Supreme Court limits environmental impact studies, expediting infrastructure projects
The Supreme Court on Thursday put new limits on the scope of federally mandated environmental impact statements for major transportation and energy projects, clearing the way for a proposed rail line linking Utah and Colorado and for more expeditious approvals of similar construction programs nationwide.
The decision in Seven County Infrastructure Coalition v. Eagle County was 8-0. (Justice Neil Gorsuch recused from the case but did not explain his decision.)
The dispute, the first of its kind in 20 years to reach the court, focused on the purpose of the National Environmental Policy Act of 1969, which requires federal agencies to study the significant environmental effects of a project and identify alternatives to mitigate any harms.
The law, known as NEPA, has been the basis of major litigation by groups opposed to particular projects, which frequently sue to block construction by alleging that the impact study was incomplete or inaccurate.
Industry groups have long complained about years, even decades, of costly delays to get projects completed.
Acknowledging those concerns, Justice Brett Kavanaugh writing for the majority said use of NEPA to stymie energy and infrastructure programs has gotten out of hand and needs to be curtailed.
"A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development under the guise of just a little more process," Kavanaugh wrote. "A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense. "
Kavanaugh said the law imposed merely a "modest procedural requirement," related only to the project at hand, not a mandatory study of possible upstream or downstream impacts far afield from actual construction.
The proposed 88-mile railway at the heart of the case, linking the oil-rich Uinta Basin of Utah with the national rail network in Colorado, has undergone years of environmental study. Its impact statement exceeds 3,600 pages of analysis.
Environmental groups challenged the study, however, saying it failed to consider secondary impacts of exporting millions of gallons of oil to refineries along the Gulf, such as the risk of oil spills in the Colorado River, pollution in the Gulf and greenhouse gas contributions to climate change. The U.S. Court of Appeals for the District of Columbia Circuit agreed.
The groups told the Supreme Court that approving the railway could also mean heightened risk of oil spills, train spark-induced wildfires and enhanced greenhouse gas emissions nationwide.
Colorado Attorney General Phil Weiser, who opposes the railway project, lamented the high court decision in a statement, saying the court had approved a "risky scheme to transport waxy crude oil along the Colorado River, right alongside our most critical water resource and posing major risks to Colorado's Western Slope communities."
The Seven County Infrastructure Coalition, which supports the railway, said those downstream risks are too far afield and beyond the scope of the law and that the project has fallen victim of bureaucratic red tape.
"The effects from a separate project may be factually foreseeable, but that does not mean that those effects are relevant to the agency's decision making process or that it is reasonable to hold the agency responsible for those effects," Kavanaugh wrote. "In those circumstances, the causal chain is too attenuated."
The opinion said judges should show "deference" to the agency officials preparing the environmental impact statement.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson concurred with the judgment but wrote separately to explain their reasoning.
Proponents of the rail line, who have pitched it as an economic boon for the country, say it will help extract hundreds of thousands of gallons of waxy crude oil and drive down energy prices for consumers.
"The Supreme Court has issued an important corrective to the current judicial approach to the National Environmental Policy Act," said University of Minnesota Law School professor James Coleman, who specializes in energy and transportation law, "demanding more deference from courts for the agencies performing judicial review and explaining why it is inappropriate to demand agencies to consider the upstream and downstream effects of energy transport projects."
