Supreme Court Considers Reach of Environmental Impact Law

December 10, 2024 TruthUSA

The District of Columbia Circuit held that the Surface Transportation Board failed to carry out a proper review of a proposed Utah rail project.

The U.S. Supreme Court heard arguments on Dec. 10 about whether a lower court was wrong to overturn a federal agency’s approval of a proposed rail line for transporting crude oil.

In the case, known as Seven County Infrastructure Coalition v. Eagle County, Colorado, the Biden administration is opposing environmentalist groups that do not want the 88-mile rail line to be built to connect the shale oil-rich Uinta Basin region in northeastern Utah to the national rail network and out-of-state oil refineries.

The groups say the rules under the National Environmental Policy Act (NEPA) governing federal agencies’ assessment of the potential environmental impact of projects should be preserved.

The lead petitioner is a coalition comprising seven Utah counties. Uinta Basin Railway LLC, the other petitioner, was created to build the rail line. Eagle County, Colorado, is the lead respondent, and others include the Center for Biological Diversity.

The case goes back to 2020, when the coalition asked the federal Surface Transportation Board to exempt it from formal application requirements for its proposed project.

The coalition asked the board to conditionally approve its exemption petition on the merits of the transportation project subject to the environmental impact process required by NEPA. The statute requires federal agencies to look at the “reasonably foreseeable” impact of major decisions.

Over the opposition of environmentalist groups, the board gave preliminary approval to the exemption petition in January 2021. The groups sought reconsideration of the decision, which was denied.

By September 2021, the board had issued an environmental impact statement, and the U.S. Fish and Wildlife Service had released its biological impact opinion. The board released its final exemption decision in December 2021, finding that the merits of the transportation project outweighed its environmental effects.

The environmentalist groups appealed, seeking a review of the board’s exemption orders and the environmental and biological impact opinions and claiming that the board violated NEPA and the Endangered Species Act.

The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the challengers in August 2023, finding the board violated NEPA. The circuit court found that the environmental and biological impact opinions were of poor quality and failed to properly examine the project application.

Coalition attorney Paul Clement told the justices during the Dec. 10 oral argument that although NEPA is supposed “to inform government decision making, not paralyze it … it has become the single most litigated environmental statute.”

The circuit court ruling “demanded more” analysis of the project than the law requires “despite an environmental impact statement spanning 3,600 pages, including 20 appendices that addressed major impacts, minor impacts, downline impacts, and cumulative impacts.”

The circuit court “insisted that the board study the future project developments in the entire basin, the prospect of accidents and train lines hundreds of miles away, and the effect on refineries in Gulf communities thousands of miles away.”

Justice Sonia Sotomayor told Clement that the new, narrower rule that Clement seeks would be difficult “to articulate in writing” because the wording of NEPA is broad.

NEPA says agencies have to “consult with any federal agency that has jurisdiction by law or special expertise with respect to any environmental impact,” she said.

Limiting the reach of that provision and imposing “absolute rules” does not make sense, she added.

Chief Justice Roberts told Clement he had difficulty “seeing how this is going to work out as a practical matter.”

Responding to Justice Clarence Thomas, Clement said he favors a test in this case that recognizes “an obligation on the agency to cooperate with other agencies that have necessary permits and to consult with other agencies that have expertise to bring to bear on the project itself.”

Deputy U.S. Solicitor General Edwin Kneedler told the justices the circuit court erred in overturning approval of the rail project and urged that the case be sent back to the lower court for reconsideration.

Kneedler said Clement is asking for “rigid rules,” but it has “been settled for a long time that … an agency should take into account indirect effects, too, which are not just the immediate effects of the project.”

Eagle County attorney William Jay said the “entire purpose of the project” was to carry so-called waxy crude oil from the Uinta Basin to refineries. It is “reasonably foreseeable” that the project could lead to increased energy development, emissions, and accidents on railroads in Colorado, he said.

Clement’s argument has “lost any grounding in the text of NEPA,” Jay said.

Justice Neil Gorsuch recused himself from the case “consistent with the Code of Conduct for Justices of the Supreme Court of the United States,” Court Clerk Scott Harris said in a Dec. 4 letter. No further explanation was provided.

The Supreme Court is expected to issue a ruling on the case by June 2025.

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