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The Supreme Court will hear arguments Tuesday in a case that could narrow the reach of one of the nation’s foundational environmental laws.
The case deals with the National Environmental Policy Act (NEPA), which requires the government to consider the environmental impacts of its actions before moving forward.
The tribunal will assess whether upstream and downstream impacts of a project should be considered as part of this process.
The case could result in the court’s conservative majority significantly limiting what environmental impacts must be assessed in federal decisions.
Environmental groups warn that this decision could pose risks to both the environment and public health.
Sam Sankar, senior vice president of programs at Earthjustice, told reporters last week that the court could implement “a sweeping restriction on how the government assesses the environmental impacts of its major decisions.”
If it does, he said, “the government will make decisions with much less information about environmental impacts and based on the history of environmental law, this will inevitably lead to more pollution, more health impacts, more loss of biodiversity and greater harm to people. climate.”
However, the industry sees the potential limitation of the law’s reach as a way to limit costly and time-consuming litigation.
“As long as you’re litigating … it just increases the cost of building infrastructure,” said Joan Dreskin, general counsel of the Interstate Natural Gas Association of America, which represents pipeline companies.
“It raises the cost of your borrowing rates because your investors see it as risky,” he said. “Therefore, it is delaying much-needed infrastructure that the authorizing federal agency has already determined is of public convenience and need.”
The particular case before the court involves a proposed rail line that would deliver crude oil produced in Utah’s Uinta Basin to refineries where it can be turned into usable fuel.
The D.C. Circuit Court of Appeals ruled in favor of environmental groups and a Colorado county that argued a government environmental study of the railroad improperly ignored the impacts of both the production of the oil that would be transported as of further refinement.
The appeals court’s ruling said the U.S. Surface Transportation Board, which conducted the environmental study, “is not permitted to ‘evade (its) responsibilities under NEPA by labeling’ these ‘effects reasonably foreseeable upstream and downstream environmental conditions as a crystal ball query.”
However, the railroad 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 actions over which it has regulatory authority” rather than considering any “reasonably foreseeable” impact.
“NEPA’s limitless review hurts project proponents and the public as well. The time and expense of environmental review is a barrier to all types of new projects, including clean energy projects, preventing some of them ever leave,” they wrote.
They will have their day in court on Tuesday after the high court agreed to take their case.
Supreme Court Justice Neil Gorsuch has been rejected after scrutiny of his ties to an oil billionaire whose company filed a brief in the case saying it would be affected by the outcome. The other eight judges of the high court are set to hear the case.
The case is expected to have a particular impact on infrastructure and fossil fuel projects, as politicians have long debated, for example, whether and how to account for the climate impacts of the eventual use of ‘these fuels when deciding whether to approve drilling and mining.
However, it could also go further to affect numerous types of government decisions.
“The clearest analogs are certainly to other types of fossil fuel infrastructure, but the implications are broader,” 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 narrow the reach of environmental laws, particularly those related to protections against climate change i water pollution.
