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10 Admin. L. Rev. Accord 1 (2025)

handle is hein.journals/alrcod10 and id is 1 raw text is: THE SEVEN COUNTT CASE AND THE LIMITS OF CAUSATION UNDER NEPA ERIC G. BIBER* & DANIEL A. FARBER** This spring, the Supreme Court will decide Seven County Infrastructure Coali- tion v. Eagle County, itsfirst significant case under the National Environmental Policy Act (NEPA) since the early 2000s. The Court is considering the extent to which proximate causation doctrines constrain the analysis that NEPA requires agencies to undertake. This Article provides a concise, but thorough, analysis of the petitioners' claims to narrow dra- matically the scope of NEPA. More broadly, this Article analyzes how proximate cause principles should constrain NEPA review. We reject proposed artificial limits on the range of effects an agency must consider. Although the Court has borrowed the concept of proximate causefrom tort law, wefind that analogy most persuasive as supportforforeseeability as a key concept. Claims by the petitioners that NEPA review necessarily forecloses analysis of impacts such as cli- mate change that are physically distant from a project are inconsistent with the purposes of the statute or proximate cause principles. However, we recognize limits stemming from NEPA's purpose ofinformed decisionmaking. The primary limits involve theforeseeability of efects, their analytic tractability, and their position of environmental significance. Such limits mean that there will generally be greater limits on indirect efects analysis that applies to site-specifc impacts as opposed to aggregate effects. IN TR O D U CTIO N ....................................................................................... 2 I. EVOLVING RULES OF NEPA CAUSATION........................................ 4 A. Causation and the CEQ Regulations ............................................. 4 B. NEPA Causation in the Supreme Court .......................................... 6 C. The 2022 NEPA Amendments and the Causation Issue ................... 9 II. THE SEVEN COUNTT CASE: CONSIDERATION OF UPSTREAM AND D OWN STREAM EFFECTS ................................................................ 10 * Edward C. Halbach Jr. Professor of Law at the University of California, Berkeley. ** Sho Sato Professor of Law and Faculty Director of the Center for Law, Energy, and the Environment at the University of California, Berkeley. The authors are grateful to Jona- than Adler, Mark Gergen, Rob Glicksman, Richard Lazarus, and Justin Pidot for their thoughtful comments on an earlier draft. 1

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