Their attorney, Paul Clement, said that day in oral arguments, such downstream impacts “have nothing to do with us.” 

John Beard, Jr. lives in Port Arthur, Texas, the site of a Valero refinery expected to receive the new oil trains. This small majority Black and Hispanic community is perched on the Gulf Coast at the Louisiana border. It is home to a massive cluster of the nation’s largest oil refineries, petrochemical plants, Liquified Natural Gas facilities, and export terminals. Beard is in his sixties and has lived in Port Arthur his entire life. He is a second-generation petrochemical worker and proud union member, having worked for ExxonMobil for 38 years until his retirement in 2017. 

A lifetime spent working in and living alongside the fence line of the fossil fuel industry, facing constant pollution and a worsening climate crisis, has taught Beard a crucial lesson: “We want to speed up the energy transition away from fossil fuels and into clean green and renewable energy,” he tells me speaking by phone from his home. 

“We are suffering from high rates of pollution, high rates of cancer, and the death that it brings with it,” Beard says. He shares how his longtime neighbor and friend, Etta Hebert has been diagnosed with cancer, as has her daughter, Angela. “This past Saturday, Etta buried her husband,” Beard says. “Roy Hebert never was a real big man,” Beard explains, “but he contracted cancer, and he was down to less than 100 pounds.” Hebert also lost her mother and her previous husband to cancer. Her son, Eddie Brown, “who was the local barber here and also the founder of the youth Boxing Academy, also died of cancer,” Beard says. That’s just one family and just one of the many ailments plaguing his community. Beard, who founded the Port Arthur Community Action Network, has no doubt as to the source, pinning the blame squarely on the pollution from the fossil fuel industry, which has created what he describes as one of the most toxic environments in the nation.

“We are a sacrifice zone,” Beard says, anger rising in his voice. The last thing he wants for his community is more oil coming their way.

The Seven County case has drawn the attention of the nation’s most powerful legal operatives, from the conservative lawyers group, the Federalist Society, to the nation’s largest oil industry and business lobbies, including the American Petroleum Institute and the U.S. Chamber of Commerce. The oil industry’s keen interest has also likely contributed to the rare recusal from the case of Justice Neil Gorsuch. Nonetheless, the conservative majority is now poised to deliver yet another radical and damaging environmental and climate decision, after overturning the “Chevron doctrine” last year — a verdict that already severely weakened the ability of the federal government to regulate on behalf of public health, safety, and the environment.

“This court is extraordinarily activist, it has a policy agenda that it is reaching out and trying to execute,” says Sambhav Sankar, senior vice president for programs for the environmental law firm Earthjustice, a respondent in the case. “Depending on the way this court resolves this case, if it issues an aggressive reinterpretation of NEPA, this could be the most significant case in environmental law for a long time,” he fears. 

The U.S. Supreme Court is an intimidating place. Towering white marble statues, ornate vaulted ceilings, a plethora of armed guards, and centuries spent in the pursuit of justice can all combine to leave visitors feeling rather small. This makes the relative intimacy of the courtroom somewhat disorienting to experience. Though it holds over 400 people, thick red velvet curtains and closely packed seating gives the feel of a small intimate theater. The justices are congenial with one another (though not always with the attorneys) and several times during the oral arguments, the audience joined them in moments of laughter. 

I sat perhaps 10 feet from Justice Amy Coney Barrett who is on the far left hand side of the bench. (In 2020, I co-authored a letter for Rolling Stone signed by 76 leading climate and science journalists challenging Barrett’s nomination to the court by then-President Donald Trump due to her failure to acknowledge the scientific certainty of climate change and her ties to the fossil fuel industry, including Shell and the American Petroleum Institute.) I quickly noted the glaring vacancy of the empty chair to her right. 

Just days earlier, Justice Gorsuch recused himself from the case. He did not explain why, but the recusal follows renewed concern over Gorsuch’s association with conservative Colorado oil tycoon, Philip Anschutz. The Anschutz Exploration Corporation operates oil and gas wells across the West, including in the Uinta Basin of Utah from which the new oil would be produced and transported. Anschutz could directly benefit from construction of the proposed rail line, and his firm filed a friend of the court brief asking the justices to narrow the scope of NEPA. 

Anschutz has a net worth of nearly $17 billion and has been named both America’s “greediest executive” and its “most reclusive billionaire.” Among his many media holdings is the Colorado Springs Gazette, described by one local opinion writer as “too MAGA loony for the Denver metro area.” A 2020 Gazette editorial endorsing ultra-conservative firebrand, Lauren Boebert, for Congress read,“In addition to movie star looks, she exudes passion for freedom, capitalism, and the United States that makes the socialist, anti-America sentiment of AOC + three look gloomy and sad.”

The New York Times reported in 2017 that, as a lawyer at a Washington law firm in the early 2000s, Gorsuch represented Anschutz, his companies, and lower-ranking business executives as an outside counsel. In 2006, Anschutz successfully lobbied Colorado Republican Senator Wayne Allard and the George W. Bush administration to nominate Gorsuch to the federal appeals court. Gorsuch has also been partners in a limited-liability company with two of Anschutz’s top lieutenants. 

Anschutz has given money to many ultra-conservative causes, including the Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which then-President Donald Trump selected now-Justice Gorsuch.

Last month, I reported from the Federalist Society’s annual lawyers convention in Washington, D.C., at which Gorsuch was a featured speaker. I learned about Louisiana Governor Jeff Landry’s proclivity for gathering conservatives together for an annual alligator hunt. 

This month, I am now reporting on dove-hunting. That’s right, doves — the international symbol of peace, which the Bible calls “the Spirit of God.” The Times reported that Anschutz hosts an annual dove-hunting retreat at his Colorado ranch at which Gorsuch had been a semi-regular speaker. The dove hunt is apparently considered a rite of passage for politicians and others hoping to curry Anschutz’s favor. 

With Gorsuch absent, the court experienced a rare balance, with not only an even number of justices, but also an equal number of women and men. During oral arguments, it was the women who dominated the questions and discussion emanating from the bench. It’s a sign of how radically conservative the majority of the court has become that Justice Barrett has emerged as an occasional “moderate” voice, joining at times with the liberal justices — or refusing to go so far as the other right-wing justices. 

It was the women who grilled the lawyers, charging Clement at times with simply not making sense when arguing for a profoundly circumscribed reading of NEPA to apply only to “88 miles of track” in Utah.

Seven County v. Eagle County originates with a plan largely attributed to Texas oil man Jim Finley, CEO of Finley Resources. Nearly two decades ago, Finley began buying up small oil companies in Utah and is today one of the largest fossil fuel producers in the state. He envisions a quintupling of overall oil production in the remote Uinta Basin, creating a new colossal oil fracking hub. 

Bordered by the Uinta Mountains, West Tavaputs Plateau, and Wasatch Range, and covering most of northeastern Utah, most of the picturesque Uinta Basin remains largely untouched by extraction or industry. But in those areas where fracking is already underway, residents have paid a steep price. A 2014 study identified the amount of air pollution in the Uinta Basin tied to oil and gas production reaching at times the equivalent to the annual emissions of approximately 100 million cars. In 2015, Rolling Stone detailed a spike in stillborn deaths in the basin following the onset of the fracking boom. Since that time, numerous studies from across the U.S. have documented the links between fossil fuel operations and increased incidents and rates of stillbirths, miscarriages, and pre-term and low-weight births. 

Oil, when it’s produced, transported, refined, and burned, is excessively polluting, releasing toxins that harm human health, the environment, and the climate. Government laws and regulations have been written in an effort to reduce or even eliminate those harms, which is where many of Finley’s problems come in.

The Uinta Basin oil is described as “waxy oil” due to its uniquely thick viscosity. It must be heated to be transported, which is currently done by truck primarily to refineries in Salt Lake City. The refineries are already at capacity and are a source of the extreme air pollution suffocating the city’s residents. On December 4, Salt Lake City had the worst air quality of any major city in the nation. The Environmental Protection Agency has designated Salt Lake City as a federal Clean Air Act nonattainment area — meaning that the amount of pollution in the air is illegal. Up to 8,000 people die every year as a result of the state’s air pollution, Dr. Brian Moench, president of Utah Physicians for a Healthy Environment, tells me. He says that any effort to expand the refineries would be met with stiff resistance from the local community and federal regulators. 

Dr. Moench prefers to speak citing statistics and technical analyses. But when describing the public health emergency enveloping his state, he becomes uniquely animated. “We already have a pollution nightmare, and these people are proposing that we make that nightmare 500 percent worse. It just boggles the mind!” he says. “If the Ebola virus or Covid was killing 8,000 people a year, you’d consider it an emergency. They’re just as dead from air pollution as they are from other causes.”

At a public hearing in Price, Utah in 2021, Finley detailed the plan to ship the increased oil production out of the basin by rail to refineries in Texas and Louisiana. To do this would first require construction of a new 88-mile Uinta Railway to link up the basin to the existing national rail system. From there, the oil would move through Utah, Colorado, and across Texas and Louisiana. Finley estimated 3,000 new rail cars would carry the oil every day out of the basin. The only way the large Gulf refineries will be interested in the project, Finley notes, is if there’s enough oil to make it worth their while.

In 2020, the Seven County Infrastructure Coalition, an independent political subdivision of the State of Utah composed of seven Utah counties, petitioned the federal Surface Transportation Board for approval of the rail project. The Surface Transportation Board is an independent government body with five members, the majority of whom were appointed by Republican presidents at the time. Following NEPA rules, the Board produced an environmental impact statement to assess the rail project’s expected impact on the environment. It subsequently approved the project. 

It was not a unanimous decision. Martin Oberman, who was designated chairman of the Board by President Joe Biden, refused to support the railroad, authoring a strongly worded dissent noting “the global transition away from fossil fuels” and that the “the project’s environmental impacts outweigh its transportation merits.” 

Opposition to the project is both fierce and broad, emerging from across the impacted states including a bipartisan group of seven Colorado counties. They fear the impacts of as many as five additional two-mile-long oil trains carrying the hot Uinta oil every day passing through dangerous Colorado mountain passes. In some parts of the state, that would result in up to a tenfold increase in the amount of hazardous material being shipped by rail through Colorado, reports Chase Woodruff in Colorado Newsline. 

In its analysis, the Board predicted that about once a year, there would be a rail accident with an oil-laden car and about one out of every four of those would result in an oil spill. 

I grew up in Colorado and I have regularly traveled the road along the Colorado River through the Rocky Mountains on which the trains run. It is treacherous, oftentimes remote, and prone to flooding, fire, and rock slides. I have watched with real fear as the train, oftentimes seeming to teeter on a remarkably thin track, passes within a few feet of cars and over the river. 

As in the nation as a whole, train derailments occur with frequency in Colorado. The Federal Railroad Administration reports 665 accidents, including 62 derailments in Colorado, from 2019 to 2023. These accidents resulted in 56 deaths, including an October 2023 coal train derailment that crushed and killed a passing driver and spilled coal across the highway. 

The train passes through the heart of several small mountain towns, including Glenwood Springs. Ingrid Wussow, a sixth generation local, has been Mayor of Glenwood Springs since 2020. “We can say that collectively, this is not good for our region, it’s not good for our counties, and it’s not good for our town,” Mayor Wussow tells me. “Glenwood’s been a tourist destination since the late 1800s in part because of our rivers and our hot springs and our natural geography. And the vulnerability of one train derailing, one train causing a fire or polluting the river, has short term and a long term devastation for our small town.” She adds, “We got involved because we don’t want to see this happen to our neighbors and to other communities.” 

Colorado congressional representatives Diana DeGette, Jason Crow, and Brittany Pettersen warn that an oil spill could result in harms felt both in and well beyond Colorado. The Colorado River is “a lifeline for nearly 40 million people, including 30 Native American Tribes, across seven states that all rely on its health and integrity,” they wrote in a letter last year opposing federal financing for the rail line. The river flows for approximately 1,450 miles and serves as a critical source of water to Colorado, New Mexico, Utah, Wyoming, Arizona, California, and Nevada. 

After identifying risks from increased oil production in Utah and rail traffic in Colorado, the report by the Surface Transportation Board identified public health and climate risks from increased refining. It listed nine refineries likely to receive the oil, including seven in the Gulf Coast. Those in Texas are Valero in Port Arthur, ExxonMobil in Baytown, Shell in Deer Park, and Marathon in Galveston Bay; and in Louisiana, Marathon in Garyville, Calumet in Shreveport, and ExxonMobil in Baton Rouge. Nonetheless, it approved the project.

Earthjustice, the Center for Biological Diversity, Eagle County, Colorado, and others appealed the Board’s decision, arguing that in violation of its obligations under NEPA, it had failed to adequately assess environmental impacts. In August 2023, the U.S. Court of Appeals for the D.C. Circuit ruled in their favor, rejecting the Board’s analysis and sending it back for further review. The Forest Service subsequently withdrew a permit which would have authorized 12 miles of the railway through the Ashley National Forest in Utah. 

Seven County Infrastructure Coalition appealed the D.C. court’s ruling to the U.S. Supreme Court.

At the Federalist Society annual conference last month, I watched as Paul Clement joined his fellow panelists in a champagne toast to the “coming end of the administrative state.” Clement, George W. Bush’s solicitor general, was included on a short-list of potential Supreme Court nominees by then-President Trump in 2020. He has argued and won many Supreme Court cases including the now-infamous Loper Bright case, which severely weakened the ability of federal agencies to regulate in the public interest by overturning the Chevron doctrine. The doctrine had instructed courts to generally show deference to how federal agencies implement and enforce the law.

Clement now stood once again in the high court ready to address the justices. Standing behind a large wooden lectern, Clement opened oral arguments in Seven County Infrastructure v. Eagle County by making his clients’ primary concerns clear. “For investors, time is money,” he declared. The more analyses, public disclosures and input, areas of impact identified, and mitigation measures prescribed, the more time and money his clients stand to lose. 

Clement argued for a severely constrained application of the National Environmental Policy Act, limited in geography to an immediate area around a specific project, limited in time to near-term effects, and limited in scope to only those effects immediately under the jurisdiction of the particular government agency tasked with the analysis, and only if it can mitigate an identified harm. He said this new rule should be applied broadly to all NEPA cases, and in this specific case, to only the 88 miles of new railway. 

Justice Sonia Sotomayor proved her critical role on the court, quickly taking up her mantle as “the chief counterweight to the conservative majority,” as ABC’s Devin Swyer recently put it. She interjected early and often, voicing what was likely the strongest skepticism of Clement’s positions, and pressing him when his answers failed to hit home. 

“You want absolute rules that make no sense,” Justice Sotomayor told Clement, adding “most environmental effects, like effects on wetlands, are going to be something remote in time and geography.” She explained that the question before the court was not if government agencies should consider upstream and downstream impacts under NEPA, but if the agency in question had done so in an “arbitrary and capricious” way by not considering something more: “But that’s not how you want us to rule.” You want us “to create rules,” she said.

Similar concerns were expressed by Justice Ketanji Brown Jackson, who said that Clement’s test “feels to me to be unmoored from the purpose of NEPA.” Justice Barrett said, “I think the 88 miles, just focusing on the track itself, might be too narrow a focus.” 

William “Willy” Jay, representing Eagle County, Colorado, et. al. and arguing on behalf of those opposing the railway, said that it was unreasonable for “Mr. Clement to suggest this is an 88-mile railroad, as if the train just went back and forth for 88 miles,” like a child’s toy train set.

Justice Brett Kavanaugh struck the most aggressive attack against the law, pushing Clement on the extent to which NEPA had outgrown its utility, asking, in part, “What is NEPA adding?”

The liberal justices also joined with the conservatives at times, expressing skepticism about whether an agency should be empowered to consider impacts which it could not ultimately mitigate. Jay called this the “not my problem” standard by which agencies would simply “pass the buck,” resulting in no action at all — a perennial problem that NEPA was designed to address.

Clement, for his part, argued that “what’s going on in the Gulf communities is issues for Port Arthur, Texas, or maybe the EPA,” adding: “I mean, nobody in their right mind would say that a project in northeastern Utah is the legally relevant cause or the primate cause of additional pollution in Shreveport, Louisiana. Nobody.”

Earthjustice’s Sankar strongly disagrees, telling me, “When you can name the town that all of these barrels of crude are going to get refined in, you damn well should consider its residents.”

Given the conservative court’s now lengthy record of aggressive attacks against the climate, environment, and environmental justice, the risk that the National Environmental Policy Act will emerge in a more weakened state seems likely. The question is not if, but how much weaker NEPA may become.

Climate is among the many issues at risk. “Climate is the elephant in the room in this case,” Sankar says. “If there’s anything that Paul Clement would like NEPA to exclude, it’s considerations of the climate.”

Deeda Seed lives in Salt Lake City and is the senior Utah campaigner at the Center for Biological Diversity, which has been litigating this case since 2019. The impacts of “sweeping away” or weakening NEPA would be profound, she says. “If we do that, we’re opening ourselves up to all sorts of abuse by powerful industries who will push forward with whatever it is they want to do without concern for the consequences to the public.” 

Among those in the audience for oral arguments was Keith Heaton, Executive Director of the Seven County Infrastructure Coalition, along with several of its commissioners. According to Heaton, they were joined by representatives of DHIP Group, “their friends and family,” and “six or seven investors” with whom he met and spoke. DHIP Group is an opaque Florida-based private asset manager that owns the Uinta Basin Railway. 

The Uinta Basin Railway project is described on its website as a “preliminary public-private partnership” between the Seven County Infrastructure Coalition, DHIP Group, and the Texas-based Rio Grande Pacific Corporation, a private railroad holding company. DHIP is to provide financing and commercialization, while Rio Grande is to “design, construct, operate, and maintain the line.” 

Legally, however, the railway is a limited-liability company registered in Delaware, owned and controlled by DHIP Group, while Rio Grande pulled out of the project in 2023, not long after the lower court vacated approval of the railway, leaving the project without an experienced operator.

Critics contend that the project, estimated to cost approximately $3 billion, also lacks dedicated financing. A plan to apply for some $2 billion in federally subsidized tax-exempt bonds through underwriter Wells Fargo was met with a fierce public backlash demanding that Transportation Secretary Pete Buttigieg reject any such application. To date, no such funds have been allocated, and according to the Center for Biological Diversity, no application has been submitted. 

Nonetheless, Heaton remains optimistic. He’s committed to completing the rail in the next four years, before the political winds can shift. Heaton argues that, in the wake of the 2024 election, both politics and the Supreme Court are now firmly on their side. After Republicans captured the House, Senate, and White House in November, Heaton said, “You know, we have a trifecta of perfection, or what do you call it when you’ve got four perfect things? Because we have the Supreme Court working in our favor as well.” 

Louisiana would be the end of the line on the Uinta Railway project.

Tish Taylor lives in LaPlace in St. John the Baptist Parish, in the heart of Louisiana’s Cancer Alley, and not far from the Marathon refinery on the railway’s target list. Her community is a mirror image of John Beard’s in Port Arthur. She’s been surrounded by the fossil fuel industry and its pollution her entire life. I have sat with her on her front porch as the train passes a stone’s throw away, shaking the house and creating a deafening roar. She and her father, Robert Taylor, formed Concerned Citizens of St. John to take on the industry. 

“We’re already surrounded. The last thing we need is extra. We don’t need Marathon to do more,” Taylor tells me. 

She wishes that she could have been in the courtroom with her grandson, Zen, so that the justices could see them. “I want them to understand that we are real humans. We’re your mom, we’re your sister, we’re your children. We’re dying because we live here. They need to see us as they look at themselves.”