DOD RFI Seeks Information on Certain Chemicals Undergoing TSCA Section 6 Risk Evaluation
On May 27, 2025, the U.S. Department of Defense (DOD) issued a request for information (RFI) to gather information to identify and assess critical applications for DOD and the defense industrial base (DIB) that necessitate the use of existing chemicals undergoing the U.S. Environmental Protection Agency’s (EPA) Toxic Substances Control Act (TSCA) Section 6 risk evaluation process. The RFI states that it will help the Office of the Assistant Secretary of Defense for Energy, Installations, and Environment (OASD (EI&E)) Chemical and Material Risk Management Program (CMRMP) better understand the use of TSCA existing chemicals in products leading into the defense supply chain. The RFI is focused on receiving information related to the following existing chemicals:
1,3-Butadiene (Chemical Abstracts Service Registry Number® (CAS RN®)106-99-0);
1,1-Dichloroethane (CAS RN 75-34-3);
1,2-Dichloroethane (CAS RN 107-06-2);
Butyl benzyl phthalate (1,2-benzene-dicarboxylic acid, 1-butyl 2(phenylmethyl) ester) (BBP) (CAS RN 85-68-7);
Dibutyl phthalate (1,2-benzene- dicarboxylic acid, 1,2- dibutyl ester) (DBP) (CAS RN 84-74-2);
Dicyclohexyl phthalate (DCHP) (CAS RN 84-61-7);
Di-ethylhexyl phthalate (1,2-benzene-dicarboxylic acid, 1,2-bis(2-ethylhexyl) ester) (DEHP) (CAS RN 117-81-7);
Di-isobutyl phthalate (1,2-benzene-dicarboxylic acid, 1,2-bis-(2methylpropyl) ester) (DIBP) (CAS RN 84-69-5);
Di-isodecyl phthalate (1,2-benzenedicarboxylic acid, 1,2-diisodecyl ester) (DIDP) (CAS RNs 26761-40-0; 68515-49-1);
Diisononyl phthalate (1,2-benzenedicarboxylic acid, 1,2-diisononyl ester) (DINP) (CAS RNs 28553-12-0; 68515-48-0); and
Octamethylcyclotetra-siloxane (D4) (CAS RN 556-67-2).
DOD seeks to understand better applications that require the use of these chemicals and the criticality of these chemicals for industry and supply. The RFI notes that DOD will continue to issue RFIs to consider additional TSCA chemicals. Responses are due June 20, 2025.
Recent Nuclear Executive Orders to Accelerate US Nuclear Renaissance
The four (4) nuclear energy Executive Orders issued on Friday, May 23, 2025 (Nuclear EOs), set out a 25-year whole-of-government plan for further development and successful deployment of US nuclear technology—both domestically and internationally, and addressing the full scope of the nuclear industry (licensing, fuel life cycle, reactor technology, supply chain, workforce, spent fuel and waste disposal, financing and international agreements)—ultimately culminating in 400 GW of US nuclear energy capacity by 2050.
The volume of required actions illustrates the Trump Administration’s drive to launch a US nuclear renaissance. Within the first 90 days, the Nuclear EOs address establishing domestic fuel supply, regulatory overhauls, fast-tracking reactor deployments utilizing Department of Defense (DOD) and Department of Energy (DOE) jurisdiction, authorizing financial support via US Export-Import Bank (US Ex-Im), agency finance institutions and multilateral banks, and employing diplomatic tools to promote the US nuclear industry. This article highlights key required activities on a year-by-year basis, along with supporting activities to be undertaken in parallel, followed by a comprehensive timeline of all activities and achievements required by the Nuclear EOs.
Required Activities for 2025
The Nuclear EOs mandate the following key activities and achievements for the remainder of 2025:
designating one or more sites owned or controlled by DOE in the United States for deployment of advanced nuclear reactor technology;
utilizing the Defense Production Act and developing a plan to accelerate the development of low enriched uranium (LEU) and high assay low enriched uranium (HALEU) capabilities and to address management of spent fuel;
reforming DOE’s National Environmental Policy Act (NEPA) compliance regime, including determining DOE functions that should not be subject to NEPA;
expediting intergovernmental agreements on nuclear energy and the fuel supply chain with potential export countries;
promoting adherence to the Convention on Supplemental Compensation for Nuclear Damage (CSC);
directing all executive departments and agencies that provide educational grants to prioritize investment in nuclear engineering and other nuclear energy-related careers; and
leveraging agency finance capabilities toward providing financing for deployment of American nuclear technology.
Required Activities for 2026
The Nuclear EOs mandate the following key activities and achievements for calendar year 2026:
creating a comprehensive report relating to safe management of spent fuel, including storage, transport, recycling and reprocessing capabilities, and permanent storage;
wholesale review and revision by the Nuclear Regulatory Commission (NRC) of its regulations and guidance, and issuance of final rules in respect of the same, including a maximum 18-month final decision deadline for applications to construct and operate new reactors and a maximum 12-month final decision deadline for applications to extend operating licenses for existing reactors; and
submitting recommendations for legislative proposals and regulatory actions regarding placement of advanced nuclear reactors on military installations.
Required Activities from 2027 through 2050
The Nuclear EOs mandate the following key activities and achievements within the years 2027 through 2050:
November 2027: Beginning operation of an advanced nuclear reactor at a DOE-owned or controlled site for the purpose of powering AI infrastructure, other critical or national security needs or on-site infrastructure;
September 2028: Beginning operation of a nuclear reactor at a domestic military base or installation;
January 2029: Completing negotiations of at least 20 new 123 Agreements;
within calendar year 2030: Facilitating 5 GW of uprates to existing reactors and commencement of construction of at least 10 new, large reactors with complete designs;
May 2035: Completing re-negotiation of all 123 Agreements originally set to expire by May 2035; and
within calendar year 2050: Achieving 400 GW of US nuclear energy capacity in operation.
Additional Parallel Activities
In addition to the activities noted above, the Nuclear EOs also require other substantive activities to be undertaken by the NRC, DOE, DOD and Department of State (DOS) on an ongoing basis. We have included another chart below, following the detailed, comprehensive timeline, that lists these parallel activities. These activities range from right-sizing headcounts to continuing regulatory overhauls (particularly within the NRC, as well as environmental regulatory regimes), developing a HALEU fuel bank, expediting decisions on technology transfer export authorization requests, prioritizing issuance of security clearances and supporting diplomatic efforts via 123 Agreements.
Conclusion
The scope and volume of required activities and multi-agency effort under these Nuclear EOs underscore the priority the administration is placing on the accelerated development and deployment of US nuclear technology. As mentioned, we have set out below a comprehensive timeline and list of all activities required by the Nuclear EOs, on a year-by-year and agency-by-agency basis. Hunton plans to issue a series of articles providing more in-depth review and discussion of impacts to the US nuclear industry. We will also continue to monitor any further nuclear energy-related Executive Orders and impacts from pending and newly passed legislation, including impacts to currently available tax credits for the nuclear industry under proposed amendments to the Inflation Reduction Act.
Timeline of Required Activities and Achievements for Calendar Year 2025
By June 2025
DOE to utilize authority delegated by President under the Defense Production Act to seek voluntary agreements with domestic nuclear energy companies for cooperative procurement of low-enriched uranium (LEU) and high assay, low-enriched uranium (HALEU), prioritizing agreements with companies that have achieved objective milestones (e.g., DOE-approved conceptual safety design reports, ability to privately finance their fuel, demonstrated technology capability), including:
consultation on management of spent nuclear fuel, including recycling and reprocessing
establishing consortia and plans of action to ensure availability of nuclear fuel supply chain, with DOE-provided procurement support, forward contracts or guarantees to consortia to ensure offtake for newly established domestic fuel supply
DOE to reform its rules governing compliance with National Environmental Policy Act (NEPA), including determining which DOE functions are not subject to NEPA
By July 2025
DOE to issue guidance on what counts as a ‘qualified test reactor’
By August 2025
DOE to:
revise regulations, guidance, procedures and practices of DOE, the National Labs and other entities under DOE’s jurisdiction to significantly expedite review, approval and deployment of advanced reactors under DOE’s jurisdiction
designate one or more sites owned/controlled by DOE in the US for use and deployment of advanced nuclear reactor technology
identify all useful uranium or plutonium material within DOE inventories that could be recycled or processed into nuclear fuel for reactors in the US
update DOE’s excess uranium management policy, prioritizing contracting for development of fuel fabrication facilities that demonstrate feasibility to supply fuel to qualified test reactors or pilot program reactors within three years
Director of Office of Science and Technology Policy and Assistant to President for Economic Policy to determine a strategy to address:
optimizing value of US International Development Finance Corporation (DFC) to provide equity and other financing for American nuclear technology
expanding US Trade & Development Agency (USTDA) grant financing to US nuclear technology pilots, fuel supplies, project preparation to recently graduated high income economies of national strategic interest
leveraging US Ex-Im and other relevant agencies to increase financing for projects utilizing US civil nuclear technology exports
holding trade missions and reverse trade missions, leveraging other trade promotion tools to remove trade barriers and increase market competitiveness of the US nuclear industry
achieving competitive parity in the global market for high-level advocacy and representation from the Federal Government to foreign governments of potential import countries on nuclear-related bilateral issues, focusing on countries with highest probability of nuclear deployment within next four years
Treasury to determine a strategy that:
leverages US participation in multilateral development banks to support client country access to financial and technical assistance for generation and distribution of nuclear energy and reliable fuel supply
supports assistance at relevant institutions to make financial support available on competitive terms, strengthen capacity to assess, implement and evaluate nuclear energy projects, and support adoption of nuclear energy technologies and fuel supply chains of same or greater quality standards of the US or countries allied with the US
Department of State (DOS) to implement program to enhance global competitiveness of American nuclear suppliers, investors and lenders to compete for nuclear projects around the globe, including:
expediting conclusion of intergovernmental agreements on nuclear energy and fuel supply chain with potential export countries
promoting broad adherence to the Convention on Supplementary Compensation for Nuclear Damage (CSC)
identifying statutory and regulatory burdens on exports of American nuclear technology, fuel supplies, equipment and services not addressed by Executive Orders and recommend remedial action
encouraging favorable decisions by potential import countries on use of American nuclear technology, fuel supplies, equipment and services
By September 2025
DOE to develop a plan to expand domestic uranium conversion capacity and enrichment capabilities to meet projected needs for LEU, highly enriched uranium (HEU) and HALEU
Department of Labor and Department of Education to increase participation in nuclear energy-related Registered Apprenticeships and Career and Technical Education programs
All executive departments and agencies that provide educational grants to consider nuclear engineering and other nuclear energy-related careers as priority area for investment
DOE to take steps to increase access to R&D infrastructure, workforce and expertise at DOE National Labs for (i) college and university students studying nuclear engineering and other nuclear energy-related fields and (ii) DOD personnel affiliated with nuclear energy programs
By November 2025
DOE to coordinate with Small Business Administration (SBA) to prioritize funding for qualified advanced nuclear technologies through grants, loans, investment capital, funding opportunities, etc., with priority to companies demonstrating largest degrees of design and technological maturity, financial backing and potential for near-term deployment
Timeline of Required Activities and Achievements for Calendar Year 2026
By January 2026
DOE to prepare a comprehensive report, providing (among other aspects):
recommended national policy on spent nuclear fuel and high level waste, development and deployment of advanced fuel cycle capabilities, and legislative changes needed to achieve these goals
program (including required legislation) to develop methods, technologies to transport used and unused advanced nuclear fuels and advanced nuclear reactors in safe, secure and environmentally sound manner
recommendations for permanent disposal of recycling and reprocessing waste, and for evaluating the same for isotopes of value to national security, or medical, industrial or scientific sectors prior to disposal
reevaluation of current and existing nuclear reprocessing, separation and storage facilities slated for decommissioning with potential value for fuel cycle and national security purposes if continued or increased
DOD, in coordination with DOE, to prepare and submit to Assistant to the President for National Security Affairs, recommendations for legislative proposals and regulatory actions regarding the distribution, operation, replacement and removal of advanced nuclear reactors and spent nuclear fuel on military installations
By February 2026
Nuclear Regulatory Commission (NRC) to complete wholesale review and revision of regulations and guidance, and issue a notice of proposed rulemaking, including:
maximum 18-month deadline for final decision on application to construct and operate a new reactor of any type
maximum 12-month deadline for final decision on application to extend operating license of existing reactor of any type
By July 2026
DOE to create a pilot program for reactor construction and operation outside the National Labs, and approve at least three reactors with the goal of achieving criticality for each by July 4, 2026
By November 2026
NRC to issue final rules and guidance to conclude its regulatory revision process
Timeline of Required Activities and Achievements for Calendar Years 2027 through 2050
By November 2027
DOE to begin operating an advanced nuclear reactor, following siting, approval and authorization of the design, construction and operation of privately funded advanced nuclear reactor technologies at DOE-owned or controlled sites for purpose of powering AI infrastructure, other critical or national security needs, supply chain items or on-site infrastructure
By September 2028
DOD to begin operating a nuclear reactor at a domestic military base or installation by September 30, 2028
DOE to provide technical advice on design, construction and operation of any advanced nuclear reactor on a military installation
DOS to provide advice on any international legal requirements or any needed modifications to international agreements or arrangements
DOD to prepare and submit recommendations for legislative and regulatory actions regarding distribution, operation, replacement and removal of advanced nuclear reactors and spent nuclear fuel on military installations
By January 2029
At least 20 new 123 Agreements negotiated
Within Year 2030
Facilitate 5 GW uprates to existing reactors and have ten new, large reactors with complete designs under construction
By May 2035
Completed re-negotiation of all 123 Agreements originally set to expire by May 2035
Within Year 2050
400 GW of US nuclear energy capacity in operation
Additional Required Parallel Activities
NRC
In consultation with the Department of Government Efficiency (DOGE), reorganize to promote expedited processing of license applications and adoption of innovative technology by undertaking reductions-in-force (although certain functions may increase in size, including those relating to new reactor licensing)
Create a dedicated team of at least 20 officials to draft new regulations
Reduce personnel and functions of Advisory Committee on Reactor Safeguards (ACRS) to minimum necessary to fulfill ACRS’ statutory obligations, with review of permitting and licensing to focus on issues that are truly novel or noteworthy
Adopt science-based radiation limits; reconsider reliance on the linear no-threshold (LNT) model for radiation exposure and “as low as reasonably achievable” standard
Revise NRC regulations governing NRC’s compliance with NEPA
Establish expedited pathway to approve reactor designs that DOD or DOE have tested and have demonstrated ability to function safely, focusing solely on risks that may arise from new applications permitted by NRC licensure
Establish process for high-volume licensing of microreactors and modular reactors
Establish stringent thresholds for circumstances in which NRC may demand changes to reactor design once construction is underway
Revise reactor oversight process, reactor security rules and requirements to reduce unnecessary burdens and be responsive to credible risks
Adopt revised, determinate and data-backed thresholds to ensure reactor safety assessments focus on credible, realistic risks
Reconsider regulations governing the time period of effectiveness of a renewed license, extending as appropriate based on available technological and safety data
Streamline public hearing process
DOE
Each time a substantially complete application for a qualified test reactor is submitted, establish a team to deconflict, oppose or approve the application and provide assistance to the applicant to ensure expeditious processing
Prioritize qualified test reactor projects for processing
Use all available authorities to eliminate or expedite DOE environmental reviews for authorizations, permits, approvals, leases and any other activity requested by an applicant or potential applicant, including determining which DOE functions are not subject to NEPA
Halt the surplus plutonium dilute and dispose program (except with respect to DOE’s legal obligations to South Carolina) and replace with a program to process surplus plutonium to make it available for the fabrication of fuel for advanced nuclear technologies
Initiate process for designating AI data centers that are located at or operated in coordination with DOE facilities and related electrical infrastructure as critical defense facilities
Release at least 20 metric tons of HALEU into a fuel bank for use by any private sector project authorized to construct and operate at a DOE-owned or controlled site and that is regulated by DOE for the purpose of powering AI and other infrastructure
Implement plans to ensure long-term supply of enriched uranium for continued operation of facilities powering AI data centers on DOE sites, including domestic fuel fabrication and supply chains to reduce reliance on foreign fuel sources
Coordinate with DOD to assess feasibility of restarting or repurposing closed nuclear power plants as energy hubs for military microgrid support, focusing on installations with insufficient power resilience or grid fragility
Approve or deny technology transfer export authorization requests within 30 days of receipt of a complete application and completion by DOE of required accompanying analysis (subject to extensions)
DOD
Establish program for utilization of nuclear energy at military installations for both installation energy and operational energy
DOE and DOD, together
Site, approve and authorize the design, construction and operation of privately-funded nuclear fuel recycling, reprocessing and reactor fuel fabrication technologies at sites controlled by DOE or DOD for purpose of fabricating fuel forms for use in national security reactors, commercial power reactor, and non-power research reactors
With respect to NEPA, consult with Chairman of Council on Environmental Quality regarding:
applying DOE and DOD categorical exclusions, adopting other executive departments and agencies’ exclusions and establishing new categorical exclusions for construction of advanced nuclear reactor technologies on Federal sites within the US for purposes of implementing the Nuclear EOs
utilizing other agencies’ emergency and other permitting procedures for the siting and construction of advanced nuclear reactor technologies
developing alternative arrangements for compliance with NEPA in emergency situations
Prioritize issuance of DOE and DOD security clearances to support rapid distribution and use of nuclear energy and fuel cycle technologies
Department of State
Fully leverage resources of the Federal Government to promote the US nuclear industry in development of commercial civil nuclear projects globally
Lead diplomatic engagement and negotiations for new 123 Agreements
Aggressively renegotiate 123 Agreements set to expire by May 2035
Lead engagement with Congress regarding progress and reporting of negotiating 123 Agreements
Supreme Court Narrows Both Judicial Review and Scope of NEPA Reviews
On May 29, in Seven County Infrastructure Coalition, et al., v. Eagle County, Colorado, et al., the U.S. Supreme Court issued a landmark National Environmental Policy Act (“NEPA”) decision concluding that NEPA does not allow courts, “under the guise of judicial review” of agency compliance with NEPA, to delay or block projects based on the environmental effects of projects that are not a part of the project subject to NEPA review. The decision seeks to rein in what the Court says has become a “blunt and haphazard tool” to try to block or delay infrastructure and construction projects, by (1) clarifying the “substantial judicial deference” owed to agencies in determining the scope of NEPA documents, and (2) limiting agencies’ obligation to evaluate the potential environmental impacts of projects upstream and downstream from the project under review, especially where an agency has no authority or jurisdiction over those projects. The decision is expected to have significant implications for the scope of future NEPA reviews and challenges to agency NEPA compliance, particularly for energy-related infrastructure projects, many of which—like the rail line at issue in Seven County Infrastructure Coalition—have faced court challenges based upon claims that the reviewing agency violated NEPA by failing to fully consider “upstream” or “downstream” impacts that are not part of the project being reviewed.
Background
This dispute in Seven County Infrastructure Coalition involved a challenge by a Colorado county and several environmental groups to the environmental review and approval by the Surface Transportation Board (“Board”) of a proposed new 88-mile rail line connecting Utah’s Uinta Basin to the national railroad network. The connection would link oil and gas fields in the Uinta Basin to out-of-state refineries. The Board issued a 3,600-page NEPA Environmental Impact Statement (“EIS”) analyzing impacts of the railway’s construction and operation and noting, but not fully analyzing, the potential environmental effects of increased upstream oil and gas development in the Uinta Basin as well as downstream refining.
On review, the U.S. Court of Appeals for the D.C. Circuit found numerous NEPA violations, including that the Board impermissibly limited its analysis of environmental effects from upstream drilling in the Uinta Basin and downstream refining along the Gulf Coast. In so holding, the D.C. Circuit rejected the Board’s arguments that those effects would arise from other projects that are separate from the rail line and regulated by other entities. Based on these perceived deficiencies in the Board’s NEPA analysis, the court vacated the EIS and the Board’s final approval order for the rail line.
Majority Opinion
The Court on an 8-0 vote, with Justice Gorsuch recused, unanimously reversed and remanded the D.C. Circuit’s decision. In a majority opinion penned by Justice Kavanaugh and joined by four other Justices, the Court held that the D.C. Circuit (1) failed to afford the Board the substantial deference required under NEPA for the agency’s factual findings and policy determinations, and (2) incorrectly interpreted the scope of the effects required to be analyzed under NEPA. In these respects, the Court cited its opinion last Term in Loper Bright Enterprises v. Raimondo and explained that such deference is consistent with Loper Bright where an agency “exercises discretion granted by a statute.” Three Justices concurred in the result, writing on a more limited basis that the Board’s statutory authority did not provide the agency authority or jurisdiction with respect to the development or use of commodities such as oil that might be transported on the proposed rail line and, therefore, the Board was not required by NEPA to consider the effects of drilling and refining.
Emphasizing the purely procedural nature of NEPA, the Court’s majority opinion explained that, when reviewing whether an EIS complies with NEPA, courts should afford “substantial judicial deference” to the agency’s judgment as to the appropriate scope of the document: “So long as the EIS addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line—including (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand.”
Expanding upon the appropriate posture of a court’s judicial review of NEPA analyses—and distinguishing that review from the de novo review that applies to judicial review of an agency’s interpretation of a statute—the Court articulated several core elements. First, where an agency is required to make “speculative assessments or predictive or scientific judgments” a reviewing court must be at its “most deferential.” Second, the reviewing court’s role, under the arbitrary-and-capricious standard of the Administrative Procedure Act (“APA”), is limited to deciding whether such determinations were “reasonable and reasonably explained.” Finally, even if a court finds a NEPA review to be inadequate, that alone may not be grounds for vacating the underlying agency decision, absent reason to believe that the agency might disapprove the project if it conducted additional environmental review.
Further, weaving together prior precedent, the Court found that the D.C. Circuit incorrectly interpreted NEPA by requiring the Board to address impacts from upstream and downstream projects separate in time or place from the proposed rail line. The Court stressed that NEPA’s focus is on the “proposed action” under agency review, “not other future or geographically separate projects that may be built (or expanded) as a result of or in the wake of the immediate project under consideration.” Although “indirect effects” of a project—including effects separated by geographic distance or time—can sometimes fall within NEPA, the Court explained that NEPA does not require an agency to analyze the effects of separate projects, even if the project being reviewed might lead to the construction or increased use of those separate projects. This is because a separate project “breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project.” In so finding, the Court noted that “[t]he effects from a separate project may be factually foreseeable, but that does not mean that those effects are relevant to the agency’s decision-making process or that it is reasonable to hold the agency responsible for those effects.”
Importantly, the Court further noted that the Board had no regulatory authority over those separate projects; it does not regulate oil drilling, oil and gas leases, or oil refineries. Because “agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority,” the Court found that there was no “reasonably close causal relationship” between the rail line and the environmental effects of the separate drilling and refining projects.
Implications
The Court’s decision will have important implications both for future judicial reviews of NEPA cases as well as the scope of underlying agency NEPA reviews. Further, given the frequency of challenges to agency NEPA analyses based upon the adequacy of evaluation of upstream and downstream impacts and the Administration’s rescission of the government-wide Council on Environmental Quality NEPA implementing regulations, the Court’s decision provides important guidance to agencies on complying with their NEPA obligations.
How courts and agencies will respond to this limited judicial role in the review under NEPA and the APA remains to be seen. It is worth noting that the Court did not squarely address the scope of “connected actions” that typically have been included as part of the review of the underlying project. But it is likely that this decision will lead to fewer decisions finding NEPA reviews inadequate as well as fewer holdings vacating underlying agency decisions (even after finding the underlying NEPA review inadequate). Additionally, the Court’s decision clearly gives agencies more leeway in defining the scope of their environmental reviews—including linear energy and transportation projects as well as port facilities and power plants that often tie into development and resource uses that are separate from the proposed project or involve upstream or downstream activities.
Surface vs. Mineral Owners: Texas Supreme Court Settles Salt Cavern Ownership Dispute
The Texas Supreme Court has settled the issue of who owns the voids, known as salt caverns, created in subsurface salt formations (whether naturally occurring or caused as a result of salt mining operations). In Myers-Woodward, LLC v. Undergrounds Services Markham, LLC, the court affirmed the appellate court decision (previously reported on by Bracewell in a client alert on February 24, 2023), holding that surface owners, rather than mineral owners, own subsurface salt caverns. (— S.W.3d —, No. 22-0878, 2025 WL 1415892, at *1 (Tex. May 16, 2025)). This is true even when the mineral owner’s activities create such caverns, as was the case in Myers-Woodward.
Rather than following the outlier, Mapco, the Texas Supreme Court decided to continue defining the scope of subsurface ownership outlined in decades of Texas case law. 808 S.W.2d 262, 264 (Tex. App.—Beaumont 1991, rev’d on other grounds, 817 S.W.2d 686 (Tex. 1991)). See e.g., Humble Oil & Ref. Co. v. West, 508 S.W.2d 812, 815 (Tex. 1974) (characterizing the surface owner’s interest as ownership of the “reservoir storage space”); Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 820 (Tex. 2021) (“[T]he surface owner, and not the mineral lessee, owns the possessory rights to the space under the property’s surface.”). The court stated:
“Absent an agreement otherwise, ownership of underground salt does not include ownership of underground empty space within or around a salt formation. Nor does it include a right to use that empty space for purposes unrelated to the production of the property’s minerals.” Myers-Woodward, 2025 WL 1415892 at *1.
Salt caverns have become progressively more useful in oil and gas storage, making the rights to own and use them especially valuable. Mineral owners will need to explicitly contract for the right to utilize these vacant caverns to capitalize on their increasing hydrocarbon storage potential. Otherwise, these rights belong to the surface owners.
With this ruling, the Texas Supreme Court has ended the storage wars, for now.
California Provides Additional Guidance on Mandatory Climate Disclosures
On May 29, 2025, the California Air Resources Board delivered a presentation that provided additional details concerning the soon-to-be implemented mandatory climate disclosures. Perhaps most significantly, the California regulator gave additional guidance on which companies will be subject to the law. Specifically, the California Air Resources Board stated that they planned to rely upon the tax code’s interpretation of “doing business in California” to determine whether a company needed to make the regulatory disclosure. So, in practical terms, this means that sales in California of $735,019 or more, or owning real property in California worth more than $73,502 or paying employees in California more than $73,502, would constitute “doing business in California” for purposes of complying with the mandatory climate disclosure (subject to the other statutory requirements–e.g., meeting the revenue threshold of either $1 billion or $500 million, depending upon the type of disclosure).
Additionally, the California Air Resources Board noted that the detailed implementing regulations–which were required by law to be published as of July 1, 2025–are still likely months away, which renders compliance by the initial deadline of January 1, 2026 quite challenging for companies.
Companies with more than $1 billion in annual revenue but as little as $735,000 in sales in California would have to report greenhouse gas emissions to the state under a new regulatory proposal. But they may be hard-pressed to meet those new disclosure requirements by January as regulators indicated they are still months away from issuing regulations, missing a July deadline. Sydney Vergis, an assistant division chief at the California Air Resources Board, which is writing the regulations, said Thursday the agency plans to issue the rules by the “end of the year,” but declined to give a specific date during a webinar.
www.bloomberglaw.com/…
Course Correction: Supreme Court Steers Toward Greater Predictability in NEPA Reviews
On 29 May 2025, the Supreme Court unanimously declared that a “course correction” was needed for cases under the National Environmental Policy Act (NEPA), holding that a law originally meant to be a procedural check to inform agency decision making has instead grown to paralyze it. Seven County Infrastructure Coalition v. Eagle County reversed a D.C. Circuit ruling that an agency had not done enough in its environmental impact statement (EIS) to review the potential upstream and downstream effects of a proposed railroad line. The Court roundly rejected judicial nitpicking of agency environmental reviews. The Court concluded that agencies are the factual experts when making determinations about environmental impacts, and therefore, should be afforded substantial deference by reviewing courts. Seeking to further streamline the process, the Court signaled that future NEPA actions should be narrower in scope, more concise, and take less time. This change in course will likely result in greater predictability for agencies and developers about the adequacy of NEPA reviews.
NEPA Is Not Meant to Be a “Substantive Roadblock”
When the federal government approves the development of an infrastructure project, NEPA obligates the relevant agency to complete an environmental review, such as an EIS, to identify significant environmental effects of the project and feasible alternatives to mitigate those effects. The purpose of a NEPA review is to inform agencies and the public about possible environmental consequences of a federal decision. In Seven County, the Court reinforced the principle that NEPA is a procedural cross-check, not a substantive roadblock, intended to inform agency decision making, not to paralyze it.
In 2020, the Seven County Infrastructure Coalition applied to the US Surface Transportation Board (the Board) for approval of an 88-mile railroad line connecting an oil-rich area of Utah to the national freight rail network to allow transportation of crude oil to refineries along the Gulf Coast. As part of its NEPA review, the Board prepared a 3,600-page EIS that noted—but did not fully analyze—the environmental effects of foreseeable increases in upstream oil drilling in Utah and downstream refining of crude oil in the Gulf. The Board approved the railroad line, but the adequacy of its NEPA review was challenged by a county and several environmental groups. The D.C. Circuit agreed with those challengers, finding that the Board should have more extensively considered the indirect upstream and downstream effects in its EIS and vacating the Board’s approval of the railroad line.
In an 8-0 decision, the Court reversed. Justice Brett Kavanaugh, writing for five of the justices, seized the opportunity to recalibrate expectations around NEPA review, explaining that NEPA requires a process for an agency’s environmental review, but it does not dictate the ultimate outcome. There are other “substantive” statutes (such as the Clean Air Act and Clean Water Act) that set emissions and effluent limitations and the like, but NEPA is not one of those statutes. Accordingly, the Court reemphasized that “review of an agency’s EIS is not the same thing as review of the agency’s final decision concerning the project.” And it stressed the need for deference to agency determinations at every level of the process—from assessing the significance of environmental effects, to considering feasible alternatives, to deciding what impacts to review.
As part of its level-setting endeavor, the Court pointed to the 2023 NEPA amendments that were part of the Building US Infrastructure through Limited Delays & Efficient Reviews Act (BUILDER Act), where Congress prohibited agencies’ EISs from “going on endlessly” and imposed 150-page limits and two-year deadlines for EISs.
An Agency’s NEPA Review Should Be Limited to the Project at Hand
As to the narrow question before it, the Court concluded that the Board did not have to consider upstream and downstream environmental effects that were “separate in time or place” from the railway project.
The Court noted that while indirect environmental effects of the project itself may fall within NEPA’s scope (even if they might extend outside the geographical territory of the project or materialize later in time), the fact that the project might foreseeably lead to the construction or increased use of a separate project does not mean the agency must consider that separate project’s environmental effects. In other words, “the separate project breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project.” This is particularly true where those separate projects fall outside of the agency’s authority, as was the case for the Board, which did not have jurisdiction over upstream oil drilling or downstream oil refineries.
Justice Sonia Sotomayor, along with Justices Elena Kagan and Ketanji Brown Jackson, concurred in the judgment, noting that the majority opinion could have reached the same result without “unnecessarily grounding its analysis largely in matters of policy.” But they too agreed that the D.C. Circuit had gone too far in imposing NEPA duties on agencies.
Courts Must Afford Agencies “Substantial Deference” in NEPA Review
Emphasizing the limited role of judicial review in NEPA cases, the Court explained that judges should afford “substantial judicial deference” to agencies in NEPA cases. The Court contrasted its decision in Loper Bright Enterprises v. Raimondo,1 where no deference is owed to agencies’ legal determinations, with the highly factual issues that are at play in an EIS. These include whether a particular explanation in an EIS is detailed enough, the likely impacts of a project, whether those impacts are “significant,” and what alternatives are really feasible. Such choices should not be micromanaged by the courts, so long as they fall within the zone of reasonableness.
Key Takeaways
Going forward, project developers may expect to see:
Shorter and More Concise NEPA Reviews
Agencies, particularly prompted by various Administration priorities, may begin to conduct shorter NEPA reviews, consistent with Congress’ 2023 NEPA amendments.
Narrower Focus for EISs
Given the Court’s clear direction that judges should defer to the agencies’ decisions about where to draw the line when considering indirect environmental effects, some agencies may streamline the focus of their EISs.
Increased Deference by Courts to Agency NEPA Reviews
The “only role” for a court in an action regarding a deficient EIS is to confirm that the agency has addressed environmental consequences and feasible alternatives to the relevant project.
Fewer Agency Authorizations Being Vacated on the Basis of an Inadequate EIS
The Court stressed that the “ultimate question” under NEPA is not whether an EIS is inadequate in and of itself, but whether the agency’s final decision is “reasonable and reasonably explained.” Because an EIS is only one component of that analysis, a deficient EIS will not automatically require vacatur of the project’s approval.
Looking Ahead
The Court has now joined the chorus of criticisms directed at interminable NEPA reviews, with all three branches of government in alignment that the old mode of NEPA must go. Although Congress already sought to streamline the EIS process through the BUILDER Act, given the lag between agency processes and judicial review, the lower courts have yet to internalize what it may mean to review a 150-page EIS conducted in less than two years. This decision also comes at a time when the Administration is seeking to accelerate permitting procedures for domestic energy projects and retooling its NEPA regulations.2 Given these shifts, the rigor of judicial scrutiny of such EISs may need to be adjusted. Seven County gives lower courts the leeway they need to make that shift—indeed, it seems to demand it.
Footnotes
1 603 U.S. 369 (2024).
2 See Press Release, U.S. Dep’t of the Interior, Department of the Interior Implements Emergency Permitting Procedures to Strengthen Domestic Energy Supply (Apr. 23, 2025), https://www.doi.gov/pressreleases/department-interior-implements-emergency-permitting-procedures-strengthen-domestic.
“A Course Correction”: Supreme Court Reinforces Agency Deference and Narrows the Scope of Environmental Effects that Agencies Must Consider Under NEPA
On May 29, 2025, the Supreme Court held that the National Environmental Policy Act (NEPA) — which requires federal agencies to analyze the environmental impacts of projects that they carry out, fund, or approve — does not require agencies to consider the effects of “other future or geographically separate projects that may be built (or expanded) as a result of or in the wake of the immediate project under consideration.” The Court’s decision narrows the scope of effects that agencies must consider under NEPA, provides clear direction to agencies and lower courts, and will likely benefit developers of infrastructure and other projects that require federal agency approvals or receive federal funding.
Background
In this case, Seven County Infrastructure Coalition v. Eagle County, Colorado, Eagle County and several environmental groups challenged the adequacy of the environmental impact statement (EIS) that the Surface Transportation Board (STB) prepared for its approval of the construction of a new 88-mile railroad line that would connect Utah’s oil-rich Uinta Basin to the national railway network. The petitioners claimed that the EIS should have analyzed in greater detail the project’s so-called “upstream” impacts of increased oil production in the Uinta Basin and the so-called “downstream” impacts of increased oil refining in the Gulf Coast. The petitioners argued that these upstream and downstream environmental impacts would foreseeably result from easier transportation of crude oil along the new railroad line. The D.C. Circuit Court of Appeals agreed with the petitioners, holding that the STB “impermissibly limited its analysis of upstream and downstream projects” and that the environmental effects from increased oil production and refining were “reasonably foreseeable impacts” of the new railroad line that the EIS should have analyzed in greater detail.
The Supreme Court’s Decision
The Supreme Court, in an opinion authored by Justice Kavanaugh, reversed the D.C. Circuit. The Court’s decision rested on two main pillars: (1) federal agencies are owed “substantial judicial deference” in defining the scope and level of detail of an EIS, and (2) NEPA does not require an agency to consider the effects of other projects that are separate in time or place.
The Court began its opinion by emphasizing that courts reviewing an EIS for compliance with NEPA must give “substantial deference” to the agency. The Court reiterated some well-known principles from its canon of NEPA and Administrative Procedure Act cases over the past five decades, including that NEPA is a “purely procedural statute” that places “no substantive constraints” on an agency’s ultimate decision to approve or deny a project, and that a court’s only role is to determine “whether the agency action was reasonable and reasonably explained.” Drawing on this precedent, the Court explained that courts should uphold agencies’ decisions regarding the scope and content of an EIS — such as what the project’s likely impacts are, the extent to which direct and indirect impacts are discussed, what alternatives are considered, and whether effects from other projects are analyzed — “so long as they fall within a broad zone of reasonableness.” In this regard, the Court lamented that some lower courts have “not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases,” thus transforming NEPA “from a modest procedural requirement into a blunt and haphazard tool employed by project opponents.” The Court noted that judicial review under NEPA had strayed so far out of line with “statutory text and common sense” that a “course correction of sorts is appropriate.”
In the second part of the opinion, the Court held that “when the effects of an agency action arise from a separate project — for example, a possible future project or one that is geographically distinct from the project at hand — NEPA does not require the agency to evaluate the effects of that separate project.” The Court clarified that NEPA “can sometimes” require analysis of the proposed project’s effects that are later in time or geographically removed (so-called indirect effects), but not other projects’ effects. The Court repeated a refrain from the first part of its opinion, stating that an agency must have the ability to “draw what it reasonably concludes is a manageable line” between the effects of the project at hand and some future project separate in time or place. This principle is necessary to prevent a “relatively small infrastructure project” from turning into a “scapegoat for everything that ensues from upstream oil drilling to downstream refinery emissions.” The Court found that the line drawn by the STB was reasonable and that the D.C. Circuit erred in requiring analysis of the effects of upstream and downstream projects of the railroad line.
Implications
The Court’s decision is a win for project developers and federal agencies because it provides a relatively clear rule limiting the scope of indirect effects that agencies must consider under NEPA to only those effects of the project under consideration.
In this respect, the Court’s decision represents a significant departure from prior NEPA practice. Agencies and courts have long understood NEPA to require some consideration of indirect or secondary effects that are reasonably foreseeable. This principle is rooted in the Council on Environmental Quality’s (CEQ) guidance documents issued in the early years after NEPA was enacted in 1970 and was carried forward in CEQ’s subsequent (and recently rescinded) regulations. (For example, for all but two years since 1978, CEQ’s regulations required analysis of “growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.” (40 C.F.R. § 1508.8(b) (1978); 40 C.F.R. § 1508.1(g)(2) (2022); 40 C.F.R. § 1508.1(i)(2) (2024).)) Courts and agencies have struggled to consistently demarcate the contours of indirect effects that must be considered (i.e., what effects are reasonably foreseeable). Litigation on this topic has picked up in the past decade around whether agencies must consider the upstream and downstream effects (including climate change impacts) of projects involving development or transportation of fossil fuels.
The Court’s ruling in Seven County largely settles the debate regarding upstream and downstream effects by creating a relatively clear rule for agencies and courts to follow: The effects of other projects that may result from the project under consideration are not reasonably foreseeable and, therefore, need not be analyzed under NEPA. Still, disputes may continue to arise over which indirect effects of a proposed action are reasonably foreseeable and still must be considered, particularly in light of the Court’s ambiguous statement that NEPA “can sometimes” require analysis of a project’s indirect effects. In addition, the “broad latitude” that agencies have in carrying out NEPA can swing both ways, depending on the administration: The Seven County decision appears to leave the door open to allowing agencies to consider the effects of other projects removed in time and place if they so choose (even though it is not required), so long as such choices around which effects to analyze and whether to analyze the effects of other projects are “reasonable and reasonably explained.”
The Seven County decision should put federal agencies and project developers in a better position to prevail in NEPA lawsuits. The decision sends a strong message to federal courts that federal agencies have considerable discretion in conducting environmental reviews under NEPA, particularly regarding decisions on where to “draw the line” for the scope and contents of the analysis. And although dicta (i.e., not part of the Court’s holding), a passage in the Court’s opinion suggests that courts should exercise restraint in setting aside an agency’s approval of a project even when they find the agency violated NEPA: “The ultimate question is not whether an EIS in and of itself is inadequate, but whether the agency’s final decision was reasonable and reasonably explained. Review of an EIS is only one component of that analysis. Even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.”
While the first part of the Seven County opinion (regarding the substantial deference courts owe to agencies’ compliance with NEPA) did not necessarily tread new legal ground, its discussion of how NEPA litigation has led to fewer and more expensive infrastructure projects is likely to resonate with many project developers and may influence future legislative and regulatory attempts at NEPA and permitting reform. The Court observed that “overly intrusive (and unpredictable)” lower court rulings “have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.” As a result, “[f]ewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion. A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development under the guise of just a little more process.”
The Court’s decision comes amid what is arguably the biggest upheaval of NEPA practice in the law’s 55-year history. Last month, CEQ rescinded its implementing regulations, which had provided consistent and judicially enforceable rules applicable to all federal agencies in one form or another since 1978. As soon as next month, individual agencies are expected to publish new rules for implementing NEPA, which may curtail the scope of analysis and public participation in the NEPA process. And this all comes on the heels of the 2023 Fiscal Responsibility Act, which included the most significant statutory amendments to NEPA since it was enacted in 1970.
White House Publishes Executive Orders Aimed at Accelerating Nuclear Energy
On May 23, 2025, President Donald Trump signed four executive orders aimed at launching a “renaissance” for the U.S. nuclear energy sector. The orders announce objectives of deploying 300 GW of new nuclear energy capacity by 2050 (a fourfold increase over current levels) and having 10 large reactors under construction in the United States by 2030. To achieve these objectives, the White House is calling for reforms to the Nuclear Regulatory Commission (“NRC”), the build-out of a domestic nuclear fuel supply chain, construction of reactors on military installations, and export promotion for U.S. nuclear technologies.
Reforming the NRC
The Ordering the Reform of the Nuclear Regulatory Commission executive order criticizes the NRC for “throttling nuclear power development” by implementing multi-year licensing processes characterized by excessive risk aversion. The order and an accompanying fact sheet build on recently-enacted legislation—the Accelerating Deployment of Versatile Advanced Nuclear Energy Act of 2024, P.L. L. 118-67 (the “ADVANCE Act”)—which directed the NRC to revise its mission statement to ensure that its regulations not only ensure safety but also account for the societal benefits of nuclear energy.
The White House directive calls for a reorganization of the NRC, including reductions in force; however, the order recognizes that certain functions, such as new reactor licensing, may increase in size. The White House also directs the NRC to streamline and expedite its licensing processes in various ways, including by adopting an 18-month deadline for a final agency decision on applications to construct and operate any type of new reactor, establishing a process for high-volume licensing of microreactors and modular reactors, and eliminating “non-essential or obsolete” rules.
Additionally, the order directs the NRC to reconsider its reliance on the linear no-threshold (“LNT”) model for radiation exposure, and the “as low as reasonably achievable” (“ALARA”) standard, which is predicated on the LNT model. According to the order, the LNT and ALARA policies exemplify the NRC’s extreme risk aversion and represent a major obstacle to licensing new reactors. As part of its reconsideration, the NRC must consider adopting “determinate radiation limits,” in consultation with the Environmental Protection Agency and other agencies. Such reconsideration might lead the NRC to align its standards with the quantified “ample margin of safety” hazardous air pollution standard codified by Congress in the 1990 Clean Air Act amendments, which applies to radiation exposure from reactors.
The NRC may face pressure to address these new directives in its ongoing rulemaking to establish a risk-informed, technology-inclusive regulatory framework for advanced reactors (the so-called “Part 53” rulemaking).
Building a Domestic Fuel Supply Chain
The Reinvigorating the Nuclear Industrial Base executive order addresses a vulnerability in the U.S. nuclear sector: its dependence on imports of foreign sources of enriched uranium, particularly from Russia.
To address this import dependence, the order directs the Department of Energy (“DOE”) and the Department of Defense to make excess uranium from federal stockpiles available for commercial use where feasible. It also calls for the immediate development of domestic capabilities for uranium conversion, enrichment, and fuel fabrication—including for advanced reactor fuels such as high-assay low-enriched uranium (“HALEU”). HALEU is essential for several next-generation types of reactors.
The order also directs the DOE to prioritize the facilitation of 5 GW of power uprates to existing reactors, have construction underway on 10 new large reactors by 2030, and make resources available for restarting closed nuclear power plants.
Additionally, the White House seeks to expand the industry workforce by instructing the Secretaries of Labor and Education to establish ways of increasing participation in nuclear energy-related education and career pathways.
Deploying Reactors for (and by) the National Security Apparatus
The Deploying Advanced Nuclear Reactor Technologies for National Security order focuses on utilizing nuclear energy for national security purposes. The order calls on the Departments of Defense and Energy to utilize government sites for the development of advanced reactors.
Under the order, the Secretary of the Army is tasked with commencing operation of a reactor on a domestic military base or installation no later than September 30, 2028.
The order also establishes a 90-day deadline for the Secretary of Energy to designate DOE sites for the use and deployment of advanced reactors—with a special emphasis on powering AI infrastructure.
Finally, the order instructs the Secretary of State to implement several policies to promote exports of U.S. nuclear technologies, including “aggressively” pursuing at least 20 new agreements with other countries by January 3, 2029.
Leveraging DOE Authorities to Build “Test Reactors”
The order titled Reforming Nuclear Reactor Testing at the Department of Energy instructs the DOE to accelerate development of new reactors through pilot programs and streamlining environmental reviews. The order specifically asserts that advanced reactors that are not used for commercial electricity generation are collectively for “research purposes” and can be licensed by DOE rather than the NRC. The DOE is required to set up an expedited licensing and permitting process that will enable these “qualified test reactors” to be safely operational within 2 years of application submission and is charged with approving at least three reactors with the goal of achieving criticality in each by mid-2026.
Conclusions
The executive orders come at a time when the United States is grappling with increasing electricity demand driven by electrification, AI workloads, and the growing need for reliable, clean baseload energy. Nuclear reactors offer reliability and density, capable of supporting 24/7 operations with carbon-free power. Advanced reactors hold the promise of safer and more modular designs.
To achieve the ambitious capacity growth objectives, the executive orders seek to cut regulatory red tape and leverage various federal streamlining authorities. It remains to be seen whether simultaneous, mandatory cuts of experienced staff at the regulatory agencies will impede these goals. Furthermore, funding is a key part of the puzzle for the nuclear sector, particularly for advanced reactors. In this area, developers may have concerns about recent developments in Congress. The recently passed House budget reconciliation bill significantly diminishes the DOE Loan Programs Office, which has been a key source of financing. The House bill also limits the availability of clean electricity tax credits for advanced reactors. The bill would confine tax credit eligibility to reactors for which construction commences no later the end of 2028. This is a modest reprieve from earlier, far more restrictive versions of the bill. However, developers of advanced reactors may struggle to assemble the workforce, components, and financing to break ground by that date. In addition, the House bill does not spare owners of existing reactors; it would phase out the 45U tax credit at the end of 2031.
BETO Updates 45ZCF-GREET Model to Incorporate New Methods of Alternative Fuel Production
On May 30, 2025, the U.S. Department of Energy (DOE) Bioenergy Technologies Office (BETO) announced that it “removed barriers to domestic bioenergy production by updating its 45ZCF-GREET modeling tool to account for new feedstocks and methods of production, including ethanol from corn wet-milling and natural gas from coal-mine methane.” According to BETO, these measures will allow a wider range of farmers and companies to do business in the alternative fuels market. BETO notes that the U.S. Department of the Treasury adopted the 45ZCF-GREET model to help transportation fuel producers assess their eligibility for 45Z, also known as the Clean Fuel Production Credit, a provision in the Internal Revenue Code that provides tax credits for the production of certain clean transportation fuels. The latest GREET® (Greenhouse gases, Regulated Emissions, and Energy use in Technologies) model, updated user manual, and a log of all changes are available online. For questions on how to use the model, contact [email protected].
Supreme Court Significantly Scales Back Scope of NEPA Review for Infrastructure Projects
Through a unanimous 8-0 decision, the Supreme Court of the United States addressed what it described as “continuing confusion and disagreement in the Courts of Appeals” over the scope of judicial review for claims asserting violations of the National Environmental Policy Act (NEPA). Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (May 29, 2025). In doing so, the Supreme Court clarified that decisions by federal agencies under NEPA are entitled to substantial deference, and courts should not be in the business of second-guessing how agencies weigh competing considerations under NEPA. “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” Additionally, the Supreme Court ruled that NEPA does not compel federal agencies to address the environmental effects of projects separate in time or place from the construction and operation of the proposed project at issue.
Justice Kavanaugh authored the main opinion joined by Justices Alito, Thomas, and Barrett along with Chief Justice Roberts. Justice Sotomayor penned a separate concurring opinion joined by Justices Kagan and Jackson. Justice Gorsuch did not participate in the case.
Rail Project at Issue
In December 2021, the federal Surface Transportation Board approved an application to construct an 88-mile rail line in Utah’s Uinta Basin that would primarily transport crude oil to interstate rail lines and ultimately to refineries along the Gulf Coast.
NEPA required the Board to evaluate environmental impacts of the proposed project and consider potential alternatives to the project that would avoid or minimize those impacts. The Board’s NEPA evaluation was reflected in an Environmental Impact Statement (EIS) spanning more than 3,600 pages. Several non-governmental organizations and a local county filed a legal challenge under NEPA in the District of Columbia Circuit Court of Appeals, alleging that the Board failed to adequately consider the impacts of certain “upstream and downstream” activities that are separate from the proposed rail line. Specifically, the Board did not perform a detailed analysis of (1) increased crude oil development that may occur in the Uinta Basin once the rail line goes into service; or (2) air emissions at refineries along the Gulf Coast associated with processing crude oil extracted from the Uinta Basin.
Court of Appeals Decision
Finding in favor of the challengers, the D.C. Circuit agreed that future crude oil development and refining were “reasonably foreseeable impacts” that the Board should have evaluated. The D.C. Circuit rejected the Board’s position that those effects arose from other projects that were separate in time and space from the rail line and were also beyond the jurisdiction of the Board, which does not regulate crude oil extraction or refining.
Kavanaugh Opinion
The main court opinion makes clear that judicial review under NEPA involves affording substantial deference to the decisions by the federal agencies involved. That is because assessment of environmental effects and feasible alternatives involves “a series of fact-dependent, context-specific, and policy-laden choices.” Thus, courts “should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.” Nevertheless, Justice Kavanaugh observed that “[s]ome courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases.” In doing so, “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects.”
Kavanaugh’s opinion wholly rejects the notion that NEPA requires federal agencies to consider other existing or potential future projects that are separate in space and time from the proposed project under consideration. The opinion observes that NEPA’s focus is the “project at hand – not other future or geographically separate projects that may be built (or expanded) as a result of or in the wake of the immediate project under consideration.” Consequently, “NEPA does not require the agency to evaluate the effects of that separate project.” The Board was therefore “[a]bsolutely correct” in concluding that it need not perform a detailed analysis of the potential for future crude oil development in the Uinta Basin and refining activities along the Gulf Coast.
Lastly, Kavanaugh observed that NEPA litigation should not be a forum for project opponents “to air their policy objections to proposed federal actions.” “Citizens may not enlist the federal courts, ‘under the guise of judicial review’ of agency compliance with NEPA to delay or block agency projects based on the environmental effects of other projects separate from the project at hand.”
Concurring Opinion
The concurring opinion authored by Justice Sotomayor and joined by Justices Jackson and Kagan observes that the Board lacked jurisdiction over potential future crude oil development and refinery activities, and lacked authority to restrict transportation of crude oil on the proposed rail line. Therefore, there was no need for the Board to consider impacts of those activities.
What’s Next?
NEPA has been called one of the most litigated environmental statutes in the United States. This decision should set a higher bar for project opponents to succeed on NEPA claims. The Court made clear that the judiciary should afford substantial deference to how federal agencies weigh the respective impacts and benefits of a proposed project. Whether this pronouncement will prompt developers to move forward with additional projects, and how much deference will actually be afforded by the lower courts, remains to be seen. This decision does not directly affect the legal landscape for challenges brought under substantive environmental statutes like the Clean Water Act, Clean Air Act, or Endangered Species Act, although actions challenging major projects that allege violations of these statutes are often paired with a NEPA claim.
Beltway Buzz, May 30, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
DOL to Rescind Biden-era ESG Rule. In a status report filed this week with the U.S. Court of Appeals for the Fifth Circuit, the U.S. Department of Labor (DOL) stated that it will no longer defend a legal challenge to the Biden administration’s 2022 ESG (environmental, social, and governance) rule (formally, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights”). Instead, the administration will pursue notice-and-comment rulemaking to rescind the regulation. The pending rulemaking will be the latest regulatory back-and-forth on this issue, as the DOL in 2020 finalized a regulation that limited the abilities of Employee Retirement Income Security Act (ERISA) plan fiduciaries to consider investment factors that “promote non-pecuniary benefits or objectives.” In turn, the 2022 Biden-era rule instituted an “all things being equal” standard that allows plan fiduciaries to consider such factors as “tiebreakers” in investing decisions. There is no timetable for the proposed rule, but the spring regulatory agenda—expected sometime in June or July of this year—should provide some clues.
USCIS Nominee Wants Restrictions on OPT. Last week, the U.S. Senate Judiciary Committee held a hearing on the nomination of Joseph Edlow to serve as director of U.S. Citizenship and Immigration Services (USCIS). In response to a question from Senator Mike Lee (R-UT) regarding optional practical training (OPT), a program that provides F-1 students with up to three years of work authorization after graduation, Edlow responded with the following:
What I want to see would be essentially a regulatory and sub-regulatory program that would allow us to remove the ability for employment authorizations for F-1 students beyond the time that they are in school.
The statement clearly provides insight not just into the future of OPT, but also on the types of employment-based immigration policies that USCIS will pursue in the future. The committee has not yet voted on Edlow’s nomination.
Consulates to Pause Student Visa Interviews. According to media reports, the U.S. Department of State has instructed U.S. consulates to refrain from scheduling new interviews for applicants seeking visas to study in the United States in preparation for new social media vetting protocols. The State Department will reportedly be issuing guidance as to what such vetting will entail. The increased scrutiny of foreign students’ social media activities is likely rooted in President Donald Trump’s executive order, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” which instructs the secretary of state, the attorney general, the secretary of homeland security, and the director of national intelligence to ensure “that all aliens seeking admission to the United States, or who are already in the United States, are vetted and screened to the maximum degree possible.”
House Committee Examines DEI on College Campuses. The House Committee on Education and the Workforce’s Subcommittee on Higher Education and Workforce Development held a hearing last week entitled “Restoring Excellence: The Case Against DEI.” The hearing primarily focused on fallout from the Supreme Court of the United States’ 2023 ruling prohibiting the use of affirmative action in college admissions, including alleged ongoing discrimination in the college admissions process. Witnesses and lawmakers also examined college accreditation standards and medical school curricula, among other topics. The Dismantle DEI Act, introduced in 2024 by then-senator J.D. Vance, was not discussed.
Republican Lawmakers Seek Input on Transparency Reforms for Union Members. Chair of the House Committee on Education and the Workforce Tim Walberg (R-MI), along with Representative Rick Allen (R-GA), who chairs the Subcommittee on Health, Employment, Labor, and Pensions, sent an open letter to stakeholders soliciting feedback on potential revisions to the Labor-Management Reporting and Disclosure Act (LMRDA) “to inform Congress how it can reform the LMRDA to ensure labor organizations adhere to the highest standards of responsibility and ethical conduct.” The letter is divided into the following issue area categories:
Strengthening Member Governance and Voting Rights (e.g., “Should a union be required to hold a secret ballot vote of membership to ratify a collective bargaining agreement or authorize a strike?” And, “What information should a union be required to share with membership during contract negotiations and before a strike authorization?”)
Fiscal Transparency and Fiduciary Duty (e.g., “How can Congress clarify or strengthen fiduciary responsibilities of union officers?”)
Political Expenditures and Member Consent (e.g., “What reforms would give members more direct control over the portion of their dues used for lobbying, campaign contributions, or ballot-measure advocacy?”)
Digital Disclosure and Data Accessibility
Enforcement, Compliance Assistance, and Whistleblower Protections (e.g., “Do current criminal and civil penalties under the LMRDA adequately deter embezzlement, vote rigging, and false reporting? If not, how should they be updated?” And, “Should Congress establish a private right of action or a more robust whistleblower protection program to assist members with reporting wrongdoing?”)
The letter requests that all stakeholder feedback be submitted by July 22, 2025. The Buzz expects that this information will eventually lead to the introduction of legislation amending the LMRDA.
Labor Secretary Outlines Priorities on Capitol Hill. As part of the fiscal year (FY) 2026 appropriations process, Secretary of Labor Lori Chavez-DeRemer testified last week before the Senate Subcommittee on Labor, Health and Human Services, Education, and Related Agencies.
RIP, Harrison Tyler. Harrison Ruffin Tyler died on May 25, 2025, at the age of ninety-six. A chemical engineer and historical preservationist, Tyler was, quite amazingly, the grandson of our tenth president, John Tyler, who served as our chief executive from 1841–1845. How could someone who passed away this week have a grandfather born in 1790, just one year after ratification of the U.S. Constitution? Well, it helps that John Tyler fathered more children—fifteen—than any other president. It also helps that one of those children—Lyon Gardiner Tyler—was born to John Tyler’s second wife (Julia Gardiner Tyler) in 1853, when the former president was sixty-three years old. Like his father, Lyon Gardiner also married twice, and his second wife, Sue Ruffin, was thirty-five years his junior. Ruffin gave birth to Harrison Ruffin Tyler in 1928, when Lyon Tyler was seventy-five years old.
TSCA Section 21 Petition Seeks Reconsideration of 2024 Rule Regarding Procedures for Chemical Risk Evaluation
On May 15, 2025, the Center for Environmental Accountability (CEA) filed a petition under Section 21 of the Toxic Substances Control Act (TSCA) requesting that the U.S. Environmental Protection Agency (EPA) reconsider the 2024 final rule regarding procedures for chemical risk evaluation under TSCA and initiate a rulemaking to amend certain provisions in 40 C.F.R. Part 702, subpart B. According to CEA, the current process “has led to overly conservative risk conclusions and, in turn, unnecessary risk management rules that force industry to abandon well-studied chemistries that provide beneficial uses in our daily lives.” The petition states that EPA’s risk evaluation procedural regulations should:
Provide additional definitions for key terms, offering increased transparency and clarity regarding methods and goals of the risk evaluation process;
Bolster intra- and interagency collaboration throughout the risk evaluation process, including requirements that EPA document the outcome of those efforts;
Confirm EPA’s authority to determine which conditions of use (COU) fall within the scope of a risk evaluation;
Explain the criteria EPA may use in determining the COUs it expects to consider;
Provide for a de minimis level below which EPA may exclude COUs from the scope of the risk evaluation;
Explicitly require consideration of existing regulations administered by EPA and other agencies when determining exposure estimates for each COU for a chemical substance;
Require that any assumptions, uncertainty factors, models, and/or screening approaches used in the risk evaluation reasonably reflect the COUs of the chemical substance in practice;
Require EPA to make an unreasonable risk determination for each COU of a chemical substance assessed in a risk evaluation;
Clarify when determinations regarding unreasonable risk or no unreasonable risk are considered final agency actions;
Explicitly require peer review for all risk evaluations;
Create a clear regulatory pathway for the development and submission of draft risk evaluations by requesting manufacturers and other interested persons; and
Extend applicable comment periods and include opportunities for further extensions.
Under TSCA Section 21, EPA has 90 days from the date of receipt to grant or deny the petition. More information on EPA’s 2024 procedural framework rule for conducting TSCA risk evaluations is available in our May 14, 2024, memorandum.