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What SCOTUS’s ruling on the Uinta Basin Railway could mean for federal environmental regulations

A train carrying oil uses tracks along the confluence of the Roaring Fork and Colorado rivers at Two Rivers Park in Glenwood Springs on December 6, 2023. The Uinta Basin Railway would have increased the amount of oil trains that travel along this route.
Caroline Llanes
/
Rocky Mountain Community Radio
A train carrying oil uses tracks along the confluence of the Roaring Fork and Colorado rivers at Two Rivers Park in Glenwood Springs on December 6, 2023. The Uinta Basin Railway would increase the amount of oil trains that travel along this route.

On December 10, the Supreme Court heard arguments from attorneys in the case of Seven County Infrastructure Coalition v. Eagle County.

The plaintiffs are trying to build a rail line from Utah's Uinta Basin, which would connect to existing Union Pacific tracks that run through Colorado, including sections along the Colorado River, to transport waxy crude oil to refineries on the Gulf Coast.

But the case has bigger implications for environmental policy in the U.S. — and how federal agencies regulate their environmental impacts.

To learn more, Rocky Mountain Community Radio’s Caroline Llanes spoke with Chris Winter, the executive director of the Getches Wilkinson Center for Natural Resources, Energy, and the Environment at CU Boulder’s School of Law.

Editor’s note: This interview has been edited for length and clarity.

Llanes: Let's start by talking a little bit about the case. Tell me more about the facts here.

Winter: So the case involves a proposal to build an 88-mile rail line that would connect the Uinta Basin to the existing national network of rail lines. And the real underlying purpose of constructing that new rail line is to provide a transportation network for fossil fuels from the Uinta Basin, and it would allow folks in the Uinta (Basin) to get those fossil fuels to national markets.

I've been following this case for quite some time. The case really involves the federal government's responsibility under the National Environmental Policy Act (NEPA) to consider the environmental effects of the decision to approve and build a new rail line. And more specifically, how broad that consideration of environmental effects should be, because the project has the potential to not only impact Colorado and the Colorado River, but also folks in Utah and folks even further afield. We've been watching this case because of the questions about NEPA and the need for environmental review.

Llanes: I'm so glad you brought that up, because I did want to ask you about the National Environmental Policy Act, because that is kind of at the heart of what Scotus is really considering with this case. So what is NEPA?

Winter: Yeah. NEPA is really the Magna Carta for environmental law in the United States. It was passed in the 1960s as one of our earliest bedrock environmental laws. And there's really two primary goals with NEPA.

One is “look before you leap,” which means it requires the federal government to consider the reasonably foreseeable environmental effects of its decisions before it makes a decision. So look before you leap. And the primary way the government does that is by preparing an environmental impact statement, which is basically the environmental review document. So that's the first goal. Look before you leap and look at your environmental impacts.

The second goal is also really important, and that's public participation. That's grounded in our democratic principles, but the environmental review process also includes public participation, public notice and comment. And so that is also a very, very important and critical piece of NEPA’s overall goals and objectives.

Llanes: And what exactly are these two parties — that's the Seven County Infrastructure Coalition and Eagle County — what are they asking the court to rule on here?

Winter: So in this case, you know, it involves the proposal to approve this 88-mile new rail line. But we all know that the rail line is going to be used to transport waxy crude oil. And so the effects of that decision to approve the rail line may also include impacts from the additional development of oil and gas in the Uinta Basin. And so there's environmental impacts associated with the development of oil and gas that would be stimulated by the ability to get those products to market on this new rail line. And then there's also effects further down the line in terms of impacts from the refineries that will be processing all of that waxy crude oil and the greenhouse gas emissions and pollution that's associated with that.

So those were kind of referred to as “upline” and “downline” effects. So up and down line effects that are, you know, a little bit more remote in time and distance but are still clearly associated with the project. And so the case really revolves around whether the Surface Transportation Board (STB), the federal agency, needs to consider and disclose those environmental effects that are perhaps indirect or cumulative, but are not directly related to the construction or use of the rail line itself.

Llanes: Okay. Yes. That phrase, “remote in time and space” — that came up during oral argument quite a few times.

Winter: Right. The parties who brought this case to the Supreme Court, that's kind of the new test they are asking the Supreme Court to endorse. Congress itself in 2023 used the language “reasonably foreseeable” (when amending NEPA). So if the impacts are reasonably foreseeable, then they need to be considered by the agency. And so that's kind of what we're supposed to be thinking about: are these impacts reasonably foreseeable as a result of the approval of the railway?

But the parties who now have brought this case to the Supreme Court aren't really happy with that language. And they're asking for a new test which would ask whether the impacts are “remote in time and distance” and whether they fall outside the jurisdiction of the agency who's approving the project and may fall within the jurisdiction of some other local, state or federal agency.

Llanes: And so basically what it's saying is that if a potential environmental impact is remote in time and space, it's saying that it's both very far in the future and very far away geographically. Is that right?

Winter: Right. And to be clear, I don't support that test for a number of reasons. But first of all, it's quite ambiguous. That just leaves just as much room for interpretation as “reasonably foreseeable,” and I don't really think that's going to provide a lot of concrete guidance and is really going to move the ball forward.

But I also think that it just doesn't make practical sense, because we know that large complex projects can have all sorts of impacts that are really important to consider, even though they may be some distance away and some amount of time into the future. You can't just say, ‘Well, the effect has to happen in the next year or two or we're not going to consider it,’ because that's just not the way the real world works. And our environmental review process ought to reflect that.

Llanes: So what should we be keeping in mind about this specific case and this specific project, the Uinta Basin Railway, as we look ahead to the future?

Winter: So it's really important to keep in mind that the D.C. Circuit basically found that there were many problems with the environmental impact statement (EIS) that was done by the Surface Transportation Board. Among those were the analysis of the safety risk of accidents and derailments along the rail line. And those derailments can certainly threaten the health of the Colorado River because the rails that they connect to are next to the Colorado River. And the last thing we need right now is a significant oil spill from a train into the Colorado River. That would be terrible. The risk of forest fires from accidents… And so those are all things that were not adequately considered in the EIS. The D.C. Circuit Court found that they were not adequately considered, and that served as a partial basis for sending the EIS back to the STB. So all those safety related issues were not appealed. In other words, the project applicants accepted the D.C. Circuit's decision that the EIS was inadequate on those grounds.

They really only appealed the D.C. Circuit Court's opinion on these more remote upline and downline issues. So no matter what happens in the Supreme Court, the STB has to go back and redo its work. And so that's going to take some time under NEPA to redo that analysis. And I certainly hope that this more robust information on the health and safety threats of transporting so much crude oil on a rail line adjacent to the Colorado River — I hope that that information will be more fully developed and will be meaningful and impactful in an eventual decision as to whether or not to approve this new rail line, because I believe those are very serious considerations.

In addition, there's other permits and other authorizations that are necessary before this rail line can move forward. So we're still fairly — I wouldn't say early on in the process, because this has been going on for quite some time, but there's still quite a lot of permitting and review work to be done.

Copyright 2024 Rocky Mountain Community Radio. This story was shared via Rocky Mountain Community Radio, a network of public media stations in Colorado, Wyoming, Utah, and New Mexico, including Aspen Public Radio.

Caroline Llanes is the rural climate reporter for Rocky Mountain Community Radio. She was previously a general assignment reporter at Aspen Public Radio, covering everything from local governments to public lands.