U.S. Supreme Court to hear Colorado county suit to stop Utah oil trains along Colorado River
An oil train passes some paddle boarders on the Colorado River in August.
Eagle County, Colorado, will get its day in the U.S. Supreme Court on Tuesday, Dec. 10, when the justices will hear arguments in a petition by Utah oil interests seeking to reverse a lower court decision that at least temporarily derailed a Utah oil train project with huge implications for Colorado.
Lawyers for Eagle County on Friday filed an opposition brief aimed at the Utah drilling interests, known as the Seven Counties Infrastructure Coalition, and their contention that the National Environmental Policy Act (NEPA) doesn’t require a federal agency to consider environmental impacts beyond the “proximate effects” of the action the agency is regulating.
In this case, Eagle County spent at least $450,000 in legal fees challenging the approval by the U.S. Surface Transportation Board (STB) of the 88-mile Uinta Basin Railway from the oil fields of northeastern Utah to the main Union Pacific rail line near Price, Utah. The proposed new rail line would substantially increase the amount of oil then being transported east through Colorado.
Eagle County and five environmental groups, which also filed an opposition brief on Friday, argued the STB did not adequately consider, as required by NEPA, the potential impacts of wildfires and oil spills from inevitable derailments along the Colorado River in Eagle County. The U.S. Court of Appeals for the D.C. Circuit agreed last year.
The conservative-majority Supreme Court, with its recent history of rolling back federal environmental regulations, appears poised to dramatically alter the nation’s bedrock law used to evaluate the potential impacts of infrastructure projects such as the Uinta Basin Railway. It’s decision likely won’t be issued until next year.
“No, when we filed the lawsuit, certainly not a consideration,” Eagle County Commissioner Matt Scherr told RealVail.com when asked about the potential impacts to NEPA. “Eagle County’s consideration is that we care about climate and … NEPA and how those things go, but our primary consideration is what it always has been — those direct impacts to Eagle County from this potential line [from oil spills and wildfires].”
Oil companies drilling in the Uinta Basin just west of Dinosaur, Colo., are on track to achieve about 75% of the increased production the railway project would deliver, trucking the oil in heated tankers to refurbished coal-loadout facilities near the main rail line at Price. Oil trains along the upper Colorado in Eagle County have been steadily increasing anyway.
Scherr, a Democrat who’s seeking reelection next month, also said he doubts this Supreme Court decided to hear this case – a disappointing decision for the county and the environmental groups after their victory last year – if it didn’t intend to dramatically reform NEPA from the bench.
According to The Lever, Colorado native Neil Gorsuch, a conservative Supreme Court appointee of former President Donald Trump, is facing calls from federal lawmakers and the watchdog group Accountable.US to recuse himself from this case due to his close ties to Colorado oil and media tycoon Phil Anschutz, owner of the Gazette newspapers.
Accountable.US first exposed Anschutz’s involvement in the case, and pointed out that during his 11-year stint on the 10th Circuit – a seat Anschutz helped Gorsuch land — Gorsuch recused himself from dozens of cases related to the Colorado billionaire. Gorsuch is distantly related to the late Dave Gorsuch of Vail, founder of the Gorsuch retail stores.
Kevin Minoli, former general counsel at the Environmental Protection Agency and a partner at Alston & Bird, a Washington D.C.-based corporate firm, told The Lever: “I would expect it to be a fairly large, very significant decision coming out of this case. I don’t think the Supreme Court takes the case just to make a narrow ruling on the scope of agency authority. I think they’re going to make a decision and make a pronouncement about the scope of authority and responsibility underneath [agencies] generally when they issue their opinion.”
The heated oil tankers cars, necessary for transporting Utah’s waxy crude that cannot travel through pipelines, roll along about 100 miles of track adjacent to the mega-drought-stricken Colorado River before heading through the 6.2-mile state-owned Moffat Tunnel at Winter Park and down into Denver. From there they head to Gulf Coast refineries.
“Communities in the Uinta Basin and Gulf Coast will suffer the most from this oil railroad, while oil companies enrich themselves at the expense of the environment and people’s health,” Wendy Park, a senior attorney at the Center for Biological Diversity (CBD), wrote in a press release Friday. “It’s disgraceful that the railroad’s backers want federal agencies to turn a blind eye to those harms. A robust environmental review that takes a hard look at all the train’s threats is crucial for protecting communities near and far from this railway.”
CBD is one of the conservation groups arguing against the Utah oil counties’ appeal.
Eagle County’s opposition brief filed to SCOTUS on Friday questioned the timing and the purpose of the petition by the Utah oil coalition: “Petitioners are asking the court to impose limitation on NEPA that have no basis in its text whatsoever. And their request comes at a strange time: After Congress adopted a bipartisan compromise to revise NEPA’s text and reform aspects of the NEPA process. The amendment to NEPA makes clear that the agencies must study the ‘reasonably foreseeable’ environmental consequences of their actions before committing themselves – the same standard the court of appeals have applied for decades, including here.”
Friend of the court amicus briefs are due on Oct. 25, and Eagle County is hoping for more support at the state level, which Colorado Attorney General Phil Weiser says he’ll deliver. The AG’s office this week declined to confirm whether Weiser’s opposition to the Uinta Basin Railway will take the form of an amicus brief.
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