Supreme Court appears likely to curb environmental law after arguments

The Supreme Court appears likely to weaken one of the nation’s bedrock environmental laws, after justices heard a key case on Tuesday.

During oral arguments, several of the court’s conservative justices signaled that they could support at least some limits on the scope of which environmental impacts need to be considered in government decision-making.

Justice Brett Kavanaugh argued that courts, which have struck down some environmental reviews as insufficient, have taken an “overly aggressive” role and incentivized agencies to take on sprawling environmental reviews.

The outcome of the case could have major implications: Limiting such consideration could impact a range of decisions including whether to approve oil and gas drilling, mining projects, pipelines, logging, highways and more.

The National Environmental Policy Act (NEPA), requires consideration of environmental impacts before these projects are approved — and the results of that evaluation could lead to mandated mitigation of environmental harms. At issue in the case is whether and when upstream and downstream environmental impacts should be considered as part of these environmental reviews.

The court’s conservative majority appeared to lean toward a lawyer representing a railway company and Utah counties, who argued that upstream and downstream effects should not be considered when they are “remote” in time and space.

Justice Amy Coney Barrett raised practical concerns about the government’s future ability to evaluate downstream environmental impacts in light of a 2023 law that limited such reviews to 150 pages.

“It’s going to be impossible for agencies to consider as many downstream and upstream effects just because of the procedural constraints,” she said.

However, liberal Justice Sonia Sotomayor said the arguments in favor of curtailing the environmental law, presented by lawyer Paul Clement, “doesn’t make much sense in the statutory scheme.”

“Most environmental effects…are going to be sometimes remote in time and geography,” she said.

The particulars of the case concern a proposed Utah railway that would ship oil. The D.C Circuit Court of Appeals said that the U.S. Surface Transportation Board did not adequately review that railway’s environmental impact because it did not fully consider the effects of increased oil production and refining of that oil, which would occur as a result.

The company behind the railway and a group of Utah counties appealed that decision to the Supreme Court, arguing that those indirect impacts are beyond the scope of the federal reviews.

Clement argued in favor of a two-part test to determine if environmental effects should be considered. Under his test, an impact should not be considered if it is remote in time and space and under the jurisdiction of another agency.

He argued that in the particular case, the effects of refining the oil belong to local environmental agencies, and should be left up to them, rather than the federal transportation board.

On the other hand, a lawyer representing a Colorado county and environmental advocacy groups who argue that the transportation board did not adequately consider the railroad’s potential impacts, argued that any effects that are “reasonably forseeable” should be considered.

The lawyer, William Jay, said the impacts of oil refining and production are reasonably foreseeable because the purpose of the railroad’s construction is to transport that oil, and that therefore the impacts should be considered.

The U.S. government also participated in the case, with Deputy Solicitor General Edwin Kneedler largely siding with the railway’s supporters, though Kneedler argued for more of a case-by-case approach as opposed to Clement who wanted the court to lay down a definitive rule.

Justice Neil Gorsuch rescued himself from the case after an oil company to which he has ties filed a brief explaining how it would be impacted by the case’s outcome.

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