The future of environmental safeguards protecting communities, wildlife and waterways from harm will be considered by the US supreme court on Tuesday, in a case about a proposed oil train that threatens to upend five decades of legal precedent.
The case brought by Utah’s Seven County Infrastructure Coalition and Uinta Basin Railway LLC is asking the supreme court to overturn a federal appeals court decision blocking the approval of an 88-mile railway through the Uinta Basin in north-eastern Utah. The railway’s backers want the court to narrow the scope of the National Environmental Policy Act (Nepa) – the country’s landmark environmental legislation passed by Congress and signed by Richard Nixon in 1970.
The proposed railway would transport up to 350,000 barrels of waxy crude oil a day from the Uinta Basin through the Colorado Rockies to refineries on the Gulf coast. If completed, the railway would more than quadruple oil production in the Uinta Basin, by linking the oilfields to national rail networks and a handful of refineries in Texas and Louisiana.
The railway was approved despite widespread opposition from states led by Colorado, local governments, landowners, the tourism industry and environmental groups – who argued that the fossil fuel project would increase the risk of potentially devastating spillages in pristine landscapes, climate disaster and increase air pollution in the Gulf coast communities.
In August 2023, the US court of appeals for the DC circuit ruled that the Surface Transportation Board – the federal agency responsible for reviewing the proposed railway’s potential harms – violated numerous environmental laws, including Nepa, by failing to consider the risks of increased oil extraction in the Uinta Basin and the potential harm to Gulf communities – which are already overburdened with air pollution. The agency also failed to address downline threats such as derailments and wildfires to wildlife, the Colorado River, and public health and safety.
For decades, Nepa has required government agencies to engage with communities and analyze potential harms to clean air, water and wildlife habitats from proposed projects that are “reasonably foreseeable” – and disclose them to the public.
The railway’s backers are arguing that the reasonably foreseeable standard is too broad and cumbersome, and instead want the court to narrow what environmental impacts federal agencies review and disclose. Nepa’s review requirements should be limited to “proximate cause” – a loosely defined standard currently used to determine civil legal liability for damages, according to the brief filed.
“A ruling from the supreme court in favor of the petitioners would really restrict the ability of communities to be aware of what’s happening to them, let alone to have any input in how those things should happen,” said Sambhav Sankar, senior vice-president for programs at Earthjustice, an environmental legal non-profit which is lead counsel in the supreme court case.
“I have no doubt that the government would say from here on out, we don’t have to think about the consequences of climate when we make decisions.”
The groups defending Nepa are the Center for Biological Diversity, the Sierra Club, Living Rivers, WildEarth Guardians and Utah Physicians for a Healthy Environment.
This is an unusual case for the supreme court to accept as its ruling will not guarantee the railway can go ahead, as the DC appeals court overturned the original decision by the surface transportation board on multiple legal grounds – not just Nepa.
In addition, last year Congress added the longstanding reasonable foreseeability test into the Nepa statute – and decided not to limit the scope of the effects agencies must consider.
Still, the railway’s backers persuaded the court to take the case to ostensibly resolve a narrow issue, on whether Nepa requires agencies to “study environmental effects that they do not regulate”. After it was accepted, the brief was expanded to argue for a “wholesale revision of how we do Nepa analysis”, according to Sankar.
“If the court were to write that kind of an opinion, this could be one of the biggest environmental law cases of the last decade – right among this court’s environmental law busters on the Clean Water Act, and the Chevron doctrine.”
The conservative majority supreme court has previously ruled against established environmental protections. In rulings in recent years, the court ordered the EPA to scale back clean water protections, while another limited the agency’s ability to cut pollution from coal-fired power plants. In July this year the court put on hold an EPA attempt to reduce harmful air pollution that drifts across state lines.
