{"id":648,"date":"2025-05-29T18:10:00","date_gmt":"2025-05-29T18:10:00","guid":{"rendered":"http:\/\/audiomateria.com\/?p=648"},"modified":"2025-06-12T11:02:41","modified_gmt":"2025-06-12T11:02:41","slug":"the-supreme-court-wants-to-make-it-easier-to-build","status":"publish","type":"post","link":"http:\/\/audiomateria.com\/index.php\/2025\/05\/29\/the-supreme-court-wants-to-make-it-easier-to-build\/","title":{"rendered":"The Supreme Court wants to make it easier to build"},"content":{"rendered":"
\n

\"Justice

Justice Brett Kavanaugh, left, shares a laugh with Chief Justice John Roberts after inauguration ceremonies on January 20, 2025. | Chip Somodevilla\/Getty Images<\/figcaption><\/figure>\n

The Supreme Court handed down an opinion on Thursday that reads like it was written by Ezra Klein and Derek Thompson, the authors of an influential book<\/a> arguing that excessive regulation of land use and development has made it too difficult to build housing and infrastructure in the United States. (Ezra is also a co-founder of Vox.)<\/p>\n

Seven County Infrastructure Coalition v. Eagle County, Colorado<\/em><\/a> concerns a proposed railroad line that would run through 88 miles of Utah, connecting the state\u2019s oil-rich Uinta Basin to the broader national rail network. The line is expected to make it easier to transport crude oil extracted in this region to refineries elsewhere in the country. The Court\u2019s opinion in Seven County<\/em> places strict new limits on a federal law that a lower court relied upon to prevent this line from being constructed \u2014 limits that should make it easier for developers to build large-scale projects.<\/p>\n

Before this rail project can move forward, it must be approved by the Surface Transportation Board. Under the National Environmental Policy Act (NEPA), moreover, this board is required to produce an environmental impact statement, which identifies any significant environmental effects from the rail project as well as ways to mitigate those effects.<\/p>\n

Significantly, as Justice Brett Kavanaugh explains in the Court\u2019s Seven County <\/em>opinion, \u201cNEPA imposes no substantive environmental obligations or restrictions\u201d on the board or on any other federal agency. It requires agencies to identify potential environmental harms that could arise out of development projects that they approve, but once those harms are identified in an environmental impact statement, the agency is free to decide that the benefits of the project outweigh those harms.<\/p>\n

Nevertheless, NEPA is often a significant hindrance to land development because litigants who oppose a particular project \u2014 be they environmental groups or just private citizens looking to shut development down \u2014 can often sue, claiming that the federal agency that must approve the project did not prepare an adequate environmental impact statement. As a result, Kavanaugh writes in his Seven County <\/em>opinion, \u201clitigation-averse agencies…take ever more time\u2026to prepare ever longer EISs for future projects<\/a>.\u201d<\/p>\n

Indeed, the Seven County<\/em> case itself is a poster child for just how burdensome NEPA can be. The Surface Transportation Board produced an environmental impact statement that is more than 3,600 pages, and it goes into great detail about the rail line\u2019s potential impact on topics ranging from water quality to vulnerable species, such as the greater sage-grouse.<\/p>\n

Nevertheless, a federal appeals court blocked the project because it determined that this 3,600-page report did not adequately discuss the environmental impacts of making it easier to extract oil from the Uinta Basin. The appeals court reasoned that the agency needed to consider not just the direct environmental impacts of the rail line itself but also the impact of increased drilling and oil refining after the project is complete.<\/p>\n

All eight of the justices that heard the Seven County<\/em> case (Justice Neil Gorsuch was recused) agreed that this appeals court decision was wrong, although Kavanaugh\u2019s majority opinion for himself and his Republican colleagues is broader than a separate opinion by Justice Sonia Sotomayor.<\/p>\n

The justices\u2019 agreement in Seven County<\/em>, moreover, mirrors a growing bipartisan consensus that NEPA has become too much of a burden to development. As Kavanaugh notes in his opinion, President Joe Biden signed legislation in 2023<\/a> that limits environmental impact statements to 150 pages and requires them to be completed in two years or less.<\/p>\n

Still, Kavanaugh\u2019s opinion goes even further, repeatedly instructing courts to be deferential to an agency\u2019s decision to greenlight a project after producing an environmental impact statement.<\/p>\n

Seven County<\/em> significantly weakens NEPA<\/h2>\n

One striking thing about Kavanaugh\u2019s opinion is how closely it mirrors the rhetoric of liberal proponents of an \u201cabundance\u201d agenda<\/a>, which seeks to raise American standards of living by promoting large infrastructure projects. <\/p>\n

These proponents often claim that well-meaning laws intended to advance liberal values can have the opposite effect when they impose too many burdens on developers. As Kavanaugh argues, NEPA has \u201ctransformed from a modest procedural requirement into a blunt and haphazard tool\u201d that even stymies clean energy projects ranging \u201cfrom wind farms to hydroelectric dams, from solar farms to geothermal wells.\u201d<\/p>\n

Broadly speaking, Kavanaugh\u2019s opinion imposes two limits on future NEPA lawsuits. The first is simply a blunt statement that courts should be highly reluctant to second-guess an agency\u2019s decision that it has conducted an adequate environmental review. As Kavanaugh writes, \u201cthe bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.\u201d<\/p>\n

Kavanaugh also criticizes the appeals court for blocking one project \u2014 the Utah rail line \u2014 because of the environmental impacts of \u201cgeographically separate projects that may be built\u201d as a result of that rail line, such as an oil refinery elsewhere in the country. <\/p>\n

As Kavanaugh writes, \u201cthe effects from a separate project may be factually foreseeable, but that does not mean that those effects are relevant to the agency\u2019s decisionmaking process or that it is reasonable to hold the agency responsible for those effects.\u201d<\/p>\n

Both Kavanaugh and the separate opinion by Sotomayor also point to the fact that \u201cthe Board here possesses no regulatory authority over those separate projects.\u201d That is, while the transportation board is tasked with approving rail lines, other agencies are in charge of regulating projects, such as oil wells or refineries.\u00a0<\/p>\n

As Sotomayor writes, an agency is not required to consider environmental harms that it has \u201cno authority to prevent.\u201d<\/p>\n

So Seven County<\/em> is a fairly significant victory for land developers as well as for traditional libertarians and for liberal proponents of an abundance agenda. It significantly weakens a statute that has long been a b\u00eate noire of developers. <\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Brett Kavanaugh, left, shares a laugh with Chief Justice John Roberts after inauguration ceremonies on January 20, 2025. | Chip Somodevilla\/Getty Images The Supreme Court handed down an opinion on Thursday that reads like it was written by Ezra Klein and Derek Thompson, the authors of an influential book arguing that excessive regulation of…<\/p>\n","protected":false},"author":1,"featured_media":650,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14],"tags":[],"class_list":["post-648","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-climate"],"_links":{"self":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts\/648","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/comments?post=648"}],"version-history":[{"count":2,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts\/648\/revisions"}],"predecessor-version":[{"id":651,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts\/648\/revisions\/651"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/media\/650"}],"wp:attachment":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/media?parent=648"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/categories?post=648"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/tags?post=648"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}