Supreme Court is poised to weaken environmental review of infrastructure projects

By John Fritze, CNN

(CNN) — The Supreme Court appeared poised Tuesday to significantly weaken the scope of environmental reviews of major infrastructure projects in a case that could hand President-elect Donald Trump an early win on an issue he often hammered on during his first term.

If the court backs the plan to build an 88-mile railway in Utah it would be the latest decision in which the justices have ruled against environmentalists, shutting down regulations in recent years that were intended to protect wetlands, for instance, and reduce air pollution wafting across state lines.

Environmental requirements are creating a “juicy litigation target” that allows opponents to stall infrastructure projects, Paul Clement, a veteran Supreme Court lawyer, told the justices.

“After all, infrastructure requires investment, and for investors, time is money,” he said.

During his first term, Trump raised similar arguments, repeatedly slamming environmental studies required by the National Environmental Policy Act as too cumbersome. The 1970 law, signed by President Richard Nixon, is considered one of the foundational environmental laws formed at the beginning of the modern environmental movement.

“These endless delays waste money, keep projects from breaking ground and deny jobs to our nation’s incredible workers. From day one, my administration has made fixing this regulatory nightmare a top priority,” Trump said at the White House in 2020.

Congress approved changes to the law last year that, in many cases, require those reviews to be limited to 150 pages – rather than allow the studies to run thousands of pages long.

But while many of the high court’s recent environmental rulings have divided conservatives and liberals, there appeared to be at least some cross-ideological support for Clement’s position – particularly on the question of whether federal courts should swoop in to second-guess how agencies review downstream environmental effects of major projects.

At issue for the high court is a proposed rail line that would connect the Uinta Basin in Utah and Colorado to existing rail networks, making it easier for the oil and gas industry to move waxy crude oil to refineries in other parts of the country. The legal question dealt with how deeply the Surface Transportation Board should have considered the environmental effects not just of the railway itself but of the refining of the oil its trains will carry.

The board ultimately approved the railway and the Biden administration is defending that decision.

But Eagle County, Colorado, and several environmental groups sued, arguing that the more limited review violated the law by not more closely considering potential downstream effects of the projects. And, the environmental groups say, the consequences of a decision in favor of building the rail line would be of nationwide significance.

“This case is bigger than the Uinta Basin railway,” said Sam Sankar, vice president of programs for Earthjustice, which is representing some of the plaintiffs. “The fossil fuel industry and its allies are making radical arguments that would blind the public to obvious health consequences of government decisions. The Court should stick with settled law instead. If it doesn’t, communities will pay the price.”

After nearly two hours of argument on Tuesday, it seemed clear that a majority was prepared to reverse an appeals court decision against the railway. The question was how far the court will go in limiting the scope of future reviews. A decision is expected some time next year, likely months after Trump takes office for a second term.

Justice Elena Kagan, nominated by President Barack Obama, noted the agency doesn’t have the authority to halt the project based on downstream effects of oil production.

“If the agency can’t mitigate the harm and it can’t turn down the entire project, one wonders what all this fuss and bother is about,” she asked.

The downstream impacts in question, Justice Ketanji Brown Jackson said, are “so far down the line.”

“They depend on a bunch of other people’s actions,” Jackson, another member of the court’s liberal wing, pressed William Jay, the attorney representing Eagle County.

“Don’t you have to show that there’s some pretty close connection or tie between those impacts and this decision?” she asked.

Notably absent from the arguments was Justice Neil Gorsuch, a conservative who recused himself from the case last week.

Gorsuch did not explain his decision to back away from the appeal – and the court has not responded to requests for additional information – but the move came comes weeks Democrats on Capitol Hill argued that Denver-based billionaire Philip Anschutz, a longtime ally of Gorsuch, had a financial interest in the outcome of the case.

CNN’s Ella Nilsen contributed to this report.

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