Seven County Coalition v. Eagle County (23-975)

argument 23-975

Seven County Coalition v. Eagle County

Supreme Court of the United States 1h 50m 7 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the central dispute in Seven County Coalition v. Eagle County regarding NEPA?

John G. Roberts 0:00

We will hear argument this morning in case twenty three nine seventy five, Seven County Infrastructure Coalition versus Eagle County, Colorado. Mr.

William S. Consovoy 0:10

Clement? Mr. Chief Justice, and may it please the court. NEPA is a self-described procedural statute. It is designed to inform government decision making, not paralyze it. Nonetheless, it has become the single most litigated environmental statute. The decision below helps explain why. Despite an environmental impact statement spanning 3,600 pages, including 20 appendices, that addressed major impacts, minor impacts, downline impacts, and cumulative impact. Cumulative impacts, the DC Circuit demanded more. It insisted that the Board study the future project developments in the entire basin, the prospect of accidents and train lines hundreds of miles away, and the effect on refineries in Gulf communities thousands of miles away.

William S. Consovoy 0:57

All of that is not just remote in time and space, but falls well outside the ST. ECB's limited remit, and it falls within the jurisdiction of other agencies that can address those issues comprehensively and concretely if and when they arise. And the EIS here addressed almost all of those issues, or at least identified them. But in classic no good deed goes unpunished fashion, the DC circuit held that because the agency identified the issue or flagged The issue, it was therefore foreseeable, and they had to do more. That's a recipe for turning a procedural statute into a substantive roadblock. After all, infrastructure requires investment, and for investors, time is money. Project opponents, by contrast, know that time is on their side, and a remand just for a little more process can kill a project.

William S. Consovoy 1:50

The combined effect of proximate cause and the rule of reason should have made this a straightforward case. The Board was not heedless of environmental effects here. It consulted with dozens of agencies, considered every proximate effect, and ordered 91 mitigation measures. Eighty eight miles of track should not require more than thirty six hundred pages of environmental analysis. I welcome the Court's questions.

Clarence Thomas 2:16

Uh Mr. Clement, to the extent that uh some of these issues uh fall in the jurisdiction of other agencies, uh what role would public citizen uh play in disposing of those?

William S. Consovoy 2:28

So public citizen, I think, instructs that when these aid when these issues are both remote in time and effect and within the jurisdiction of other agencies, then the agency that approves this EIS is not the legally relevant cause, to use the phrase from public citizen, of any of the environmental effects. I think it's important to contrast the role of other agencies when it comes to things. Things that are outside the scope of the project, because if other agencies have a partial role in issues that are within the scope of the project, here, for example, the Forest Service had to approve a right-of-way for the train, that is all taken care of in the consultation process. And here there was consultation to a fairly well.

William S. Consovoy 3:14

There were five other cooperative agencies, there were 27 agencies that were consulted. But it never occurred to the Board that they should consult with Port Earth or Texas. And those issues that are far outside the proximate effects of the project, if other agencies have those within their jurisdictions, then they are going to be the legally relevant cause of upstream development in the basin if it takes place ten years from now. If there is an accident in Colorado on the train tracks, that's an FRA. issue, not an S T B issue, and obviously what is going on in the Gulf communities is issues for Port Arthur, Texas, or maybe the EPA. I

Elena Kagan 3:51

don't know how to articulate your rule in writing. The NEPA itself says That Um requires agencies to quote, consult with any federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved. So we can't write and say You don't have to think about things that other agencies have jurisdiction over because the NEPA says that's what you gotta do.