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Americas+1 212 318 2000
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Asia Pacific+65 6212 1000
By Bobby Magill
The US Supreme Court granted certiorari on Monday in a case that may determine whether the National Environmental Policy Act allows federal agencies to consider climate change and other environmental impacts beyond the immediate scope of a proposed project.
The case, Seven County Infrastructure Coalition v. Eagle County, Colo., focuses on the proposed 88-mile Uinta Basin Railway, which would carry oil and other minerals to market from northeast Utah. The Surface Transportation Board’s approval of the rail line was nixed by the US Court of Appeals for the DC Circuit last year.
The coalition of Utah counties supporting the project are asking the Supreme Court to toss out that ruling and allow the Surface Transportation Board’s decision to stand.
The petitioners say the Supreme Court should settle a circuit split in the interpretation of its 2004 ruling in Department of Transportation v. Public Citizen. In that case, the justices ruled that NEPA doesn’t require federal agencies to study environmental impacts outside their jurisdiction.
Environmental groups opposing the project dispute that there is a circuit split because they say all courts have agreed that Public Citizen limits federal agencies’ obligation under NEPA, and that the issue the coalition raises is unimportant to the railway case.
“The question presented implicates just one of many grounds” on which the DC Circuit vacated the STB’s environmental review of the railway, the groups argued in a brief filed in May.
Citing Public Citizen, the DC Circuit ruled last year that the STB’s environmental review of the railway was too limited because it failed to sufficiently study the railway’s effect on future oil development, and the risk of rail accidents, wildfires, and water pollution associated with the line.
In their petition, the groups highlighted that the DC Circuit ruled that the STB’s decision violated NEPA in other ways and also violated the Endangered Species Act, the STB’s organic statute, and the Interstate Commerce Commission Termination Act.
But the petitioners argue that “most circuits see Public Citizen as tying the scope of an agency’s NEPA review to limits of that agency’s regulatory authority,” leaving an agency “‘on the hook’ only for the decisions that it has the authority to make.”
The US Court of Appeals for the Sixth Circuit ruled in 2014 in Kentuckians for the Commonwealth v. US Army Corps of Engineers that agencies can reasonably limit their environmental reviews under NEPA to only the impacts caused by the actions over which they have regulatory authority, the coalition said in its writ petition.
When reviewing the railway proposal, the STB said it didn’t have the authority to study whether the project would affect oil and gas development, but the DC Circuit ruled that the board can’t avoid studying the impacts of oil drilling.
“By requiring an agency to consider any environmental effect that it has the power to prevent, no matter the limits of its regulatory authority,” the DC Circuit’s ruling turns each agency into an environmental policy czar, the coalition said in the petition.
Eagle County and five environmental groups opposing the railway said in their brief that the STB has the authority to consider the “reasonably foreseeable effects of its approval of a new rail line.”
The groups include the Center for Biological Diversity, Living Rivers, the Sierra Club, Utah Physicians for a Healthy Environment, and WildEarth Guardians.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg
The case is Seven Cty. Infrastructure Coal. v. Eagle Cty., Colo., U.S., No. 23-975, 6/24/24.
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