidance: the lower courts must take care “not to micromanage” when reviewing an EIS; judicial oversight need go no further than ascertaining that regulatory valuations “fall within a broad zone of reasonableness;” and NEPA is best enforced by means of a “Rule of Reason,” thereby foreclosing jurists from substituting their own judgment for that of the reporting agency.[20]
A ”Course Correction” For Environmental Reviews
Seven County then proceeds to explicate, gently, yet firmly, why reversal of the panel below was necessary. Speaking as one, the high bench again reminds that NEPA is a “purely procedural statute,” and judicial review conducted pursuant thereto must conform to the “statutory text and common sense.”
Characterizing the case at bar as emblematic of the appellate courts which “have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases,” Justice Kavanaugh explained there was an urgent need for a “course correction of sorts.” To that end, the instant decision eradicated the misconceptions which had subverted the seminal environmental law into a “blunt and haphazard tool,” which encouraged “overly intrusive” judicial review, ending in inconsistent outcomes.[21]
The Supreme Court ruled that the D.C. Circuit was “mistaken on the merits” when it vacated the STB’s report for its purported failure to evaluate the environmental impact of “projects that are separate in time and place” from the 88-mile railroad project. For one, the Nation’s preeminent railway regulator had no jurisdiction over any upstream drilling or downstream refining activities which might eventually arise once the rail connection was complete. For reason that the focus was upon the proposal at hand, “not other future or geographically separate projects,” the agency’s evaluation complied with NEPA’s text.[22]
Next, the STB’s report had specifically rejected the allegation that the rail link under consideration was the first phase of a two-stage scheme for future energy development. In relation thereto, the Justices inserted a key distinction, sure to be of value in future cases: even if the proposal before an agency “might lead to the construction or increased use of a separate project…the agency need not consider the environmental effects of that separate project.”[23]
Third, Justice Kavanaugh emphasized the significance of proximate cause in these reviews, and how an endeavor distinct from the proposal at issue tends to shatter any causal link. The veteran jurist elaborated that simply because an unrelated project might have a foreseeable environmental impact “does not mean that those effects are relevant to the agency decisionmaking process.” The contours of environmental assessments reflect regulatory choices, and the reasonableness of those selections must be weighed against proximate cause.[24]
The unified bench further noted that the presence (or lack) of proximate causation is influenced by jurisdictional borders. It is canonical in NEPA jurisprudence that “agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority.”
In the case at bar, the STB’s statutory remit was confined to the railroads, and not energy. Therefore, it was justifiable to reject the allegation that a “reasonably close causal relationship” existed between the proposed rail line and potential upstream or downstream energy projects. In the view of Justice Kavanaugh, “the fact that other projects might foreseeably be built or expanded in the wake of the current project does not, by itself, make the agency responsible for addressing the environmental effects of those other projects.”[25]
The Supreme Court then summarized its rationale for reversing the tribunal below, and remanding the controversy for further proceedings. The proper focus of an EIS, decreed the Justices, is the environmental impact of the proposal then before the agency, “not on the potential environmental effects of future or geographically separate projects.” Furthermore, regulators enjoy the discretion to craft a “manageable line” between the matter under review and endeavors “separate in time and place.”[26] The circuit court erred by denying the reporting agency the latitude to make its own considered decision to include nothing more than a de minimis evaluation of the possible environmental effects of theoretical upstream or downstream projects, which inarguably stood at a remove from the proposed rail link.[27]
Commentary
As with virtually all Supreme Court rulings, Seven County has provoked strong reactions. Some lauded the decision for its resolution of a troublesome circuit split, while others decried it as a setback for the environment. In short, winners and losers.
This writer begs to differ. Taken at its full measure, this latest high Court pronouncement is a “win/win.” Seven County perpetuates the mechanism and the spirit of the Nation’s inaugural foray into environmental protection, while simultaneously demanding adherence to the statutory scheme enacted by the political branches.
First, Seven County is pro-environment. It squarely places the burden of creating comprehensive environmental impact statements upon the reporting agencies, precisely as the lawmakers intended. After all, these regulators are experts in their field, and their ranks include those with specialized expertise in environmental issues. Far better for the experts to have primary responsibility for compiling an EIS than generalist judges.
Next, these experts may now proceed without fearing a meddlesome judiciary. Seven County clears the path for agencies to exercise their sound discretion in making value judgments, provided their selections withstand scrutiny for rationality and reasonableness.
Finally, Seven County clearly shifts the battleground to the administrative domain. Those most deeply concerned over the environmental impact of a particular project shall now focus their energies upon making their case in the agency arena, before experts no doubt better equipped to collect and explicate all information pertinent to a comprehensive environmental assessment.
Seven County stands as a victory for other reasons. Now that the supreme bench has declared that NEPA’s infrastructure is “purely procedural,” and not substantive, the paramount role of agencies in promulgating environmental impacts statements is beyond dispute. Equally so, judicial tinkering with such analyses is now prohibited. As divined by the high Court, this is what the lawmakers intended some six decades ago. To be sure, the Justices showed commendable judicial restraint in clarifying this truth for the courts below.
By segregating the more prominent tasks of the reporting agencies from the limited oversight role of the judiciary, Seven County neatly resolves the internecine circuit conflict, thereby assuring consistency and predictably amongst the federal courts in these important controversies. Above all, it banishes the hereto before uncertainty and forum shopping that leads to uneven and unfair outcomes.
In all candor, industry shall also benefit from the Supreme Court’s latest pronouncement. As Seven County exemplifies so well, the energy sector and the transportation industry, as just two examples, can now proceed, confident in the knowledge that their proposals shall be subject to an environmental evaluation specific to the merits of a particular project, and without distractions from independent endeavors separated by distance and time. This is only fair; moreover, it fulfills the legislative intent which articulates NEPA.
Nor does the instant case represent a return to the now-defunct Chevron doctrine of pervasive judicial submissiveness to agency action. Rather, the substantial deference Seven County exemplifies is rooted in NEPA’s text, and not a judicial contrivance.
Conclusion
Our denouement shall be succinct. The Supreme Court has now determined that NEPA is a “purely procedural” body of law, which permits the agencies propounding environmental impact statements to exercise discretion in establishing the boundaries of their reports. Moreover, substantial deference to the regulators’ selections as to substance and scope shall now be the prevailing standard for judicial review.
Seven County exemplifies all these precepts exceedingly well, especially its overt recognition that the reporting agency may minimize or exclude entirely from its environmental assessments the contemplation of projects independent and far removed in time and space from the specific project under consideration.
Environmental protection is well served by this robust clarification of NEPA and the respective roles agencies and courts play in upholding it. Industry likewise benefits, for reason that this new landmark is certain to lead to greater predictability and consistency in the issuance and judicial review of environmental impact statements. In sum, Seven County is a “win/win” for all concerned.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., Mineola, New York, is also a Professor of Law, Tobin College of Business, St. John’s University, New York, New York. His private practice and his teaching encompasses oil and gas law, government regulation of business, and constitutional law. Prof. Sabino can be contacted at Anthony.Sabino@sabinolaw.com.
[1] 605 U.S. ___ (No. 23-975) (May 29, 2025) (”Seven County”).
[2] See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (overruling Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the former maxim of judicial deference to agency expertise).
[3] Seven County, slip op. at 2. Maryland’s land area is well over 9,000 square miles. See Maryland State Archives at msa.maryland.gov.
[4] Id. See also id. (Sotomayor, J., concurring), slip op. at 1-2.
[5] Since 1996, the Surface Transportation Board bears sole responsibility for regulating the nation’s interstate railroads. See Sabino, “When Railroads, Pollution, and Preemption Collide,” 273 New York Law Journal p.4, cl.4 (May 28, 2025).
[6] Seven County, supra, slip op. at 2.
[7] Id.
[8] Id. (emphasis supplied).
[9] Justice Gorsuch took no part in the decision, most likely because he is a native Coloradan, and had previously sat on the Tenth Circuit Court of Appeals in Denver.
[10] Id. at 1.
[11] Id. at 6.
[12] Id. at 8.
[13] Id. at 6. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558 (1978) (NEPA’s “mandate to the agencies is essentially procedural,” designed to “insure a fully informed and well-considered decision,” not one which a reviewing court must agree with nor should that choice be “subject to reexamination in the federal courts under the guise of judicial review.”).
[14] Id. at 9 (emphasis in the original).
[15] Id. at 2 (emphasis supplied).
[16] Id. at 21.
[17] Id. at 12.
[18] See 5 U.S.C. § 500, et seq. See also Department of Transportation v. Public Citizen, 541 U.S. 752, 763 (2004) (“An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.’” quoting 5 U.S.C. § 706(2)(A) ). Compare Loper Bright, supra.
[19] Id. at 11.
[20] Seven County, supra, at 11-12. See also Department of Transportation, supra, 541 U.S. at 767 (“[I]nherent in NEPA and its implementing regulations is a ‘rule of reason’ which ensures that agencies determine” what information is pertinent to the decisionmaking process.) (internal quotations and citation omitted).
[21] Id. at 13-14.
[22] Id. at 15.
[23] Id. at 16 (emphasis in the original).
[24] Id. at 16-17.
[25] Id. at 18-19.
[26] Id. (internal quotation omitted).
[27] Id. at 21.