The legal fight over a proposed 88-mile-long railroad project in Utah that would be used to transport waxy crude oil through Colorado is up for consideration at the U.S. Supreme Court.

The petition was filed March 4 by the Seven County Infrastructure Coalition (SCIC) and the Uinta Basin Railway. The companies are appealing a decision by the D.C. Circuit Court of Appeals that threw out a construction approval by the federal Surface Transportation Board (STB) in August.

Eagle County and environmental groups represented by the Center for Biological Diversity (CBD) sued after the approval of the project, claiming that the board did not fulfill the requirements of the National Environmental Protection Act.

The railway has been discussed for many years. In 2018, the Seven Counties Infrastructure Coalition — comprised of Carbon, Daggett, Duchesne, Emery, San Juan, Sevier, and Uintah counties — applied for a $27.9 million grant from the State of Utah for planning and preconstruction work.

Beneficiaries of the project included the Uinta and Ouray Ute Indian tribes, which hold mineral rights that provide “critical services” to their 3,000 members.

“We have been fighting this proposed railway since it was first announced as a project. We’re tremendously concerned about the carbon emissions that will come from the increased oil and gas production that the railway is predicated on,” Deeda Seed, senior public lands campaigner with the Center for Biological Diversity, previously told The Denver Gazette.

An earlier attempt by the Center for Biological Diversity in the 3rd District Court in Salt Lake City, which argued that the project would “impermissibly increase oil production in the region,” was dismissed. The court ruled that federal policy requires “the public lands be managed in a manner which recognizes the nation‘s need for domestic sources of minerals, food, timber, and fiber from the public lands.”

Seed made it clear that the environmental groups are intent on stopping any increase in extraction, shipping, and refining of the Uinta Basin’s waxy crude oil that the rail line would facilitate.

“The other set of concerns go to the greenhouse gas emissions that will come from the construction and operation of this railway, because it’s all predicated on quadrupling fossil fuel production in the Uinta basin,” Seed said. “We are concerned about these oil trains traveling anywhere.”

“As recent history has shown, driving rail tankers full of volatile crude oil down narrow canyons and into crowded Denver communities is a disaster waiting to happen”, said Noah Rott, spokesperson for Colorado Sierra Club. “From start to finish, this plan needs to get snuffed out. Given the evidence, we trust the Supreme Court will do the right thing.”

Currently, oil is shipped in tanker trucks that have to negotiate winding mountain roads en route to refineries around Salt Lake City. There have been more than 36 diesel and crude oil spills along Highway 40, the narrow, two-lane mountain road between Duchesne and Provo. The department didn’t specify the timeframe for these incidents.

Eagle County Commissioner Matt Scherr previously told The Denver Gazette that the county has grave concerns about the shipment of crude oil along the Colorado River and the possibility of a train wreck that would spill the waxy crude oil into the river.

“The Uintah Railroad is a calamity in the making,” Ingrid Wussow, mayor of Glenwood Springs told The Denver Gazette Friday. “The DC Circuit properly found communities like Glenwood Springs, that these oil trains would pass through, face significant potential impacts from derailment such as wildfire risk and devastating spills into the Colorado River — and that the federal government illegally failed to take these risks into account.”

The D.C. Circuit Court agreed with the Center for Biological Diversity and Eagle County and ordered the Surface Transportation Board to prepare a new National Environmental Policy Act (NEPA) review considering the environmental effects of the oil that would be shipped to places far away like Louisiana, Texas and Washington for refining and distribution.

The Seven County Infrastructure Coalition subsequently filed in the Supreme Court. In its petition, the group said there is a “circuit split” on how to interpret NEPA when it comes to how far an agency like the STB has to go by way of analyzing the environmental impacts of a project.

Its petition argued that the D.C. Circuit Court improperly expanded the scope of the NEPA review to things that the STB has no authority to regulate, such as the environmental impacts of refining oil in Texas or Louisiana and the affects of consumers using the end products.

The “split” in the circuit courts is that most circuits relying on language in another Supreme Court case hold that where an agency has no authority to regulate something, that agency need not examine things beyond its regulatory powers in part because other agencies hold those powers — such as the EPA.

In this case, said SCIC, the Surface Transportation Board has no authority to regulate emissions in Texas or even the extraction of oil in the Uinta Basin. Its authority is only over the construction of the railroad, not concerns over how the cargo might be used.

And that’s what the Surface Transportation Board said in the Center for Biological Diversity lawsuit.

“When an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect for NEPA purposes,” the board said. “Here, the board has no authority or jurisdiction over development of oil and gas in the basin nor any authority to control or mitigate the impacts of any such development.”

The board added: “Because the board cannot regulate downline train operations by other carriers as part of this proceeding, it cannot regulate or mitigate impacts caused by those downline operations. The type of analysis that CBD claims is necessary is therefore neither required nor useful.”

Resolving circuit splits are one of the primary functions of the Supreme Court. In order to ensure that federal law is harmoniously and evenly enforced nationwide, when questions about interpretations of statutes and caselaw conflict, it makes a case “ripe” for a Supreme Court decision.

This case, said the Seven County Infrastructure Coalition, is a perfect opportunity to resolve the question of how far afield an agency must go in NEPA reviews.

The Supreme Court has not yet decided whether it will take up the case.