Eagle County v. Surface Transportation Board

The D.C. Circuit Court of Appeals denied defendant-intervenors’ petition for rehearing en banc of its August 2023 opinion finding that the Surface Transportation Board (STP) violated NEPA, the Endangered Species Act, and the Interstate Commerce Commission Termination (ICCT) Act when it reviewed a proposal for construction and operation of an 80-mile rail line in Utah for which the predominant purpose would be transporting waxy crude oil produced in the Uinta Basin. The defendant-intervenors had argued that the court’s opinion conflicted with <a href="https://climatecasechart.com/case/delaware-riverkeeper-network-v-federal-energy-regulatory-commission-2/">2022</a> and <a href="https://climatecasechart.com/case/center-for-biological-diversity-v-federal-energy-regulatory-commission/">2023</a> D.C. Circuit decisions that they argued would not require consideration of upstream and downstream indirect effects where information is not known about upstream wells and downstream end users. They also argued that the court failed to apply the ICCT Act’s presumption favoring rail construction when it found that STB failed to sufficiently weigh environmental effects.

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The D.C. Circuit Court of Appeals found “numerous” violations of the National Environmental Policy Act (NEPA) in the Surface Transportation Board’s review of the proposed construction and operation of an 80-mile rail line in Utah for which the predominant purpose would be transporting waxy crude oil produced in the Uinta Basin. The violations included failure to disclose reasonably foreseeable upstream and downstream effects of increased oil drilling and refining, including greenhouse gas emissions from combustion. The court was not persuaded, however, that any mischaracterization of the upstream environmental and downstream climate change impacts of the project as “cumulative” instead of “indirect” impacts had any prejudicial effect. The court also found violations of the Endangered Species Act and the Interstate Commerce Commission Termination Act (ICCT Act), but not the National Historic Preservation Act. With respect to the ICCT Act, the D.C. Circuit found that the Board’s order exempting the project from the full application requirements was arbitrary and capricious because the Board failed to weigh certain environmental effects, including climate effects of the combustion of fuel resulting from a major expansion of oil drilling. The court said “the ICCT Act necessitated a more fulsome explanation for the Board’s conclusion that the Railway’s transportation benefits outweighed the project’s environmental impacts.” The court vacated the exemption order, as well as the environmental impact statement and biological opinion.

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