Uinta Basin Railway gets U.S. Supreme Court review, but the 88-miles of track are just a footnote in a much bigger fight

The opening salvo from the attorney representing the seven rural Utah counties that want a new railroad to connect Uinta Basin oilfields with the national rail network was pretty simple. But its implications were sweeping. 

“Eighty-eight miles of track should not require more than 3,600 pages of environmental analysis,” said attorney Paul Clement, arguing for the Uinta Basin Railway before the U.S. Supreme Court on Tuesday in a case that could limit the scope of the 1970 National Environmental Policy Act, or NEPA. 

But what if those 88 miles of new railroad in northeastern Utah direct a steady stream of 2-mile long trains carrying viscous, waxy crude along a section of the Colorado River to Gulf Coast refineries that could add more ozone-depleting greenhouse gases to a warming climate? Should a federal agency be required to study those far-flung effects under NEPA?

Supreme Court justices peppered a trio of lawyers with nearly two hours of questions in the Seven County Infrastructure Coalition’s appeal of a 2023 decision by the U.S. Court of Appeals for the D.C. Circuit that overturned the Surface Transportation Board’s 2021 approval of the Uinta Basin Railway.

Opponents of the railroad — including Eagle County and several environmental groups that sued in 2022 to overturn the transportation board’s approval of the rail line — argue the federal transportation board should have more closely studied the potential climate impacts of refining an additional 5 billions gallons of Uinta Basin waxy crude every year as well as threats of derailments to the Colorado River and communities along the tracks.

Supporters of the railroad argue that NEPA should not force the railroad builders to consider impacts thousands of miles away when other federal agencies and local communities play a role in mitigating threats to air, water and railroad safety. 

All the justices hearing the case asked questions. (Justice Neil Gorsuch last week recused himself from the case, citing the new Code of Conduct for Justices of the Supreme Court. The Denver-born Gorsuch once worked for Colorado billionaire Philip Anschutz, whose energy company wrote a brief in the Uinta Basin Railway case asking the court to narrow the scope of NEPA. Last month, a dozen U.S. Congress representatives sent Gorsuch a letter urging him to step aside in the case.)

The justices appeared critical of both sides. Justice Sonia Sotomayor seemed dismissive of the argument that the Surface Transportation Board did not have to consider downstream impacts of the rail line because other agencies regulate train safety, climate impacts and local refinery operations.

“So … your generalized rule: ‘I don’t have to think about it if another agency has jurisdiction,’ doesn’t make sense in this statutory scheme,” Sotomayor said to Clement. “These absolute rules, or how we explain them, really depend on each individual case. You want absolute rules that make no sense.”

When the Surface Transportation Board in 2021 approved a new 88-mile railroad connecting the Uinta Basin oilfields with the national rail network in central Utah, the board’s 1,700-page environmental review — and another 1,900 pages of appendices — identified potential impacts from the increased number of crude-hauling trains. Those include possible derailments, spills and pollution issues in communities near Gulf Coast refineries where the crude would be processed. 

“In classic no-good-deed-goes-unpunished fashion, the D.C. Circuit (Court) held that because the agency identified the issue or flagged the issue, it was therefore foreseeable and they had to do more. That’s a recipe for turning a procedural statute into a substantive road block,” Clement said. 

He said the transportation board in its review of the proposed railroad followed the guidelines of NEPA, worked with dozens of federal and state agencies and “considered every proximate effect and ordered 91 mitigation measures.” 

Justice Ketanji Brown Jackson said the railroad supporters’ argument that focused on whether the federal transportation board should be responsible for all the things that could go wrong as the crude leaves the new tracks and winds through several states to refineries wrongly relieves the board’s obligation to address some foreseeable environmental impacts far from the actual railroad. It shouldn’t be all about emergencies and accidents.

“I thought NEPA was about the agency who has some responsibility over an aspect of this project determining whether or not to approve it, and it’s got to take into account not only the environmental consequences of the actual building of its piece, but whatever approving its piece is going to have happen in the environment broader than that,” Jackson said. “Now, I understand that’s really hard to do. It gets far afield, and we can fight about the extent of that, but your argument looking only at the 88 miles, I think might narrow in too closely for a purpose of really informing the agency about its approval of this piece of the project.”

Justice Elena Kagan seemed to agree with her colleague.

“What I worry about with your test is that you’re suggesting that the agency can’t even look at the, you know, effects of the project outside of the very piece that it has sole responsibility for,” she told Clement. “And I don’t know that NEPA was actually designed to be that narrow.”

The federal Council on Environmental Quality adopted new regulations in 2023 that limit Environmental Impact Statements to one year and to 150 pages, or 300 pages for “action of unusual scope and complexity.” The Biden Administration’s council updated the regulations after finding that the average length of a final EIS conducted by the Federal Highway Administration was 742 pages and the average time for the NEPA review was 7.37 years. 

The U.S. government took a more nuanced position, defending both NEPA and the transportation board’s decision, and expressed concern that court rulings could hinder federal agencies and their ability to regulate and review both the direct and indirect impacts of projects. The justices prodded Edwin Kneedler, with the Department of Justice, to address where the federal government might draw the line between studying indirect effects of a project. 

When should an agency be allowed to exceed the 150-page limit for environmental reviews?, asked Chief Justice John Roberts. 

“The page limit, I think, should be a statutory affirmation that the agency shouldn’t have to go to the ends of the earth to focus or to decide the environmental issue,” Kneedler said. “It should focus on … identifying what the core concerns are. I think the courts need to be reminded … that the agency gets to decide … how deeply it needs to go into something.”

Justice Brett Kavanaugh said there was “an important distinction” to be made between the role of agencies using “reasonableness” in reviewing projects under NEPA and the role of the courts in reviewing the work of those agencies.

“It seems to me the deference of the courts has to be huge with respect to how the agencies think about the scope of what they’re going to consider,” Kavanaugh said. “And it seems to me, the problem that has crept in is conflating what the agency can do and should do, from what the role of the courts is here. By the courts taking an overly aggressive role, it’s in turn created an incentive for the agencies to do 3,000-page Environmental Impact Statements.”

Eagle County, the only community in the state to officially oppose the railway plan in the 2021 environmental review, is the only Colorado government able to argue the case. The county has the backing of many communities opposed to the railway plan that would route more crude tankers along the Colorado River and through metro Denver. Eagle County and several environmental groups — led by the Center for Biological Diversity — sued the Surface Transportation Board in 2022 to overturn the decision.

Attorney William Jay argued on behalf of the county and the environmental groups, urging support for existing regulations in NEPA that require agencies to study “reasonably foreseeable consequences,” such as derailments, wildfire, oil spills and climate impacts from processing an additional 5 billion gallons of crude a year. 

“I do think it’s a little bit misleading for Mr. Clement to suggest this is an 88-mile railroad, as if the train just went back and forth for 88 miles,” Jay said. “It’s a connection to the national rail network whose entire purpose was to bring this oil to market.”

The justices appeared wary of giving the Surface Transportation Board the ability to prohibit certain types of cargo — like crude oil — because the board doesn’t want pollution from oil refining. The law does not allow the board to discriminate based on cargo, Sotomayor said. 

“Then why is it within their purview to say or determine what the increase in refining will be and whether it will be damaging when there is another agency that has that power to control that?” Sotomayor said. “It’s not the carrying that causes the pollution. It’s the refining that causes the pollution, and the railroad can’t control that because it can’t prohibit it.”

Jay said NEPA requires agencies to study harms they cannot mitigate and harms that do not regulate directly “precisely because they provide a springboard for public comment to the agency. … It allows the public to participate in the process.”

Rulings by the Supreme Court are typically handed down by late June or early July when the court recesses for the summer.