Whenever a federal agency proposes a project on federal land in Idaho, there is a good chance that the project will face a legal challenge under the National Environmental Policy Act (“NEPA”). That should come as no surprise. Thousands of NEPA lawsuits have been filed over the years challenging a wide variety of actions taken by agencies on federal lands throughout the West. Plaintiffs have long praised the statute as the “Magna Carta” of environmental law, while critics have suggested that NEPA unnecessarily imposes bureaucratic red tape and encourages judicial activism.[1]

To be sure, NEPA litigation affects not only national policies but also has shaped the pace of development, conservation, and economic growth in our state. In Idaho, the federal government owns nearly two-thirds of the State’s entire land mass, and plaintiffs have relied on NEPA to challenge federal agency decisions approving renewable energy, mining, and road construction projects.[2] NEPA litigation is particularly important in Idaho, and the contours of that litigation soon may change.

Earlier this year, the United States Supreme Court issued a decision in Seven County Infrastructure Coalition v. Eagle County announcing a “course correction” meant to bring judicial review under NEPA “back in line with the statutory text and common sense.”[3] The Court emphasized that Congress did not design NEPA to act as a substantive roadblock for courts to hamstring projects on federal lands.[4] Instead, reviewing courts must defer to a federal agency’s discretionary decisions as to where to draw the line in analyzing environmental impacts under the statute.[5]

According to the D.C. Circuit, the Supreme Court in Seven County essentially “shut the courthouse door to NEPA nitpicking.”[6] However, it is unclear whether that is also true here in Idaho and in the Ninth Circuit. For Idaho lawyers and those in other western states, NEPA litigation inevitably will continue, and federal courts will need to grapple with the Supreme Court’s “course correction” to decide whether NEPA nitpicking actually will come to an end in the West.

NEPA Is a Procedural Statute 

The primary purpose of NEPA is not to dictate substantive outcomes, but to ensure that federal agencies take a “hard look” at the environmental consequences of their actions before making decisions. [7] Agencies must analyze environmental effects and consider reasonable alternatives, but NEPA does not mandate any substantive standards or particular outcomes.[8] NEPA is a procedural statute, and it does not require a federal agency to mitigate environmental impacts or to reach a specific result. As the Supreme Court explained more than three decades ago, “NEPA merely prohibits uninformed—rather than unwise—agency action.”[9] NEPA demands that agencies show their work, but it does not grade the quality of the answers.

Since President Nixon signed NEPA into law in 1970, it has generated lawsuits nationwide, including many here in Idaho. Critics have suggested that NEPA “remains an anachronism that unduly politicizes environmental protection and encourages judicial activism.”[10] The statute applies to a broad range of federal agency actions, and it gives plaintiffs a relatively straightforward opportunity to attempt to delay, or even to prevent, projects from proceeding as the government becomes bogged down in litigation.

Idaho alone provides no shortage of examples. Earlier this year, several conservation groups filed a federal lawsuit against the Forest Service challenging the agency’s approval of a mining project in Central Idaho. The mining company explained that the project “has undergone a rigorous, science-based environmental review over the course of eight years,” yet it still resulted in NEPA litigation.[11]

Or, consider the Lava Ridge Wind Project, a renewable energy project in southern Idaho that faced widespread opposition from state and local officials, residents, and environmental groups. Although that project was canceled not by a lawsuit but by an executive decision, it still highlights the potential weaponization of NEPA: years of environmental review followed by litigation (or the threat thereof) and political uncertainty.[12] Even when litigation is not the decisive factor, the specter of NEPA challenges continues to shape the pace of Idaho’s energy development.

Even so, the Supreme Court’s Seven County decision may not change much from the plaintiff’s perspective, especially if their goal is to delay.

NEPA Plaintiffs Still May Claim to “Win” Without a Favorable Judgment.

Environmental plaintiffs and project opponents routinely achieve their broader goals of delaying or halting projects, even when they do not ultimately prevail in court.  For instance, a pipeline company filed an application in 2015 with the Federal Energy Regulatory Commission to construct and operate a natural gas pipeline extending from West Virginia to North Carolina.[13] To comply with NEPA, the Commission prepared an environmental impact statement that analyzed alternative pipeline routes and assessed environmental impacts from construction activities.[14] In 2017, the Commission approved the $8 billion pipeline project.[15]

Litigation quickly followed.[16] The Fourth Circuit eventually vacated the agency’s decision, and the intervenor company petitioned the Supreme Court for further review.[17]  After granting certiorari, the Supreme Court reversed the Fourth Circuit in 2019 in a 6-2 decision.[18] But after years of litigation, including its Supreme Court victory, the company announced in 2020 that it had abandoned the project.[19] In this instance, an intervenor, Appalachian Voices (a nonprofit organiation that opposed the pipeline), lost in court but declared a win nonetheless, praising the cancellation of the project as “a monumental victory for the many communities that spent the better part of a decade fighting this fracked-gas monstrosity.”[20]

Thus, even when plaintiffs lose in court, they can claim victory by creating long delays and mounting costs, and when uncertainty looms, investors ultimately may decide to abandon a project long before the first shovel hits the ground. For Idaho projects, it is no different. Even unsuccessful NEPA challenges can alter timelines so significantly that investors may decide to walk away, effectively handing plaintiffs a “win” outside the courtroom.

Substantial Judicial Deference Has Limits.   

NEPA contains no provision for judicial review, so a court reviews an agency’s compliance with the statute under the Administrative Procedure Act.[21] If the court concludes that an agency’s action was arbitrary or capricious, or otherwise not in accordance with the law, the court may order the agency to reconsider its analysis and to fix any issues on remand.[22]

In practice, federal agencies often compile massive administrative records, as the NEPA review process may take years to complete, depending on the project. After an agency finally completes its review and approves a project, opponents then can file a lawsuit challenging various aspects of the agency’s environmental analysis as potential NEPA violations. For example, earlier this year, six environmental groups filed a lawsuit in federal district court against the Forest Service challenging the agency’s approval of the Stibnite Gold Project in Valley County, Idaho.[23] In that case, plaintiffs allege under NEPA that the Forest Service failed to take a “hard look” at the environmental impacts of mining antimony and gold, and they allege that the Forest Service failed to consider reasonable alternatives in its analysis.[24] The case is still pending, but the outcome of these NEPA claims likely will be impacted by the Supreme Court’s decision in Seven County. The litigation is worth watching.

In some ways, Seven County simply reinforced existing precedent. NEPA remains a purely procedural statute, and an agency’s only obligation is to prepare an “adequate” environmental analysis.[25] Yet a reviewing court still must confirm that the agency properly addressed the potential environmental impacts of the proposed action and that the agency considered feasible alternatives for the relevant project.[26]

The Supreme Court recognized that judicial deference in NEPA cases can take several forms.[27] The Supreme Court did not hold, however, that judicial deference is absolute.[28] Courts should afford substantial deference to agencies, but that does not mean that agencies always will prevail. Judge Nelson’s recent Ninth Circuit decision in a NEPA challenge brought by the Center for Biological Diversity illustrates this.[29]

In reviewing a billion-dollar oil and gas project that potentially will employ more than 1,000 people in Alaska, the Ninth Circuit still remanded the case back to the Bureau of Land Management after the Supreme Court decided Seven County because the agency “never explained” in the administrative record how its chosen alternative complied with its existing regulations that imposed certain development requirements on federal leases. A court’s review of an agency’s NEPA analysis must be under its most deferential standard, but a court cannot defer to something that does not exist.

Even after Seven County, an agency’s action remains arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[30] It is not NEPA “nitpicking” to require agencies to meet this baseline standard.

Doors Ajar, Not Shut

In future NEPA litigation, the outcome of a particular challenge to a project will likely continue to depend on the unique facts of each case even if the litigants rely heavily on Seven County. Courts will continue to apply the “rule of reason,” which, for NEPA analysis, is functionally identical to an abuse of discretion review.[31] Substantial deference under Seven County will not necessarily eliminate careful, searching judicial review, especially in the Ninth Circuit given its long history in deciding NEPA cases.  Courts will continue to enforce NEPA, and agencies will be held accountable for omissions and errors.

For Idaho lawyers, the takeaway is clear. NEPA litigation will continue because the statute applies to a broad range of federal agency actions, and it still provides plaintiffs with a relatively straightforward tool to delay (or to prevent) projects from proceeding. The Ninth Circuit has not yet “shut the courthouse door to NEPA nitpicking,” even if the Supreme Court’s decision in Seven County has narrowed the pathway for successful claims. It may be that the courtroom doors remain open, just a bit less ajar than they used to be.[32]

Jeff Beelaert is a partner at Givens Pursley LLP in Boise.  He handles complex appellate and trial court litigation, focusing primarily on environmental law and commercial disputes. Jeff previously served as an appellate lawyer in the Environment and Natural Resources Division at the U.S. Department of Justice in Washington, DC.

[1] Caroline Llanes, How the ‘Magna Carta’ of U.S. Environmental Law Works in the West, and How the Trump Administration Wants to Change It, Aspen Pub. Radio (Apr. 3, 2025), https://www.aspenpublicradio.org/2025-04-03/how-the-magna-carta-of-u-s-environmental-law-works-in-the-west-and-how-the-trump-administration-wants-to-change-it; Connor Henderson, Matthew Spero & Gloria Lyu, Is It Time to Reform a Landmark U.S. Environmental Law?, The Regulatory Review (May 10, 2025), https://www.theregreview.org/2025/05/10/seminar-is-it-time-to-reform-a-landmark-u-s-environmental-law/.

[2] Congressional Research Service, CRS Report No. R42346, Federal Land Ownership: Overview and Data (2018), https://www.congress.gov/crs-product/R42346.

[3] Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975, 605 U.S. ___ (2025).

[4] Id.

[5] Id.

[6] Sierra Club v. FERC, 145 F.4th 74, 89 (D.C. Cir. 2025).

[7] Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 872 (9th Cir. 2022).

[8] Id.

[9] Robertson v. Methow Valley Citizens, 490 U.S. 332, 351 (1989).

[10] Diane Katz, Curbing Abuses of a Politicized NEPA, Heritage Foundation (Aug. 25, 2020).

[11] Conservation Groups File Lawsuit Challenging Approval of Central Idaho’s Stibnite Gold Mine, Idaho Capital Sun (Feb. 20, 2025), https://www.idahocapitalsun.com/2025/02/20/conservation-groups-file-lawsuit-challenging-approval-of-central-idahos-stibnite-gold-mine/.

[12] Id.

[13] See Forest Service v. Cowpasture River Preservation Ass’n, 590 U.S. 604 (2020).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id. 

[19] Jonathan Mingle, How Overreach by Trump Administration Derailed Big Pipeline Projects, e360 (Yale School of the Environment), July 15, 2020, https://e360.yale.edu/features/how-overreach-by-trump-administration-derailed-big-pipeline-projects.

[20] CANCELED: Atlantic Coast Pipeline, Appalachian Voices, https://appvoices.org/pipelines/atlantic-coast-pipeline/.

[21] 5 U.S.C. § 706; see also Native Ecosystems Council v. Forest Service, 428 F.3d 1233, 1238 (9th Cir. 2005) (reviewing alleged NEPA violations under the Administrative Procedure Act). 

[22] Id. 

[23] Clark Corbin, Conservation Groups File Lawsuit Challenging Approval of Central Idaho’s Stibnite Gold Mine, Idaho Capital Sun (Feb. 20, 2025), https://www.idahocapitalsun.com/2025/02/20/conservation-groups-file-lawsuit-challenging-approval-of-central-idahos-stibnite-gold-mine/.

[24] See Complaint ¶¶ 219–33, Save the South Fork Salmon v. Forest Service, No. 1:25-cv-00086-AKB (D. Idaho Feb. 18, 2025) (Dkt. No. 1).

[25] Supra Note 3.

[26] Id. 

[27] Id. 

[28] Id. 

[29] Supra Note 7.

[30] Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co.,

463 U.S. 29, 43 (1983).

[31]  Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 n.23 (1989) (explaining that the difference between the Ninth Circuit’s “reasonableness” standard and an arbitrary-or-capricious or abuse of discretion standard is “not of great pragmatic consequence”).

[32] Sierra Club v. FERC, __ F.4th __ (D.C. Cir. 2025) (2025 WL 2178519).