WASHINGTON — The group of Utah counties supporting construction of the Uinta Basin Railway has asked the U.S. Supreme Court to review the appeals court decision blocking the project, as it had indicated was its intent.
The website Colorado Newsline reports the Seven County Infrastructure Coalition filed the petition on March 4, asking the court to review the decision last August by the U.S. Court of Appeals for the District of Columbia Circuit. That decision called Surface Transportation Board approval of the Uinta Basin “arbitrary and capricious,” flawed for its failure to consider downstream environmental impacts of such things as potential rail accidents involving the oil to be transported, or of the drilling and refining of the oil [see “Federal court strikes down approval …,” Trains News Wire, Aug, 18, 2023].
Seven County had made clear its plans to appeal when it asked the state of Utah to help fund the legal effort, saying the appeals court decision “treads all over states’ rights and interstate commerce” [see “Utah counties seek state funding …,” News Wire, Feb. 3, 2024].
In its petition to the Supreme Court, the coalition cites a 2004 Supreme Court decision, Department of Transportation vs. Public Citizen, and says that courts of appeal have split on the question of considering downstream effects in an environmental review. Five circuits have read that decision to mean that an agency’s environmental review can stop where its regulatory authority stops — which would be the view taken by the STB in the Uinta Basin decision — while two have said the decision requires review of “any impact that can be called reasonably foreseeable.” Therefore, it asks the court to decide “Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.”
The appeals court decision was pernicious, because it said that NEPA must consider how a product a railroad might carry is used after the product has left the construction site. The appeals court essentially said no proposed rail line meets NEPA if it will carry oil or some other product some people may dislike.
As far as I know the only product by rail that requires a special NEPA permit is typically military, like nuclear materiel or certain chemical weaponry. Shale oil is most definitely not either as we ship it from Canada to Louisiana in hundreds of tank cars daily without the use of such a special permit.
In fact much of it probably goes right down the Colorado mountain frontier from north to south and no one in the rare air west of Denver is even aware of it.
While it would be good to get a SCOTUS decision on how far appellate courts can “legislate” on this matter, the result could effectively stop all transportation by rail of ANY hazardous material because of the “foreseeable impact of downstream issues” clause that the minority of these appellate courts have held. This would not only penalize the lives of those living in the Uintah Basin of Eastern Utah, but of any location where necessary hazardous materials are produced and transported by rail, thus increasing their transport by trucks on the already clogged interstate and local road systems of this country but also greater environmental impact by the construction of pipelines across the country to mitigate the road transportation issues these minority of courts have held. This not only has its own environmental concerns but would also be a huge cost driver on products used by the everyday citizen, cost which they cannot control but which they must pay. This is the worst form of inflation.
I suggest SCOTUS review the applicable environmental concerns within the Pacific Railway Act as precedent in this case.
While I support the Court of Appeals decision, since there are conflicting Appeals Court decisions on the NEPA issue it would be good to get a final decision one way or the other.