The impact of Seven County Infrastructure Coalition et. al. v. Eagle County et. al.
In much of our advocacy, we at the Center for Coalfield Justice talk about cumulative impacts and what they mean for the communities that we live and work in. This summer, while advocating in D.C. for the Environmental Justice for All Act, we were told that cumulative impacts may be unconstitutional because of a recent Supreme Court decision: Seven County Infrastructure Coalition et. al. v. Eagle County, Colorado et. al. (“Seven County”). This decision does not make the consideration of cumulative impacts unconstitutional, and this blog will explain what it means and why cumulative impact assessments are more important now than ever before.
First, what are cumulative impacts? Southwestern Pennsylvania has been home to legacy fossil fuel infrastructure for over a century. We have legacy coal mining, active and abandoned oil and gas wells, steel mills, railroads, traffic, and more. The impacts of this legacy infrastructure plus the impacts of any new proposed infrastructure are considered cumulative impacts. Groups like CCJ have called on agencies and other decision-makers to consider cumulative impacts in the permitting process so that they have a clearer picture of the real burden imposed on a potentially impacted community. We also support giving agencies the power to deny a permit if the cumulative impacts are too great for the community to bear.
In Seven County, a coalition of counties in Utah applied to the United States Department of Transportation (“USDOT”) to build an 88-mile railway that connects Utah’s Uinta Basin (which produces over 190,000 barrels of oil per day) to the national railroad infrastructure. It is foreseeable that this connection would create both upstream impacts (more oil drilling in the basin) and downstream impacts (increased oil refining in the Gulf Coast). However, while conducting its National Environmental Policy Act (“NEPA”) review, the USDOT did not consider the upstream and downstream impacts, which is why this case was brought to court.
The Supreme Court of the United States, making the final decision in the case, ruled that NEPA is simply a procedural check that helps an agency make a decision, and it is in the agency’s discretion to decide what they will review as part of their decision-making process. As long as the agency has reasonably considered the environmental impacts of a particular project, a court should not overturn it. Therefore, an agency does not have to consider upstream and downstream impacts in their NEPA review, but they could if they wanted to.
The upstream and downstream impacts mentioned in this case could be part of a cumulative impacts analysis. However, Seven County does not make that consideration unconstitutional. If Congress were to pass a new law that required agencies to consider cumulative impacts in their permitting decisions, it would not be at odds with this Supreme Court decision. This decision only concerns itself with the application of NEPA – it does not weigh in on the constitutionality of any new law that might pass, including the Environmental Justice for All Act.
Therefore, because agencies are not required to consider cumulative impacts in their NEPA review, we need the EJ for All Act now more than ever. We need agencies and other decision-makers to consider all the burdens to ensure their decisions are sound for future generations of Americans. Without considering cumulative impacts in permitting decisions (and the ability to reject permits on this basis), regulators will only get one piece of the picture, and residents near new polluting infrastructure will face more unnecessary burdens.