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.
