Hard Hat Case Notes

• Pages: 62-66
• Date: 01 October 2025
• Published date: 01 October 2025
• Author: Brandon R. Clark,Olivia Polston
• Subject Matter: Administrative & Public Law

Published in The Construction Lawyer Volume 44, Number 4, ©2025 by the American Bar Association. Reproduced with permission.

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Brandon R. Clark & Olivia Polston

Brandon R. Clark is counsel at Saul Ewing LLP. He is a member of the firm’s Construction Practice Group and is

based in the firm’s Chicago office. He also is licensed and practices in Washington, D.C.

Oliva A. Polston is an associate attorney at Manion Stigger, LLP, a boutique construction law group. She is a

member of the firm’s Louisville, Kentucky, office. In addition to Kentucky, she practices throughout the United States

with licenses in Indiana, South Carolina, Pennsylania, and Arizona.

Supreme Court Dramatically Reduces Scope of Judicial Review of Agencies’ Environmental

Impact Statements under the National Environmental Policy Act

e National Environment Policy Act (NEPA) of 1969, Pub. L. No. 91-190, is a deceptively powerful piece

of legislation. While short by congressional standards, it was considered for nearly 50 years to be the “basic

national charter for protection of the environment.” 40 C.F.R. § 1500.1.1 It derives its power not from the

establishment of any substantive limitations on agencies’ power, but rather from the requirement that all

agencies henceforth consider the environmental impacts of their actions and publish them in an Environmental

Impact Statement (EIS) as part of the decision-making process preceding any “major Federal action.” Moreover,

in being forced to face such impacts and to make them public, agencies also are made accountable for the

environmental impacts of the actions they approve. Seven Cnty. Inastructure Coal. v. Eagle Cnty., Colo., 145 S.

Ct. 1497, 1519 (2025) (Sotomayor, J., concurring).

Of course, the procedure established by NEPA is only effective if enforced, and, like all other agency

regulations, it is ultimately up to courts to ensure compliance. 5 U.S.C. § 704 (establishing judicial review of

final agency action under the Administrative Procedures Act (APA)). The recent Supreme Court decision of

Seven County Infrastructure Coalition sharply curtails the scope of judicial review of EISs going forward. The

Court expects this will allow for, among other things, more and swifter construction. It may. But, if so, it also

likely will result in less consideration of environment impacts of that construction, less accountability for those

impacts, and, ultimately, greater environmental harm.

At issue in Seven County Infrastructure Coalition was the adequacy of the EIS prepared by the federal Surface

Transportation Board in considering the effects of a proposed new 88-mile railroad line in Northeastern

Utah. The railroad is intended to connect the oil-rich, but remote and isolated, Uinta Basin to the national

rail network so that oil extracted there can be more easily moved to distant refineries, primarily along the Gulf

Coast. The EIS was more than 3,600 pages and considered numerous environmental consequences of the

proposed railroad as well as the environmental consequences of various alternatives, such as different routes

for the railroad. The EIS also acknowledged the environmental impacts that could result from, inter alia,

the increased oil production and oil refining both locally and globally. However, the Surface Transportation

Board has no authority over oil production or oil refining and, therefore, it undertook limited evaluation

of environmental impacts from these activities. Ultimately, the Surface Transportation Board approved the

railroad. Shortly thereafter, a county in Colorado through which the oil produced in the Uinta Basin would

travel and several environmental groups filed suit for review in the D.C. Circuit.

The D.C. Circuit ruled that the EIS was deficient in two respects. First, it failed to adequately consider the

environmental impact of increased oil production within the Uinta Basin that was expected to follow the

construction of the proposed railway. Second, it failed to sufficiently evaluate the environmental impact of

HARD HAT CASE NOTESHard Hat Case Notes