Blog By: Sam Hilgeman
Americans love football, money, and all the oil we can get our hands on—to name a few of our favorites. The NFL added another week to the 16-game season while the NCAA expanded the college football playoff to include 8 more teams.[i] Across the nation, oil companies have constructed pipelines and railroads to transport oil more efficiently.[ii] Whether it be football, oil, or any other issue, the nation must find a balance between executing a thorough review of the effects of any decision while also allowing ample room for efficient improvements.
Seven counties in Utah, around the Uinta Basin, have struggled with a lack of infrastructure preventing them from transporting crude oil out of the basin in a cost-effective method.[iii] Due to the nature of the waxy crude oil found in the Uinta Basin, it cannot be transported by pipeline—only via truck or rail.[iv] Utah’s Seven County Infrastructure Coalition (“Coalition”) proposed a railroad connecting directly to the oil wells, hoping to replace the current system where commercial trucks simply drive the oil to a railroad.[v] Relevant to their proposal, the Surface Transportation Board (“STB”) regulates the construction and operation of all interstate rail lines.[vi] Before proceeding with the railroad’s construction, Coalition needed the approval of STB, which must perform an environmental report as required by Congress’ National Environmental Policy Act (“NEPA”).[vii]
NEPA, passed on January 1, 1970, requires federal agencies to assess the environmental impacts of their proposed actions before being implemented.[viii] All federal agencies, more specifically, must prepare detailed accounts of the environmental impact of their proposed actions as well as any reasonable alternatives.[ix] These NEPA reports may only examine the reasonably close causal relationship between the environmental effect and the alleged cause.[x] Put briefly, NEPA aims to ensure that government agencies give proper consideration to the environmental impacts of projects prior to their undertaking.[xi]
In its petition filed with STB in May 2020, Coalition explained that the only means of transporting resources, namely waxy crude oil, out of the Uinta Basin was by commercial trucking through a particularly burdensome highway pass.[xii] Furthermore, they argued that connecting a railway to the basin would provide crude oil extractors with an additional option when choosing transportation methods, therefore lowering costs.[xiii] Coalition also contended that an efficient review and approval of the railway project would provide substantial economic stimulation to both state and local economic development.[xiv]
One member of STB expressed concern that construction of this railroad would indirectly harm the surrounding environment.[xv] Although the railroad itself would have a negligible effect on the environment, the STB member worried that it would create such a cost-friendly environment for extracting raw materials from these rural areas that its construction would indirectly harm the environment.[xvi] More specifically, he worried that this would lead to an increase in oil extraction, transportation, and refinement, which could have a detrimental impact on endangered species and critical habitats in not only surrounding areas—but also in Colorado and environments along the Gulf of Mexico.[xvii]
The U.S. Court of Appeals’ District of Columbia Circuit agreed with the STB’s arguments and overturned a lower court’s ruling which allowed the Coalition’s proposal to move forward.[xviii] Liz Murrill, the Louisiana Attorney General, filed a brief with the Supreme Court shortly after this decision, asking them to grant certiorari and allow the railroad to proceed.[xix] Murrill argued that the D.C. Circuit’s decision would disproportionately harm the states that rely on energy as a significant part of their economy.[xx] Attorneys General from 22 other states, the majority of which lie south of the Mason-Dixon line, joined Murrill’s brief as well. The Supreme Court then granted Coalition’s certiorari petition and will hear the case in their 2024-2025 term.[xxi]
When the Supreme Court hears this case, they will address whether NEPA requires an agency to study environmental effects that lie beyond the proximate effects of that action over which the agency has regulatory authority.[xxii] Previously, in Department of Transportation v. Public Citizen, the Supreme Court limited the applicable scope of NEPA by holding that when a government agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, that agency’s NEPA analysis cannot include that effect.[xxiii] It follows, therefore, that if STB does not have the authority to regulate the process of oil refinement and drilling, then they did not need to consider those factors in its NEPA report.
Should the Supreme Court uphold the D.C. Circuit’s ruling, developers will have additional hurdles to overcome before beginning construction on their projects.[xxiv] Furthermore, environmental groups would be able to stall the beginning of these projects for an indefinite duration as they would be able to find countless proximate effects on distant communities. In this case, environmental groups want STB to have to consider the railroad’s downstream effects, through an increase in oil drilling, in the surrounding area of the Uinta Basin along with its effects on communities around oil refineries over 1,000 miles away.[xxv]
The Supreme Court must find a balance between reasonable environment protections and creating an efficient process for the review of major projects. Given that Coalition filed its initial report with STB over four years ago, and the project has yet to be approved or denied, the review process already moves at a snail’s pace, allowing for ample time to review the environmental effects.
[i] Dan Graziano, NFL moves to 17-game regular season in 2021: What it means for teams, players, revenue and fans, ESPN (Mar. 20, 2021), https://www.espn.com/nfl/story/_/id/31159686/nfl-moves-17-game-regular-season-2021-means-teams-players-revenue-fans,. [https://perma.cc/KCM2-KBPZ]; College Football Playoff to Expand to 12 Teams Starting with the 2024 Season, NCAA, https://www.ncaa.com/news/football/article/2022-12-01/college-football-playoff-expand-12-teams-starting-2024-season/,. [https://perma.cc/CP5D-NGER] (last visited Jan. 26, 2025).
[ii] The Court Decides Derailing Infrastructure Projects is in the Public Interest, Mountain States Legal Foundation, https://mslegal.org/cases/seven-counties-coalition-amicus/,. [https://perma.cc/F8NK-2Y2L] (last visited Jan. 23, 2025).
[iii] Id.
[iv] Tim Fitzpatrick, The oil business is booming in Utah’s Uinta Basin, The Salt Lake Tribune (Aug. 18, 2023), https://www.sltrib.com/news/2023/08/18/its-oil-boom-time-again-utahs/#:~:text=With%20Utah%E2%80%99s%20petroleum%20production%20rising%20to%20record%20levels,.[https://perma.cc/75N6-4NTC].
[v] Mountain States Legal Foundation, supra note 1.
[vi] Id.
[vii] Id.
[viii] National Environmental Policy Act, 42 U.S.C. § 4321.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Eagle Cnty. v. Surface Transp. Bd., No. 22-1019, 2023 U.S. App. LEXIS 32027, at *1163-88, *1164 (D.C. Cir. Aug. 18, 2023).
[xiii] Id. at *1165.
[xiv] Mountain States Legal Foundation, supra note 1.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Eagle Cnty. v. Surface Transp. Bd., No. 22-1019, 2023 U.S. App. LEXIS 32027, at *1163-88, 1167 (D.C. Cir., Aug. 18, 2023).
[xix] Steve Wilson, Twenty-three States ask Supreme Court to reverse energy-related decision, The Center Square (Sep. 5, 2024), https://www.thecentersquare.com/national/article_fc91e80e-6bc3-11ef-8919-0b20389cb16f.html,. [https://perma.cc/N47C-PH65] (last visited Jan. 26, 2025).
[xx] Id.
[xxi] Mountain States Legal Foundation, supra note 1.
[xxii] Id.
[xxiii] DOT v. Public Citizen, 541 U.S. 752, 767 (2004).
[xxiv] The Court Decides Derailing Infrastructure Projects is in the Public Interest, Mountain States Legal Foundation, https://mslegal.org/cases/seven-counties-coalition-amicus/,. [https://perma.cc/F8NK-2Y2L].
[xxv] Id.