Utah’s Seven County Infrastructure Coalition in March petitioned the U.S. Supreme Court to review an appeals court’s decision that “derailed” the Uinta Basin Railway project, according to Colorado Newsline. On June 24, SCOTUS decided to review one aspect of that lower court ruling, and on Aug. 28 the Surface Transportation Board (STB), which had approved line construction, told SCOTUS that its approval was wrongly revoked, “saying the appeals court went beyond what the law requires for environmental reviews,” legal news service Law 360 reported. SCOTUS has now set a date for oral arguments, The Daily Sentinel reported Oct. 19.
The Surface Transportation Board’s (STB) December 2021 approval of construction and operation of the Uinta Basin Railway was struck down in August 2023 by the U.S. Court of Appeals for the District of Columbia Circuit, which called it “arbitrary and capricious.”
The 88-mile line would be the first major freight railroad built in the U.S. in the past 30 years. Behind the project is Seven County Infrastructure Coalition, an “independent political subdivision” of the state of Utah that sought STB approval for the line, which would primarily haul shale-extracted crude oil. The Coalition joined forces with Drexel Hamilton Infrastructure Partners to raise private capital for the build and with Rio Grande Pacific Corporation to operate and maintain the line once completed. AECOM was chosen to lead the design, and the Skanska-Clyde Joint Venture and Obayashi Corporation would help with construction.
The U.S. Court of Appeals for the District of Columbia Circuit’s Aug. 18, 2023, decision granted in part the consolidated petitions of line opponents Eagle County, Colo., and the Center for Biological Diversity, and vacated the STB’s final exemption order. It also vacated in part STB’s Environmental Impact Statement outlining the various impacts associated with the railway’s construction and operation, and the Biological Opinion concerning the railway’s potential impacts on endangered species and critical habitats. The matter was remanded to STB for further proceedings.
In a March 4, 2024, U.S. Supreme Court filing, the Seven County Infrastructure Coalition “claims the D.C. appeals court decision took too broad a view of the National Environmental Policy Act [NEPA] review required of the rail project, and that the federal regulatory agencies did not have to consider the impacts to Colorado or the Gulf Coast communities where the oil would be refined,” according to Colorado Newsline.
The media outlet explained that “[a]t stake is whether federal regulatory agencies must consider downstream impacts such as potential oil spills, wildfires and carbon emissions contributing to global warming. The coalition cites a 2004 case, Department of Transportation v. Public Citizen, which found an agency’s limited authority might not require it to consider more far-reaching impacts under NEPA.”
The coalition argued in the petition that “[b]oundless NEPA review hurts project proponents and the public too,” Colorado Newsline reported. “The time and expense of environmental review is a barrier to all kinds of new projects — including clean energy projects — that prevents some of them from ever getting off the ground. In the end, the only way to stop runaway scoping from overwhelming the NEPA process is to consistently apply this Court’s holding in Public Citizen.”
According to Colorado Newsline, appellate courts have interpreted the Public Citizen decision differently.
The issue is whether the STB “should have weighed the potential environmental harm of the railroad’s main cargo, both where the oil is drilled in Utah and refined on the Gulf Coast, when it has no regulatory authority over oil production,” The Associated Press explained in a June 24 report.
According to Law 360, the STB on Aug. 28 said that NEPA “does not require it to analyze the upstream and downstream consequences of oil and gas development in determining whether to authorize the construction and operation of the proposed railroad line, as the [U.S. Court of Appeals for the] D.C. Circuit found in an August 2023 ruling.”
“According to the STB,” Law 360 reported, “longstanding White House Council on Environmental Quality regulations implementing NEPA only require agencies to examine the ‘reasonably foreseeable’ effects of a proposed action. The board also said the Supreme Court has emphasized that the law only requires agencies to examine the effects for which the agency’s action is the ‘legally relevant cause.’
“‘In this case, the board drew a reasonable line in declining to undertake more detailed analysis of the upstream and downstream effects of oil and gas development in its environmental impact statement supporting the authorization of a new railroad line from the Uinta Basin,’ the STB said in a brief. ‘The board authorizes railroad construction and operation, not the development and use of the commodities that travel over those lines.’ The agency said that as part of its approval, it must enforce a common-carrier obligation that generally prohibits carriers from declining to provide transport based on the nature of the commodity.”
Additionally, the STB said that “‘other entities, including in some instances other federal agencies, have the authority to approve oil and gas development projects in the Uinta Basin and to regulate the localized effects of refining at the place where oil from the basin might ultimately be transported,’” according to Law 360.
SCOTUS will hear oral arguments Dec. 10, according to The Daily Sentinel of Grand Junction, Colo. “It strains credulity to contend that laying 88 miles of track in rural Utah is proximately related to climate change or environmental harm in Gulf Coast communities,” attorneys for the Seven County Infrastructure Coalition and the Uinta Basin Railway, LLC wrote in an Aug. 28 brief to the Supreme Court, according to the newspaper. “So too for potential downline train accidents: It beggars belief that the legally relevant (i.e., proximate) cause of an accident several States away could somehow be the Uinta Basin Railway — and not, for instance, the engineer of the relevant train, the train manufacturer, or the operator of the relevant track.“
According to the newspaper, the brief notes that “NEPA was designed to ensure that agencies did not proceed heedless of environmental consequences, not to require exhaustive consideration of remote contingencies or tie infrastructure projects in endless red tape.”
“Attorneys for the Justice Department in a brief also argued that the portion of the appeals court ‘decision holding that the Board erred in declining to undertake additional analysis of the upstream and downstream effects of oil and gas development should be reversed,’” The Daily Sentinel reported. “It said the board reasonably determined that those effects ‘were too attenuated, speculative, and otherwise insufficiently material to the Board’s decisionmaking to require additional consideration under NEPA.’”
According to the newspaper, “Ted Zukoski, an attorney with the Center for Biological Diversity, said Friday [Oct. 18], ‘We’re going to make our best arguments (before the Supreme Court) and we think the D.C. Circuit (court) got it right.‘”
