The U.S. Supreme Court June 24 agreed to take up a case that may ultimately determine whether critical infrastructure projects – from transportation to transmission of energy – will require climate impact analyses before that can go forward.

Plans by a public-private partnership to construct an 88-mile-long rail line in eastern Utah connecting oil producers in the area to a nationwide rail network were put on hold, when the D.C. Circuit Court of Appeals, siding with environmental activists, ruled that local officials had not given the project’s climate impacts adequate consideration, and that more studies were needed.

Upon completion, the Uinta Basin Railway would enable an additional 350,000 barrels of oil a day to be shipped to markets nationwide, including all the way to refineries near the Gulf of Mexico. Currently, the oil produced in rural Utah is carried on tanker trucks, a far more expensive and less energy-efficient way of bringing the product to market.

But the proposed rail line hit a roadblock last year, when the D.C. Circuit Court ruled that the Surface Transportation Board’s environmental approval of the project was rushed and violated federal law. The court said the board should have studied the impact of the drilling and transporting more oil along the entire route, stretching thousands of miles to the Gulf Coast. https://apnews.com/article/supreme-court-utah-uinta-basin-railway-oil-d6dfb030e7176d8bfed30906ad839981

Recognizing the threat such an expansive view of the Surface Transportation Board’s authority poses to their rail line and other infrastructure projects, the developers, investment firm DHIP Group and the Seven County Infrastructure Coalition, a body of eastern Utah officials, petitioned the Supreme Court to intervene.

“De-facto Environmental Policy Czar”

“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 D.C. Circuit rule turns each agency into a ‘de-facto environmental-policy czar,’” the coalition argued in its petition. https://www.supremecourt.gov/docket/docketfiles/html/public/23-975.html

Environmental groups, along with Colorado Sen. Michael Bennett (D) are vehemently opposed to the project, citing the rail line’s effect on climate change and the possibility of a spill in the Colorado River.

“It’s disappointing the Supreme Court took up this case but the appellate court decision on this destructive project is sound and should ultimately stand,” Wendy Park, a senior attorney at the Center for Biological Diversity, said in a statement.

It takes four justices for the Supreme Court to agree to hear a case, and getting that number is seen as a good sign by the rail line’s backers. But before the high court hands down a ruling, it will likely have to revisit a 2004 case, Department of Transportation v. Public Citizen. That ruling said that, under the National Environmental Policy Act (NEPA), an agency need not assess an environmental impact if it lies outside the agency’s jurisdiction. In the 20 years since the opinion was handed down, some federal courts have adhered to a narrow interpretation of the ruling, limiting environmental reviews to areas where an agency has congressionally defined regulatory authority. Other courts, such as the D.C. Circuit Court, have taken a more expansive view of an agency’s authority.

Keith Heaton, director of the Seven County Infrastructure Coalition, says the Supreme Court needs to provide better guidance when it comes to this key provision of NEPA. “What the Washington court ruled was that we needed to look more at upstream and downstream environmental impacts but the D.C. Circuit Court didn’t define what that means…There’s nothing to prevent anyone anywhere from coming back after we do more work to say you didn’t do this in this place,” he told BASINNOW.com. https://www.basinnow.com/scic-director-supreme-court-to-hear-uinta-basin-railway-case/

Another Opportunity to Rein in the Administrative State

Crippling the infrastructure needed for the extraction and transport of fossil fuels is a key component of the transition to green energy. Now that the Supreme Court has agreed to take up the case of the Utah rail line, the opportunity presented to climate activists by NEPA may be cut off. In recent decisions – West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo (overturning of Chevron deference) – the court has curtailed federal agencies’ power to regulate beyond what Congress specifically authorized. This bodes well not only for the Utah rail line, but also for other construction projects around the country threatened by being tied up in knots by agencies overstepping their authority.

The case will be heard this fall, with a ruling expected to be handed down in June 2025.

This article originally appeared in The Orange County Register