The Supreme Court of the United States ruled last week in favor of a controversial Utah railway project which, according to criticism, erodes the national law on environmental policy, or NEPA, a basis for environmental law during the last half-century.
The case was centered on a proposed rail of 88 miles which would connect the oil fields in northeast Utah to a national rail network which runs along the Colorado river and to refineries on the Gulf coast.
Brut waxy oil is currently transported by truck on narrow mountain passes. Supporters of the project said that the expedition of the fossil fuel per rail – on up to 10 trains per day – would be faster and would revitalize the local economy by quadrupling the oil production of the Uinta basin.
In 2020, the Seven County Infrastructure Coalition applied to the US Surface Transportation Board for approval of the construction of the railway. Under NEPA, the Board of Directors had to make an environmental impact declaration, or EIS, to assess the possible damage to the project and think about how they could be attenuated.
Environmental groups and the County of Eagle, Colorado, opposed the railway project. They cited the potential for derailment and spills in the Colorado river, the drinking water supply of 40 million people. The adversaries were also concerned with the increase in air pollution in the Uinta basin, where the oil fields emit high levels of methaneA powerful greenhouse gases warming the planet, as well as volatile organic compounds, some of which have been linked to increased risk of cancer.
The Gulf Coast communities are also said to be injured by air pollution when crude oil has been refined, opponents have argued. The increase in oil production and associated emissions would also lead to climate change and its disastrous global effects: hurricanes, floods, droughts and extreme heat.
The Center for Biological Diversity, among the groups that had continued the surface transport council, said in a prepared declaration that the decision “relieves federal agencies of the obligation to examine all predictable environmental damage and grants them more latitude to decide on potential environmental damage to analyze certain predictable impacts simply because they are too far away in time or space.”
In 2021, the board of directors published an EIS of 3,600 pages, which identified many “significant and negative impacts which could occur following the construction and operation of the rail line – including the disturbances of local wetlands, the use of land and leisure”, according to court documents.
The board of directors nevertheless approved railway construction, concluding that the transport and economic benefits of the project won on its environmental impacts.
Opponents, including the doctors of justice and UTAH for a healthy environment, asked for the American court of appeal for the Columbia district. They argued that the environmental examination of the board of directors excluded the impacts of the project on people living near the oil fields, as well as residents of the Gulf coast.
The Court of Appeal accepted. He judged that the EIA of the Board of Directors inadmissibly limited the analysis of upstream and downstream projects.
“The Court of Appeal had ruled that the Federal Agency which had approved the railway had not succeeded in taking into account the regional consequences of a massively increased extraction of oil on the Uinta basin, the increase in air pollution for the Texas and Louisiana communities where the oil would be refined and consequences on the world climate,” said Dr. Brian Moench Physicians for a healthy environment.
The Coalition of the Seven County and the Railway Company then appealed to the Supreme Court.
“The decision of the Supreme Court will allow all these consequences to take place without significant restraint,” said Moench. “This court has made a name for decisions that make fun of science and common sense and do not protect the common good. This unhappy decision corresponds to this same model. ”
NEPA has been federal law since 1970. It does not prescribe specific environmental decisions, but it establishes a process to ensure that federal agencies follow the appropriate procedure in the permit. It can be a laborious and long process, but requires an agency to be deepened to assess the potential environmental impacts while giving the public the possibility of commenting.
NEPA does not necessarily stop projects, but it can force project developers to pursue alternatives that protect areas and environmental communities.
In his first mandate, President Donald Trump returned certain aspects of NEPA, in particular weakening the requirements to take into account the cumulative impacts of a project and the effects of climate change. Shortly after taking office this year, Trump reported that he planned to rationalize the NEPA further to accelerate his approval process, especially for energy projects.
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Judge Brett Kavanaugh, who was appointed by President Trump during his first mandate, wrote the opinion on behalf of four other members of the court. “The NEPA has gone from a modest procedure requirement in a blunt and random tool used by the project opponents (who are not always entirely motivated by the concern for the environment) to try to stop or at least slow down new infrastructure and construction projects,” wrote Kavanaugh.
The courts should “grant substantial deference and should not micride these agency choices as long as they are in a large area of reasonable character,” wrote Kavanaugh. “NEPA does not authorize the courts, under the guise of the judicial examination of the compliance of agencies at NEPA, to delay or block agency projects based on the environmental effects of other distinct projects of the project to be accomplished.”
The 8-0 Thursday decision excluded judge Neil Gorsuch, who challenged himself because of his close link with the billionaire Philip F. Anschutz, who would benefit economically from the project.
In a concordant opinion, judge Sonia Sotomayor differs from Kavanaugh on her justification for the decision, but agreed with the result. She wrote that the NEPA had not forced the council to consider the effects of drilling and refining oil because these activities were outside its authority. “Even a foreseeable environmental effect is outside the scope of NEPA if the agency could not legally decide to modify or reject the proposed action because of it.”
Judges Elena Kagan and Ketanji Brown Jackson joined Sotomayor in the agreement.
The coalition was represented by Jay Johnson de Venable LLP, who declared that the decision “restores an essential balance in the process of examining the federal environment”.
Keith Heaton, director of the Seven County Infrastructure Coalition, the public project partner, said that the decision was affirming the years of work and collaboration that have been devoted to the reality of Basin Uinta. “It represents a turning point for the rural regions of UTAH – providing safer, durable and more efficient transport options and opening up new doors for investment and economic stability.”
Wendy Park, a main lawyer for the Center for Biological Diversity, said that despite the court’s decision: “We will continue to fight to make sure that this railroad is never built.”
