Fresh off a major victory at the U.S. Supreme Court, Jay Johnson, a partner in Venable’s Appellate and Environmental practices, reflects on the significance of the Court’s ruling, which narrows the scope of NEPA reviews and paves the way for infrastructure projects across industries to move forward with greater certainty.
Q: What type of law do you typically practice, and how did you get involved in this area?
Jay: After law school, I clerked for an appellate judge, and at my first law firm I began working with appellate lawyers, which quickly became an interest. A few years into my practice, I began focusing on environmental permitting for railroads, infrastructure, and mining projects. These two areas—environmental and appellate—turned out to overlap quite a bit, since the projects we handled were often controversial and frequently led to litigation.
Q: Your recent Supreme Court victory involved a railroad project in Utah that was facing environmental challenges. What are the types of issues that typically arise in these types of projects?
Jay: Anytime you're building something significant—like, in this case, an 88-mile railroad project—you're changing the land from one use to another, and that’s inherently controversial. But beyond the physical footprint, these projects often draw attention because of their intended use. Whether it's transporting materials by rail or extracting resources from the ground, it's often the end use, not just the construction, that drives the opposition.
Q: What was the intended use for the railroad in the Utah project, and why was it challenged?
Jay: The project at the center of this case is intended to transport crude oil out of the Uinta Basin—an isolated region in Utah covering about 12,000 square miles—to refineries around the country, where it can be refined into lubricants, fuels, and other products. Despite its size, the Uinta Basin is quite remote in terms of infrastructure. The only way into the basin is a two-lane highway that winds over the mountains for many miles. The idea behind the railroad is to eliminate the need for hundreds of trucks transporting oil over that narrow highway. From a transportation standpoint, trains produce significantly less pollution than trucks and are much safer overall. So the challenges to the project were more about transporting oil than about building a railroad.
Q: What was the core issue that got this case all the way to the Supreme Court?
Jay: In our case, we believed we had conducted an extremely thorough environmental review—3,600 pages long in total. When we brought our comprehensive environmental review to the DC Circuit Court of Appeals, the court acknowledged we had examined the full 88-mile route and had even considered downstream effects, like what happens if there’s an accident on the way to a refinery. But the court still said, essentially, "You could have done more." We felt the DC Circuit Court’s decision conflicted with prior Supreme Court rulings and with decisions from other courts around the country. So we asked the Supreme Court to resolve that conflict and clarify how far agencies must go when conducting environmental reviews under the National Environmental Policy Act (NEPA).
Q: Ultimately, this was one of the first cases to successfully challenge NEPA. Why was the challenge necessary in this case?
Jay: NEPA requires federal agencies to prepare a report on the environmental impacts of any proposed actions before moving forward. NEPA doesn’t prohibit actions with environmental impacts; it simply mandates that those impacts be disclosed in advance. But over the years, these reviews have become significant obstacles to project approvals. By the time we brought this case to the Supreme Court, the average NEPA review was taking more than four years—and that’s before any litigation even began. So part of what we asked the Court to do was to recognize that, in the real world, the NEPA process had become unmanageable. We asked for guidance to help reestablish what the Court has called in past decisions a "manageable line."
Q: How did the court rule in this case, and what difference will the decision make to future infrastructure projects?
Jay: The Court’s primary findings were, first, that lower courts must give deference to agencies when those agencies make reasonable factual decisions. Second, that agencies are allowed to limit their environmental reviews to the parts of a project that fall within their authority. So, for example, if the Surface Transportation Board (STB) is responsible for approving a new railroad, it doesn’t have to analyze what might happen 1,000 miles away in another state. Several federal agencies have already begun issuing updated NEPA procedures, all citing our case. They’ve emphasized that NEPA reviews need to be more efficient and completed within the statutory timeline—which is two years—and that reviews should be reasonably scoped.
Q: The Supreme Court ruling also clarified federal preemption under the ICC Termination Act (ICCTA). Can you explain the significance of the Court’s interpretation of ICCTA?
Jay: Under ICCTA, the railroads are governed by what's known as the "common carrier" obligation. This means that if a customer asks a railroad to ship something to a destination, the railroad can’t refuse based on the nature of the cargo. That mattered in this case because the railroad had no option to reject the oil being shipped. Part of the Supreme Court’s reasoning was that if the railroad has no discretion to refuse the cargo, it doesn’t make much sense to require it to analyze the environmental effects of that cargo. From the railroad’s perspective, the consequences—whether more pollution or other impacts—are irrelevant, because it has no legal choice in the matter under ICCTA as it currently stands.
Q: Building coalitions seems to be an important aspect of these types of litigations. Can you talk about your work with the various stakeholders this matter?
Jay: Coalitions play a crucial role at the Supreme Court, because the Court often considers the national implications of its decisions. Our client is the Seven County Infrastructure Coalition, a group of counties in the Uinta Basin working to improve the quality of life for their residents by strengthening the region’s infrastructure. At the merits stage, we had about 20 amicus briefs filed in support of our position from a wide range of stakeholders, including farming groups, mining associations, among others. Essentially, any industry impacted by the National Environmental Policy Act (NEPA) had an interest in this case.
Q: So, the impact of this decision will truly be far reaching?
Jay: Absolutely. The key point we wanted to convey to the Court was that NEPA isn’t just a challenge for an 88-mile railroad in Utah—it’s a challenge for projects across the country. The Supreme Court’s opinion in our case reflects that reality, listing a variety of industries and projects negatively affected by overly broad interpretations of NEPA. The Court’s message was clear: NEPA should be applied in a way that benefits a broad spectrum of industries, not just railroads or oil producers. Anyone working with the federal government under NEPA should now face a more manageable and predictable process after this decision.
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