Allison Bailey/NurPhoto via AP
People pass the Supreme Court, its facade covered by scaffolding, April 28, 2025, in Washington.
Last year, when the Supreme Court stripped the judicial deference granted to federal agencies to make decisions about implementing congressional statutes, many feared that judges would become the only real policymakers in America. Both the executive and the legislative branches would be diminished, and judges would have the power to permit or block virtually anything government attempted.
That judicial-centric vision of the future lasted all of 11 months. In a unanimous ruling last week, the Court signaled that judges must exercise “substantial” deference to agencies, at least when it comes to use of the National Environmental Policy Act (NEPA), which requires agency reports on environmental impacts for major infrastructure and construction projects to inform approval decisions.
NEPA has become tied to the abundance debate, with some raising questions about whether the law offers citizens too much opportunity to hold up building projects. But what’s more interesting and potentially more impactful is that the Supreme Court, in agreeing that NEPA should not be a major hindrance for infrastructure build-out, appeared to reverse itself on judicial deference to agencies, in ways that may not logically stop at NEPA.
This case is an example of how ideologically rigid conservative legal theories often cannot survive exposure to the real world, leading their proponents to backfill with significant exceptions and changes. The logic of these changes often boils down to the individual preferences of the justices; in this instance, it looks like federal agencies will be allowed to use discretion and expertise only when it leads them to the decision the Court wants them to take.
The case, Seven County Infrastructure Coalition v. Eagle County, Colorado, concerns a proposed 88-mile railroad line out of the Uinta Basin in Utah, which would facilitate transporting crude oil from that region to refineries along the Gulf Coast. The Surface Transportation Board (STB), which regulates freight rail, received the application in May 2020 and did a 3,600-page environmental impact statement (EIS) on the effects of the railway. The STB then approved the project in December 2021.
When environmental groups and a Colorado county through which the rail line would pass sued, the D.C. Circuit claimed that the EIS didn’t sufficiently take into account the increased oil drilling and refining that easier transportation access would facilitate. The Supreme Court reversed the D.C. Circuit.
Liberals and conservatives on the Court agreed that the STB has no ability to regulate the frequency of drilling projects in the Uinta Basin; anyway, railways are common carriers that cannot discriminate against what’s transported on their trains, even if the materials are hazardous. In a concurring opinion, the liberals said they would have stopped there, limiting NEPA reviews only to the project at hand.
But Justice Brett Kavanaugh, writing for the 8-0 majority (less Neil Gorsuch, who recused himself from the case), went quite a bit further, admonishing lower courts for using NEPA to slow infrastructure projects. “The D. C. Circuit failed to afford the Board the substantial judicial deference required in NEPA cases,” Kavanaugh wrote (emphasis mine). “Courts … should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.”
Just last year, Kavanaugh joined the majority opinion in Loper Bright Enterprises v. Raimondo, which overturned a different Supreme Court precedent known as “Chevron deference” (this precedent was set in a case involving oil giant Chevron). In Loper Bright, the Court said that judges should “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and … may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
There’s a way to reconcile both these cases, says Sam Bagenstos, a law professor at the University of Michigan and former general counsel to two executive branch agencies during the Biden administration. “What Loper Bright said was, ‘We don’t defer to agency interpretations of the law,’” Bagenstos explained. “But when agencies make factual determinations or policy decisions, courts review those deferentially.”
Rick Bowmer/AP Photo
A train transports freight on a common carrier line near Price, Utah, July 13, 2023.
The problem is that the line between an “interpretation” of law and a “factual determination” is reed-thin. For example, one aspect of the Seven County Infrastructure case involved whether the STB’s environmental review was detailed enough on the consequences of creating the rail line for oil drilling and refining. But, Kavanaugh writes, “the agency is better equipped to assess what facts are relevant to the agency’s own decision than a court is.” That’s the kind of reasoning that could be applied to every agency in the federal government, on practically every decision they make.
Bagenstos agreed. “This highlights the manipulability of Loper Bright,” he said. “Where there’s an agency that decides to interpret a statute in a progressive manner, [conservative justices] are going to say, ‘That’s a legal decision.’”
Clearly, NEPA reviews fell on their preferred side of the line for Kavanaugh and his conservative allies. They likely get The New York Times and The Atlantic and are probably clued in to the abundance debate. And so they decided that the STB had every right to make its own determination on whether the rail line should go forward, regardless of what the NEPA review says. “NEPA is a procedural cross-check, not a substantive roadblock,” Kavanaugh wrote in the opinion, arguing that it merely requires an agency to collect information about the environmental impact. What the agency does to weigh that against other factors in approving a project is up to them.
For things conservatives don’t want—debt relief, expansion of social safety nets, etc.—they can just return to Loper Bright and intervene in agency interpretation. This allows judges to use Loper Bright as a kind of weapon. As the judicial podcast Strict Scrutiny put it, for federal agencies, “discretion can be exercised when the Court thinks it should and when the discretion is to the Court’s liking.”
That’s good news, as Vox and Heatmap have highlighted, for building projects. To be clear, this case involved a rail line that will increase oil drilling, though Kavanaugh did briefly note in the opinion that NEPA has slowed down clean-energy and other projects. I guess we’ll get an answer to a long-running debate about whether NEPA was really to blame for infrastructure blockages. Interestingly, both proponents and opponents of permitting reform conceded to Heatmap that NEPA is not the sole driver of delay, with one proponent stating that “probably 80 to 90 percent” of the burdens are local and not federal.
But what might endure from the ruling is its deviation from Loper Bright’s destruction of the agency deference framework, inaugurated just one year ago. Amusingly, in her concurring opinion Justice Sonia Sotomayor cited the liberals’ dissent in Loper Bright, noting that “agencies often know things about a statute’s subject matter that courts could not hope to.”
Bagenstos sees the ruling giving agencies more tools to cite instances where they should have deference from courts even beyond NEPA. Lower courts may use the precedent in Seven County Infrastructure to protect agency decisions.
But when those decisions filter back up to the Supreme Court, whether they hold will likely depend on whether the conservatives agree with the policy involved. Unless the statute is clear that Congress intended to delegate authority to the agency, the Court will likely “exploit ambiguity in favor of their own policy preferences,” Bagenstos said.
Of course, the Court may eventually figure out that endless judicial review of agency interpretations may be as unworkable and harmful outside of NEPA as they claim it is inside it. So this could be only the first of a patchwork of exceptions and justifications that have no coherent logic to them, and that stand in for the law.
