The Supreme Court issued a major decision today involving NEPA, the National Environmental Policy Act, in Seven County Infrastructure Coalition v. Eagle County Co. Here’s a slightly modified version of a thread I posted on X regarding the significance of the decision:

Those of us concerned about the imperative to enable government to function more effectively have frequently mentioned the way the expansion of NEPA’s role since the 1970s — through judicial doctrine, mostly in the DC Circuit — has contributed to raising the cost, delay, and failure of a range of public projects.

Today’s Supreme Court decision reflects that the Court has come to a similar view. Part II of the opinion, which is something of an introductory section, is designed to send a strong message to the lower courts and the federal agencies that NEPA has come to be too much of a roadblock to federal approval of projects.

In Part II, the Court chastises lower courts for taking a too “aggressive role” in how they enforce NEPA. Over and over, the Court hammers away at the message that courts are to give “significant deference” to agencies in how they fulfill their NEPA obligations. As the Court put it: “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” The Court calls deference to agencies “the central principle of judicial review in NEPA cases…”

Despite the Court’s overturning of Chevron, the Court points out at every turn the importance of judicial deference to the agencies’ application of NEPA. Thus, on how “detailed” a NEPA report must be, deference. On identifying significant environmental impacts and feasible alternatives, agencies have “substantial discretion.” On the scope of environmental effects a NEPA report must address, agencies have “broad latitude.”

The Court is explicit on the change of direction it is announcing. As the Court puts it: “A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development “under the guise” of just a little more process. A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense. Congress did not design NEPA for judges to hamstring new infrastructure and construction projects. On the contrary, as this Court has stressed, courts should and “must defer to ‘the informed discretion of the responsible federal agencies.’”

The three-Justice concurrence by Justice Sotomayor does not take issue with any of these specific substantive points. The concurrence says the majority “unnecessarily ground[s] its analysis large in matters of policy.” But the concurrence does not take issue with any of the substantive points made in the majority’s blueprint for judicial review under NEPA going forward.

Make no mistake: this is a transformative decision in NEPA law.

In my piece called The Neglected Value of Effective Government, I draw on some of the literature criticizing the role excessive interpretations of NEPA have come to play in hamstringing important projects requiring federal NEPA reports, including for clean-energy projects.