(Photo: Jim Small/Arizona Mirror)
The U.S. Supreme Court justices on Tuesday appeared generally prepared to deal a blow to a key federal environmental law in a case brought by Coloradans against a controversial oil train project in Utah — but they struggled to reach an agreement on how to new law had to be precisely defined. limits they can impose on the law.
Petitioners in the case, Seven County Infrastructure Coalition vs. Eagle County, the justices are asking to reverse a lower court ruling against approval of the Uinta Basin Railway, an 86-mile rail project in eastern Utah that Coloradans and environmentalists have sued to stop.
The railroad would connect the Uinta Basin oil field to the national rail network, allowing drillers there to dramatically increase production of crude oil to be shipped in tankers to refineries on the Gulf Coast — a route that runs directly through the Colorado River Valley. the Denver metro area. The project would represent one of the largest sustained oil-by-rail efforts ever undertaken in the U.S., single-handedly more than doubling the nationwide total by 2022, and resulting in an up to tenfold increase in the transportation of hazardous materials by rail through central Colorado.
The U.S. Court of Appeals for the D.C. Circuit sided with Colorado’s Eagle County and five environmental groups, ruling last year that the project’s approval involved “numerous” and “significant” violations of the National Environmental Policy Act (NEPA), a fundamental US environmental law. introduced during Richard Nixon’s presidency.
But Utah county governments that backed the project successfully petitioned for review by the conservative-dominated Supreme Court.
Paul Clement, a veteran conservative litigator who served as U.S. attorney general under President George W. Bush, presented arguments for the petitioners.
Clement called NEPA a law intended to “inform, not paralyze, government decision-making” and repeatedly emphasized what he said was NEPA’s role in limiting investment in major infrastructure projects.
“Infrastructure requires investments, and for investors, time is money,” said Clement.
The petitioners’ argument — supported in friend-of-the-court briefs by a long list of conservative advocacy groups and fossil fuel industry groups — asks the court to impose new limits on the scope of NEPA reviews , based on the principles of ‘proximate cause’ adopted from tort law. That would be the court’s most drastic change to NEPA in decades.
But under repeated questions from judges, Clement struggled to succinctly articulate the details of the new test. The petitioners propose to replace the standard that currently governs the scope of NEPA reviews, which directs federal agencies to study the “reasonably foreseeable” effects of major decisions.
“If I could give you a 10-word test that would solve every difficult case, they’d give me a tenure-track job at Harvard,” Clement joked.
“The direct cause may not be the alpha and omega, but it is certainly helpful,” he added.
The federal government has asked the court to issue a limited ruling, arguing that the D.C. Circuit made an “error” in revoking the railroad’s approval, but arguing that the petitioners’ proposed reform of NEPA goes too far . Edwin Kneedler, deputy solicitor general, presented the government’s case and asked judges to refer the proceedings back to the Court of Appeal.
William Jay, a partner at the D.C.-based Goodwin Law Firm, argued on behalf of all respondents in the Eagle County case.
The “entire purpose of the project,” Jay said, is to transport waxy crude oil from the Uinta Basin to Gulf Coast refineries, eliminating impacts such as expanded oil and gas development, increased refinery emissions and accident risks on Colorado railroads fit well within the ‘reasonably foreseeable’ test.
The Uinta Basin Railway could accommodate an estimated capacity of up to 350,000 barrels of oil per day. Hazmat shipments from the new rail line would run through central Colorado, including environmentally sensitive areas along the Colorado River and more densely populated areas in the Denver metro area.
“This case is bigger than the Uinta Basin Railway,” Sam Sankar, an attorney with environmental group Earthjustice, one of the parties to the case, said in a statement ahead of Tuesday’s oral arguments. “The fossil fuel industry and its allies are making radical arguments that would blind the public to the clear health consequences of government decisions. The court should instead adhere to established law. If that doesn’t happen, communities will pay the price.”
This story was originally published in Colorado Newsline.
