Supreme Court Decision on NEPA

The decision was effectively unaminous, because nobody could read the law and think the process as it now exists is what Congress had in mind. Sotomayor wrote a concurrence, which has more pro-environment rhetoric but so far as I can tell is substantively the same. This, from Bret Kavanaugh's decision, sums it up:

Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.

The lawsuit concerned the construction of an 88-mile railway in Utah to carry waxy crude oil to existing rail lines. Environmental groups sued because they said the NEPA review should have considered, not just the direct impact of building the railroad, but the overall impact of refining and using the oil from this source. This outward spiraling of "impacts" is one of the things that make NEPA so crazy; how could you, even in theory, estimate all the potential future impacts of how piece of infrastructure will be used? Consider that the Environmental Impact Statement in question was 3,600 pages long, and a court still held that it was not far-reaching enough.

This is what NEPA requires of federal agencies before they approve projects:

• Consider alternatives, including the "no action alternative."
• Get an appropriate level of information on how the project would impact a range of stuff, like endangered species, cultural resources, wetlands, and air pollution.
• Have roughly the same level of information on all the alternatives being considered. (You can't delve much more deeply into the impact of the alternative you think you're going to choose.)
• Make their decision in the light of this information.

That's it. It in no way requires that the agency prioritize environmental protection over other concerns, nor does it have any detail about what that appropriate level of information might be. That is left to the agency. There are cases where a responsible decision-maker would want a whole lot of information; for example, the Corps of Engineers did a bookshelf of studies before embarking on their multi-billion-dollar plan to alter water flows in South Florida to protect the Everglades. But for many cases the process has gotten completely out of hand, with stacks of fat reports piling up for the construction of single buildings, or adding turn lanes at intersections. None of that is in NEPA, and none of it was done in the first 15 years of the law's existence.

The meat of the Supreme Court's decision is that the lower courts who tried to interfere in this case did not grant "sufficient deference" to agency decision-makers:

Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.

I think this is the key. Letting NEPA become completely unreasonable, which I think has happened in many cases, is bad for the country and will, if not checked, eventually lead to the dismantling of the whole process. Preservationists of all sorts need to think harder about what realistically can be preserved, and how big a burden they should be imposing on their fellow citizens.