Carr Lauds SCOTUS Ruling on Infrastructure Environmental Reviews
A U.S Supreme Court decision Thursday requiring judicial deference to agency environmental reviews of infrastructure projects could have implications for broadband deployment, drawing attention from FCC Chairman Brendan Carr. “For too long, America’s infrastructure builds have been held back by reams of red tape,” wrote Carr in a post on X about Seven County Infrastructure Coalition v. Eagle County, Colorado. “But today, the Supreme Court helps to correct course -- eliminating needless environmental hoops. As the FCC works to unleash more infrastructure builds, permitting reforms like this are key.”
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The Seven County case concerns the environmental review of a railroad line under the National Environmental Policy Act (NEPA), which has also been invoked in telecom infrastructure proceedings. The U.S. Surface Transportation Board approved the railroad construction after it gathered public comment and issued an environmental impact statement. Eagle County and several environmental groups challenged the board’s decision at the U.S. Court of Appeals for the D.C. Circuit, which ruled that the board didn’t sufficiently consider some environmental effects of the rail line. That decision was reversed on appeal Thursday by a vote of 8-0, with Justice Neil Gorsuch abstaining. Justice Brett Kavanaugh wrote the majority opinion, while Justice Sonia Sotomayor wrote a concurring opinion joined by Justices Elena Kagan and Ketanji Brown Jackson.
Because NEPA is “a purely procedural statute” when determining whether an agency's environmental impact statement complied with it, “a court should afford substantial deference to the agency,” Kavanaugh wrote. As long as the impact statement “addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line.”
For any linear infrastructure project touching federal lands or receiving federal funding, such as broadband deployment, NEPA compliance can be a big issue, University of Minnesota law professor James Coleman told us. He said the SCOTUS decision was clearly an attempt to speed up NEPA reviews, but it doesn’t completely rule out courts holding up infrastructure projects under NEPA. Coleman, who specializes in energy law, said the decision also indicates that courts should give lots of discretion and deference to an agency determination that a project has significant environmental impact.
The SCOTUS decision distinguishes between the NEPA deference that courts give to agencies from Chevron deference, which covered the interpretation of statutes, Coleman said. The NEPA deference to agencies is specifically granted in the statute, he said.
Pointing to the decision’s language that “a course correction” is needed for judicial review under NEPA, Coleman said SCOTUS also made a broader point that NEPA is holding up too many infrastructure projects and needs to be applied in a less stringent manner. Environmental litigants won only about a third of environmental review cases anyway, but the decision will likely have some of the effect SCOTUS intends, and courts will be less likely to strike down permits, he said.
The International Dark-Sky Association, now called DarkSky International, unsuccessfully sued the FCC over the agency’s approval of SpaceX’s second-generation satellite constellation without conducting a NEPA review (see 2407120031). The FCC currently has an open proceeding regarding a CTIA petition seeking clarification that NEPA reviews aren’t required when providers build networks under broad geographic area licenses that don’t require reviews for individual facilities in that license area (see 2503310044).