The recent Supreme Court decision is the latest unjustified attack on NEPA. Here’s how to actually improve permitting.
Decarbonizing at the pace and scale needed to achieve a zero-emissions energy system will require an unprecedented buildout of clean energy sources and electric transmission across the United States. A range of complex non-technological barriers stand in the way of this needed deployment, including public opposition to technologies and siting, inefficient planning and permitting processes, and precarious supply chains. Unfortunately, discussions and problem-solving around the issue of clean energy deployment are too often narrowed to blaming the National Environmental Policy Act, or NEPA.
One of the United States’ bedrock environmental protections, NEPA was passed in response to concern around damage to the environment from industrial expansion, resource exploitation, and other factors. NEPA does not mandate particular outcomes or standards; instead, it requires federal agencies to consider the reasonably foreseeable environmental impacts of their activities, integrate those considerations into agency decision making, and enhance public transparency in the decision-making process, which results in an environmental review document.
The proper scope of NEPA reviews, how long they should take, and, fundamentally, whether they improperly slow down needed infrastructure projects has been a subject of dispute among courts, Congress, and experts. The Supreme Court has now entered the battle by firing a broadside directly at the heart of the statute. The Seven County Infrastructure Coalition v. Eagle County ruling, along with legislative proposals and executive actions aimed at weakening NEPA, will not improve project outcomes and fail to address the fundamental challenges of infrastructure deployment.
Policy concerns carry the day at the Supreme Court
On May 29, 2025, the Supreme Court issued its decision in the case Seven County Infrastructure Coalition v. Eagle County. This case, about whether the Surface Transportation Board adequately analyzed the environmental effects of an 88-mile railroad line in Utah, will influence how federal agencies and courts consider NEPA reviews. Although all eight justices hearing the case agreed that the lower court’s decision should be reversed, the five-justice majority opinion written by Justice Brett Kavanaugh went much further than needed to resolve the question before the Court and reflects a blinkered view of the nuances of environmental review and permitting.
One striking aspect of the majority’s opinion is how much it is based on policy concerns rather than an interpretation of NEPA’s text or legal principles and precedent (while selectively quoting from the text of NEPA). The opinion expresses concern about the time and cost of environmental reviews, how many projects never complete—or even start—reviews, and what that might portend for infrastructure-related jobs. Absent from this analysis, however, is any mention of the actual stated policy goals of NEPA, including to “preserve important historic, cultural, and natural aspects of our national heritage.”
One surprising, and thinly supported, policy-motivated reason the Court provides for trimming environmental reviews is that NEPA supposedly harms “clean-energy projects.” However, CATF’s research has found that, by and large, NEPA is not what stands in the way of clean energy projects and associated infrastructure, such as transmission lines and offshore wind projects. Legal experts who have looked at the full environmental review and permitting picture have reached similar conclusions. The picture the Court paints simply does not track with reality.
An uncertain path forward – potential implications of the Court’s ruling
One reason the Seven County decision will produce uncertainty is that the majority opinion speaks separately to courts and to agencies. To courts, the majority directs them to afford substantial deference to agencies when reviewing the sufficiency of environmental reviews. And for agencies, the opinion provides principles that they may choose to, but are not required to, apply in order to limit the scope of reviews. However, how these two directives will change the practice of environmental reviews and legal challenges is far from clear.
Start with the deference owed by courts to agencies on their environmental reviews. On the one hand, this part of the ruling is old news. Courts are already not to “flyspeck” environmental reviews, although the majority opinion opts for the more modern term “micromanage.” On the other hand, this show of deference to agencies is completely inconsistent with the Court’s approach last summer when it blocked an EPA rule limiting emissions of nitrogen oxides based on what Justice Barrett, in dissent, called an “underdeveloped theory.” In any event, the Court reiterates that agency decisions must still be “reasonable and reasonably explained.” And courts will continue to evaluate the sufficiency of NEPA reviews to answer that question.
Moving to the message to agencies, the Court held that agencies need not—but may—evaluate a project’s upstream or downstream effects under NEPA, and that projects permitted by third parties and outside of an agency’s authority may fall outside of that scope. This message ultimately boils down to the Court directing agencies to draw a “manageable line” around a project’s effects.
What drawing a “manageable line” for an environmental review’s scope will look like in practice, though, remains murky. Unfortunately, the Court’s discussion of the facts around the railroad does not help this line-drawing exercise because, the majority asserts, this case was “not close.” The majority opines on a number of stylized examples that would fall inside or outside of this scope, but those all lack detail and, because they were not actually before the court, are not binding.
Actual NEPA reviews are far more complicated than the Court’s simplified examples, and figuring out how and where to draw this “manageable line” will take time. Ironically, the D.C. Circuit’s series of cases underlying the overturned decision were designed to create a manageable line for when a review must consider upstream or downstream effects based on reasonable foreseeability. How much of that test remains after Seven County remains to be seen, and the difference between a manageable line and an arbitrarily narrow scope of review has been left to other courts to work out.
There are two clear implications of this ruling. First, even though it does not establish a categorical rule, limiting the obligation of agencies to consider upstream and downstream effects under NEPA benefits one type of project above all others: fossil fuel infrastructure. Clean energy projects simply do not have the issues of downstream greenhouse gas emissions or upstream oil and gas drilling that were at issue in this case. Second, agencies retain the ability to undertake thorough environmental reviews that still consider these impacts. Continuing to analyze these effects will serve NEPA’s purposes of informed decision-making and public transparency and involvement. And a thorough review of impacts remains essential for judicial review of the reasonableness of agency decisions, which will continue to depend on the sufficiency of environmental reviews.
NEPA is under attack in all three branches of government
The Seven County decision takes place amidst a wave of assaults on NEPA and other key protections across government, with wide-ranging adverse implications for people and the environment.
On the first day of his new term, President Trump revoked a 1977 executive order that directed the White House Council on Environmental Quality (CEQ) to issue NEPA regulations to guide federal agencies’ implementation of NEPA. In its place, the new order directed CEQ to rescind its NEPA regulations. In March, CEQ complied by eliminating all of its NEPA regulations while simultaneously recommending—but not requiring—that agencies follow CEQ’s 2020 regulations (now reconceived as guidance) while developing their own, agency-specific regulations or guidance.
These actions fail to live up to the level of good practice on both the process and substance fronts. On process, they will increase uncertainty for agencies and applicants, limit opportunities for community input and Tribal consultation on new agency-specific procedures, and will not achieve their stated outcome of expediting federal permitting processes. And on substance, this effort also eliminated CEQ’s 2024 NEPA regulations update, which included new requirements for agencies to consider applicable environmental justice implications, conduct early public engagement, and assess greenhouse gas emissions, among other provisions. Removing these considerations from environmental reviews will result in weaker analyses that diminish environmental, historic, and cultural protections.
Perhaps even more disturbingly, the Trump administration has begun to circumvent normal agency procedures under an unsubstantiated “energy emergency” for a wide range of energy resources (though notably not wind and solar). The Department of the Interior complied and announced it would review qualifying projects in 28 days or less. These timelines are severely inadequate to thoroughly analyze environmental and socioeconomic effects as required by NEPA and render functionally impossible any opportunity for the public to provide public comments or for Tribes to be consulted.
This assault on NEPA is not limited to the executive branch. In Congress, the reconciliation bill that recently passed the House of Representatives, and draft text from the Senate, contain several concerning provisions that would undermine NEPA. The Senate version would repeal funds to the Environmental Protection Agency, Department of Transportation, and CEQ that are specifically dedicated to environmental reviews, undermining agency capacity and data tools and transparency. Both the House and Senate versions include deeply concerning “pay to play” permitting proposals, under which a project sponsor could pay a fee equal to 125% of the anticipated costs of expected agency activity to prepare an environmental review. In exchange, the agency would complete their environmental impact statement in one year and an environmental assessment in six months. Both the House and Senate drafts contain a provision that environmental reviews prepared under this provision would not be subject to judicial review; however, the Senate parliamentarian has advised that this elimination of judicial review violates the Senate’s Byrd Rule, and would therefore have to be passed by a 60-vote threshold.
As a result, environmental reviews prepared under the pay-to-play fee structure would still be reviewable by the courts, preventing the worst-case scenario of a backdoor repeal of NEPA with no recourse for accountability. Nonetheless, requiring an expedited timeline while gutting staff at federal agencies is likely to decrease the quality of environmental reviews and, subsequently, increase legal challenges (and therefore project timelines).
Taken together, these attacks on NEPA represent a grave threat to the environmental protection, community engagement, and Tribal sovereignty principles that our bedrock environmental laws are intended to further—while bringing us no closer to clean energy deployment at scale.
How can environmental reviews be improved?
Rather than taking a wrecking ball to NEPA, CATF research has identified opportunities to improve environmental reviews that will accelerate clean energy deployment and protect communities and the environment, all while providing project certainty to developers. These recommendations can continue to be implemented by agencies, states, developers, and Congress.
First, improving federal agency coordination, cooperation, and capacity is key to effective and timely environmental review. Under Seven County, substantial deference is granted to agencies in determining the scope and breadth of reviews; agencies should, in turn, continue to robustly analyze environmental impacts, engage with communities, and consult with Tribes. Rather than eliminating funding to improve environmental reviews and cutting staff in key offices, Congress should invest in permitting personnel and data tools, which would continue the improvement in review timelines that has taken place since 2020. Here, CEQ’s new Permitting Innovation Center is a welcome step in the right direction that should be complemented by additional agency staff capacity.
Second, aligning permitting requirements among jurisdictions with permitting authorities would help to eliminate duplicative or overlapping reviews and simplify permitting processes. While revoking CEQ’s regulations represents a setback at the federal level, states should work to harmonize their permitting processes to create regulatory efficiency and allow for more concurrent processes. Such work can also be advanced at the federal level by the Permitting Council, which should work with agencies to advance projects and coordinate with local authorities and continue to facilitate interagency coordination and transparency through the Permitting Dashboard.
Finally, agencies and developers alike should prioritize early, sustained, and meaningful community engagement to inform project development and ensure community benefits; agencies should also conduct meaningful government-to-government Tribal consultation. Such engagement and consultation can substantively improve projects by providing local perspectives on a range of environmental, social, and economic implications, as well as mitigate local opposition, delays, and litigation risk. Thoughtful agency procedural changes, including careful expansions of categorical exclusions and use of programmatic reviews, can also help to reduce timelines while increasing project certainty.
Unfortunately, the attacks on NEPA by the Trump administration, members of Congress, and now five justices on the Supreme Court will lead to more uncertainty and fail to improve project outcomes. Instead, CATF will continue to research and advocate for sensible, evidence-based reforms that accelerate clean energy infrastructure deployment, promote community benefits, preserve historic and cultural resources, and, as Congress instructed in 1969, “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”
Timeline of key attacks on NEPA
| January 20, 2025 | Executive Order 14154, “Unleashing American Energy,” revokes the 1977 executive order that directed CEQ to issue NEPA regulations to federal agencies for implementing NEPA and directs all relevant agencies to “undertake all available efforts to eliminate all delays within their respective permitting processes” |
| January 20, 2025 | Executive Order 14156, “Declaring a National Energy Emergency,” instructs agencies to use emergency permitting provisions to expedite approvals for a wide range of infrastructure, energy, environmental, and natural resources projects (notably excluding wind and solar) |
| February 19, 2025 | CEQ issues guidance to agencies instructing them to revise or establish agency-specific NEPA implementing procedures that expedite permitting approvals and “prioritize efficiency and certainty over any other policy objectives” |
| February 25, 2025 | CEQ issues an interim final rule removing its NEPA implementing regulations from the Code of Federal Regulations (CFR) |
| February 25, 2025 | The Advisory Council on Historic Preservation announces expedited emergency provisions for agencies implementing Section 106 of the National Historic Preservation Act |
| April 11, 2025 | CEQ’s interim final rule takes effect; CEQ NEPA implementing regulations are removed from the CFR |
| April 23, 2025 | DOI announces emergency permitting procedures for a wide range of energy resources (but not wind or solar) that reduce environmental review timelines to under a month; CEQ writes a letter to DOI concurring that these procedures “are an appropriate means of complying with NEPA’s requirements” |
| May 1, 2025 | The House Committee on Natural Resources releases draft text for reconciliation, including a provision by which project sponsors can pay 125% the cost of an environmental review in exchange for an agency deadline and no judicial review |
| May 22, 2025 | The House of Representatives passes the reconciliation bill, including the pay-to-play permitting provisions |
| May 23, 2025 | DOI uses emergency permitting procedures for the first time, approving the Utah Velvet-Wood uranium and vanadium mine in 14 days |
| May 29, 2025 | The Supreme Court decides, in Seven County Infrastructure Coalition v. Eagle County, Colorado, that agencies should limit their reviews to matters within the scope of the agency’s decisional authority and that courts should broadly defer to agencies in determining this scope |
| June 4, 2025 | The Senate Committee on Environment and Public Works releases draft reconciliation text, which retains the House version’s pay-to-play permitting provisions and rescinds permitting funds to several agencies |
| June 19, 2025 | The Senate parliamentarian advises that the portion of the pay-to-play permitting provision that would eliminate judicial review is not allowable under the Senate’s Byrd Rule and would therefore have to be passed by a 60-vote majority |
