Barrasso Leads Amicus Brief on the Proper Scope of Environmental Reviews

September 5, 2024

WASHINGTON, DC- On September 4, Senate Committee on Energy and Natural Resources (ENR) ranking member John Barrasso (R-WY) led an amicus brief to the U.S. Supreme Court regarding the scope of the National Environmental Policy Act (NEPA). The Court will decide whether federal agencies must analyze environmental impacts that are beyond the bounds of an agency's regulatory authority. The Senators' brief argues that agencies are not required to consider such impacts.

Barrasso was joined by Senate Committee on Environment and Public Works ranking member Shelley Moore Capito (R-WV), Senate Committee on Commerce, Science, and Transportation ranking member Ted Cruz (R-TX), Senate Minority Leader Mitch McConnell (R-KY), and Senators Mike Lee and Mitt Romney from Utah, where the project at issue in the case is located.

Below are excerpts from the brief:

"Congress passed NEPA 'simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions.' This narrow procedure was meant to promote 'a fully informed and well-considered decision.'"

"In the D.C. Circuit, agencies must now discuss the 'downstream' effects of their projects, even when those effects are well-beyond the agency's delegated authority. This multiplies the scope of issues that a reviewing court may use as a basis to reverse the decision of the agency. It pushes agencies to go beyond the bounds of their authority and expertise into areas that Congress has not entrusted to them. And it encourages regulatory overreach."

"Taken together, the D.C. Circuit turns NEPA review into a limitless academic exercise, disconnected from an agency's statutory authority and actual expertise…Now, any company seeking to build a project that triggers NEPA review must bear the costs of this additional, unmeasurable uncertainty."

To read the full amicus brief, click here.

Background Information:

In Seven County Infrastructure Coalition v. Eagle County, Colorado, the U.S. Supreme Court will consider the question "Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority."

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