“Supreme Court Poised to Curb Scope of Environmental Reviews”, By Adam Liptak

“Several justices indicated that a federal agency had complied with a federal law by issuing a 3,600-page report on the impact of a proposed railway in Utah.”

Dec 11, 2024

Several justices indicated that a federal agency had complied with a federal law by issuing a 3,600-page report on the impact of a proposed railway in Utah.

By Adam Liptak

Reporting from Washington

The Supreme Court seemed prepared on Tuesday to rule that a federal agency had done enough to consider the environmental impact of a proposed 88-mile railway in Utah. Such a ruling could limit the scope of environmental reviews required by federal law in all sorts of settings.

The proposed railway would connect oil fields in the Uinta Basin in northeast Utah to a national rail network that runs next to the Colorado River and then to refineries on the Gulf Coast.

The Surface Transportation Board, a federal agency that regulates rail transportation, approved the Utah project after conducting a review that yielded a 3,600-page report. Environmental groups and a Colorado county sued, saying the report had not taken account of some ways in which the railway could do harm to the environment.

The U.S. Court of Appeals for the District of Columbia Circuit ruled for the challengers.

Paul D. Clement, a lawyer representing seven Utah counties in support of the project, said that “the board was not heedless of environmental effects here.”

“It consulted with dozens of agencies, considered every proximate effect and ordered 91 mitigation measures,” he added. “Eighty-eight miles of track should not require more than 3,600 pages of environmental analysis.”

More generally, Mr. Clement said that agencies should not be required to consider effects of projects that are “remote in time and space” and where other regulators have responsibilities.

Several justices seemed inclined to adopt a version of that test, but some worried that it did not offer adequate guidance.

“I have trouble seeing how this is going to work out as a practical matter,” Chief Justice John G. Roberts Jr. said.

Justice Elena Kagan said Mr. Clement’s proposed test “sounds pretty good” for assessing the railway project but might not work for smaller or more sprawling projects.

Mr. Clement said it was hard to articulate a general rule. “If I could give you a 10-word test that took care of every hard case,” he said, “I mean, you know, they’d give me tenure at Harvard.”

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The remark was greeted by laughter.

“I’m sure they’d give you that anyway,” Justice Kagan, who was dean of Harvard Law School, told Mr. Clement, who was solicitor general in the George W. Bush administration.

The environmental impact statements required by a 1970 federal law, the National Environmental Policy Act, can be quite elaborate. Mr. Clement said the law was “the single more litigated environmental statute" and “a juicy litigation target for project opponents.”

Justice Brett M. Kavanaugh said that courts should give agencies wide leeway. “It seems to me the deference of the courts has to be huge with respect to how the agencies think about the scope of what they’re going to consider,” he said.

In a different context in June, the Supreme Court cut back on the deference courts must pay to agencies when they interpret ambiguous federal laws.

Edwin S. Kneedler, a lawyer for the federal government, said the report at issue in the case was adequate. But he said the court should not adopt a rigid test for challenges to environmental impact statements.

“An agency should take into account indirect effects, too, which are not just the immediate effects of the project,” he said.

William M. Jay, a lawyer for the challengers, said that the federal law required the report to consider the reasonably foreseeable results of the project, like oil spills and sparks that can cause wildfires.

“It’s a little bit misleading for Mr. Clement to suggest this is an 88-mile railroad, as if the train just went back and forth for 88 miles,” Mr. Jay said. “It’s a connection to the national rail network.”

A recent law generally limits environmental impact statements to 150 pages. Mr. Kneedler noted that the page limit does not count appendices.

“Don’t try that here,” Justice Kavanaugh said, referring to the limits the Supreme Court sets for how long briefs may be.

The case, Seven County Infrastructure Coalition v. Eagle County, Colo., No. 23-975, was argued before an eight-member court. Last week, Justice Neil M. Gorsuch recused himself, apparently over concerns that his ties to Philip F. Anschutz gave rise to a conflict of interest. Neither Mr. Anschutz, a billionaire and Republican donor, nor his companies are parties to the case, and the letter announcing Justice Gorsuch’s recusal gave no reasons.

But the proposed railway could benefit companies in which Mr. Anschutz has an interest. Justice Gorsuch represented Mr. Anschutz and his companies as a lawyer, benefited from his support when he was being considered for a seat on an appeals court and once served as a keynote speaker at an annual party at his ranch

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