WASHINGTON – The Supreme Court may be on the verge of sharply restricting the scope of so-called environmental impact statements, which assess the potential harm of planned developments and often result in projects being blocked or scaled back.
For more than 50 years, federal law has required agencies to carefully consider the “reasonably foreseeable environmental effects” of a construction or development project before approving it.
The justices appeared ready to reconsider on Tuesday approach in a case It's a proposed 88-mile rail line in Utah that would allow crude oil to be transported to refineries on the Gulf Coast.
Washington lawyer Paul Clement said in court that these impact assessments should focus narrowly on the project itself rather than its broader impacts. He urged the judges reject possible secondary effects that are “distant in time and space”.
In their comments and questions, most judges seemed to agree.
If so, their ruling could limit the reach of environmental impact statements, an outcome that would be welcomed by developers but condemned by environmentalists.
The decision could be significant in California as the 9th Circuit Court of Appeals takes a broad view of environmental protections and the scope of impact assessments.
Clement noted that environmental reviews can take up to five years, which can delay and sometimes even derail development projects.
He pointed to the D.C. Circuit in Washington and the 9th Circuit Court in San Francisco as the main culprits, describing the liberal-leaning courts as taking a “bloated and anti-development” approach.
Three years ago, the Surface Transportation Board, the federal agency that regulates rail freight transportation, approved construction of the Utah rail project.
But the board did not weigh the environmental impact of drilling new oil wells in northeastern Utah, the added air pollution at Gulf refineries or the risks of sending nine more trains a day along the Colorado River and through the Rocky Mountains.
Environmentalists sued the project along with Eagle County, Colorado, and won a verdict Last year in the DC Circuit Court of Appeals That is, the board failed to consider the “upstream and downstream” impacts on the environment.
Seven Utah counties appealed, arguing the Washington court had gone too far.
Eight justices appeared to agree Tuesday that the decision should be reversed.
The court has repeatedly limited federal environmental regulation in recent years, mostly because of disagreements among the three liberal justices. But they also appeared poised Tuesday to advocate new limits on the scope of those environmental reviews.
League of Conservation voters expressed alarm after the clashes.
“Today’s oral arguments show how extreme Supreme Court justices are once again endangering the fundamental protections of our communities, our environment and our future generations,” said Doug Lindner, the group’s senior director for justice and democracy.
He said the Utah case “could dangerously deprive communities of crucial rights to know and comment on the environmental impacts of proposed projects … and force authorities to ignore major environmental impacts, even obvious ones.”
Colorado Judge Neil M. Gorsuch, a friend of billionaire Philip Anschutz, said last week that he would not take part in the decision. Anschutz is not involved in the case, but Anschutz Exploration Group, which produces oil and gas in Utah, Colorado and Wyoming, filed a friend-of-the-court brief asking the court to limit the law's focus on environmental impacts are under the direct control of an authority.
Clement – who represented Utah's seven counties and asked the justices to limit environmental impact statements – said it makes sense for the federal board to consider the railroad's potential impact on the region's bighorn sheep, but not “uncertainties” like one possible A train accident hundreds of miles away or additional air pollution on the Gulf Coast.
He told the court that the environmental review in the case produced 3,600 pages of reports.
Congress recently passed an amendment stating that these impact statements should be limited to 150 pages.
The Center for Biological Diversity, which sued the railroad in Utah, said environmental impact statements have been critical to protecting the environment since the early 1970s. It said authorities had been alerted to “consider whether their actions will have long-term and potentially irreversible impacts on the environment.”
These impact statements allow the government and the public to weigh the harms and benefits of a new development.
Wendy Park, an attorney for the center, said: “Communities in the Uinta Basin and the Gulf Coast will suffer the most from this oil runway as oil companies enrich themselves at the expense of the environment and people's health.” It's a shame that the Railroad supporters want federal authorities to turn a blind eye to this damage.”