U.S. Supreme Court justices heard oral arguments Dec. 10 in a case that, when decided next year, could reshape the scope of federal environmental reviews of states’ critical infrastructure projects united
the case, Seven County Infrastructure Coalition v. Eagle County, involves a proposed $1.5 billion, 88-mile rail line that would allow the transportation of waxy crude oil from Utah’s Uinta Basin through the Colorado Rockies to Gulf Coast refineries.
Legal observers say the decision in the case could have far-reaching ramifications for permitting projects under the National Environmental Policy Act (NEPA). Environmental advocates say the petitioners in the case — project developers and seven nearby counties — are seeking to weaken the law’s fundamental environmental protections, but challengers say the rail project received proper federal agency approvals and should have to move forward with oil development.
“We remain committed to advancing this critical infrastructure that aims to unlock economic opportunities and support the long-term development of the region,” said an emailed statement from the Seven County Infrastructure Coalition.
But said Sam Sankar, senior vice president of programs at Earthjustice, “This case is bigger than the Uinta Basin Railroad. The fossil fuel industry and its allies are making radical arguments that will blind the public to the consequences obvious for the health of government decisions.” He added that the high court “should stick with the established law”. If it doesn’t, communities will pay the price.”
The Natural Resources Defense Council said a planned pipeline would allow Uinta Basin crude producers to potentially quadruple their output, adding up to 350,000 barrels per day of new oil extraction.
How court rules could have a significant impact on the design of environmental reviews of projects ranging from Federal Energy Regulatory Commission pipelines to the Corps of Engineers’ Clean Water Act the US Army to allow it, said Larry Liebesman, a former US Justice Department lawyer who has litigated NEPA challenges and other environmental permitting cases. He is now a senior advisor at Dawson & Associates, a policy consultancy based in Washington, DC specializing in environmental permitting and related issues.
“I hope the court will make a trade-off test between the very broad analysis of the [Washington, D.C. federal appeals court] favored by the environments … and the much more limited approach favored by the industry,” he said.
Appeal of DC court ruling
The US Surface Transportation Board completed its environmental impact statement in 2021 and approved construction of the railroad in 2022. But Eagle County, Colorado, along with environmental groups, filed a legal challenge, in ·holding that the board’s analysis violated NEPA by failing to fully take into account. the project’s potential harm to the Colorado River and environmental justice communities along the Gulf Coast.
The appeals court upheld a lower court ruling that sided with the environmental groups.
In court arguments, Paul D. Clement, representing the infrastructure coalition, and Edwin S. Kneedler, deputy attorney general, argued separately that the appeals court’s opinion should be reject
Clement noted that the transportation board had produced an environmental impact statement spanning more than 3,000 pages, with 20 appendices dealing with major and minor impacts as well as downstream and cumulative impacts, he said he was forced to consider impacts so remote in time or space and beyond. the jurisdiction of the reviewing agency and that further analysis was unnecessary and could halt the projects indefinitely.
It called for a clear two-part test that courts could use to provide guidance to agencies conducting reviews. Clement said impacts that are so remote in time and space that they fall under another agency’s jurisdiction need not be considered.
Kneedler. representing the federal government’s position also in support of the coalition on the same point, he did not ask for such a precise test, but defended the deference to the expertise of the agencies that oversee the reviews.
William M. Jay, speaking on behalf of Eagle County and environmental groups, responded: “The impacts at issue here are reasonably foreseeable consequences of this $2 billion rail project whose purpose is to transport crude oil.” . He added that “reasonable foreseeability” is what testing agencies have been required to use since NEPA was enacted in 1970.
The case is being watched closely by construction industry groups.
Associated General Contractors of America General Counsel Leah Pilconis said in an email that projects are often delayed for years after lawsuits from people away from the actual projects. “Judges seem receptive to curbing some of the extraneous analyzes of remote effects or those impacts that may stretch the definition of ‘reasonably foreseeable,'” he said. “That’s encouraging, but it’s too early to trust, that That’s why AGC also works on Capitol Hill and will work with the incoming Trump administration to enable reform.”
