The National Environmental Policy Act (NEPA) requires federal agencies to conduct environmental reviews and produce Environmental Impact Statements (EIS) on actions that significantly affect the environment. This often gives environmentalists legal avenues to challenge federal action. One such lawsuit was brought against the U.S. Surface Transportation Board, arguing that the NEPA review did not adequately consider up- and downstream emissions resulting from a new railway linking oil producers and refiners. However, in a recent 8-0 decision, the Supreme Court limited the scope of NEPA, stating:
“Courts should defer to agencies’ discretionary decisions about where to draw the line when considering indirect environmental effects and whether to analyze effects from other projects separate in time or place… In sum, when assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS.”
This decision comes as a disappointment to many concerned by fossil fuel growth and subsequent rising emissions. However, it does present an interesting possibility. Rather than restricting NEPA reviews to the project at hand, the Supreme Court gave agencies deference to decide the scope of their reviews. While we certainly won’t see scope 3 emissions considered in NEPA reviews anytime in the next several years, a future administration could prioritize these emissions. Even still, NEPA is not prescriptive as to outcome and only provides the process for producing an EIS. We’re only likely to see meaningful management of Scope 3 emissions if new legislation mandates such management, a possibility we can rule out for the time being.
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