The Volokh Conspiracy
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"The Central Principle of Judicial Review in NEPA Cases Is Deference"
Some additional thoughts on today's Supreme Court decision in Seven County Infrastructure Coalition.
Today's Supreme court decision in Seven County Infrastructure Coalition v. Eagle County (which I discussed here) augurs a substantial change in how courts review agency compliance with the National Environmental Policy Act (NEPA). It is, as Justice Kavanaugh's opinion for the Court explains, a "course correction" intended to "bring judicial review under NEPA back in line with the statutory text and common sense." In this regard, the decision is a substantial rebuke to lower courts that have expanded and inflated NEPA's requirements.
Fitting for this moment in time, Seven County Infrastructure Coalition is something of a requel to Vermont Yankee. In that 1978 opinion, the Court had explained that "courts are to play only a limited role" in reviewing agency compliance with NEPA, an admonition many lower courts (including the D.C. Circuit) had seemed to forget.
This rebuke of lower courts is not confined to the Kavanaugh opinion. The court was unanimous in concluding that the D.C. Circuit had adopted an unduly expansive interpretation of agency obligations under NEPA--an interpretation contrary to the statutory text and the Supreme Court's own prior decisions. As Justice Sotomayor's opinion concurring-in-the-judgement makes clear, the D.C. Circuit opinion below was hard to square with the Court's prior decisions in Department of Transportation v. Public Citizen and Metropolitan Edison v. PANE, particularly insofar as the D.C. Circuit sought to require the Surface Transportation board to consider environmental impacts from other projects over which the STB has no control and could not address.
Even more significant is the Court's declaration that "the central principle of judicial review in NEPA cases is deference." So there is no confusion, Justice Kavanaugh makes the point again a few pages later: "The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference."
As Justice Kavanaugh explains, this is a consequence of recognizing that judicial review of an EIS is to be conducted under the arbitrary and capricious standard, and represents only one element in reviewing an agency action:
When a party argues that an agency action was arbitrary and capricious due to a deficiency in an EIS, the reviewing court must account for the fact that NEPA is a purely procedural statute. Under NEPA, an agency's only obligation is to prepare an adequate report. "NEPA requires no more." Strycker's Bay Neighborhood Council, 444 U. S., at 228. . . . when reviewing an agency's EIS, "the only role for a court" is to confirm that the agency has addressed environmental consequences and feasible alternatives as to the relevant project. Id., at 227; see Vermont Yankee, 435 U. S., at 551, 555. Because an EIS is only one input into an agency's decision and does not itself require any particular substantive outcome, the adequacy of an EIS is relevant only to the question of whether an agency's final decision (here, to approve the railroad) was reasonably explained.
In short, when determining whether an agency's EIS complied with NEPA, a court should afford substantial deference to the agency. . . .
The agency is better equipped to assess what facts are relevant to the agency's own decision than a court is. As a result, "agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process." Public Citizen, 541 U. S., at 767 (emphasis added). So the question of whether a particular report is detailed enough in a particular case itself requires the exercise of agency discretion—which should not be excessively second-guessed by a court. Brevity should not be mistaken for lack of detail. . . .
To tie all of this together: When assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS. Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness. As the Court has emphasized on several occasions, and we doubly underscore again today, "inherent in NEPA . . . is a 'rule of reason,' which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process." Public Citizen, 541 U. S., at 767. A reviewing court may not "substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe, 427 U. S., at 410, n. 21. . . .
Indeed, Justice Kavanaugh makes clear that minor deficiencies in an agency's EIS are not necessarily grounds for vacating an agency decision.
courts not only must defer to the agency's reasonable choices regarding the scope and contents of the EIS, but also must keep in mind that review of an agency's EIS is not the same thing as review of the agency's final decision concerning the project. . . . 70–71. That, too, follows from NEPA's status as a purely procedural statute. The ultimate question is not whether an EIS in and of itself is inadequate, but whether the agency's final decision was reasonable and reasonably explained. Review of an EIS is only one component of that analysis. 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, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.
Although Justice Kavanaugh's opinion makes no mention of the recent D.C. Circuit opinion concluding that the Council on Environmental Quality lacks the statutory authority to adopt regulations under NEPA imposing obligations on other agencies, his opinion is entirely consonant with Judge Randolph's opinion. As Justice Kavanaugh explains, under NEPA each agency is to make its own determination as to the scope of environmental review necessary in the execution of that agency's statutory responsibilities, and courts are to defer to such judgments so long as they are reasonable. That was Congress's plan. So if an individual agency wants to adopt its own regulations detailing how it will fulfill its NEPA obligations (as some have), so be it. But agencies will not be required to adopt such rules by CEQ or the courts (and insofar as CEQ purports to adopt NEPA regulations binding on other agencies, I would no longer bet on the success of suits to enforce such rules prevailing in court).
One final point. I could not help but be struck by this sentence in Justice Kavanaugh's opinion:
As a general matter, when an agency interprets a statute, judicial review of the agency's interpretation is de novo. See Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392 (2024).
Queue the debates on the difference between de novo review and "due respect." On the other hand, as Justice Kavanaugh has warned us not to over-read Loper Bright Enterprises, perhaps we should not over-read Seven County Infrastructure Coalition either.
