The U.S. Supreme Court decision on the Uinta Basin Railway proposal in Utah published Thursday was a consequential ruling when it comes to the National Environmental Policy Act, or NEPA, narrowing the scope of the legislation and giving federal agencies more room to conduct their own analysis with more limited interference from courts.
But it did not approve the controversial 88-mile railroad that supporters argue will drive economic growth in rural Utah by connecting the Uinta Basin’s oil field with the national rail network.
And the high court did not address the concerns of Eagle County, which sued to reverse the Surface Transportation Board’s 2021 approval of the railroad, arguing the agency did not adequately consider the risk to communities and the Colorado River with increased tanker traffic on riverside tracks.
“It was indeed a significant environmental decision. Yes, the Supreme Court has established a new standard that is going to be applied in NEPA review, but in the context of Eagle County’s case, we don’t believe the Supreme Court decision has much bearing,” said Nate Hunt, the attorney representing Eagle County’s argument.
The Supreme Court overturned a 2023 ruling by the U.S. Court of Appeals in Washington, D.C., that rejected the Surface Transportation Board’s 2021 approval of the railroad.
A train transports freight on a common carrier line near Price, Utah on Thursday, July 13, 2023. Uinta Basin Railway, which would connect to common carrier lines, could be an 88-mile line in Utah that would run through tribal lands and national forest to move oil and gas to the national rail network. Critics question investing billions in oil and gas infrastructure as the country seeks to use less of the fossil fuels that worsen climate change. (AP Photo/Rick Bowmer)The D.C. appeals court — which vacated the transportation’s board’s 3,600-page environmental impact statement review in response to a lawsuit by environmental groups and Eagle County — ruled that the transportation board “failed” to take “the requisite ‘hard look’ at all the environmental impacts of the railway” by excluding scrutiny of upstream drilling and downstream refining climate effects of the new 88 miles of track.
The appeals court said the transportation board’s dismissal of downstream wildfire and water risks was “utterly unreasoned,” because adding four to 11 trains daily on the Union Pacific tracks along the Colorado River between Utah and Denver raises the likelihood of derailment, oil spills and fire.
The arguments before the Supreme Court centered on NEPA, not Eagle County’s concerns. The focus for the Supreme Court was whether NEPA required the transportation board to study the environmental impacts of new oil wells and added crude refining, which railroad supporters argued are concerns beyond the regulation of the board.
The increased oil production would cause global climate-warming greenhouse-gas emissions to increase as much as 0.1%, which is equivalent to the emissions of Sweden or Ireland, reads the Supreme Court ruling. The board recognized those climate impacts but ultimately concluded that it was not required to scrutinize the destination or final use of products shipped on railroad tracks.
The Supreme Court ruled that the transportation board should not have to analyze Gulf Coast refining or additional oil wells because those could be considered separate projects that would require their own environmental review.
Sending crude-hauling tankers along the Colorado River through Eagle County via a railroad approved by the board “is not a separate project,” Hunt said.
The three D.C. appeals court judges ruled in their 66-page decision that the transportation board’s mandate to regulate train traffic does not end at the 88-mile track.
“When those cars you authorized turn left and join the Union Pacific line, those are direct effects of the board’s decision that must be evaluated,” Hunt said.
The D.C. appellate judges ruled that the transportation board not only violated NEPA, but also the Endangered Species Act and other laws regulating the economic viability of the proposed railroad and other administrative policies.
“The Supreme Court ruling only addressed two issues of a litany of issues and federal statutes the D.C. Circuit found the board violated,” Hunt said.
The Seven County Infrastructure Coalition that is proposing the Uinta Basin Railroad in a statement Thursday said the Supreme Court decision was “a transformative win for Utah’s economy.”
The coalition said it would soon begin work on reauthorizing the project with the Surface Transition Board and completing a paused Endangered Species Act review. The group said it would work with the U.S. Forest Service and the Bureau of Indian Affairs to reinstate right-of-way permits and begin securing financing with private-sector partners.
The Utah coalition in 2023 announced plans to seek $2 billion in “private activity bonds” to finance construction of the railroad it estimated would cost $2.9 billion, up from $1.4 billion when the railroad was first proposed in 2019.
Colorado Attorney General Phil Weiser on Thursday said the railway poses “major risks” to Colorado’s Western Slope communities. In a statement he said the Supreme Court’s ruling “allowed” the project. On Friday, he adjusted that statement to say the ruling “boosted” the railroad project.
“We are aware there are issues unrelated to the SCOTUS opinion that are still alive below and the project still has a way to go before shovels go in the ground,” said Lawrence Pacheco with the Attorney General’s Office.
The Uinta Basin lawsuit case will be remanded to the D.C. Circuit appeals court for a review under the new direction by the Supreme Court, with briefs expected from supporters and opponents of the railroad arguing how the high court decision impacts their arguments.
“Eagle County’s position is that the Supreme Court decision does not have an impact on our case,” Hunt said. “The transportation board has broad authority when authorizing railways, which includes consideration of public health and welfare, energy conservation and environmental effects of their decision to authorize a new railway.”
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