A legal fight over an 88-mile proposed railway in Utah has set the stage for the U.S. Supreme Court to decide how federal agencies evaluate the environmental impacts of projects requiring their approval, a decision with the potential to drastically shift how projects are permitted across the nation. 

The Supreme Court is set to hear oral arguments in the case, Seven County Infrastructure Coalition v. Eagle County, on Tuesday, Dec. 10. It’s the latest development following a U.S. Court of Appeals decision last year that overturned a federal agency’s approval of the railway after a lawsuit from environmental groups and a Colorado county along the project’s path. The appeals court found that the review failed to evaluate the downstream impacts of the project. 

A coalition of seven Utah counties appealed that decision, and the Supreme Court will now decide how far federal agencies can evaluate the impacts of a project under the National Environmental Policy Act—in this case, the immediate area of an 88-mile railway or beyond. 

The Uinta Basin Railway would connect the oil fields of northeastern Utah to the national rail network running directly alongside the Colorado River for more than 100 miles as it makes its way to refineries on the Gulf Coast. If built, the new railway could quadruple the production of the region’s waxy crude oil. Supporters argue it would revitalize the region’s economy, but opponents say it would worsen the region’s already poor air quality, affecting locals and those downstream, including in neighboring Colorado and along the Gulf Coast, where the crude oil will be refined. 

“The primary beneficiaries of the railway would be a handful of CEOs of oil companies who have already manipulated Utah lawmakers into giving them public subsidies, whose objective is to exhaust this unique oil resource as fast as they can, to make as much money as fast as they can,” said Dr. Brian Moench, president of the Utah Physicians for a Healthy Environment, one of the groups opposing the project. “The cost, literally and figuratively, would be borne by everyone else and future generations.”

The Supreme Court’s decision will not determine the final fate of the railway. The appeals court ruling found that the federal Surface Transportation Board in its permitting of the project also violated the Endangered Species Act and the Interstate Commerce Commission Termination Act. What the high court’s decision will do, however, is likely to dictate the scope of NEPA analyses for years to come. Weighing in to try to shape that opinion is a growing chorus of industry groups, state attorneys general, law professors and advocacy groups.

Signed into law in 1970, NEPA is the nation’s bedrock environmental law, requiring federal agencies “to use all practicable means and measures … to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” NEPA set forth the requirements to evaluate a project’s environmental impacts through documents known as environmental impact statements. 

But the law has been at the center of debate for years, especially in talks of permitting reform from Congress. Any substantial project overseen or regulated by the federal government must undergo a NEPA review, a process that can take years and often opens up projects to litigation. Supporters of the law argue it is critical to stopping bad projects and mitigating problems other projects may bring, while opponents argue its requirements are too cumbersome, especially regarding the nation’s energy transition. Many on both sides agree change is needed, though they dispute how to do so. 

“Seven Counties goes to the heart of environmental impact analyses,” said John Ruple, a law professor and program director at the University of Utah’s Wallace Stegner Center for Land, Resources and the Environment. “No one likes long and expensive environmental reviews, but environmental reviews are there to protect the quality of the air we breathe and the water we drink. They make disasters like Love Canal less likely. There are plenty of ways to make NEPA work better without watering down protection in the name of efficiency.”

He likened the case to a car coming to a stop at an intersection. “All agree that the driver must stop, look left and then look right before deciding whether to proceed,” he said. “The question is how far and how carefully the driver must look.” 

The Uinta Basin Railway did not respond to a request for an interview. But officials from the groups behind the project, including Utah counties, have previously dismissed opponents’ concerns in interviews with Inside Climate News, saying the economic benefits are important for the rural community and the environmental issues raised were overblown. 

“We are optimistic about the Supreme Court’s review and confident in the thorough environmental assessments conducted by the STB,” Keith Heaton, director of the Seven County Infrastructure Coalition, said in a press release. “This project is vital for the economic growth and connectivity of the Uinta Basin region, and we are committed to seeing it through.”

Opponents, however, see it as the latest example of the Supreme Court weighing in on cases that should be settled by Congress, and one that could have far-reaching environmental consequences, like the court’s decision earlier this year to overturn the Chevron Doctrine that gave agencies some deference when translating laws into regulations. 

Associate Justice Neil M. Gorsuch recused himself from the railway case this week after pressure to step back due to his close connection to billionaire Philip F. Anschutz, who would economically benefit from the project. Though his companies are not directly parties to the lawsuit, one of his oil and gas exploration companies filed a friend-of-the-court brief urging the justices to put limits on NEPA.

“It’s a perfect example of where the court is doing the dirty work for all of these industries that are interested in changing our environmental laws, reducing community input, limiting transparency into government decision making and making sure that the government puts blinders on before it actually makes big decisions like improving this railway,” said Sam Sankar, the senior vice president of programs at Earthjustice, a U.S.-based nonprofit that takes on environmental lawsuits.

Opponents: Railway Would Worsen Uinta Basin’s Poor Air Quality 

The railway has been in the works since the 2014 formation of Utah’s Seven County Infrastructure Coalition, which is working with the Rio Grande Pacific Corp. and Drexel Hamilton Infrastructure Partners. 

It has long faced opposition from local environmental groups critical of the increase in greenhouse gas emissions resulting from burning the oil and the risk of a derailment and spill into the Colorado River. Five groups and Colorado’s Eagle County sued the Surface Transportation Board after it approved the project. Eagle County, where the oil tankers would pass through, has won support for its fight from other Colorado counties as well as the state’s elected officials, led by U.S. Sen. Michael Bennet and U.S. Rep. Joe Neguse. 

Communities across Colorado have already seen the destructive impacts of climate change, from flooding to wildfires. More oil production, Eagle County officials and environmentalists have said, will only worsen matters. They’re also worried about potential spills as the oil travels alongside the Colorado River. That river supplies water to 40 million people and is in a 20-year-long drought.

“We’re sitting here in the western United States watching increased wildfire activity, aridification, drought, all sorts of enormous environmental challenges that have huge human health consequences,” said Deeda Seed, a public lands senior campaigner for the Center for Biological Diversity. “The consequences of something like the Uinta Basin Railway need to be fully explored, and this was not done.”

The Uinta Basin, found in northeastern Utah, is already home to some of the worst air pollution in the state. An increase in oil production would only make that worse, railway opponents argue. 

A 2014 study found that Uinta Basin emissions of volatile organic compounds—which can cause serious health consequences like cancer—accumulated to the equivalent of the annual VOC emissions of 100 million cars the previous winter. And oil and gas wells within the region have experienced far higher rates of methane leaks compared to the national average. Methane is a potent greenhouse gas that is much more effective at warming the planet in the near-term than carbon dioxide.  

That air pollution came under intense scrutiny during the 2010s, when a nurse midwife in Vernal, the main town within the basin, contacted Utah Physicians for a Healthy Environment about the rising number of infant deaths. A state review of health department data showed more such deaths in the Uinta Basin than the national average in 2013, but the study suggested it was not statistically significant.

“Suppose the FDA were to only consider the public health consequences of manufacturing a drug, and not the good or ill effects on millions of people taking the drug. Any court would conclude that such a ruling would be a mockery of the purpose of the FDA,” said Moench, Utah Physicians for a Healthy Environment’s president. “If the EPA only considered the environmental consequences of constructing a coal-fired power plant and not the public health consequences of the lifetime emissions from operating the plant, any court could grasp the illogic and mockery of the Clean Air Act and question the very purpose of the EPA. 

“The Surface Transportation board’s failure to consider any of the downstream consequences of building this railway is equally absurd, illogical, contrary to the public good, legally indefensible and a gaming of the system by special interests. Laws are supposed to make sense. The public has a right to think that they protect the public interest, not special interests.”