{"id":3731,"date":"2026-01-10T22:57:03","date_gmt":"2026-01-11T02:57:03","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3731"},"modified":"2026-01-14T12:37:01","modified_gmt":"2026-01-14T16:37:01","slug":"administrative-laws-neoclassical-turn-in-seven-county-infrastructure-coalition","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/administrative-laws-neoclassical-turn-in-seven-county-infrastructure-coalition\/","title":{"rendered":"Administrative Law\u2019s Neoclassical Turn in\u00a0Seven County Infrastructure Coalition v. Eagle County \u2013 Matt Bendisz"},"content":{"rendered":"\n
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Has administrative law taken a \u201cneoclassical\u201d turn? Articulated by Professor Jeffrey Pojanowski in a 2020 Harvard Law Review<\/em> article, neoclassical administrative law refers to a framework that tries to \u201cfind[] a place for both legislative supremacy and the rule of law within the administrative state.\u201d It seeks to do so while rejecting the legal realist foundations of other approaches, instead urging \u201ca more formalist, classical understanding of law and its supremacy.\u201d Last term, in Seven County Infrastructure Coalition v. Eagle County<\/em>\u2014a case brought under the National Environmental Policy Act (NEPA)\u2014the Supreme Court held first that \u201cthe D.C. Circuit did not afford the [U.S. Surface Transportation] Board the substantial judicial deference required in NEPA cases,\u201d and second that the D.C. Circuit incorrectly interpreted NEPA as requiring the Board to consider the environmental effects of wholly separate projects. Immediately striking about this decision is the Court\u2019s emphasis on deferential judicial review, which initially seems hard to square with the anti-deference posture embraced in Loper Bright Enterprises v. Raimondo<\/em>. The way Seven County<\/em> reconciles this apparent tension\u2014including by insisting on a bright line between legal interpretations on the one hand and determinations of fact and policy on the other\u2014illustrates that modern administrative law may be developing along neoclassical lines. But although the ascent of neoclassicism may be normatively appealing to some, it underscores the need for neoclassicists to grapple with certain unresolved difficulties going forward.<\/p>\n\n\n\n

In 2020, a group of seven Utah counties known as the Seven County Infrastructure Coalition sought to build an 88-mile railway in northeastern Utah. The Coalition wanted to connect the Uinta Basin, which contains large reserves of crude oil, to the interstate freight rail network so that oil producers could more efficiently transport their oil to refineries. But under federal law, that railway\u2014like all new railroad construction\u2014required the approval of the U.S. Surface Transportation Board. So, the Coalition petitioned the Board for approval. As part of its decisionmaking process, the Board conducted an environmental review to comply with the requirements set forth in NEPA. Under NEPA, federal actions \u201csignificantly affecting the quality of the human environment\u201d require the preparation of an environmental impact statement, or EIS. That EIS \u201cmust address the significant environmental effects of a proposed project and identify feasible alternatives that could mitigate those effects.\u201d To that end, the Board prepared an EIS, spanning hundreds of pages, that analyzed the railway\u2019s \u201csignificant and adverse impacts,\u201d such as \u201cdisruptions to local wetlands, land use, and recreation.\u201d The EIS also \u201cnoted, but did not fully analyze, the potential effects of increased upstream oil drilling in the Uinta Basin and increased downstream refining of crude oil carried by the railroad.\u201d Those upstream and downstream effects, the Board explained, were outside the scope of its authority to regulate and, in any event, too \u201c\u2018speculative\u2019 and attenuated from the project at hand\u201d to merit an in-depth analysis. Shortly after issuing its EIS, the Board approved the Coalition\u2019s proposed railway.<\/p>\n\n\n\n

Eagle County (a Colorado county through which the railway would run), along with a number of environmental groups, challenged the Board\u2019s approval by petitioning for review in the U.S. Court of Appeals for the D.C. Circuit. They argued that \u201cthe Board failed to take a hard look at the Railway\u2019s environmental impacts in violation of NEPA.\u201d They faulted the Board\u2019s EIS for \u201cignor[ing] certain upstream and downstream impacts of the Railway.\u201d The D.C. Circuit agreed. Writing for a unanimous panel, Judge Wilkins explained that the Board\u2019s EIS failed to adequately analyze certain \u201creasonably foreseeable impacts,\u201d including those that would flow from increased oil drilling in the Uinta Basin and increased oil refining along the Gulf Coast. It did not matter, as the Board argued, that those environmental effects would arise from other projects separate from the proposed railway. Finding the EIS deficient under NEPA, the D.C. Circuit vacated the EIS and the Board\u2019s final approval of the project.<\/p>\n\n\n\n

The Supreme Court reversed and remanded. Writing for the Court, Justice Kavanaugh identified two main errors committed by the D.C. Circuit. First, the D.C. Circuit failed to \u201cafford the Board the substantial judicial deference required in NEPA cases.\u201d In this regard, the Court emphasized that NEPA cases are reviewed \u201cunder the Administrative Procedure Act\u2019s deferential arbitrary-and-capricious standard\u201d and that, because \u201cNEPA is a purely procedural statute<\/em>,\u201d it requires only a reasonable explanation for a final decision rather than a particular substantive outcome. The Court then identified \u201cseveral forms\u201d that the \u201csubstantial deference\u201d to agencies in NEPA cases can take in practice. For example, the Court pointed to NEPA\u2019s command that an EIS be \u201cdetailed.\u201d Although \u201cthe meaning of \u2018detailed\u2019 is a question of law to be decided by a court,\u201d whether that standard is met \u201cinvolves primarily issues of fact\u201d that should be left to the institutionally better-equipped agency. The idea is that a reviewing court should not \u201csubstitute its judgment for that of the agency\u201d when it comes to the \u201cfact-dependent, context-specific, and policy-laden choices\u201d required in a NEPA analysis. Underscoring the substantial heft of this deference, the Court then admonished lower courts that have \u201cengaged in overly intrusive (and unpredictable) review,\u201d explaining that such an approach has transformed NEPA from \u201ca modest procedural requirement\u201d into a \u201cKafkaesque\u201d burden that has resulted in \u201c[f]ewer projects mak[ing] it to the finish line.\u201d What was \u201ca 1970 legislative acorn\u201d was never meant to become \u201ca judicial oak that has hindered infrastructure development \u2018under the guise\u2019 of just a little more process.\u201d The Court forcefully concluded its description of the judiciary\u2019s role by declaring that the \u201cbedrock principle of judicial review in NEPA cases can be stated in a word: Deference.\u201d<\/p>\n\n\n\n

The Court next addressed the D.C. Circuit\u2019s second mistake, which was that the panel \u201cincorrectly interpreted NEPA to require the Board to consider the environmental effects of upstream and downstream projects that are separate in time or place from the Uinta Basin Railway.\u201d The Court clarified that, because NEPA\u2019s \u201ctextually mandated focus\u201d is on the \u201cproposed action,\u201d agencies need only consider the environmental effects of \u201cthe project at hand\u2014not other future or geographically separate projects.\u201d Important for the Court was the distinction between the effects of the project at hand and the effects of separate projects altogether. Even \u201cindirect effects\u201d of the project at hand, such as certain geographically or temporally attenuated effects, may need to be analyzed under NEPA. Different, however, would be the case of a wholly distinct project, such as \u201ca housing development that might someday be built near a highway.\u201d That separate project \u201cbreaks the chain of proximate causation,\u201d relieving the agency of the duty to consider that project\u2019s environmental effects. The Court also identified an overlapping consideration: the agency\u2019s power to prevent certain impacts. On this point, \u201cagencies are not required to analyze the effects of projects over which they do not exercise regulatory authority.\u201d Applying these principles to the case before it, the Court concluded that the Board needed only to analyze the environmental impacts of the proposed Uinta Basin railway, and that the EIS \u201ccomprehensively\u201d did so. The Board did not need to consider the effects of future upstream oil production or downstream oil refining, because those effects would flow from separate projects and because the Board would lack authority over those projects. The D.C. Circuit was thus wrong to demand otherwise.<\/p>\n\n\n\n

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<\/p>\n","protected":false},"excerpt":{"rendered":"

What is striking is the Court\u2019s emphasis on deferential judicial review, which initially seems hard to square with the anti-deference posture embraced in\u00a0Loper Bright.\u00a0The way\u00a0Seven County reconciles this apparent tension\u2014including by insisting on a bright line between legal interpretations on the one hand and determinations of fact and policy on the other\u2014illustrates that modern administrative law may be developing along neoclassical lines. <\/p>\n","protected":false},"author":202,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[72],"tags":[],"class_list":["post-3731","post","type-post","status-publish","format-standard","hentry","category-per-curiam"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-Yb","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3731","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/202"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3731"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3731\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3731"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3731"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3731"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}