Supreme Court could curb NEPA reviews next term

By Niina H. Farah, Pamela King | 06/24/2024 01:25 PM EDT

The case follows the court’s recent trend of picking up controversial environmental issues.

The Supreme Court building is seen.

The Supreme Court. Francis Chung/POLITICO

The Supreme Court opened the door Monday to setting new limits for how agencies account for climate and environmental risks for new projects.

The newly granted petition — Seven County Infrastructure Coalition v. Eagle County, Colorado — challenges the breadth of analysis required under the National Environmental Policy Act and is among the first environmental cases the Supreme Court has agreed to hear next term.

In the last three terms, the justices have narrowed EPA’s authority to regulate climate pollution, reduced protections for the nation’s wetlands and are now poised to weaken the Chevron doctrine, which helps the federal government defend environmental rules in court.


“Taking the case fits with the recent trend of the court taking environmental cases that raise controversial issues,” said Kevin Minoli, former EPA acting general counsel and principal deputy general counsel.

Environmental groups lamented the Supreme Court’s decision to take up the case and potentially limit the scope of environmental review of a proposed oil rail line in Utah. The 88-mile Uinta Basin Railway would carry waxy crude oil out of the Uinta Basin and eventually connect the fuel to refineries in the Gulf Coast.

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

The environmental group had opposed the Surface Transportation Board’s decision to approve the project in 2021, along with officials from Eagle County, Colorado.

“The proposal for the Uinta Basin Railway cut corners from the start but federal laws are now catching up with this climate and environmental catastrophe,” Park said. “That will prevent this disastrous railway from being built.”

Last August, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Surface Transportation Board had to also consider how the construction of the rail line could affect both the amount of crude oil production and the environmental effects of refining it.

The Seven County Infrastructure Coalition petitioned the Supreme Court to reconsider the case in March, challenging the need to consider effects that were far removed from the actual construction of the line itself.

“We are optimistic that the Supreme Court will recognize the importance of this project for our community and the broader state economy,” said Keith Heaton, director of the Seven County Infrastructure Coalition, in a statement. “The railway is not just about moving goods; it’s about securing a prosperous,sustainable future for our communities.”

The coalition, which is developing the project with the Rio Grande Pacific Corp. and the DHIP Group, has lauded the economic benefits of the project. Development of the line is expected to lower shipping costs and bring new jobs to the Uinta Basin.

The coalition saw the petition as an opportunity to affect not only the analysis for the railway, but also future infrastructure projects across the country.

“The NEPA process needs to be clarified and solidified,” said Casey Hopes, the coalition’s chair, in a statement.

The Supreme Court has only taken up a smattering of NEPA cases in the 50 years since the statute was passed.

Minoli, now a partner at the law firm Alston & Bird, said that he expects the court’s recent environmental rulings will be harbingers of what’s to come on NEPA.

“If the trend of decision in environmental cases continues,” he said, “this will be a narrowing of what needs to be considered under NEPA — not an expansion.”