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The Supreme Court heard a landmark case on Dec. 10 that could limit a project’s environmental impact review under the National Environmental Policy Act of 1970. NEPA requires federal agencies to consider environmental effects reasonably foreseeable of a proposed act of agency.
During the nearly two-hour oral argument in Seven County Infrastructure Coalition v. Eagle County, the justices weighed whether an independent federal agency, the Surface Transportation Board, went far enough to assess the impact a proposed rail line might have on the environment beforehand. approval of the project. The 88-mile rail line would connect Utah’s crude oil refineries to national rail networks.
Citing the potentially dramatic increase in trains carrying oil, the U.S. Court of Appeals for the D.C. Circuit found that the agency should not have approved the railroad and that it erred in finding that the downstream environmental effects of the proposed 88-mile rail line would not be significant.
Representing a coalition of counties that want the project to move forward, former Bush administration attorney general Paul Clement told the justices, “NEPA is designed to inform government decision-making, not to paralyze it.” But his opponents, Clement said, would require the STB to study output from refineries more than 1,000 miles away.
“Nobody in their right mind would say that a project in northeastern Utah was the proximate cause of additional pollution in Shreveport, Louisiana,” Clement said. “It’s a different agency that has to decide whether additional oil production elsewhere will affect the environment.”
But arguing for Eagle County, Colo., in support of how the D.C. Circuit applied NEPA, attorney William Jay told the justices, “Congress does not direct agencies to pass the buck to somebody else . Directs all federal agencies to cooperate in, when possible, a single environmental review.”
Jay added that the downstream environmental effects of the project were reasonably foreseeable because the entire purpose of the project was to transport one type of cargo, crude oil, to a particular destination in very large quantities.
Speaking with Legal Dive about this case at beginning of the mandate of the Courtappellate attorney Michael Kimberly explained why the dispute is important to business interests. “NEPA has become a very important tool for NIMBY obstruction [not in my backyard] contingent”. Kimberly added that considering all possible downstream effects provides “endless hooks for anti-development groups to slow things down.”
Clement expressed a similar sentiment when he told the Court, “For investors, time is money. Opponents of the project, on the other hand, know that time is on their side and that a holdup for just a little more of process can kill a project.”
Only eight justices will decide the case, as Justice Neil Gorsuch recused himself last week, citing the Supreme Court’s new Code of Conduct. But the prospect of a tie seemed unlikely, as most sitting justices appeared willing to limit the scope of NEPA’s environmental reviews.
