Supreme Court seems likely to narrow environmental reviews for projects

The Supreme Court appeared likely Tuesday to somewhat narrow the scope of environmental reviews required for major infrastructure projects nationwide as it weighed the construction of a Utah rail line that would carry billions of gallons of oil.

The justices heard oral arguments over the controversial stretch of track that would connect the remote Uinta Basin in northeastern Utah to national rail lines, allowing more waxy crude from one of the nation’s largest oil fields to be transported to refineries on the Gulf Coast.

On its surface, the case is about the 88-mile rail line, but it has also become a proxy battle over how far federal agencies should go in assessing the environmental impact of highways, pipelines and other projects before deciding whether to approve them.

Seven counties in the basin, a Native American tribe and oil interests say the project would boost the local economy, which has been hampered by mountainous terrain and a lack of transport into the sprawling, Maryland-sized basin.

Paul Clement, an attorney for the groups, urged the justices to adopt a narrow reading of what impacts agencies must consider under the National Environmental Policy Act (NEPA), the landmark law that has set the standard for environmental reviews for half a century.

He said an agency should only have to consider effects close in time and proximity to a project and those that fall within its regulatory purview. He pointed out that the federal review of the rail line project was 3,600 pages and called for 91 mitigating measures.

“It is designed to inform government decision-making, not paralyze it,” Clement said of NEPA. “Nonetheless, it has become the single most litigated environmental statute.”

But five environmental groups and the county that is home to Vail, Colorado, argue that NEPA calls for a more holistic review, saying the rail project could have devastating impacts on local habitats, could lead to oil spills in the Colorado River and would quintuple oil production, worsening climate change and pollution near refineries in the South.

“The impacts at issue here are reasonably foreseeable consequences of this $2.7 billion railway project whose entire rationale is to transport crude oil,” said William M. Jay, an attorney for the environmental groups and Eagle County, Colorado. “Reasonable foreseeability is the test … that has been in NEPA since the beginning.”

The federal Surface Transportation Board approved the rail project in 2021, finding the benefits of the line would outweigh the negative impacts. But the five environmental groups and Eagle County appealed to the U.S. Court of Appeals for the D.C. Circuit.

The appeals court sided with the environmentalists and Eagle County, finding the board had failed to fully examine the up- and downstream impacts of the rail line project from the Utah basin to the Gulf Coast as required by NEPA.

The Supreme Court appeared inclined to overturn the lower court ruling Tuesday, but the justices sharply questioned both sides, indicating that they might be grasping for a standard that falls between the positions of each.

“You want absolute rules that make no sense,” Justice Sonia Sotomayor told Clement at one point.

Justice Elena Kagan told Jay during another exchange that what he envisioned NEPA calling for “seems to go beyond what I thought the statute was all about.”

The case comes as President Joe Biden and President-elect Donald Trump have outlined starkly different visions for NEPA. The Biden administration has moved to compel agencies to consider how projects could worsen climate change and increase pollution in disadvantaged communities. In April, Biden signed an executive order streamlining the NEPA process.

Trump used his first term to make sweeping changes to the environmental law that he said would make it easier to build new projects, and he is expected to restore those changes in a second term.

Trump posted Tuesday on Truth Social that anyone who invests $1 billion in the United States will receive “fully expedited approvals and permits, including, but in no way limited to, all Environmental approvals.”

Trump would probably not be able to green-light projects that fall under the scope of NEPA in such a way without changes to the law.

Justice Neil M. Gorsuch announced last week that he would recuse himself from the case. A letter he submitted to the court did not explain his rationale, and he did not respond to a request for comment, but Democratic lawmakers and court watchdogs had pushed for the move.

They argued that Gorsuch had a conflict of interest in the case because he had been a corporate attorney for Denver billionaire Philip F. Anschutz and his constellation of companies. Anschutz’s empire includes an oil and gas exploration company that has interests in the Uinta Basin.

In addition, Anschutz pushed for Gorsuch’s nomination to the 10th Circuit Court of Appeals before he was elevated to the Supreme Court. Anschutz also submitted a friend-of-the-court brief in the current case backing more limited environmental reviews, and he has hosted Gorsuch at his 47,000-acre ranch.

Accountable US, a watchdog group, was the first to raise the issue of Gorsuch’s ties to Anschutz.

“The stakes in this case are huge - weakening NEPA would put communities and the environment at risk,” said Caroline Ciccone, president of Accountable US. “This is why we need real, enforceable ethics rules to make sure the Supreme Court puts fairness and trust above billionaires and special interests.”

The Supreme Court’s conservative majority has been highly skeptical of government regulation in recent terms, particularly on the environmental front. The court has curtailed the authority of the Environmental Protection Agency to regulate the nation’s wetlands, greenhouse gases from power plants and air pollution that drifts across state lines.

In June, the high court also struck down a 40-year-old precedent that was a cornerstone of regulatory authority. It required courts to give significant latitude to how agencies implement laws in areas where Congress has not given clear guidance.

A decision in the current case is expected by this summer