Seven County Infrastructure Coalition v. Eagle County

And so NEPA already wasn't as big a barrier there as it is in like the Ninth Circuit, which is like California, which is famously the most liberal circuit.

And what happened recently that shifted all of this was there was a big Supreme Court case called Seven County Infrastructure Coalition-

Yeah

... versus Surface Transportation Board or something like that.

Oh, I don't, I don't think that's correct.

I think one, two, three, and four, Congress was clearly, and I think the seven county footnote makes clear, that Congress was just trying to incorporate and codify what DEPA was already understood to mean in the lower courts.

I think one and two are picking up, uh, regulatory practice that had developed, including under the former CEQ regulations.

Well, can you-

Um, but this is exact-- I mean, uh, NEPA, the whole point of NEPA is to make sure that these, this kind of evaluation is happening before resource- resources are committed, such as resources in the form of teeing up a plan for an application, uh, and before the die is cast.

So no, it would not satisfy NEPA for that to all happen after the Air Force bakes its plan, tees it up, and then says, "Okay, wait, now we're gonna decide whether in-- or we're gonna evaluate the environmental effects of what we have already, you know, the ball we've already started rolling."

But aren't NEPA challenges often made after the conclusion of the process? I'm just thinking about the posture of Seven County, which we decided in twenty twenty-five.

I mean, I agree with you that if the obligation applies, it's something that has to happen at the front end, but it seems to me like NEPA challenges do sometimes happen at the back end.

Oh, I don't, I don't think that's correct.

I think one, two, three, and four, Congress was clearly, and I think the seven county footnote makes clear, that Congress was just trying to incorporate and codify what DEPA was already understood to mean in the lower courts.

I think one and two are picking up, uh, regulatory practice that had developed, including under the former CEQ regulations.

Well, can you-

Um, but this is exact-- I mean, uh, NEPA, the whole point of NEPA is to make sure that these, this kind of evaluation is happening before resource- resources are committed, such as resources in the form of teeing up a plan for an application, uh, and before the die is cast.

So no, it would not satisfy NEPA for that to all happen after the Air Force bakes its plan, tees it up, and then says, "Okay, wait, now we're gonna decide whether or, we're gonna evaluate the environmental effects of what we have already, you know, the ball we've already started rolling."

But aren't NEPA challenges often made after the conclusion of the process? I'm just thinking about the posture of Seven County, which we decided in twenty twenty-five.

I mean, I agree with you that if the obligation applies, it's something that has to happen at the front end, but it seems to me like NEPA challenges do sometimes happen at the back end.