Supreme Court may sharply limit environmental impact statements

WASHINGTON —  The Supreme Court may be about to sharply limit the reach of so-called environmental impact statements, which gauge potential harm of proposed developments and often cause projects to be blocked or scaled back.

For more than 50 years, federal law has required agencies to take a hard and broad look at the “reasonably foreseeable environmental effects” of a building or development project before approving it.

The justices sounded ready on Tuesday to reconsider that approach in a case involving a proposed 88-mile railroad line in Utah that would allow crude oil to be shipped to refineries on the Gulf Coast.

Washington attorney Paul Clement said in court that these impact assessments should focus narrowly on the project itself, not on its wider effects. He urged the justices to reject potential secondary effects that are “remote in time and place.”

In their comments and questions, most of the justices appeared to agree.

If so, their ruling could rein in the reach of environmental impact statements, an outcome that would be welcomed by developers but condemned by environmentalists.

The decision could loom large in California because the 9th Circuit Court of Appeals has taken a broad view of environmental protection and the scope of impact statements.

Clement noted that environmental reviews can take up to five years, which can delay and sometimes kill development projects.

He pointed to the D.C. Circuit in Washington and the 9th Circuit Court in San Francisco as the main offenders — describing the liberal-leaning courts as having adopted a “bloated and antidevelopment” approach.

Three years ago, the Surface Transportation Board, the federal agency that regulates freight railroads, approved the Utah rail project for construction.

But the board did not weigh the environmental impact of drilling new oil wells in northeastern Utah, the extra air pollution at refineries on the gulf or the risks of sending nine more trains per day along the Colorado River and through the Rockies.

Environmentalists sued over the project along with Eagle County, Colo., and won a ruling from the D.C. Circuit Court of Appeals last year that said the board had failed to consider the “upstream and downstream” impact on the environment.

Seven Utah counties appealed, arguing the D.C. court had gone too far.

Eight justices appeared to agree on Tuesday that the decision should be reversed.

The court has repeatedly limited federal environmental regulation in recent years, usually over dissents from the three liberal justices. But they, too, sounded ready on Tuesday to endorse new limits on the scope of these environmental reviews.

The League of Conservation Voters voiced alarm after the arguments.

“Today’s oral arguments show how extreme Supreme Court justices are once again threatening bedrock protections for our communities, our environment, and our future generations,” said Doug Lindner, the group’s senior judiciary and democracy director.

He said that the Utah case “could dangerously strip critical rights for communities to know and provide input on environmental impacts of proposed projects … and force agencies to ignore major environmental impacts, even obvious ones.”

Justice Neil M. Gorsuch, a Colorado native who is a friend of billionaire Philip Anschutz, said last week that he would not participate in the decision. Anschutz is not a party to the case, but the Anschutz Exploration Group, which produces oil and gas in Utah, Colorado and Wyoming, submitted a friend-of-the-court brief that urged the court to limit the law’s focus to environmental effects that are under the direct control of an agency.

Clement — who represented the seven Utah counties and urged the justices to rein in environmental impact statements — said it made sense for the federal board to consider the railroad’s potential impact on the bighorn sheep in the area, but not “imponderables” such as a potential rail accident hundreds of miles away or extra air pollution on the Gulf Coast.

He told the court the environmental review in this case produced 3,600 pages’ worth of reports.

Congress recently adopted an amendment that said these impact statements should be limited to 150 pages.

The Center for Biological Diversity, which sued to challenge the Utah railroad, said environmental impact statements have been crucial to protecting the environment since the early 1970s. It said agencies have been on notice “to consider whether their actions will have long-term, and potentially irreversible, environmental effects.”

These impact statements permit the government and the public to weigh the harms as well as the benefits of a new development.

Wendy Park, an attorney at the center, said “communities in the Uinta Basin and the 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. It’s disgraceful the railroad’s backers want federal agencies to turn a blind eye to those harms.”