The Supreme Court's Green Double Standard?
Build a railroad and the justices wave you through; tighten smog rules and they break out the fine-tooth comb.
For my money, the Supreme Court’s decision last Thursday in Seven County Infrastructure Coalition v. Eagle County about the National Environmental Policy Act will rank among the most consequential decisions of the term. As I explain at The Atlantic (gift link here), there are at least two ways to understand what drove the Supreme Court and what the decision portends for the future.
The optimistic take … is that the Supreme Court has cleared away legalistic sludge to needed development, at little or no cost to the environment. The [environmental] groups may complain bitterly over losing a main source of leverage and fundraising appeals. But let them complain. They do not speak for the trees, much less for the American public.
But there’s a less rosy way to tell the story. The Supreme Court’s paean to agency deference is oddly selective. At the end of the last term, for example, the Court invalidated the Environmental Protection Agency’s effort to adopt a rule that would have prevented upwind states from polluting the air of downwind states. “The EPA’s sin,” as I explained for this magazine at the time, “was failing to adequately respond to a single oblique comment that it received.”
That’s the opposite of deference. It’s intensive, even hyperactive, scrutiny of the EPA’s decision to protect the environment. Instead of deferring to the agency’s lengthy, technical defense of the rule, the Supreme Court flyspecked it—just as the D.C. Circuit flyspecked the agency decision approving the 88-mile railroad in the Uinta Basin. That’s exactly the kind of “overly intrusive (and unpredictable) review” that the Supreme Court criticized the lower courts for.
It sure looks like the conservative majority is adjusting the intensity of judicial scrutiny to suit its policy preferences. When agencies downplay environmental harms, Seven County says they should get a free pass. When agencies move to protect the environment, the courts will tie them into knots.
That’s not the way administrative law is supposed to work. If deference is the touchstone in NEPA cases, it ought to be the touchstone across the board. If the Supreme Court means it when it says that “the political process, and not NEPA, provides the appropriate forum in which to air policy disagreements,” that same line of thinking should extend to other government decisions that aren’t about NEPA.
A few observations that didn’t make it into the article:
If you compare the line-up in Seven County against last year’s decision in Ohio v. EPA, only Justice Barrett insisted on deference in arbitrariness review in both cases. Barrett is not pro-deference in all administrative law cases: she joined the majority in overturning Chevron and has supported the strict application of the major questions doctrine. But the combination of a soft touch on arbitrariness review and a close look on the scope of an agency’s legal authority puts me in mind of the approach sketched out by Jeff Pojanowski (her former colleague) in Neoclassical Administrative Law. If that’s how Barrett rolls, I’m encouraged. Pojanowski’s approach is both more faithful to the traditional role of the courts and more epistemically defensible than the generalized skepticism that has characterized administrative law in recent years. It’s discouraging that it appears to be a minority view.
This is the second case this term in which the Court has advanced the rule of prejudicial error as a justification for excusing minor defects in agency decisions. “Even if an EIS falls short in some respects,” the Court writes, “that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.” A relaxed approach along these lines is very much in line with my call for remedial restraint in administrative law.
For all the Court’s strong language about deference, it remains to be seen whether Seven County much affects agency behavior. A risk-averse agency may still fear drawing an imperious judge who says they’re deferring (they all say that!) but nonetheless closely scrutinizes an agency’s environmental review. The costs of a project getting derailed are just too high to take much comfort in, say, a 20% reduction in the odds of losing. That may explain why past Supreme Court efforts to curb NEPA review haven’t made much of a dent in agency practice. The more comprehensive bar on judicial review under NEPA that’s currently under Senate consideration in the Big Beautiful Bill may give agencies considerably more comfort.
The contrast between Seven County and Judge Skelly Wright’s 1971 decision in Calvert Cliffs, which made NEPA into the project-killer that it has become, could not be starker. Here’s Calvert Cliffs: “Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material ‘progress.’” Here’s Seven County: “Congress did not design NEPA for judges to hamstring new infrastructure and construction projects.” The change in tone reflects not just a change in judicial politics (though it does reflect that), but also a growing recognition that arbitrariness review is partly responsible for government dysfunction and America’s inability to build. In this, Seven County looks like a coming-out party for what you might call the Law of Abundance.