A group of eastern Utah counties wants to change the way federal agencies evaluate the environmental impacts of development — starting with an 88-mile railroad that would connect their remote, oil-rich corner of the state to the nation’s broader rail network.
Soon, the U.S. Supreme Court will hear what the counties and their critics have to say.
Eagle County, Colo. and conservation groups filed new arguments this month against an appeal by Utah’s Seven County Infrastructure Coalition. The Supreme Court announced that it will hear arguments on Dec. 10.
The county coalition’s argument follows a lower appeals court’s disapproval last year of the permit granted to build the Uinta Basin Railway, which would make it easier for Utah’s fossil fuels to reach refineries across the country. If built, the railroad could quintuple the region’s exports, according to a 2021 environmental review.
The federal Surface Transportation Board, which regulates interstate rail transportation, approved an environmental impact statement and granted a permit for the railway in 2021. It generally limited its review to areas surrounding the railway’s route and how a range of impacts could be mitigated.
But Eagle County and the environmental nonprofit Center for Biological Diversity argue that the board did not sufficiently analyze the Uinta Basin Railway’s effect on wildlife, vegetation or Louisiana and Texas Gulf Coast communities, where many oil refineries are located and Utah’s oil is likely to go for processing.
The Seven County Infrastructure Coalition argues that such a thorough environmental review exceeds what the National Environmental Policy Act, or NEPA, requires.
NEPA is a 1970 law that requires federal agencies to analyze the environmental impacts of projects they review. The coalition and the counties disagree about how agencies should apply the law.
While opponents believe the oil-moving railroad will increase emissions, risk of oil spills and danger to wildlife, its backers say the project would transform the Uinta Basin’s rural economy and help meet domestic energy needs.
Railway ‘key to Utah’s continued economic growth’
Utah Sen. Mike Lee and Sen. Mitt Romney signed onto a September amicus brief — submitted when people or groups who are not involved in a case want to offer arguments to the court — supporting the coalition’s argument that NEPA reviews should not go beyond a given agency’s authority.
In approving the rail line, the transportation board had said it lacked jurisdiction over oil and gas development and couldn’t “control or mitigate” its impacts.
But the U.S. Court of Appeals for the District of Columbia Circuit criticized the board, the amicus brief noted, for not including the railroad’s “upstream” and “downstream” environmental effects, from increased oil production in the Basin to impacts on Gulf Coast communities.
That broad interpretation requires the board to do “some sort of global cost benefit analysis” that is outside its authority, the brief argues. If that reading of the law is upheld, it adds, it will “continue the troubling trend of placing more and more court-created impediments on the development of critical energy infrastructure across the nation.”
Keith Heaton, executive director of the Seven County Infrastructure Coalition, added in a September statement that a clear decision from the court “not only benefits this project but helps everyone better understand the National Environmental Protection Act and navigate a positive outcome for America.”
In another statement, Romney said the railway “is key to Utah’s continued economic growth by providing a reliable transportation route for goods, creating jobs, and attracting new businesses. It’s critical that the Uinta Basin Railway Project moves forward.”
Other members of Utah’s federal delegation — Sen. Lee, Rep. John Curtis, Rep. Celeste Maloy, Rep. Blake Moore and Rep. Burgess Owens — did not respond to a request for comment about the railway.
The Ute Indian Tribe of the Uintah and Ouray Reservation, located in northeastern Utah, also filed an amicus brief supporting the railway in September.
The tribe argues that while its lands are resource-rich, they are remote and difficult to access, thereby stunting economic growth. “Gaining that access would create jobs and improve the income of the Tribe and its members,” the brief reads.
The American Petroleum Institute, National Mining Association, Center for American Liberty and the state of Utah also submitted amicus briefs in favor of the Uinta Basin Railway.
The need for ‘robust environmental review’
Environmentalists fear that if the Supreme Court sides with the railway’s backers, federal agencies won’t have to analyze or disclose projects’ full potential damage to air, water, wildlife or local communities.
“Communities in the Uinta Basin and Gulf Coast will suffer the most from this oil railroad, while oil companies enrich themselves at the expense of the environment and people’s health,” said Wendy Park, a senior attorney at the Center for Biological Diversity.
“It’s disgraceful that the railroad’s backers want federal agencies to turn a blind eye to those harms,” her statement continued. “A robust environmental review that takes a hard look at all the train’s threats is crucial for protecting communities near and far from this railway.”
Local Colorado governments, 15 states and D.C., 30 congressmen and former federal officials submitted briefs promoting the environmentalists’ arguments.
What’s next?
The Supreme Court will hear this case after a summer of rolling back federal agencies’ regulatory power.
In June, the court ended “Chevron Deference,” a four-decade precedent that courts should defer to federal agencies and their experts’ interpretations of laws. The Supreme Court also blocked the Environmental Protection Agency’s “good neighbor” rule, which would reduce the spread of ozone-forming emissions across state lines.
Even if the Supreme Court sides with the railway’s backers, the project will require additional permitting and reviews before it can be built, like from the Forest Service.
There also are still questions about how the proposed railway would be funded. Its website says private businesses will cover construction and operation costs through mineral lease fees and shipments on the railroad.
But public funds have propped up the project so far. Heaton told Utah lawmakers in January that the state Community Impact Board has given the coalition $28 million over four years, but that money was nearing an end. Lawmakers did not grant his request for $750,000 to sustain the coalition and the railway project.
