By J.B. Ruhl | Westword
On May 29, the Supreme Court – minus Justice Neil Gorsuch, who recused himself – decided the case of Seven County Infrastructure Coalition v. Eagle County, Colorado.
Getting federal approval for permits to build bridges, wind farms, highways and other major infrastructure projects has long been a complicated and time-consuming process. Despite growing calls from both parties for Congress and federal agencies to reform that process, there had been few significant revisions – until now. In one fell swoop, the U.S. Supreme Court has changed a big part of the game.
Whether the effects are good or bad depends on the viewer’s perspective. Either way, there is a new interpretation in place for the law that is the centerpiece of the debate about permitting: the National Environmental Policy Act of 1969, known as NEPA.
Taking a big-picture look
NEPA requires federal agencies to document and describe the environmental effects of any proposed action, including construction of oil pipelines, renewable energy and other infrastructure projects.
Only after completing that work can the agency make a final decision to approve or deny the project. These reports must evaluate direct effects, such as the destruction of habitat to make way for a new highway, and indirect effects, such as the air pollution from cars using the highway after it is built.
Only after completing that work can the agency make a final decision to approve or deny the project. These reports must evaluate direct effects, such as the destruction of habitat to make way for a new highway, and indirect effects, such as the air pollution from cars using the highway after it is built.
Decades of litigation about the scope of indirect effects have widened the required evaluation. As I explain it to my students, that logical and legal progression is reminiscent of the popular children’s book If You Give a Mouse a Cookie, in which granting a request for a cookie triggers a seemingly endless series of further requests – for a glass of milk, a napkin and so on. For the highway example, the arguments went, even if the agency properly assessed the pollution from the cars, it also had to consider the new subdivisions, malls and jobs the new highway foreseeably could induce.
The challenge for federal agencies was knowing how much of that potentially limitless series of indirect effects the courts would require them to evaluate. In recent litigation, the question in particular has been how broad a range of effects on and from climate change could be linked to any one specific project and therefore require evaluation.