Summary of the Argument
Under the D.C. Circuit’s test for NEPA, a federal agency is obliged to assess effects completely outside its organic jurisdiction, and often completely inside the organic jurisdiction of another federal agency, or perhaps even an agency of another sovereign, provided only that the effect is “reasonably foreseeable.” See Pet. App.37a. This approach is irreconcilable with Congress’ goal in enacting the statute, which was simply to enable agencies to take environmental concerns into account when making particularized decisions within their area of jurisdiction. This approach is also irreconcilable with this Court’s decision in Department of Transportation v. Public Citizen, where it held that, “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” 541 U.S. 752, 770 (2004) (emphasis added). Finally, this approach is irreconcilable with NEPA as recently amended by Congress in the Fiscal Responsibility Act of 2023 (FRA). In the FRA, Congress took important steps to reiterate that an agency’s duties under NEPA are limited, and, more precisely, limited to the “reasonably foreseeable environmental effects of the proposed agency action.” Pub. L. No. 118-5, 137 Stat. 10, 38 (codified at 42 U.S.C. § 4332(2)(C)(i)) (emphasis added). This confirms the correctness of Public Citizen. Consistent with its mission to promote accountability in environmental law, CEA respectfully asks this Court to reiterate the correct doctrinal position that it took in Public Citizen, in the hope that further reiteration will not be necessary.
