On May 29, 2025, the Supreme Court issued its decision in Seven County Infrastructure Coalition et al. v. Eagle County, Colorado et al.[1] This decision held that agencies are afforded substantial deference in National Environmental Policy Act (“NEPA”) cases and limited the scope of judicial review—which could mean less regulatory burdens for project approval where NEPA is involved. The opinion is also noteworthy, because it provides further guidance on how the Court will apply deference following last year’s Loper Bright decision.
Federal law mandates that railroad construction be approved by the U.S. Surface Transportation Board (the “Board”). The Seven County Infrastructure Coalition (the “Coalition”) sought the Board’s approval for an 88-mile railroad line for the purpose of connecting the Uinta Basin to the national freight rail network—with the underlying goal that oil produced in the Uinta Basin could be more easily transported to refineries.
Pursuant to NEPA, the Board prepared an environmental impact statement (“EIS”). The EIS noted, but did not fully analyze, potential environmental impacts of an increase in upstream oil production in the Uinta Basin and increased oil refinery downstream. Shortly after the Board issued the final EIS, it approved construction of the railroad. A Colorado County and several environmental organizations then sued and sought review by the D.C. Circuit. On review by the D.C. Circuit, the Board’s decision was overturned due to NEPA violations stemming from the EIS, with the main defect of the EIS being that the Board should have analyzed the reasonably foreseeable impacts of increased drilling and refining of crude oil.
The Court emphasized that “NEPA is purely procedural” and “NEPA imposes no substantive constraints on the agency’s ultimate decision to build, fund, or approve a proposed project.” Citing Loper Bright, the court reiterated that judicial review of an agency’s statutory interpretation is de novo but went on to distinguish legal questions versus questions of fact—stating “The agency is better equipped to assess what facts are relevant to the agency’s own decision than a court is. As a result, agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decision-making process.” Accordingly, agencies are afforded substantial deference when determining the scope of the EIS.
The Court made clear that NEPA does not require analysis of the environmental impacts of projects separate in time and place from the project at issue.[2] “To put it in legal terms, the separate project breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project.”[3]
Moreover, the Court found that the potential upstream and downstream projects fell outside of the Board’s approval authority—and “agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority.”[4]
As summarized by Justice Kavanaugh—
The proper judicial approach for NEPA cases is straightforward: Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects. In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS. 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.’[5]
Moving forward, courts may grapple with legal versus factual distinctions in the wake of Loper Bright and Seven County. In Seven County, the Court clarified that what constitutes a “detailed” EIS under NEPA is a legal question.[6] However, the Court did not address this legal question as the threshold issue was whether the detail and scope of the EIS was sufficient for the agency’s decision making process—which is a question of fact.[7] So although the Loper Bright and Seven County decisions do not conflict, federal courts reviewing agency decisions may nonetheless struggle to interpret what may be a fine line between questions of law and fact.
If you have questions regarding the Seven County decision or how it could impact your project, please contact your Vorys lawyer or Kristin Watt, David Edelstein, or Kalie Bagent.
Authors: Kalie Bagent and Nat Morse
[1] 221 L.Ed.2d 820 (2025). The decision can be accessed at this url: https://www.supremecourt.gov/opinions/24pdf/23-975_m648.pdf.
[2] Id. at 836.
[3] Id.
[4] Id. at 840.
[5] Id. at 842 (citing Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983)).
[6] Id. at 835-36.
[7] Id.