Is a Supreme Court fight over 88-mile Uinta Basin Railway really a battle over NEPA?
At the center of the showdown is the 88-mile Uinta Basin Railway, which intends to connect oil fields in northeastern Utah to the national rail network so far-flung refineries can access the Uinta Basin's waxy crude. The Surface Transportation Board in 2021 approved the railroad after conducting a two-year, 1,700-page Environmental Impact Statement review under the National Environmental Policy Act, or NEPA.
The railroad would direct an additional 5 billion gallons of Uinta Basin crude in 2-mile long trains along tracks along the Colorado River from Grand Junction to Winter Park and then through metro Denver en route to refineries on the Gulf Coast. The project has stirred vehement opposition among environmental groups, politicians and communities along the railroad, with concerns focused on spills and wildfires.
After five environmental groups and Eagle County sued in 2022, the U.S. Court of Appeals for the D.C. Circuit in 2023 overturned that approval, arguing the federal transportation agency should have weighed the impacts of quintupling the volume of oil rolling in heated tankers through Colorado and the climate implications of drilling, transporting and refining all that crude. (Opponents argue that refining and using the crude from the estimated 3,300 new wells in the Uinta Basin — producing as much as 350,000 barrels of the viscous, waxy crude a day — would account for about 1% of the nation's greenhouse gas emissions.)
The U.S. Supreme Court in June agreed to hear an appeal by the Seven County Infrastructure Coalition that is pushing the $3 billion railroad as an economic engine in seven rural Utah counties and a way to boost production of Uinta Basin crude by reducing the reliance on truck traffic.
The high court will hear oral arguments in the case Dec. 10. The main question that will be weighed is this: Does NEPA require federal agencies to consider impacts beyond the exact location of the project, which in this case involves the Surface Transportation Board studying impacts of a railroad outside of the 88-mile track?
"Anytime the Supreme Court gets involved with environmental law, it's a big deal ... this risks severely constraining what the scope of NEPA will be," said Wyatt Sassman, who teaches courses in environmental and natural resources law at the University of Denver's Sturm College of Law.
"The Supreme Court has a conservative majority now and has been aligned against environmental laws in general, specifically limiting protections for clean air and clean water," Sassman said. "So it's worrying to see the Supreme Court take up a NEPA case like this, especially when the federal government is telling them not to."
A blizzard of amicus briefs — or friend-of-the-court briefs — have staked out the arguments by supporters and opponents of the railroad.
Colorado leaders, communities lead the fight against the Utah railroadEagle County, in its 61-page brief filed in October , said the railroad supporters are attempting to "dramatically remake NEPA."
"An agency cannot ignore a particular environmental effect of its own decision merely because another agency might have some jurisdiction over that issue," reads the Eagle County brief.
A growing chorus of Colorado's elected officials — led by U.S. Sen. Michael Bennet and U.S. Rep. Joe Neguse — have rallied in support of Eagle County.
Glenwood Springs, Grand Junction, Minturn, Avon, Red Cliff, Crested Butte and Basalt, and Boulder, Pitkin and Routt counties, as well as the 31-member Northwest Colorado Council of Governments, joined Eagle County in a friend-of-the-court brief opposing the railroad. The communities argue that NEPA and Surface Transportation Board regulations required the board "to alert western Colorado communities to the foreseeable effects of its decision coming down the line."
"The board's failure to adequately analyze these indisputable foreseeable impacts is a run-of-the-mill violation of NEPA," reads the communities' brief.
At the core of the Seven County Infrastructure Coalition's appeal is an argument that the U.S. Court of Appeals erred in interpreting a 2004 U.S. Supreme Court case — Department of Transportation v. Public Citizen — in which the high court ruled that when a federal agency cannot prevent an environmental effect "due to its limited statutory authority over the relevant actions," then NEPA does not require it to study that effect.
The railroad's backers say the Surface Transportation Board relied on that ruling during its environmental review of the Uinta Basin Railway. But the federal appeals court rejected that approach, saying the agency could not avoid environmental review just because it lacks authority to prevent, control or mitigate distant environmental effects.
In 2023, Congress amended NEPA to clarify the scope of an environmental review by a federal agency to include "reasonably foreseeable environmental effects of the proposed agency action." The federal government, in its May brief filed in support of the Surface Transportation Board's approval, said Congress — not the courts — should impose any new limits on NEPA. (But the Supreme Court in June overruled the court's landmark Chevron v Natural Resources Defense Council , slicing the power of federal agencies to interpret laws and ruling that courts should be the interpreters of any vague laws or regulations.)
The federal attorneys argued that the transportation board ruled correctly and rather than making adjustments to NEPA, the Supreme Court should send the case back to the appeals court.
"The federal government's point ... is that this is about whether the board made the right decision. This is not a problem with the scope of the law, which is what the industry is trying to make this into," said Sassman, the DU law professor.
Sassman said the argument from the railroad's backers that focuses on a burdensome NEPA process is "a red herring here."
"There is a big public narrative about how we need to build things faster and that is the context in which Congress recently amended NEPA to say 'reasonable foreseeable environmental effects.' If the Supreme Court says an agency only has to look at things it can officially regulate, that will create more uncertainty, which is not the way we are going to speed up permitting."
An opportunity to "enforce critical limits on NEPA's scope"The list of supporters of the Seven County Infrastructure Coalition and Uinta Basin Railway includes the states of Utah and Louisiana, Utah's U.S. Sens. Mitt Romney and Mike Lee, the Ute Indian Tribe of the Uinta and Ouray Reservation, the U.S. Chamber of Commerce and several industry groups representing ranching, energy production, property rights and railroads.
The state of Utah, in its September friend-of-the-court brief, said the railway "has the potential to open the region to entirely new markets that rely on freight shipping and to create jobs. And it will do so while protecting the environment and Utah's transportation workers. Blocking the project stifles economic, environmental, and safety improvements in the region and hurts area residents."
Most of the 27 friend-of-the-court briefs in support of the railroad note the struggle of planning projects that require review under the National Environmental Policy Act.
"Repeatedly, anti-development litigants abuse NEPA," reads the friend-of-the-court brief from the American Forest Resource Council and the Western Energy Alliance. "They demand exhaustive analyses of every remote alternative and impact—not to improve agency decision-making, but to stop development. As a result, NEPA reviews now routinely span thousands of pages and require five years or more to complete, only to be challenged in court anyway."
The Uinta Basin Railway case offers the Supreme Court an opportunity "to enforce critical limits on NEPA's scope and prevent further weaponization of the statute," reads the two groups' brief.
Anschutz Exploration Corp. , owned by Denver billionaire Philip Anschutz, argued in its brief supporting the railroad that "far more is at stake in this case than the 88-mile rail line in rural Utah. Instead, this case presents a question that recurs in virtually every case brought by special-interest groups that oppose oil-and-gas and other mineral development on public lands: Must an agency 'study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority?'"
The list of supporters lining up behind Eagle County is equally robust, with all urging the court to protect NEPA as a critical process for safeguarding water, wildlife, habitat and natural resources.
Imposing a standard of "enforced ignorance"Thirty members of the U.S. Senate and U.S. House filed an 84-page friend-of-the-court brief supporting Eagle County and the environmental groups. The politicians argued Congress has "Actively and continuously sought to shape NEPA" with more than 550 proposed bills since the 1969 act was passed. Congress also weighed a fast-tracked approval of the Uinta Basin Railway and declined.
"And even as it has adopted other changes to NEPA, it has consistently rejected efforts to strip the law of its emphasis on interagency processes and coordination," reads the Congress members' brief, which notes "there is no reason" when railroad backers "have failed at each turn to obtain their desired legislative solution in a legislative forum" that they should now secure approval for the project through the courts.
Several former officials with the Council on Environmental Quality, who served under six presidents, penned their own friend-of-the-court brief saying that the railroad backers were asking to "drastically reinterpret" NEPA and create "new rules exempting agencies from taking account of environmental effects that are reasonably foreseeable."
Colorado AG Phil Wieser corrals 15 states in oppositionFifteen state attorneys general and the District of Columbia — led by Colorado Attorney General Phil Weiser — submitted a 40-page friend-of-the-court brief in October urging the country's high court to reject calls to curtail federal NEPA reviews. States participating in NEPA reviews helps protect water quality and supplies while also guiding projects on federally managed land. The gist of the attorneys general argument centers on state sovereignty and the rights of states to safeguard citizens and the environment
The railroad's supporters, Wieser argues in his brief, would allow federal agencies "to ignore harmful effects to land, air, or water, even those directly caused by the federal agency action, simply because those effects are subject to regulation by other federal agencies, local governments, or states exercising their sovereign and/or delegated authority."
"Essentially, petitioners seek to impose a standard of enforced ignorance on federal agencies, hamstringing the agencies' ability to make reasoned and informed decisions that protect human health and the environment on the theory that it could potentially be addressed elsewhere," reads the state AGs' brief. "This approach not only violates NEPA, but also harms states' ability to collaborate on and influence federal decisions that implicate core state interests and seek appropriate mitigation of potential harmful impacts."
The environmental groups that sued to overturn the Surface Transportation Board's approval of the railroad, led by the Center for Biological Diversity, argue that the board noted how the railroad would benefit the economy in the Uinta Basin as well as refineries in Louisiana "yet it declined to consider how increased production would affect wildlife and vegetation in the Basin or how increased refining would affect air quality near those refineries." The appeals court held the federal transportation board should have considered those effects. The railroad's supporters, in their brief to the court, argue "it makes no sense" for the board to consider these environmental effects.
"But agencies have long understood that NEPA requires them to consider — at a minimum — the environmental effects of the outcomes that their proposed actions are designed to achieve," reads the brief filed by the environmental groups. "NEPA requires an agency to consider effects so long as they are environmental in nature, within the agency's discretion to consider, and reasonably foreseeable—meaning that there is evidence that they are likely to occur and that facilitates meaningful consideration."
