by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
Supreme Court decisions occasionally have far-reaching impacts, but last week’s ruling in Utah’s Uintah Basin Railway case was a doozy, in which the justices unanimously hinted that Eagle County, Colorado, should mind its own business. County Commissioners there had challenged the Surface Transportation Board’s approval of the 88-mile rail line, proposed by seven Utah counties as a vital transportation connection from the oil-rich region to the national rail network.
Eagle County joined several environmental industry groups fighting the rail line, marginally suggesting it could impact traffic in Eagle County, which the oil trains might pass through on their way to Denver. But the real objection, highlighted in all the opponents’ legal filings, was that the STB failed to consider the climate change that could result from more oil production. They claimed it would lead to more oil refining in Texas, and thus more global warming.
Unanimous Supreme Court rulings on major environmental issues are rare, but the court used this case to restrict the scope of National Environmental Policy Act (NEPA) reviews. That upends 50 years of abuse of the procedural law, which Congress intended to ensure that environmental impacts were considered, and public input sought, before final decisions were made. But as the 8-0 court said, opponents have long used NEPA as a “blunt and haphazard tool” to stop or slow infrastructure projects, including energy, transportation, utility, and even clean energy projects. That has led to “delay upon delay,” rather than ordered and efficient decision-making.
At the heart of the ruling is a new interpretation of NEPA, that federal agencies are not required to consider “every conceivable environmental consequence” of a project, especially results that may be far distant or far in the future, over which the agency may not even have jurisdiction. In this case, the Surface Transportation Board cannot control whether oil from Utah is refined in Texas, nor what counties it may cross on its way there, nor whether anyone will ever buy that oil at all. Therefore, the agency is not expected to write lengthy environmental impact statements about such speculative impacts, only about the impacts of the project under consideration, in this case the 88 miles of new rail.
