The Seven Counties Case and the Limits of Causation Under NEPA

Abstract

The Supreme Court is awaiting oral argument in Seven County Infrastructure Coalition v. Eagle County, No. 23-975, its first significant case under the National Environmental Policy Act (NEPA) since the early 2000s.  The Court is considering the extent to which proximate causation doctrines constrain the analysis that agencies are required to undertake under NEPA. Thia article provides a concise, but thorough, analysis of the claims being made by the petitioners who sought Supreme Court review to narrow dramatically the scope of NEPA.

More broadly, the article analyzes how proximate cause principles should constrain NEPA review.  We reject proposed artificial limits on the range of effects an agency must consider. However, we recognize limits stemming from NEPA’s purpose of informed decision making, such as the foreseeability of effects, the feasibility of analysis, and their potential significance. Although the Court has borrowed the concept of proximate cause from tort law, we find that analogy most persuasive as support for foreseeability as a key concept. Claims by the petitioners that NEPA review necessarily forecloses analysis of impacts such as climate change that are physically distant from a project are inconsistent with the purposes of the statute or proximate cause principles.

Keywords: NEPA, proximate cause, climate change, environmental impact statememts, Council on Environmental Quality, Supreme Court, administrative law