Legal Docket: Environmentalist challenge

JENNY ROUGH, HOST: It’s Monday the 30th of December. Glad to have you along for today’s edition of The World and Everything in It.

Good morning. I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher.

I think we’ve all seen aggressive environmental protests. The audio from CBS News. And don’t panic. Nobody’s honking at you.

PROTEST MONTAGE: Blocking traffic / throwing red powder on a case housing the U.S. Constitution / “We can still cause a little bit of a scene.” / “
What exactly are you guys doing tonight?” “We’re going to a fancy-schmancy gala that JD Vance is going to be speaking at.” / “JD Vance is a climate super villain!” / “
Get down!” / “Immediately, security guards, hands around the neck.” / “Their goal is media attention.” / Exxon lies and people die / You have sold our futures and you've gotten rich doing it. / “Not everybody loves us. You don’t need to be popular to be effective.”

Environmental activism happens in the streets and in the courts … and it’s in the courts where it may be the most effective.

Today on Legal Docket … one of the most powerful tools environmentalists use to get their way.

And how they do it is not the way you might expect. It’s not necessarily by way of the Clean Air Act to fight particulates we might breathe. Or the Clean Water Act to fight, say, river pollution. Or even siccing the Environmental Protection Agency on businesses.

VINES: Oh, boy. This is one of the odd federal environmental statutes that’s at play here—

ROUGH: Jim Vines is an attorney who specializes in environmental law.

VINES: —NEPA

NEPA, the National Environmental Policy Act. Never heard of it? Yeah, I hadn’t either.

The Supreme Court hasn’t had a major NEPA case in 20 years, but it is an environmentalist work-horse.

What it does is require federal agencies to prepare environmental impact statements. These statements go into enormous detail about the effects of proposed industry projects.

VINES: What the public interest groups here do is … use litigation on NEPA on environmental impact statements to slow down and delay and sometimes kill development projects.

And that’s what brings us to the Supreme Court today: an environmental case out of Utah.

EICHER: Seven counties in the eastern part of Utah want to lay down a modest amount of railroad track—88 miles isn’t much by the standards of the western U.S.

Environmentalists don’t so much object to the track as they do what the track will carry. It would transport crude oil from a remote mountain region to the national rail network.

Once connected, the crude oil would snake through Colorado and down to refineries in Texas and Louisiana, along the coast of the Gulf of Mexico.

The project would bring prosperity to this rural area of Utah. Jobs, business, and revenue. It’s worth noting there are no freeways here. Trucks have to navigate dicey mountain passes, so currently, it’s quite dangerous to move oil over the roads.

Nevertheless some environmental groups want to stop the project…

ROUGH: …using their weapon of choice: the environmental impact statement.

For this particular project ,the statement was 36-hundred pages, including 20 appendices—seemingly weighing all the tradeoffs around the 88 miles of track.

The statement detailed major impacts like water contamination, and loss of habitation for the sage-grouse. And minor impacts like vehicle safety.

EICHER: The Surface Transportation Board was the agency that had to write it up, and it OK’d the project.

But one Colorado county and various environmental groups filed suit.

They complain the board didn’t go far enough. They say it studied only the 88 miles of track, and not the negative consequences hundreds of miles away in Colorado, nor over a thousand of miles away in the Gulf Coast.

ROUGH: Here’s where it might be a little hard to follow.

The environmentalists are not saying the study is defective for reaching the wrong conclusion on the environmental issues. Under NEPA, they can’t.

VINES: That's not a valid argument to make under NEPA. That would be an argument you would have to make under some other environmental statute.

Like the Clean Water Act or Clean Air Act.

NEPA is purely procedural: It directs how to conduct the environmental impact statement.

So all the board has to do is follow a proper process.

VINES: That's the thing about NEPA. Let’s say you come up with an environmental impact statement that was terrible. It said the thing is going to ruin the whole surface of the earth. But the agency said we think the harms from that are outweighed by the benefit from granting the permit, that’s legitimate under NEPA.

So the key here is whether proper procedure was followed.

And the claim is that it wasn’t.

VINES: It considered environmental issues 1 through 10, but it should have also considered 11 through 20. And they didn't consider that. So, dear court, please make them go back and reconsider 11 through 20 and make them go through those hoops as well.

EICHER: At the Supreme Court, Paul Clement argued for proponents of the project. He said it would be wrong to demand a more comprehensive study.

He argued the environmental impacts in Colorado and the Gulf are within the wheelhouse of other agencies, and too far-flug for the project at hand.

The phrase he used was “remote in time and space.”

ROUGH: But Justice Elena Kagan wanted to know what that meant. She started with an inquiry about what’s within the project’s time and space.

I’ve compressed the exchange a bit, just to give a flavor of the back and forth.

KAGAN: Here's this 88 miles of line, and railroads are going to cross it and wildfires are going to start as a result. Is that within time and space?

CLEMENT: Totally.

KAGAN: The pollution that those trains are going to cause, that's also time and space, within the time and space that you have the trains running?

CLEMENT: Yeah, yeah, within the confines of those 88 miles.

KAGAN: Are you saying that anything that falls outside these 88 miles is not their problem?

CLEMENT: I'm saying that anything that is outside that 88 miles and is in the jurisdiction of another agency is not something that should be fatal

In your mind’s eye imagine a compass to draw perfect circles of variable sizes. You may have used one in math class. Clement argued that the board was right to draw that 88-mile circle and limit the study to that.

Quick digression: Jim Vines and Paul Clement used to work at the same law firm back in the day. Vines says that Clement does a masterful job here. With almost every question from the justices, Clement returned to his “time and space” proposition.

CLEMENT: If the effect is already remote in time and space … if it’s remote in time and space, and it’s in another agency’s jurisdiction, I think is the right test. … What I’m trying to do with remote in time and space … You can’t be reversed as the agency for something that is remote in time and space, plus in another agency’s bailiwick. … If it’s remote and time and space, and in the jurisdiction of another agency … If it’s in the jurisdiction of another agency and remote. … But if it’s remote and time and space…

EICHER: The other side does have the language of the law in their favor. The regulations under the statute require the environmental study to take into account what is—in the language of those regulations— “reasonably foreseeable.”

William Jay argued for the environmental groups, and relied on that terminology to defend their position that the compass circle needs to be way bigger.

JAY: Reasonable foreseeability is the test that Congress—that has been in NEPA since the beginning and that Congress has recently reaffirmed

But if Clement was running into trouble making the circle too small, Jay ran into the problem of making it too big.

Here’s Justice Clarence Thomas:

THOMAS: Would you just articulate what you think the close connection is with the Gulf coast communities.

JAY: The whole raison d’etre of this project is to transport one commodity and one commodity only. … But I do think it's a little bit misleading for Mr. Clement to suggest this is an 88-mile railroad, as if the train just went back and forth for 88 miles. It's a connection to the National Rail Network.

ROUGH: Let’s go back to the legal term “foreseeable.” It’s foreseeable the project will have impacts beyond 88 miles.

But a word like that is easily conflated. It can come to be understood as “conceivable.”

Much more inclusive.

For example, a rail project in Utah could conceivably increase refinery work in Texas, and that could conceivably give asthma to someone in Port Arthur, where does it end?

EICHER: But the key to this case might be something that came up earlier. The new tracks aren’t the real concern … the cargo is. Crude oil and the environmental consequences of refining it.

But as we’ve discussed, the board can’t veto the project simply because it doesn’t like the environmental harms of oil refining. And the public citizen groups can’t stop it for that reason either.

The NEPA statute doesn’t allow it.

KAGAN: Do you think that the agency can turn down the project on that basis?

JAY: That's not a NEPA question obviously.

KAGAN: It seems related to a NEPA question, because 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?

ROUGH: Fuss and bother.

Environmental lawyer Jim Vines suspects that’s what this case is actually about!

NEPA is the most litigated environmental statute, and there’s general agreement that it’s abused by people who oppose development. A typical environmental impact statement can take two to five years to write.

VINES: There have been instances when it’s taken 15 to get through the EIS process along with the subsequent litigation. So investors who are investing money, that’s a real obstacle to them. … And the longer you can make that fuss and bother go on procedurally, the more you are likely to kill the project because investors will back out.

Clement reminded the justices that a group of investors are a party to this case, too.

CLEMENT: So to be clear, I’m here in front of you on behalf of the seven counties that want this project to move forward and an investment group that got streamlined approval for this track in 2021. … My clients have to invest money. And they need predictability … a little more assurance that they're not going to get hung up for years and years based on litigation

Vines says Justice Kagan’s comment one wonders what all this fuss and bother is about is insightful regardless of her reason for bringing it up.

VINES: Justice Kagan—I can't tell whether she's being ironic about that, or whether she's admitting the strategy for that point of view, she's basically putting into plain language their ulterior motive.

EICHER: It’s worth mentioning that courts are supposed to give agencies deference to their process and reforms are in the works to set a 150-page limit on environmental impact statements.

ROUGH: It’s also worth mentioning, Deputy Solicitor General Edwin Kneedler argued for the government, who also supports the project. And Justice Neil Gorsuch had to recuse.

So we’ll see what sort of constraint the court sets here. The circle needs to be drawn somewhere. Perhaps a circle larger than just the 88 miles, but one that puts down harder limits to prevent these neverending environmental impact statements.

And that’s this week’s Legal Docket.

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