Stephen L. Carter: The Supreme Court got the Environmental Policy Act case right

There s an old Hollywood joke where a screenwriter goes to pitch a romantic comedy and the producer listens in silence then exclaims Sounds great Throw in a couple of car chases and you ve got a movie The joke has endless variants the screenwriter is pitching a zombie thriller or a period biopic whatever the writer pitches the producer s punch line remains the same That humoresque comes to mind in light of last week s decision by the U S Supreme Court in Seven County Infrastructure Coalition v Eagle County which is being described correctly as sharply circumscribing the ability of litigants to use the National Environmental Guidelines Act NEPA to stack new review requirements on projects already approved by federal agencies Because if you ask anybody who s trying to build say new infrastructure to encouragement the power requirements of AI or just the advance of the digital world generally the worry isn t having to get agency approval to break ground It s all those car chases that the courts might insist they ve got to add in before they ve got a movie That is all the studies that must be done that have little to do with either their project or its primary goal The scenario before the court was relatively straightforward The U S Surface Transportation Board yes I know nobody who isn t in railroads has heard of it suffice to say it inherited several of the authority of the old Interstate Commerce Commission approved an -mile rail line to connect the rich oilfields of Utah s Uinta Basin with refineries on the Gulf Coast As required by federal law the board completed an environmental impact announcement which in Justice Brett Kavanaugh s words clocked in at more than pages The board approved the project The U S Court of Appeals for the DC Circuit threw it out Why The pertinent reasons are that although the board considered the environmental impact of the railway line itself it did not adequately take into account other reasonably foreseeable effects in particular that the convenience of carrying oil from the Uinta Basin to the Gulf Coast would increase drilling in the first and refining in the second Movie meet car chase The Supreme Court was unanimous in its judgment that the DC Circuit erred though it split on the reasons Justice Kavanaugh writing for the majority noted that NEPA requires agencies to consider the environmental impact but says nothing about how much weight to give it He scolded the DC Circuit for not showing sufficient deference to the Surface Transportation Board Hold on didn t the justices say just last year oh never mind Then he got to the heart of the matter NEPA requires a federal agency only to consider the environmental impact of the particular project it is being inquired to approve not of separate projects that it might generate such as a housing evolution that might someday be built near a highway OK maybe a NIMBY would prefer that the agency take into account that housing rise and its attendant demands or in this incident the increase in drilling and refining but the majority s legal analysis is not only clear but sensible Deciding whether oil should be drilled or refineries built is the domain of other agencies and they will produce their own environmental impact studies The Surface Transportation Board does only railroads Perhaps the justices should have noted no more But as Justice Sonia Sotomayor points out in her concurring opinion joined by two other justices the majority also opines on the plan implications Here s Justice Kavanaugh NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents who may not unfailingly be entirely motivated by concern for the ecosystem to try to stop or at least slow down new infrastructure and construction projects And this 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 records centers and the like And that also means fewer jobs as new projects become tough to finance and build in a timely fashion All this because again quoting the majority opinion a legislative acorn has grown over the years into a judicial oak that has hindered infrastructure evolution under the guise of just a little more process Nicely put but on the merits of the circumstance Justice Sotomayor is of unit correct Even if NEPA litigation does make building infrastructure enormously laborious that fact does not seem a proper tool for interpreting the statute Nevertheless even if the agenda analysis does not belong in the opinion I do think the majority gets the argument right Take a single example According to a RAND assessment circulated earlier this year by the power requirements for AI figures centers worldwide will approach the total power ceiling of California By the analysis estimates a single AI training center could have power requirements equivalent to eight nuclear reactors Now imagine all that generating limit approved by relevant agencies but turned back by the courts under NEPA because the agencies had not sufficiently considered the indirect effects of unrelated projects outside their jurisdiction So here s the thing the majority reached the right legal end but should have stayed away from approach Still if we re going to build the infrastructure we need we have to stop demanding that they throw in all those car chases Stephen L Carter is a Bloomberg Opinion columnist a professor of law at Yale University and author of Invisible The Story of the Black Woman Lawyer Who Took Down America s Majority of Powerful Mobster Related Articles Thomas Friedman We Are Being Governed by the Trump Organization Inc Lisa Jarvis 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