WASHINGTON — The Supreme Court appears to be willing to find for supporters of the Uinta Basin Railway in their appeal of a decision blocking construction of the Utah rail line — even if they have some issues with the method suggested by a lawyer for determining the adequacy of environmental reviews at the heart of the case.
The case argued today (Dec. 10) specifically seeks to overturn a decision by the U.S. Court of Appeals for the District of Columbia. That court ruled that a Surface Transportation Board decision allowing construction of the railway had not sufficiently considered downstream effects of the drilling and refinining of the oil the 88-mile railroad would move [see “Federal court strikes down approval …,” Trains News Wire, Aug. 18, 2023]. But the Supreme Court’s ruling will shape the scope of other environmental impact reports required under the 1970 National Environmental Policy Act.
A lawyer for the Seven County Infrastructure Coalition — the Utah governmental body supporting construction of the rail line — argued that the STB “was not heedless of environmental effects”when it found that the line would have negative impacts, but not enough to keep it from being built. The New York Times reports attorney Paul D. Clement noted the board had consulted with “dozens of agencies” and imposed 91 mitigation measures. He said agencies should not be required to consider impacts that are “remote in time and space” and reach into areas addressed by other regulators.
While Justices indicated some support for that concept, they had concerns whether it was adequate, the Times reports, with Chief Justice John G. Roberts saying he had trouble seeing how it would “work out as a practical matter,” while Justice Elena Kagen said that test might not work for other projects. Politico reports that Justice Brett Kavanaugh said courts seemed to be taking an “overly aggressive role” in NEPA cases, which has led agencies to do more than the law requires.
Assistant Solicitor General Edwin S. Kneedler, meanwhile, said an agency “should take into account indirect effects, too, which are not just immediate effects of the project.”
The Washington Post reports that the questioning of lawyers for both sides suggests Justices may be seeking a middle ground between the positions of each side, which would narrow the scope of environmental reviews without setting absolute standards.
Arguments were held before an eight-member court. Justice Neil Gorsuch recused himself from the case, apparently because of work in private practice for Colorado billionaire Philip Anschutz, whose companies include one involved in oil exploration in Utah [see “Supreme Court justice will not take part …,” News Wire, Dec. 5, 2024].
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