16-07-2025
Want to build stuff? Congress needs to make it easier.
If lawmakers care as much about housing costs, energy prices, climate change, domestic manufacturing and economic growth as they claim, Congress should take a cue from a big ruling in the Supreme Court's latest term.
The way things were going, building a highway, or maybe even fixing a street, might have been stopped in court on the grounds that it could encourage the production of more cars running on internal combustion engines and hence contribute to climate change. To the chagrin of some environmental groups, the Supreme Court thankfully curbed the increasingly absurd abuse of the 1970 National Environmental Protection Act (NEPA) to block all sorts of building — including projects crucial to protecting the environment. From here, Congress should ease construction of critical infrastructure even further.
The court decided that the U.S. Surface Transportation Board could approve an 88-mile train track even if it might move crude oil from Utah to refineries on the Gulf Coast. The board didn't have to assess the potential future impacts if the new track encouraged more oil drilling on one end and more oil refining on the other.
'A relatively modest infrastructure project should not be turned into a scapegoat for everything that ensues from upstream oil drilling to downstream refinery emissions,' wrote Justice Brett M. Kavanaugh for the court. Justice Sonia Sotomayor agreed: 'The Surface Transportation Board would not be responsible for the harms caused by the oil industry, even though the railway it approved would deliver oil to refineries and spur drilling.'
Though the decision might seem narrow, its implication for the future of infrastructure is potentially momentous. It pushes back against the demands for increasingly stringent environmental reviews under NEPA, which opponents not always motivated by environmental concerns have used to block train tracks, pipelines, transmission lines, hydroelectric dams and wind farms.
'The goal of the law is to inform agency decision-making, not to paralyze it,' Kavanaugh wrote. 'Congress did not design NEPA for judges to hamstring new infrastructure and construction projects.'
The decision frees agencies from having to review all the conceivable direct and indirect environmental consequences of any given project now and in the distant future. In so doing, it should spur broader reconsideration of how environmental impacts interact with other priorities, to better balance societal costs and benefits. That would involve Congress.
Court NEPA review of an infrastructure project is not the best vehicle to decide whether the federal government should help or hinder the development of fossil fuels or renewable energy.
Right now, it's too easy for President Donald Trump suddenly to advocate for the welfare of whales off the coast of Massachusetts to stop an offshore wind farm there. It's also suspicious for environmental champions to dismiss the welfare of whales only when it gets in the way of wind energy. Environmental review should come down equally hard on a natural gas pipeline and a high-voltage transmission line that cut through the same ecosystems.
To draw more sensible lines, Congress should reevaluate which environmental impacts society must tolerate and which it must avoid at all costs — looking at the variety of restrictions it has imposed on development.
In the 1970s, a 'new' species of freshwater fish called the snail darter was discovered during NEPA research into the building of the Tellico Dam in Tennessee. For the project to be completed, Congress had to exempt it from the Endangered Species Act. It turned out that the fish was not endangered. It wasn't a separate species. Opponents of the dam 'discovered' it to get the dam stopped.
Questions about what should be protected are not going away. A flower called Tiehm's buckwheat might stand in the way of a Nevada lithium mine green-lit by the Biden administration. 'They're turning this flower's only known habitat into an industrial site, condemning it to extinction,' said Patrick Donnelly, Great Basin director at the Center for Biological Diversity, which is suing.
Maybe the idea of protecting every ecosystem at any cost should be reconsidered. The flower, which apparently grows only on 10 acres in the proposed mine's footprint, is a close relative of other buckwheats. Is it a distinct species? Perhaps it could be grown elsewhere? Perhaps the battle against climate change — which will require lithium to build lithium-ion batteries to power electric vehicles — should take precedence?
NEPA review had grown to require every government decision to survive endless judicial challenges, poorly serving the nation and the natural environment in which it sits. Congress should not leave it to courts to fix. America needs a new debate over how it interacts with the environment. Only the people's representatives can have it.
