CASPER — Wyoming’s senior senator is throwing his political and intellectual weight behind a big case before the U.S. Supreme Court, whose outcome could significantly diminish the reach of the National Environmental Policy Act.
The law’s application has become overly rigorous and is bogging down economic development, Sen. John Barrasso argues in an Amicus Brief delivered to the court last week.
The act requires federal agencies to vet policies and development proposals to ensure communities and public lands are protected from certain environmental harms. Since its passage in 1969, however, the so-called “Magna Carta” of environmental laws has become the poster-child of mission creep and bureaucratic overreach, the Amicus states.
The current standard of implementation “transforms NEPA’s think-before-you-act framework into a roving environmentalist mandate,” Barrasso and Amicus co-signers argue.
The case before the court, Seven County Infrastructure Coalition v. Eagle County, Colorado, considers the appropriate scope of National Environmental Policy Act application and whether federal agencies must consider “upstream” and “downstream” impacts from proposed actions.
In this case, it considers the extent to which the Federal Surface Transportation Board must vet the environmental implications of emissions stemming from more oil production, as well as infrastructural impacts to wildlife.
The Seven County Infrastructure Coalition is an interlocal agency chartered to enhance infrastructure needs in eastern Utah using money set aside from federal mineral royalty payments. The coalition has long sought to build a rail line that would bring oil from the oil-rich region of eastern Utah to refinery and export terminals in the Gulf of Mexico.
The Federal Surface Transportation Board okayed the project in 2021, but that approval was afterward invalidated by a Washington, D.C. appeals court, who concluded the STB’s environmental impact statement was rushed, “paltry” and failed to sufficiently account for to potential impacts on the communities and species proximal to rail line.
The coalition’s appeal for a motion to rehear was denied in June 2023 by the D.C. Court of Appeals.
The case now finds itself before the Supreme Court, whose October hearing could significantly limit the way the act is implemented, which could have big repercussions in states like Wyoming, where energy projects experience cost escalation and delay as a result of National Environmental Policy Act litigation, local leaders argue.
The argument is backed up by research from Stanford University’s Center for Democracy, Development and the Rule of Law.
Drawing on a data set of 355 major transportation and energy infrastructure projects between 2010 and 2018, researchers here observed predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation.
The research also shows that legal action around National Environmental Policy Act is equal opportunity: During this period, nearly two-thirds of solar energy projects were litigated; close to 50% of pipeline projects are litigated; wind-related energy projects were legally challenged in 38% of cases; and transmission projects were ligated 31% of the time.
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