WASHINGTON (CN) — A Utah oil railway appeared back on track Tuesday as the Supreme Court questioned the breadth of environmental review capable of tanking the project.
“It’s not the carrying that causes the pollution, it’s the refining that causes the pollution, and the railroad can’t control that refining,” Justice Sonia Sotomayor, a Barack Obama appointee, said. “It could stop it by not permitting the shipment, but it’s not entitled to make those choices.”
During the nearly two-hour argument session, the justices seemed to think it was unnecessary to consider the potential environmental impact of oil and gas production in Gulf refineries to build an 88-mile oil and gas rail line in Utah.
The Uinta Basin Railway would connect waxy crude oil sources in Utah’s northeastern mountains to the existing freight rail network, transporting the resource through the Colorado Rockies toward Denver and onto the Gulf refineries.
Seven County Infrastructure Coalition, the political subdivision behind the project, estimated that with as many as 10 trains a day, the rail line could transport up to 350,000 barrels of oil out of the basin each day.
But construction on the line has been at a standstill. Industry projects are required to be studied and approved under the National Environmental Policy Act, or NEPA, but the coalition and environmental advocacy groups dispute how extensive of a review is required.
In the railway’s environmental impact statement, the Surface Transportation Board said the line’s construction could disturb local waters and wetlands and new lines would lead to increased noise for local wildlife. The board approved the project in August 2021, noting mitigation measures to avoid air quality and greenhouse gas emissions from the line’s construction that could affect local wildlife.
Environmental groups and Eagle County, Colorado argued that the board stopped short of considering the rail line’s impact on oil production. Responding to these concerns, the Surface Transportation Board noted the potential increase in pollution due to additional oil refining but found that those risks were too attenuated to block construction on the project.
The D.C. Circuit rejected the board’s reasoning, and ordered a more comprehensive review. But the Supreme Court seemed likely to reverse.
Justice Ketanji Brown Jackson, a Joe Biden appointee, said there was a difference between the downline impacts of having more train traffic and what happens to the transported material.
“Doesn’t someone have to make the determination that those impacts should really matter with respect to whether or not this project gets approved?” Jackson asked. “I mean, they’re so far down the line.”
Eagle County argued that the environmental impact of the transported oil needed to be tracked because of its relationship to the rail line.
“The entire purpose of the project is to carry waxy crude oil, and the record before the agency shows that every train that leaves the Uinta Basin is going to be carrying waxy crude oil, everyone,” William Jay, an attorney with Goodwin Procter representing the county, said.
Justice Elena Kagan, a Barack Obama appointee, why the consideration was even necessary, suggesting the air pollution impacts would be outside the Surface Transportation Board’s authority.
“If the agency can’t mitigate the harm and it can’t turn down the entire project, one wonders what all this fuss and bother is about,” Kagan said.
The coalition said 27 other agencies were consulted on the Uinta Basin rail proposal and none moved to block the project. While NEPA is framed as a procedural statute, the coalition argued that it was being used to paralyze government decision-making.
The high court seemed to agree with the coalition, but several justices expressed concerns about broadly curtailing NEPA. Sotomayor said each project needed an individualized review, rebutting what she viewed as absolute rules.
Kagan probed the boundaries of those arguments, putting the coalition’s proximity rule suggestion to the test.
“Is it within the realm of this project, for example, here’s this 88 miles of line, and railroads are going to cross it and wildfires are going to start as a result,” Kagan asked. “Is that within time and space?”
The coalition said it was.
Justice Amy Coney Barrett, a Donald Trump appointee, seemed open to using the test to further clarify the court’s prior rulings.
“You see it as saying what we’ve said before but maybe putting a little bit more flesh on the bone with your ‘remote in time and place’ language as kind of the measure of when you go beyond proximate cause,” Barrett said.
Seven County tried to push the issue, suggesting the justices consider the entire environmental impact statement and whether or not the board had to consider the effects that are within other agencies’ jurisdiction.
There wasn’t a clear majority for the expanded argument.
“What I worry about with your test is that you’re suggesting that the agency can’t even look at the effects of the project outside of the very piece that it has sole responsibility for, and I don’t know that NEPA was actually designed to be that narrow,” Justice Brett Kavanaugh, a Donald Trump appointee, said.
Following the arguments, Earthjustice, one of the environmental plaintiffs, reiterated that the case extended further than just the Uinta Basin Railway.
“The fossil fuel industry and its allies are making radical arguments that would blind the public to obvious health consequences of government decisions,” Sam Sankar, senior vice president of programs at Earthjustice, said in a statement. “The court should stick with settled law instead. If it doesn’t, communities will pay the price.”