AGC Fights Overreach in Environmental Reviews: Files Supreme Court Brief

AGC of America submitted a joint amicus briefto the U.S. Supreme Court on September 4, joining forces with the U.S. Chamber of Commerce and other business groups.The brief urges the Court to reverse a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that dramatically expands the scope of environmental review under the National Environmental Policy Act (NEPA). AGC warns that the D.C. Circuit's decision, if left in place, would set a dangerous precedent, forcing government agencies to evaluate environmental impacts far beyond their regulatory scope, creating unnecessary hurdles for construction projects across the country.

The case before the U.S. Supreme Court - Seven County Infrastructure Coalition v. Eagle County, Colorado - will review a lower court's ruling that requires the Surface Transportation Board (STB) to consider the potential environmental impacts of upstream oil production and refining in its NEPA analysis of a railway project. The problem? The STB doesn't have regulatory authority over oil production or refining-its mostly an economic regulator of the railroads and oversees rail construction and operation. In the brief, AGC and its partners argue that the D.C. Circuit's decision goes beyond NEPA's intended scope and unnecessarily complicates the approval process for construction projects critical to economic development.

Key Points from the Brief:

1. Contradicting Long-Standing Precedents: The brief points out that, for two decades, courts have held that agencies like the STB aren't responsible for evaluating environmental effects outside their control. By requiring the STB to assess the impacts of oil drilling-something outside its jurisdiction-this decision disrupts established legal interpretations of NEPA.
2. Economic Consequences: Lengthy environmental reviews already slow down critical infrastructure projects that that service the public and the environment. If agencies are forced to consider factors they don't regulate, the process will become even more cumbersome, leading to more delays, higher costs, and increased litigation. Investors might even back away from projects altogether, further hampering economic growth.
3. Major Questions Doctrine: The brief emphasizes that turning the STB into a "de facto environmental-policy czar" would represent a significant expansion of its power-one that Congress did not intend. Such a shift requires clear congressional authorization, which NEPA does not provide. This is a critical point under the Supreme Court's "major questions doctrine," which restricts agencies from taking on new powers without explicit direction from Congress.

This case is particularly significant for the construction industry, as the potential ripple effects of the D.C. Circuit's ruling could extend to transportation, water, energy, and many other projects nationwide. AGC has taken a whole-of-association approachto ensuring that federal environmental review and permitting processes remain efficient and focused without imposing undue burdens on industries that drive economic growth and job creation. AGC's amicus brief highlights the importance of a balanced approach to NEPA reviews that considers environmental impacts without overextending the law's reach.

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For more information, contact Leah Pilconis.