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US Supreme Court could limit environmental reviews for Utah rail fight

The U.S. Supreme Court seemed to be inclined Tuesday to limit how far federal agencies are required to review the environmental impacts of projects that they regulate. This was in relation to a dispute involving a proposed railroad in Utah intended to transport crude oil, which had been challenged by environmentalists and a Colorado County.

The court heard arguments from a coalition of seven Utah Counties and an Infrastructure Investment Group in their appeal of a lower-court decision which halted the rail project. They also faulted an environmental impact report issued by the Surface Transportation Board, a federal agency that approved the railway.

The counties want to build an 88-mile-long (142-km-long) railway in northeastern Utah. This would connect the sparsely-populated Uinta Basin to a freight rail network, which is primarily used to transport crude oil.

The conservative and liberal justices asked questions which indicated that the lower court may have overreached when it concluded that the board did not adequately investigate the rail's impact on vegetation and wildlife and air quality of Gulf Coast communities.

The case examines the scope of the environmental impact studies required by federal agencies under the National Environmental Policy Act. This 1970 law was enacted to protect the environment from potential harms caused by major projects. The law requires that agencies evaluate a project's effects "reasonably predictable".

The board, who has the regulatory authority to approve new railroad lines issued an environmental impact report and approved the proposal of the coalition in 2021.

Ketanji Brown Jackson, a liberal justice, told William Jay, an attorney for the challengers that the board did not have the authority to stop oil being transported by rail since it only regulates railroads and not cargo.

What difference does it make if they cannot say what is carried, that the refinery emits environmental effects to their decision to approve or deny this? Jackson asked.

Jay explained that it is important because the law in question requires agencies to "look at the foreseeable effects, even when these cannot be mitigated."

Conservative Justice Brett Kavanaugh is concerned that agencies are conducting environmental reviews in excess because of judicial second guessing.

Kavanaugh said that the overly aggressive court role created an incentive for agencies to produce 3,000-page environmental impact statements. Edwin Kneedler agreed.

Utah, the administration of Democratic President Joe Biden, and the Railway Coalition in this case were both supportive.

Companies and business groups say that environmental reviews of too great a scope can delay the regulatory process by years, putting at risk a project’s viability as well as future infrastructure development.

"Infrastructure is an investment and time is money for investors." Project opponents know, on the other hand, that time is their friend and a remand for just a little bit more process can ruin a project", Paul Clement told the justices.

Some justices were concerned that Clement's proposed legal test for determining scope of environmental review might be too narrow. After all, an action can have impacts that go beyond the confines of the project.

Clement asked the court to rule an agency’s review only needs to take into account potential impacts that could occur near in time and location to a project proposal, and do not fall within the regulatory authority or another agency.

Liberal Justice Sonia Sotomayor said to Clement, "You want absolute laws that don't make any sense."

Jackson stated that the test "feels unmoored to me" from the purpose of the environmental law.

The Center for Biological Diversity, along with other environmental groups, sued the Board for allowing the project. Eagle County, Colorado also filed a lawsuit, citing that the project would double the traffic on an existing rail route along the Colorado River and increase the train traffic in the region.

The U.S. The U.S. Circuit Court of Appeals District of Columbia Circuit ruled for the challengers 2023.

The challengers were supported by 15 other states. Colorado argued that its economy is based on outdoor recreation and the project would increase the risk of spills, rail accidents, or leaks near the Colorado River headwaters. Conservative Justice Neil Gorsuch resigned from the case when some Democratic legislators urged him to do so because former client Philip Anschutz has a financial stake in its outcome.

The case will be decided by the end June.

(source: Reuters)