The Supreme Court on Tuesday grilled backers of a proposed Utah crude oil railroad on their test for limiting federal environmental reviews — but didn’t appear prepared to strike down an analysis for the project.
During oral argument in Seven County Infrastructure Coalition v. Eagle County, Colorado, the court’s liberal wing and at least one conservative justice appeared deeply skeptical of arguments by supporters of the Uinta Basin Railway that the National Environmental Policy Act review underpinning the project should focus solely on the effects of laying 88 miles of track to connect a Utah oil patch with a rail network that would carry the crude to Gulf of Mexico refineries.
“I have trouble seeing how this is going to work out as a practical matter,” said Chief Justice John Roberts in response to Paul Clement, a partner with the firm Clement & Murphy representing the Seven County Infrastructure Coalition in support of the project.
Roberts, a moderate member of the court’s conservative supermajority, noted that if the justices adopt Clement’s limits on NEPA analyses, it would open agencies to legal risk if they identify indirect impacts but decline to address them in their reviews.
Justice Neil Gorsuch was absent from Tuesday’s argument after recusing himself from the case.
Directly at issue in the case is the NEPA analysis the Surface Transportation Board conducted to approve construction of the Uinta Basin Railway. Last year, the U.S. Court of Appeals for the District of Columbia Circuit rejected the review for falling short on analysis of the project’s effects on upstream oil drilling and downstream refining.
But whatever conclusion the Supreme Court reaches on appeal will affect the way federal agencies craft NEPA reviews for projects nationwide, including infrastructure that advances the transition to renewable energy.
The justices appeared to try to find common ground with a Justice Department attorney arguing on behalf of the Biden administration in support of the STB’s NEPA analysis but attempting to distance the government’s position from Clement’s more limited test.
At times, however, the justices appeared to struggle with the distinctions between the two parties’ arguments.
Deputy Solicitor General Edwin Kneedler criticized the “flyspecking” that he said courts like the D.C. Circuit have done in finding too many problems with agencies’ NEPA analyses.
Justice Brett Kavanaugh, another moderate conservative, responded to that point that courts seemed to be taking an “overly aggressive role” in NEPA litigation, which has in turn required agencies to do more environmental analysis than the statute actually requires.
A Supreme Court ruling for the government would result in at least a partial win for the Utah railway. Such an outcome would be in keeping with prior NEPA case law, in which the high court has always sided with the government, often by a unanimous vote.
Justice Sonia Sotomayor asked Kneedler whether other problems the D.C. Circuit identified with the federal analysis of the Uinta Basin Railway — such as wildfire risks and impacts to the Colorado River — were at issue in the case before the court Tuesday.
Kneedler replied that they were not.
William McGinley Jay, a partner at the firm Goodwin Procter who argued on behalf of Eagle County against the rail project, faced questions mostly from the court’s liberal justices.
At one point in the argument, Justice Ketanji Brown Jackson said the “hardest part” of the case for the railway’s opponents is the fact that the STB is subject to common carrier requirements and cannot discriminate against types of cargo, such as the crude oil the Uinta project is slated to transport.
“How is it these environmental impacts are useful to the board’s decisionmaking in the way that NEPA requires?” she asked.
Jay responded that he’s not saying the board would conclude that the environmental consequences of carrying the crude are too grave. He’s saying that the effect of carrying one cargo in large quantities to known locations is reasonably foreseeable, which triggers NEPA analysis.
“In this case,” he said, “it’s not speculative at all.”
Reporters Niina H. Farah and Lesley Clark contributed.
