Supreme Court wrestles with how far NEPA review must reach in 88‑mile rail case

The Supreme Court heard arguments over how far agencies must look under the National Environmental Policy Act when approving large infrastructure projects, with counsel for the petitioner urging a narrow, project‑focused test and the government and respondent pressing for a broader foreseeability standard.

Mister Clement, counsel for the petitioner, told the court that “NEPA is a self described procedural statute. It is designed to inform government decision making, not paralyze it.” He argued the decision below improperly required the agency to study downstream refinery impacts and accidents hundreds or thousands of miles away despite a 3,600‑page environmental impact statement with 20 appendices.

The petitioner framed a two‑part test: when an environmental effect is both remote in time and space and falls within the jurisdiction of another agency, the approving agency should not be considered the legally relevant cause for that effect and therefore should not be reversed for failing to study it in depth. Clement highlighted the record here — which he said included cooperation or consultation with 27 federal and state entities, the Ute tribe, and the adoption of 91 mitigation measures plus 56 voluntary measures — as showing how an agency can focus on the project it controls (an 88‑mile line in northeastern Utah).

Responding, government counsel urged deference and a context‑sensitive approach. ‘‘Reasonableness and arbitrary‑and‑capricious review require courts to start with the agency’s organic statute and the particular issue before it,’’ the government argued. Counsel warned that bright‑line limits could leave gaps where multiple agencies have overlapping authority and noted the 2023 amendments (discussed in argument as the ‘‘Builder Act’’) that impose page and time limits on EISs and encourage focused reviews.

Mister Jay, representing the respondent, emphasized the project’s stated purpose — transporting waxy crude from the Uinta Basin to a small set of refineries — as making downstream refining impacts reasonably foreseeable. ‘‘Every train leaving this basin is gonna be carrying waxy crude oil,’’ he said on the record, pointing to agency findings that quantified likely oil volumes and identified potential refinery destinations. That factual framing underpinned the respondent’s argument that downstream emissions and refinery impacts were within the scope NEPA requires the agency to consider.

Justices tested both sides on practical and doctrinal questions. Several asked whether petitioner’s ‘‘remote in time and space’’ plus ‘‘another‑agency jurisdiction’’ formulation could be written as a workable rule, or whether it would unduly constrain agencies’ statutory consultation duties under NEPA. Others queried how the test would translate to projects far smaller than an 88‑mile rail line or far larger projects such as pipelines, where the authorizing agency may have different opportunities to influence downstream outcomes.

Precedent was deployed repeatedly: counsel and justices cited Public Citizen, Metro Edison, Vermont Yankee, Robertson and the Sable Trail line of cases as touchstones for proximate‑cause and foreseeability analysis. Petitioner's counsel urged the Court to rein in what he described as overbroad application of foreseeability by some circuits; the government and respondent urged fidelity to NEPA’s statutory foreseeability standard and to the coordinating role NEPA contemplates among agencies with jurisdiction or expertise.

The argument also touched on litigation incentives: petitioner warned that expansive expectations of what an EIS must include push agencies to produce multi‑thousand‑page statements and invite more litigation, while government counsel said statutory page limits should force agencies to prioritize material issues and judicial review to respect agency judgment.

After rebuttal from petitioner arguing the downline impacts are not materially different from other remote effects, the Court marked the case submitted. A decision could clarify the interplay of NEPA’s foreseeability requirement, proximate‑cause analogies, agency jurisdiction, and the extent of judicial scrutiny under arbitrary‑and‑capricious review.