The Supreme Court appeared open during oral arguments Tuesday to limiting the scope of environmental review from federal agencies, in a case about a dispute over the approval of an 88-mile stretch of railroad line in Utah.
Backers of the project as well as the Biden administration argued that the justices should overturn a lower court ruling that would force the agency to consider the broader environmental impacts of the new rail line, which would transport oil drilled in Utah for refinement elsewhere.
Opponents of the project have urged the justices to keep the ruling so that agencies wouldn’t be encouraged to ignore obvious environmental harms from a federally approved project.
Several justices latched on to concerns that the law in the case, the National Environmental Policy Act, or NEPA, has been stretched too far. At one point Justice Brett M. Kavanaugh argued that court rulings may have forced agencies to produce environmental impact statements under the law that are thousands of pages.
“And it seems to me, the problem that has crept in is conflating what the agency can do and should do from what the role the courts is here, and by the courts taking an overly aggressive role, it’s in turn created an incentive for the agencies to do 3,000 page EIS,” Kavanaugh said.
Experts have said the case, Seven County Infrastructure Coalition v. Eagle County, Colorado, could be a turning point in environmental reviews for projects ranging from factories to logging and railroads to pipelines, and comes before a conservative-dominated court that has repeatedly curtailed environmental protections.
Justice Neil M. Gorsuch did not participate in the oral arguments in the case, which the court is expected to decide by the conclusion of the term at the end of June.
Last year, the U.S. Court of Appeals for the District of Columbia Circuit held the Surface Transportation Board should have reviewed broader potential impacts from the Utah rail project — including potential dangers to the Colorado River and impacts on Gulf Coast communities where the oil would likely be refined.
The board originally approved the project in 2021. A coalition of project backers and the Biden administration asked the justices to take the case and argued that NEPA does not require agencies to consider every possible impact from a project.
Attorney Paul Clement, arguing for the project backers, said that court rulings expanding the scope of environmental review have made those reviews a “juicy litigation target” for groups who oppose projects for other reasons.
Clement urged the justices to reverse the D.C. Circuit and adopt a rule that says agencies should only have to consider likely environmental impacts that their agency was responsible for. If an environmental impact would take years or the decisions of others to happen — or falls under the jurisdiction of another agency — it doesn’t have to be considered under NEPA.
Clement also turned to changes Congress made in NEPA in 2023 to limit agency reviews to “reasonably foreseeable environmental impacts” of a project and limit those reviews to 150 pages. The D.C. Circuit’s ruling would require agencies to review environmental impacts far beyond what Congress intended, Clement said.
“That’s going to be impossible unless there is a reaffirmation that you don’t have to look at things that are not within the immediate ambit of the project and are in another agency’s lane,” Clement said.
Deputy Solicitor General Edwin Kneedler also urged the justices to overturn the D.C. Circuit decision, which would require the board to presume other decisions, such as state regulatory reviews of drilling, went a certain way.
Kneedler said while he “understands the instinct” for hard-and-fast rules about the scope of agency environmental review, “I think it’s not really right to say there should be absolute rules” about what an agency should consider.
Kneedler said that a hard rule about agency environmental reviews could confuse decisions where two agencies could share jurisdiction about a decision.
William Jay, the attorney representing the project’s opponents, urged the justices to keep the broader scope of environmental reviews. Jay pointed out that the Utah project at the center of the dispute would be built to transport oil to refineries, so it was reasonable to consider the impact that oil could have on the environment.
“The whole raison d’etre of this project is to transport one commodity and one commodity only,” Jay said.
Justice Elena Kagan pointed out that the STB, the railway approval board, did not have the authority to make the railroad change its plans or even turn down the project because of the downstream impacts that transporting the oil to the refinery could cause.
“If the agency can’t mitigate the harm and it can’t turn down the entire project, one wonders what all this fuss and bother is all about,” Kagan said.
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