By: Dan McLaughlin – nationalreview.com – June 3, 2025

Justice Kavanaugh and the majority deliver a blow against judicial environmentalist meddling in the economy.

The Supreme Court’s conservative majority is under a fair amount of fire right now from Donald Trump and his followers. This is nonsense, driven largely by demands that the Court act like Republican politicians in placing personal loyalty to Trump above the written law. Even the most reasonable critique — that the Court has not moved decisively enough to stem the tide of unreasonable nationwide district court injunctions against Trump — elides the extent to which the Court has made historically extraordinary efforts to rule on emergency applications from the executive branch.

Even in the past several weeks, the Court has allowed Trump to remove members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB), which were traditionally protected by statute from executive removal power; reinstated a Maine legislator suspended from voting for a Facebook post against males in girls’ sports; and consistently upheld Trump’s power to set national deportation policy, albeit constrained by due process rights for individuals targeted for deportation on the basis of facts the government needs to prove in court.

The Court will never please people who interpret its rulings through the lens of loyalty to the president rather than loyalty to principles about the law. But the Court nonetheless keeps advancing conservative ideas about the law in ways that have real-world impacts. Thursday’s decision in Seven County Infrastructure Coalition v. Eagle County, Co. illustrates how the Court continues to rein in judicial activism ungrounded in written law — and, in this case, do so to the benefit of the country’s ability to build things.

The decision cleared the way for a coalition of seven Utah counties to build a railroad over environmental objections — the sort of thing Americans used to do routinely when we were building this country. As Justice Brett Kavanaugh’s opinion for the Court summarized the stakes:

The railroad line here would connect Utah’s oil-rich Uinta Basin—a rural territory roughly the size of the State of Maryland—to the national rail network. By doing so, the new railroad line would facilitate the transportation of crude oil from Utah to refineries in Louisiana, Texas, and elsewhere. And the project would bring significant economic development and jobs to the isolated Uinta Basin by better connecting the Basin to the national economy.

For that proposed 88-mile Utah railroad line, the [U. S. Surface Transportation] Board prepared an extraordinarily lengthy [environmental impact statement (EIS)], spanning more than 3,600 pages of environmental analysis. The Board’s EIS addressed the environmental effects of the railroad line. But the U. S. Court of Appeals for the D. C. Circuit nonetheless faulted the EIS for not sufficiently considering the environmental effects of projects separate from the railroad line itself—primarily, the environmental effects that could ensue from (i) increased oil drilling upstream in the Uinta Basin and (ii) increased oil refining downstream along the Gulf Coast of Louisiana and Texas.

The Court, with Justice Neil Gorsuch recused, ruled 8-0 that the D.C. Circuit had gone too far in imposing this level of judicial red tape on the project under the auspices of the National Environmental Policy Act (NEPA). Justice Sonia Sotomayor, writing for the three liberals in a concurring opinion, concluded that “an agency need not consider every conceivable environmental consequence of a proposed federal action,” a standard she analogized to the tort-law concept of proximate cause. Because the environmental impact of oil drilling and refining was a secondary impact of the railroad caused by the intervening acts of others, she argued, it was simply outside of the scope of NEPA review, and there was no need to consider whether judicial review of the board’s decision was otherwise properly conducted.

Kavanaugh, writing for the five-justice majority, agreed; but he also went further to drive home to recalcitrant lower courts the need to stop abusing NEPA review as a judicial veto on development:

NEPA imposes no substantive environmental obligations or restrictions. NEPA is a purely procedural statute that, as relevant here, simply requires an agency to prepare an EIS—in essence, a report. Importantly, NEPA does not require the agency to weigh environmental consequences in any particular way. Rather, an agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws.

Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.

Rather than endorse the robust use of “arbitrary and capricious” review to second-guess the policy rationales of the executive branch — an approach the Court already warned against earlier this term — Kavanaugh reminded courts that, while they can tell the administrative agencies what the law is, their review of agency policy discretion is especially narrow in the NEPA context:

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 imposes no substantive constraints on the agency’s ultimate decision to build, fund, or approve a proposed project. So 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 . . .

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. [Quotations and citations omitted]

Of course, limited judicial review is not much comfort when the agency itself is run by environmental zealots, but that’s what elections are for:

Plaintiffs’ policy objections to this 88-mile Utah railroad may or may not be persuasive. But neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements. . . . Citizens may not enlist the federal courts, under the guise of judicial review of agency compliance with NEPA, to delay or block agency projects based on the environmental effects of other projects separate from the project at hand. [Quotations and citations omitted]

What’s especially notable about the Seven County opinion is not just the Court’s strict cautions about the limited nature of the review provided by the statute or its reminders of what lies within the proper ambit of the political process. Kavanaugh went out of his way to chastise lower courts at some length for abusing NEPA:

Over time, some courts have assumed an aggressive role in policing agency compliance with NEPA. . . . 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 upshot: NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects. Some project opponents have invoked NEPA and sought to enlist the courts in blocking or delaying even those projects that otherwise comply with all relevant substantive environmental laws.

Those delays aren’t even always green; as Kavanaugh notes, “project opponents have relied on NEPA to fight even clean-energy projects—from wind farms to hydroelectric dams, from solar farms to geothermal wells.” The result is a spiraling morass of litigation, and the Court has had enough of the shenanigans:

All of that has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation. Delay upon delay, so much so that the process sometimes seems to border on the Kafkaesque. . . .

A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development under the guise of just a little more process. . . . A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense. . . . Congress did not design NEPA for judges to hamstring new infrastructure and construction projects. On the contrary, as this Court has stressed, courts should and must defer to the informed discretion of the responsible federal agencies. [Quotations and citations omitted]

This has real-world implications that the Court implores the lower courts to remember:

Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means 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. . . .

In deciding cases involving the American economy, courts should strive, where possible, for clarity and predictability. Some courts’ NEPA decisions have fallen short of that objective.

In the long run, it’s the job of the appeals courts, and not the Supreme Court, to rein in rogue judges and do the day-to-day work of ensuring that judge-made law — or judge-made process — doesn’t become a lawless power unto itself. But this Supreme Court knows the stakes, and it’s not afraid to send a message about them.

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Source: The Supreme Court’s Big Win for Building Stuff | National Review