After 54 years, the Supreme Court corrected an immensely costly lower court error. More than half a century ago, the U.S. Court of Appeals for the D.C. Circuit stopped a nuclear power plant from being built in Maryland, setting off a wave of anti-economic activism nationwide. However, the Supreme Court has at last dealt a huge blow to judicial power and scored a major victory for those who want to make America a country that builds things again.
In 2020, seven western Utah counties came together to build 88 miles of rail track to connect the oil-rich Uinta Basin with the national freight rail network. Before they could begin construction, the counties needed a permit from the Surface Transportation Board.
As required by the National Environmental Policy Act, the board prepared an environmental impact statement examining how the project would affect the local environment. The board held six public meetings and collected more than 1,900 comments before producing a 3,600-page report that found that some disruptions to local wetlands and wildlife habitats were outweighed by “substantial transportation and economic benefits.”
Wealthy Democrats of Eagle County, Colorado, where the Vail Ski Resort is located, decided to block the project. Many Democrats believe any infrastructure that uses fossil fuels must be opposed. Eagle County sued in federal court, saying the board failed to comply with NEPA because its analysis did not include the environmental effects of increased oil drilling in the Uintah Basin and more oil refining in Louisiana and Texas. The D.C. Circuit sided with Eagle County, and the project was halted.
The court’s decision was no surprise. For decades, it has used NEPA to thwart development, starting with the 1971 Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission case, in which the court called NEPA “the broadest and perhaps most important” of Congress’s environmental statutes.
However, this time, the Supreme Court had had enough of judicial meddling. After first noting the importance of the “landmark” Clean Air and Clean Water acts, Justice Brett Kavanaugh dismissed NEPA as a “purely procedural statute” that “imposes no substantive environmental obligations or restrictions.”
Kavanaugh went on to note, “Some courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases … Those decisions have instead engaged in overly intrusive (and unpredictable) review in NEPA cases … Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.”
The threat of NEPA litigation launched by environmental activists presided over by liberal judges has driven up the costs of infrastructure projects everywhere and has killed many projects at the planning phase. Judicial overreach means America, in Kavanaugh’s words, now has “fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.”
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“A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense,” Kavanaugh concluded. He added that, in the future, judges must show “substantial deference” to agencies when determining if the scope of an environmental impact statement meets NEPA’s requirements.
Ideally, Congress would repeal NEPA, which the Clean Air and Clean Water acts make redundant at best. President Donald Trump’s “one big, beautiful bill” takes a step in that direction by allowing developers to pay a fee and escape judicial review of the NEPA process. In the meantime, the Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County is a huge win for the economy and workers.
This article was originally published at www.washingtonexaminer.com
