Supreme Court to hear case Tuesday that could restrict bedrock environmental law

The Supreme Court will hear arguments Tuesday in a case that could reduce the scope of one of the nation’s bedrock environmental laws.

The case deals with the National Environmental Policy Act (NEPA), which mandates that the government consider the environmental impacts of its actions before moving ahead with them. 

The court will weigh whether upstream and downstream impacts from a project should be considered as part of that process. 

The case could result in the court’s conservative majority significantly limiting which environmental impacts need to be evaluated in federal decisions.

Environmental groups warn such a decision could pose risks for both the environment and public health.

Sam Sankar, senior vice president for programs at Earthjustice, told reporters last week that the court could implement “a radical restriction of the way that the government evaluates the environmental impacts of its major decisions.”

If it does so, he said, “the government will make decisions with far less information about environmental impacts and based on the history of environmental law, that will inevitably lead to more pollution, more health impacts, more loss of biodiversity and greater injuries to climate.”

However, industry sees the potential limitation of the law’s scope as a way to limit costly and time-consuming litigation. 

“While you are litigating … it just increases the cost of building infrastructure,” said Joan Dreskin, general counsel for the Interstate Natural Gas Association of America, which represents gas pipeline companies. 

“It increases the cost in your borrowing rates because it's seen as risky by your investors,” she said. “So it is delaying much needed infrastructure that the authorizing federal agency has already determined to be in the public convenience and necessity.”

The particular case going before the court deals with a proposed railway line that would deliver crude oil produced in the Uinta Basin in Utah to refineries where it can be made into usable fuel. 

The D.C. Circuit Court of Appeals ruled in favor of environmental groups and a Colorado county who argued that a government environmental study of the railway incorrectly ignored the impacts of both producing the oil that would be transported and refining it later on.

The appeals court decision said that the U.S. Surface Transportation Board, which performed the environmental study, “is not allowed ‘to shirk [its] responsibilities under NEPA by labeling’ these reasonably foreseeable upstream and downstream ‘environmental effects as crystal ball inquiry.’”

However, the railway company and a group of Utah counties challenged that decision, arguing that upstream and downstream impacts should not be considered. 

They also wrote in their petition that an agency should only weigh “the proximate effects of the actions over which it has regulatory authority” rather than consider any “reasonably foreseeable” impact. 

“Boundless NEPA review hurts project proponents and the public too. The time and expense of environmental review is a barrier to all kinds of new projects — including clean energy projects — that prevents some of them from ever getting off the ground,” they wrote. 

They will get their day in court on Tuesday after the high court agreed to take their case. 

Supreme Court Justice Neil Gorsuch has recused himself following scrutiny of his ties to an oil billionaire whose company filed a brief in the case saying it would be impacted by the outcome. The high court’s other eight justices are set to consider the case. 

The case is expected to be particularly impactful for fossil fuel infrastructure and projects — as politicians have long debated, for example, whether and how to consider the climate impacts of the eventual use of these fuels when deciding whether to approve drilling and mining. 

However, it also could go beyond that to impact numerous types of government decisions. 

“The clearest analogs are certainly to other types of fossil fuel infrastructure, but the implications are wider-ranging,” said Bridget Pals, an attorney at New York University’s Institute for Policy Integrity. 

While it’s not entirely clear which way the court will rule, in recent years the conservative majority has moved to curtail the scope of environmental laws, particularly those related to protections from climate change and water pollution.