U.S. Court of Appeals vacates federal approval of Uinta Basin Railway, require more environmental review
Eagle County and a coalition of environmental groups on Friday won a legal challenge that at least temporarily derails the federal approval of the proposed Uinta Basin Railway project in Utah that would lead to a huge increase in oil-train traffic along the Colorado River.
The ruling by the U.S. Court of Appeals in Washington, D.C. vacates the 2021 U.S. Surface Transportation Board (STB) approval of the new 88-mile railway that would connect the oil fields of northeastern Utah with the main rail network and send up to five, two-mile-long oil trains a day along Union Pacific’s Central Corridor rail line between Grand Junction and Denver, including the northwestern corner of Eagle County.
The ruling essentially kicks the December, 2021 STB approval (unanimous except for the dissent of the Biden Administration-appointed chairman of the board) back to the federal agency that oversees the nation’s rail network for a more careful environmental review of the downstream impacts of a project that enjoys overwhelming political support in Utah.
The Uinta Basin Railway would result in up to an additional 350,000 barrels of oil a day traveling through Colorado and along the headwaters of the endangered Colorado River, through the Moffat Tunnel at Winter Park and down into Denver, where trains would then take various routes on to refineries on the Gulf Coast.
“We didn’t like their kind of expedited review where they bifurcated the environmental review from the transportation merit,” Eagle County Attorney Bryan Treu said. “So we’re really pleased that this project, as proposed, got derailed, because it means they have to start over, and when they start over, they’re going to have to look at the downstream impacts to Colorado and the Colorado River.”
Eagle County objected to the STB approval on a number of grounds, primarily centered on inadequate consideration of the impacts of climate change, the danger of wildfires from increased oil train traffic in a rapidly-drying state, and the potential harm to aquatic life from likely spills into the headwaters of the Colorado River. The county also feared the approval would increase pressure on UP to reopen its long-dormant Tennessee Pass Line along the Eagle River in Eagle County.
The court found no violation of the STB’s analysis of climate impacts. However, the court did find the STB failed to take a hard enough look at both the upstream and downstream impacts of oil production, including accident data, downline fire risks and the impact to endangered fish from oil spills in the Colorado River. It found no violation for failure to address potential impact to the Tennessee Pass Line, calling such “speculation unhelpful”.
The coalition of private and public entities working to build the railway remain undeterred.
“We are ready, willing, and capable of working with the U.S. Surface Transportation Board to ensure additional reviews and the project’s next steps proceed without further delay. We look forward to bringing this railway to the basin,” the Seven County Infrastructure Coalition and DHIP Group said in a joint statement,” according to the Associated Press.
The calculus for the proposed Uinta Basin Railway also changed in the wake of last spring’s toxic derailment in East Palestine, Ohio, which prompted a national push for increased freight train safety — legislation that is currently stalled in Congress.
“The East Palestine derailment and all of that happened post their application,” Treu said. “It seems like we read every month this last year about a derailment somewhere. So there’s a lot to look at that. The circumstances have changed, and as this goes back to the Surface Transportation Board, they’re going to be looking at all those things.”
Ted Zukoski, senior attorney for the Center for Biological Diversity — the lead environmental group challenging the Uinta Basin Railway — issued the following statement:
“This is great news for the Colorado River and the communities that rely on it for clean water, abundant fish, and recreation. It’s also a great win for our shared climate, given that the project purpose is to pump up oil production from Utah by more than five billion gallons a year,” Zukoski wrote. “The Uinta Basin Railway is a dangerous, polluting boondoggle, and we hope that the Biden administration will finally put this project in the dustbin where it belongs.”
Zukoski added that the court’s rejection of the STB approval now puts the spotlight on the U.S. Forest Service’s separate 2022 approval of the project (the proposed new railway would cross a 12-mile stretch of the Ashley National Forest in Utah).
“The Forest Service decision is subject to a separate challenge,” Zukoski said. “It’s still pending in the D.C. Circuit, and the court said we’ll get to that case when we decide the case against the transportation board, and you all come to us and talk about a schedule then.”
From Friday’s ruling by the D.C. Court of Appeals: “The deficiencies here are significant. We have found numerous NEPA (National Environmental Policy Act) violations arising from the [Uinta Basin Railway] EIS [Environmental Impact Statement], including the failures to: (1) quantify reasonably foreseeable upstream and downstream impacts on vegetation and special-status species of increased drilling in the Uinta Basin and increased oil-train traffic along the Union Pacific Line, as well as the effects of oil refining on environmental justice communities the Gulf Coast; (2) take a hard look at wildfire risk as well as impacts on water resources downline; and (3) explain the lack of available information on local accident risk in accordance with 40 C.F.R. § 1502.22(b) (2020). The EIS is further called into question since the BiOp failed to assess impacts on the Colorado River fishes downline.
“The poor environmental review alone renders arbitrary the Board’s consideration of the relevant Rail Policies and the final order’s exemption of the Railway. Yet, the Board also failed to conduct a reasoned application of the appropriate Rail Policies as required under the ICCT Act. The Board failed to weigh the Project’s uncertain financial viability and the full potential for environmental harm against the transportation benefits it identified.”
The full 66-page ruling can be found here, courtesy of The Colorado Sun.
Colorado U.S. Sen. Michael Bennet and U.S. Rep. Joe Neguse, both Democrats, issued the following press release on the appeals court decision:
Today, Colorado U.S. Senator Michael Bennet and U.S. Representative Joe Neguse released the following statement after the U.S. Court of Appeals for the District of Columbia Circuit overruled the Surface Transportation Board (STB) approval of the Uinta Basin Railway Project:
“This ruling is excellent news. The approval process for the Uinta Basin Railway Project has been gravely insufficient, and did not properly account for the project’s full risks to Colorado’s communities, water, and environment. A new review must account for all harmful effects of this project on our state, including potential oil spills along the Colorado River and increased wildfire risk. An oil train derailment in the headwaters of the Colorado River would be catastrophic — not only to Colorado, but the 40 million Americans who rely on it.
“We’re grateful for the leadership of Eagle County and the many organizations and local officials around Colorado who made their voices heard.”
Background
In April, Bennet, Neguse, and local leaders highlighted the dangers of the Uinta Basin Railway Project to Coloradans and to the entire Colorado River Basin from the banks of the Colorado River.
In March, Bennet and Neguse urged the Environmental Protection Agency’s (EPA) Region 8 Administrator to conduct a supplemental review of the project as prior EPA reviews focused solely on its risks to Utah. Earlier that month, Bennet, Neguse, and U.S. Senator John Hickenlooper urged U.S. Department of Transportation Secretary Pete Buttigieg to consider the risks of approving tax-exempt private activity bonds or any other federal financing mechanisms to fund the project. Bennet and Neguse also called on U.S. Department of Agriculture Secretary Tom Vilsack to suspend the Special Use Authorization for the project until a supplemental review is conducted. In July 2022, Bennet and Neguse called on the Biden Administration’s Council on Environmental Quality to undertake an additional comprehensive review to determine whether previous environmental and risk analyses fully considered the effects of the railway project on Colorado’s communities, watersheds, and forests.
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