The opening salvo from the lawyer representing the seven rural Utah counties that desire a new railroad to attach Uinta Basin oilfields with the nationwide rail community was fairly easy. However its implications had been sweeping.
“Eighty-eight miles of observe shouldn’t require greater than 3,600 pages of environmental evaluation,” mentioned lawyer Paul Clement, arguing for the Uinta Basin Railway earlier than the U.S. Supreme Court docket on Tuesday in a case that may restrict the scope of the 1970 Nationwide Environmental Coverage Act, or NEPA.
However what if these 88 miles of latest railroad in northeastern Utah direct a gradual stream of 2-mile lengthy trains carrying viscous, waxy crude alongside a bit of the Colorado River to Gulf Coast refineries that would add extra ozone-depleting greenhouse gases to a warming local weather? Ought to a federal company be required to check these far-flung results underneath NEPA?
Supreme Court docket justices peppered a trio of attorneys with almost two hours of questions within the Seven County Infrastructure Coalition’s attraction of a 2023 choice by the U.S. Court docket of Appeals for the D.C. Circuit that overturned the Floor Transportation Board’s 2021 approval of the Uinta Basin Railway.
Opponents of the railroad — together with Eagle County and several other environmental teams that sued in 2022 to overturn the transportation board’s approval of the rail line — argue the federal transportation board ought to have extra intently studied the potential local weather impacts of refining a further 5 billions gallons of Uinta Basin waxy crude yearly in addition to threats of derailments to the Colorado River and communities alongside the tracks.
Supporters of the railroad argue that NEPA shouldn’t drive the railroad builders to contemplate impacts hundreds of miles away when different federal businesses and native communities play a job in mitigating threats to air, water and railroad security.
All of the justices listening to the case requested questions. (Justice Neil Gorsuch final week recused himself from the case, citing the brand new Code of Conduct for Justices of the Supreme Court docket. The Denver-born Gorsuch as soon as labored for Colorado billionaire Philip Anschutz, whose power firm wrote a quick within the Uinta Basin Railway case asking the courtroom to slender the scope of NEPA. Final month, a dozen U.S. Congress representatives despatched Gorsuch a letter urging him to step apart within the case.)
The justices appeared important of either side. Justice Sonia Sotomayor appeared dismissive of the argument that the Floor Transportation Board didn’t have to contemplate downstream impacts of the rail line as a result of different businesses regulate practice security, local weather impacts and native refinery operations.
“So … your generalized rule: ‘I don’t have to consider it if one other company has jurisdiction,’ doesn’t make sense on this statutory scheme,” Sotomayor mentioned to Clement. “These absolute guidelines, or how we clarify them, actually rely upon every particular person case. You need absolute guidelines that make no sense.”
When the Floor Transportation Board in 2021 permitted a brand new 88-mile railroad connecting the Uinta Basin oilfields with the nationwide rail community in central Utah, the board’s 1,700-page environmental evaluation — and one other 1,900 pages of appendices — recognized potential impacts from the elevated variety of crude-hauling trains. These embody doable derailments, spills and air pollution points in communities close to Gulf Coast refineries the place the crude can be processed.
“In traditional no-good-deed-goes-unpunished vogue, the D.C. Circuit (Court docket) held that as a result of the company recognized the difficulty or flagged the difficulty, it was subsequently foreseeable and so they needed to do extra. That’s a recipe for turning a procedural statute right into a substantive highway block,” Clement mentioned.
He mentioned the transportation board in its evaluation of the proposed railroad adopted the rules of NEPA, labored with dozens of federal and state businesses and “thought-about each proximate impact and ordered 91 mitigation measures.”
Justice Ketanji Brown Jackson mentioned the railroad supporters’ argument that centered on whether or not the federal transportation board needs to be accountable for all of the issues that would go unsuitable because the crude leaves the brand new tracks and winds by way of a number of states to refineries wrongly relieves the board’s obligation to deal with some foreseeable environmental impacts removed from the precise railroad. It shouldn’t be all about emergencies and accidents.
“I believed NEPA was concerning the company who has some accountability over a side of this venture figuring out whether or not or to not approve it, and it’s bought to consider not solely the environmental penalties of the particular constructing of its piece, however no matter approving its piece goes to have occur within the atmosphere broader than that,” Jackson mentioned. “Now, I perceive that’s actually laborious to do. It will get far afield, and we are able to struggle concerning the extent of that, however your argument wanting solely on the 88 miles, I believe may slender in too intently for a goal of actually informing the company about its approval of this piece of the venture.”
Justice Elena Kagan appeared to agree together with her colleague.
“What I fear about along with your check is that you simply’re suggesting that the company can’t even have a look at the, , results of the venture outdoors of the very piece that it has sole accountability for,” she informed Clement. “And I don’t know that NEPA was really designed to be that slender.”
The federal Council on Environmental High quality adopted new rules in 2023 that restrict Environmental Influence Statements to at least one yr and to 150 pages, or 300 pages for “motion of bizarre scope and complexity.” The Biden Administration’s council up to date the rules after discovering that the common size of a closing EIS carried out by the Federal Freeway Administration was 742 pages and the common time for the NEPA evaluation was 7.37 years.
The U.S. authorities took a extra nuanced place, defending each NEPA and the transportation board’s choice, and expressed concern that courtroom rulings may hinder federal businesses and their skill to control and evaluation each the direct and oblique impacts of initiatives. The justices prodded Edwin Kneedler, with the Division of Justice, to deal with the place the federal authorities may draw the road between finding out oblique results of a venture.
When ought to an company be allowed to exceed the 150-page restrict for environmental opinions?, requested Chief Justice John Roberts.
“The web page restrict, I believe, needs to be a statutory affirmation that the company shouldn’t need to go to the ends of the earth to focus or to determine the environmental difficulty,” Kneedler mentioned. “It ought to give attention to … figuring out what the core issues are. I believe the courts should be reminded … that the company will get to determine … how deeply it wants to enter one thing.”
Justice Brett Kavanaugh mentioned there was “an essential distinction” to be made between the function of businesses utilizing “reasonableness” in reviewing initiatives underneath NEPA and the function of the courts in reviewing the work of these businesses.
“It appears to me the deference of the courts must be big with respect to how the businesses take into consideration the scope of what they’re going to contemplate,” Kavanaugh mentioned. “And it appears to me, the issue that has crept in is conflating what the company can do and will do, from what the function of the courts is right here. By the courts taking an excessively aggressive function, it’s in flip created an incentive for the businesses to do 3,000-page Environmental Influence Statements.”
Eagle County, the one neighborhood within the state to formally oppose the railway plan within the 2021 environmental evaluation, is the one Colorado authorities in a position to argue the case. The county has the backing of many communities against the railway plan that may route extra crude tankers alongside the Colorado River and thru metro Denver. Eagle County and several other environmental teams — led by the Heart for Organic Range — sued the Floor Transportation Board in 2022 to overturn the choice.
Legal professional William Jay argued on behalf of the county and the environmental teams, urging assist for current rules in NEPA that require businesses to check “moderately foreseeable penalties,” reminiscent of derailments, wildfire, oil spills and local weather impacts from processing a further 5 billion gallons of crude a yr.
“I do suppose it’s slightly bit deceptive for Mr. Clement to counsel that is an 88-mile railroad, as if the practice simply went forwards and backwards for 88 miles,” Jay mentioned. “It’s a connection to the nationwide rail community whose whole goal was to carry this oil to market.”
The justices appeared cautious of giving the Floor Transportation Board the flexibility to ban sure forms of cargo — like crude oil — as a result of the board doesn’t need air pollution from oil refining. The regulation doesn’t permit the board to discriminate based mostly on cargo, Sotomayor mentioned.
“Then why is it inside their purview to say or decide what the rise in refining might be and whether or not it will likely be damaging when there may be one other company that has that energy to regulate that?” Sotomayor mentioned. “It’s not the carrying that causes the air pollution. It’s the refining that causes the air pollution, and the railroad can’t management that as a result of it may well’t prohibit it.”
Jay mentioned NEPA requires businesses to check harms they can not mitigate and harms that don’t regulate immediately “exactly as a result of they supply a springboard for public remark to the company. … It permits the general public to take part within the course of.”
Rulings by the Supreme Court docket are sometimes handed down by late June or early July when the courtroom recesses for the summer season.
