The Supreme Court just blew up a major environmental law todayheadline

The U.S. Supreme Court last week ruled in favor of a controversial Utah railway project that critics say erodes the National Environmental Policy Act, or NEPA, a bedrock of environmental law for the past half century.

The case centered on a proposed 88-mile railway that would connect the oil fields of northeastern Utah to a national rail network that runs along the Colorado River and on to refineries on the Gulf Coast.

The waxy crude oil is currently transported by truck over narrow mountain passes. Project proponents said shipping the fossil fuel by rail — on as many as 10 trains daily — would be quicker and revitalize the local economy by quadrupling the Uinta Basin’s oil production.

In 2020, the Seven County Infrastructure Coalition applied to the U.S. Surface Transportation Board for approval of the railroad’s construction. Under NEPA, the board was required to conduct an Environmental Impact Statement, or EIS, to evaluate possible harms from the project and consider how they could be mitigated.

Environmental groups and Eagle County, Colorado, opposed the railway project. They cited the potential for derailments and spills into the Colorado River, the drinking water supply for 40 million people. Opponents were also concerned about increased air pollution in the Uinta Basin, where oil fields emit high levels of methane, a potent planet-warming greenhouse gas, as well as volatile organic compounds, some of which have been linked to increased risks of cancer. 

Gulf Coast communities would also be harmed by air pollution when the crude oil was refined, opponents argued. The increased oil production and associated emissions would also drive climate change and its disastrous global effects: hurricanes, floods, droughts, and extreme heat.

The Center for Biological Diversity, among the groups that had sued the Surface Transportation Board, said in a prepared statement that the ruling “relieves federal agencies of the obligation to review all foreseeable environmental harms and grants them more leeway to decide what potential environmental harms to analyze, despite what communities may think is important. It tells agencies that they can ignore certain foreseeable impacts just because they are too remote in time or space.”

In 2021, the board issued a 3,600-page EIS, which identified numerous “significant and adverse impacts that could occur as a result of the railroad line’s construction and operation — including disruptions to local wetlands, land use, and recreation,” according to court documents. 

The board nonetheless approved the railroad construction, concluding that the project’s transportation and economic benefits outweighed its environmental impacts.

Opponents, including EarthJustice and Utah Physicians for a Healthy Environment, petitioned the U.S. Court of Appeals for the District of Columbia. They argued the board’s environmental review excluded impacts of the project on people living near the oil fields, as well as Gulf Coast residents. 

The appellate court agreed. It ruled that the board’s EIS impermissibly limited the analysis of upstream and downstream projects.

“The appeals court had ruled that the federal agency that approved the railway failed in its obligations to consider the regional consequences of massively increased oil extraction on the Uinta Basin, the increased air pollution for the communities in Texas and Louisiana where the oil would be refined, and the global climate consequences,” said Dr. Brian Moench, president of Utah Physicians for a Healthy Environment. 

The Seven County Coalition and the railroad company then appealed to the Supreme Court.

“The Supreme Court’s ruling will allow all these consequences to unfold without meaningful restraint,” Moench said. “This court has made a name for itself making rulings that mock science and common sense and fail to protect the common good. This unfortunate ruling fits that same pattern.”

NEPA has been federal law since 1970. It doesn’t prescribe specific environmental decisions, but it does establish a process to ensure federal agencies follow proper procedure in permitting. It can be a laborious, time-consuming process, but requires an agency to be thorough in assessing potential environmental impacts while giving the public adequate opportunity to comment.

NEPA doesn’t necessarily halt projects, but it can force project developers to pursue alternatives that protect environmentally sensitive areas and communities.

In his first term, President Donald Trump rolled back some aspects of NEPA, including weakening requirements to consider cumulative impacts of a project and the effects of climate change. Shortly after taking office this year, Trump signaled he plans to further streamline NEPA to expedite its approval process, especially for energy projects.

Justice Brett Kavanaugh, who was appointed by President Trump in his first term, wrote the opinion on behalf of four other members of the court. “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects,” Kavanaugh wrote.

Courts should “afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness,” Kavanaugh wrote. “NEPA does not allow courts, under the guise of judicial review of agency compliance with NEPA, to delay or block agency projects based on the environmental effects of other projects separate from the project at hand.”

Thursday’s 8-0 decision excluded Justice Neil Gorsuch, who recused himself because of his close connection to billionaire Philip F. Anschutz, who would economically benefit from the project.

In a concurring opinion, Justice Sonia Sotomayor differed with Kavanaugh on his rationale for the ruling, but agreed on the outcome. She wrote that NEPA didn’t require the board to consider the effects of oil drilling and refining because those activities were outside its authority. “Even a foreseeable environmental effect is outside of NEPA’s scope if the agency could not lawfully decide to modify or reject the proposed action on account of it.”

Justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor in the concurrence.

The coalition was represented by Jay Johnson of Venable LLP, who said the ruling “restores much-needed balance to the federal environmental review process.” 

Keith Heaton, director of the Seven County Infrastructure Coalition, the project’s public partner, said the decision affirms the years of work and collaboration that have gone into making the Uinta Basin Railway a reality. “It represents a turning point for rural Utah — bringing safer, sustainable, more efficient transportation options and opening new doors for investment and economic stability.”

Wendy Park, a senior attorney at the Center for Biological Diversity, said despite the court’s ruling, “we’ll keep fighting to make sure this railway is never built.”