On September 4, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to rein in the scope of agency review under the National Environmental Policy Act. NEPA requires federal agencies to assess the environmental impacts of their proposed actions—i.e. making decisions on permit applications or constructing highways—prior to making decisions. Even though NEPA’s text does not require an agency to study the environmental impacts of a project beyond the immediate effects of the project over which the agency has regulatory authority, some courts have required agencies to do so. In this case, a local government and environmental groups challenged the Surface Transportation Board’s approval of a rail line in Utah’s Uinta Basin which would primarily carry waxy crude oil to refinery markets along the Gulf Coast. The D.C. Circuit concluded that the Board’s NEPA analysis was deficient because it failed to consider the rail line's potential effects on increased oil drilling (upstream and downstream impacts), even though the Board has no direct authority to prevent or mitigate those indirect effects of railroad development.
We argue in our brief that consideration of environmental effects over which an agency has no regulatory authority strays from NEPA’s purpose to promote informed decisions by an agency. Expanding the scope of NEPA results in increased litigation risks and permitting delays that hamper economic growth.