Supreme Court decisions occasionally have far-reaching impacts, but the recent ruling in Utah’s Uintah Basin Railway case was a Doozy, in which the Justices unanimously hinted that Eagle County, Colorado should mind its own business. County Commissioners there had challenged the Surface Transportation Board’s approval of the 88-mile rail line, proposed by seven Utah counties as a vital transportation connection from the oil-rich region to the national rail network.
Eagle County joined several environmental industry groups fighting the rail line, marginally suggesting it could impact traffic in Eagle County, which the oil trains might pass through on their way to Denver. But the real objection, highlighted in all the opponents’ legal filings, was that the Board failed to consider the climate change that could result from more oil production. They claimed it would lead to more oil refining in Texas, and thus more global warming.
Unanimous Supreme Court rulings on major environmental issues are rare, but the court used this case to restrict the scope of National Environmental Policy Act (NEPA) reviews. That upends 50 years of abuse of the procedural law, which Congress intended to ensure that environmental impacts were considered, and public input sought, before final decisions were made. But as the 8-0 court said, opponents have long used NEPA as a “blunt and haphazard tool” to stop or slow infrastructure projects, including energy, transportation, utility, and even clean energy projects. That has led to “delay upon delay,” rather than ordered and efficient decision-making.
At the heart of the ruling is a new interpretation of NEPA, that federal agencies are not required to consider “every conceivable environmental consequence” of a project, especially results that may be far distant or far in the future, over which the agency may not even have jurisdiction. In this case, the Surface Transportation Board cannot control whether oil from Utah is refined in Texas, nor what counties it may cross on its way there, nor whether anyone will ever buy that oil at all. Therefore, the agency is not expected to write lengthy environmental impact statements about such speculative impacts, only about the impacts of the project under consideration, in this case the 88 miles of new rail.
“Because NEPA’s central aim is to improve agency decision making, an agency need not consider every conceivable environmental consequence of a proposed federal action,” said the unanimous court, just the “environmental impacts for which their decision would be (at least in part) responsible.” Agencies cannot be forced to spend years writing voluminous studies of greenhouse gas emissions or future housing developments when considering applications for
pipelines, transmission lines, highways, or railroads – where such indirect effects are too remote from the project and beyond agency authority.
This case was about NEPA, a purely procedural law, but it may have much deeper implications, possibly for a much more powerful law, the Endangered Species Act (ESA). Consider that the court also ruled (2018 dusky gopher frog case) that the Fish and Wildlife Service cannot designate critical habitat for endangered species in places where the species cannot and does not live, another significant limit on federal overreach. The court’s apparent trend could tip the balance against a 20-year effort by that agency to use climate change to list new endangered species, and then use those species to regulate power plants and refineries far away.
That began with the 2008 listing of polar bears as threatened, specifically because of global warming. For the first time, that permitted ESA to be used to control activities regardless of their location. Anything that contributes to greenhouse gas emissions can be called a threat to polar bears – whether or not the activity is anywhere near the species. Thus, the government can stop power plants, timber harvests, public land grazing permits, coal mine or ski area expansions, oil and gas exploration, airport and highway construction, and other projects throughout the country. Any greenhouse gas emission can be called a threat to any species that was listed because of global warming.
Ironically, we now know polar bears are not endangered but are rather undergoing a dramatic resurgence, from about 5,000 animals after World War II to an estimated 30,000 today, in at least 9 different regions. But since then, numerous other species have been listed with climate change cited as one of the endangering factors.
The Uintah Basin Railway case may now hint at a similar challenge in the not-too-distant future, questioning whether species in Alaska can be used to regulate power plants in Arizona.
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