EMMA PARK, Utah — On a snowy October morning, a parade of trucks struggled to navigate a mountain pass, toting massive freights of thick, waxy crude from an oil patch located about 100 miles away.
Some local residents say there is a better way to transport the oil that helps fuel their economy. The solution: Build an 88-mile rail spur to link the fossil fuel-rich Uinta Basin to an existing national rail network that would ship their product all the way to refineries near the Gulf of Mexico.
To do that, they’ll first need a little help from the nation’s highest court.
“When my grandpa was alive, they built things. They built dams, they built roads, they built railroads, they built infrastructure,” said Casey Hopes, chair of the Seven County Infrastructure Coalition, which is fighting alongside the Biden administration for the Supreme Court to streamline the environmental analysis supporting the Uinta Basin Railway. “What was the last big piece of infrastructure our nation put in that really made a critical difference?”
He continued: “We don’t do it anymore because we’re bogged down in regulatory processes, and until we fix that, we’re going down a road for more problems.”
In a case that will be argued Tuesday, the Supreme Court, minus Justice Neil Gorsuch, who recused himself, will consider whether the National Environmental Policy Act requires federal regulators to analyze the indirect impacts — namely, a likely increase in Uinta Basin drilling and Gulf refining capacity — that would stem from building the Utah railway.
But while the case — Seven County Infrastructure Coalition v. Eagle County, Colorado — focuses on the Utah rail project, the Supreme Court’s ruling, expected by early summer, is likely to redefine the scope of federal environmental and climate studies underpinning infrastructure projects nationwide.
The outlook for opponents of the rail project isn’t great. In every NEPA case that has come before the court since the law’s enactment in 1970, government and industry have prevailed against environmental organizations — often by a unanimous vote.
“The way NEPA works right now, when an agency has the power to think about something — climate change, the health and well-being of communities around, say, refineries — and when it has information that can illuminate its decision in a useful way, the agency is meant to both consider and disclose that information to the public,” said Sanjay Narayan, chief appellate counsel of the Sierra Club, which is among the parties fighting the Utah railway at the Supreme Court.
He said that attempts, like the one advanced by the railway’s proponents, to limit NEPA analyses to issues directly relevant to the reviewing agency’s regulatory authority is like asking individual drivers to craft rules governing what people must pay for in an automobile accident. Each driver, he said, would likely focus only on their own financial liabilities.
If agencies haven’t been specifically tasked with considering the effects of increased fossil fuel production or climate change from approving a project, Narayan said, those considerations would fly out the window.
“I think what the petitioners are aiming for is a rule where nobody would really have to think about those things,” he said.
For the leading parties in the Supreme Court case, however, the fight is primarily local.
Eagle County Commissioner Matt Scherr, an opponent of the Utah railway, said the project would increase the number of trains on the downstream track network, which would increase the number of derailments and spills his county — and any other locales along the rail line — experience.
And a spill in Eagle County, he said, has the potential to reach the Colorado River, which supplies drinking water to 40 million people in the West.
“Our primary concern in this case is the interest of Eagle County,” Scherr said. “We understand that NEPA is on the table with this case.”
He continued: “Eagle County is just a little dot in the nation, and I don’t think anyone hopes or expects to become part of the tension that can distract from the real local issues. We are hopeful that the court keeps its lens more focused in that way."
Hopes of the Seven County Infrastructure Coalition said he’s seen Uinta crude spill from a truck accident in his neck of the woods. And it wasn’t the oil — which he said solidified before it reached a local waterway — that caused him the greatest concern.
“Every seven minutes — with weather like this, or not,” he said, indicating the snow accumulating on the mountain pass, “there’s a truck coming down the highway loaded with crude. Those are our family members, those are our friends, those are our co-workers — or our kids — who are traveling those same roads with those trucks.”
Transforming the Uinta Basin — and beyond
The fight over oil production in the Uinta Basin dates back far beyond the NEPA battle over the railway.
About a decade ago, local midwife Donna Young reported — and was later excoriated for — her observation of an unexplained spike in infant deaths and questioned whether the trend could be related to drilling. Around the same time, a study linked oil and gas production in the Uinta Basin to excessive wintertime ozone pollution, which can lead to respiratory problems and heart and lung issues.
That’s when the local advocacy group Utah Physicians for a Healthy Environment, one of the parties challenging the railway at the Supreme Court, got involved.
“They had a pollution nightmare,” said Brian Moench, board president of the group and an anesthesiologist working in Salt Lake City.
The problem will only get worse, he said, if the Uinta Basin Railway moves forward. All told, the spur is expected to increase oil output in the basin by nearly five times the region's current level of 90,000 barrels of crude per day.
“Although we are very concerned about the climate crisis — and most of our pollution issues overlap with the climate crisis — we’re primarily involved because this is a public health nightmare in the making,” Moench said.
He added that he is deeply skeptical of assurances from the state and project proponents that there are plans for a crackdown on fugitive pollution sources or that potential derailments and spills could be managed in a way that wouldn't destroy nearby waterways.
“It’s not a matter of if an oil spill is going to occur,” Moench said. “It’s just a matter of when.”
The U.S. Court of Appeals for the District of Columbia Circuit, the nation’s second most powerful court, has agreed with criticisms of the NEPA analysis the Surface Transportation Board conducted of the Utah railway.
In an August 2023 ruling, the court found that the agency must consider the impact of additional wells expected to be drilled as a result of the railway’s construction, estimate the effect of down-line train traffic and give more thought to the implications for communities where the oil is expected to be deposited.
“This is not a case in which the location of where the oil will be delivered or its end use is unknown,” the D.C. Circuit wrote.
If the lower court’s ruling stands, the Surface Transportation Board will have to start the approval from scratch, potentially adding years to a process that began in 2019 — and delaying the potential economic benefit from a stronger connection between the Utah oil field and the national rail network, wrote the Ute Indian Tribe of the Uintah and Ouray Reservation in a “friend of the court” brief supporting the railway.
“Even if [the tribe] wanted to, its lands are too sparsely populated to provide much income from tourism, gaming, or similar activities,” the brief said. “What it does have, by fate or good luck, is substantial quantities of superior waxy crude oil."
The tribe continued: "But by fate or bad luck, it does not have the same access to markets as other oil fields in the United States.”
National impact
The Utah oil railway isn’t the only project whose fate will be shaped by the outcome of the Supreme Court battle.
It’s a point Denver-based oil and gas producer Anschutz made in its amicus brief in support of the Utah project. (Although Gorsuch has not said why he stepped out of the case, environmental groups had pointed to the justice’s ties to Anschutz as reason for him to recuse.)
“Because NEPA applies to every major federal action — including the authorizations Anschutz needs to develop federal oil-and-gas reserves — far more is at stake in this case than the 88-mile rail line in rural Utah,” the oil company wrote in its brief.
Federal data shows that agencies prepare about 170 environmental impact statements — the most robust form of NEPA analysis — and more than 10,000 less-involved environmental assessments each year. Eligible projects include pipelines, highways and, notably, infrastructure projects that enhance renewable energy development.
Completing — and then litigating — a NEPA review can take years. Some projects can't financially survive the wait.
“The reasoning and the arguments in the case apply just as well to all sorts of infrastructure projects, including infrastructure projects that are necessary to the energy transition — whether it’s building wind farms, pipelines, carbon sequestration sites, etc.,” said Ethan Shenkman, a partner at the firm Arnold & Porter, during a panel at the fall meeting of the environmental section of the American Bar Association.
He continued: “Many of those projects have been delayed and blocked through NEPA challenges, and the extent to which the Supreme Court cabins some of that NEPA analysis will have ramifications for all sorts of infrastructure projects that are currently under review.”
The Supreme Court argument also comes on the heels of a shocking decision last month from the D.C. Circuit, which invalidated the power of the White House to promulgate rules that guide agencies on NEPA implementation. The White House Council on Environmental Quality issued its first NEPA regulations in 1978.
While CEQ’s NEPA regulations are not directly at issue in the Supreme Court case, the agency’s rulemaking authority is expected to come up during Tuesday’s arguments.
The outcome of the Supreme Court case could further entrench the D.C. Circuit’s ruling against CEQ, which environmentalists and the Biden administration have asked the appellate bench to reconsider.
Former CEQ officials who served under both Republican and Democratic presidents have penned an amicus brief in the Supreme Court case, affirming the agency’s authority to oversee NEPA’s execution — and urging the justices to side with opponents of the Utah rail spur.
NEPA requires federal agencies to remove “mission-oriented blinders and identify and study the full range of potential adverse and beneficial impacts and reasonable alternatives,” the CEQ officials wrote.
Future of the Utah railway
Even if the Supreme Court rules in favor of the railway, it’s not an automatic green light for the project.
In addition to the NEPA issues the D.C. Circuit identified, the court also invalidated other approvals for the railway, including an analysis of the project’s impact on vulnerable species and critical habitat.
The project also still requires additional permits from the Surface Transportation Board, as well as Forest Service approvals for track to be built across 12 miles of roadless national forest lands, the Center for Biological Diversity, another group challenging the rail spur, wrote in a recent press release.
The center also said supporters of the project have never identified a funding source for the railway. According to the project's website, developers are relying on nearly $28 million in public funds for planning and studying and expect to receive $1.5 billion for construction, operation and maintenance from unnamed private entities.
The cost to build the rail project could run as high as $4.5 billion, according to a 2015 Utah Department of Transportation study.
Jay Johnson, a partner at the law firm Venable who is representing the Seven County Infrastructure Coalition before the Supreme Court, said there will certainly be more to sort out after the justices rule next year.
“But I’m optimistic,” he said.
Moench of Utah Physicians for a Healthy Environment said his group and the rest of the coalition opposing the railway will continue to use every tool at their disposal to fight the project — no matter the outcome at the Supreme Court.
“At this point, I’m not sure that I could make any sort of intelligent extrapolation from the possibilities of how the court might rule,” he said. “But we’ll dig into that, and we’ll have something to say about it, for sure.”
Arguments will begin at 10 a.m. on Tuesday at the Supreme Court.
