The Colorado River flows through Ruby and Horsethief canyons area near Mack, June 9, 2023. The railroad is at left. (William Woody for Colorado Newsline)
Colorado’s attorney general recently left open the possibility he will take a formal role in a case before the U.S. Supreme Court to help block a proposal that would send a massive surge of oil trains along the Colorado River.
Attorney General Phil Weiser last week expressed disappointment that the court in June agreed to review Eagle County’s 2023 appellate court win , which derailed the proposed Uinta Basin Railway project in Utah. The project would likely result in a dramatic increase in hazardous oil shipments traveling through the Colorado mountains and Denver toward Gulf Coast refineries.
“The proposed plan to run two-mile-long trains filled with hundreds of thousands of barrels of waxy crude oil along the Colorado River daily poses an extreme risk to this critical water source and the communities, industries, and farmers that rely on it,” Weiser wrote in an email statement to Colorado Newsline. “This proposal was rightfully tossed out by an appellate court. I am presently considering all options to protect the Colorado River — that includes weighing in with the U.S. Supreme Court as it reviews the case.”
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The U.S. Court of Appeals for the D.C. Circuit last year ruled the U.S. Surface Transportation Board, which is the primary federal regulatory agency overseeing U.S. rail projects, erred under the National Environmental Policy Act and ordered the agency to fix significant problems with the proposed 88-mile rail spur’s environmental impact statement.
The appeals court found the STB failed to properly weigh both the upstream and downstream impacts of oil production, including accident data, downline fire risks and the impact to endangered fish from predicted oil spills in the Colorado River.
The seven Utah counties surrounding the Uinta Basin oil fields, which formed the Seven County Infrastructure Coalition, petitioned the Supreme Court to hear the case in March. The Seven County Infrastructure Coalition v. Eagle County case will be heard during the high court’s next session, which begins in October.
Weiser — a former Supreme Court clerk to justices Byron White and Ruth Bader Ginsburg, former dean of the University of Colorado law school, and former U.S. Justice Department attorney in the anti-trust division — has been one of the top state officials critical of the Uinta Basin Railway project.
“I am disappointed the Supreme Court heard (the Uinta Basin) case. We won an important decision,” Weiser said in a phone interview last week. “I have been a vocal critic of the idea of taking what seems to me a high-risk move through a fragile ecosystem by allowing there to be the shipping of oil in railway cars that could lead to the sort of ecological harms we’ve seen happen elsewhere.”
I'm worried about all of our environmental statutes if the mindset is, ‘How do we gut any environmental protections?' We as a society are going pay a price for that, whether that's coming from the Supreme Court or a second Trump administration.
– Phil Weiser, Colorado attorney general
Weiser points to the environmental devastation of Norfolk Southern railroad’s East Palestine, Ohio, chemical train derailment last year.
“It doesn’t take much for a single incident to create extraordinary and lasting damage, and that, too, is a good basis for prohibiting (the Uinta Basin) project for going forward, so we’ll continue to make that case,” Weiser said. “I worry that a Supreme Court that is not interested in protecting our land, air and water could be less sympathetic to this point. We did see that lack of sympathy in the case involving the Clean Water Act.”
In last year’s Sackett v. the Environmental Protection agency case, decades of federal wetlands protections under the Clean Water Act were stripped away by the court , forcing Colorado to stand up its own regulations after a compromise with Republicans in the state Legislature .
Weiser said the only silver lining in that case was that conservative Justice Brett Kavanaugh sided with the liberal minority, joining Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in dissenting against the ruling.
“We were successful in that case with Justice Kavanaugh, but obviously we were still a vote short,” Weiser said. “I’m worried about all of our environmental statutes if the mindset is, ‘How do we gut any environmental protections?’ We as a society are going pay a price for that, whether that’s coming from the Supreme Court or a second Trump administration.”
From an antitrust standpoint, Weiser says consolidation in the railroad industry has opened up new risks of harm, because less competition leads companies to be less committed to reliable, safe service and adequate staffing. While federal legislation is stalled, Colorado lawmakers took up the issue last session and set up a new state rail safety office.
“Part of the challenge from a competition standpoint is the Surface Transportation Board I believe has had the sole authority to evaluate mergers in rail, and they’ve been willing to approve mergers in rail that really highly concentrated that industry,” Weiser said, specifically referring to the U.S. Justice Department objecting to the Union Pacific merger with Southern Pacific in 1996.
“I think the system of oversight that does not allow the Justice Department to stop anti-competitive mergers is problematic, and it’s problematic that the Surface Transportation Board took action in this case and did not take the Department of Justice competition concerns more seriously,” Weiser added. Now Union Pacific controls most east-west freight through Colorado and is currently negotiating with the state for a new lease at the state-owned Moffat Tunnel.
Eagle County officials have said they hope the state will take a more active role in the Uinta Basin Railway battle going forward, citing $450,000 in legal fees .
Democratic Colorado Gov. Jared Polis, in a rare statement on the Utah oil-train project, which has united the state’s Democratic lawmakers in opposition, said that if the Supreme Court greenlights the Uinta Basin Railway this fall, it will have “profound implications across the West.”
“It’s a legal case that we’re following, of course,” Polis said recently in Vail , as quoted in the Colorado Times Recorder . “We’re actively monitoring it. It would have a major impact on our state for sure, in terms of transportation. I don’t have any say over it. It’s not up to the governor. It’s a pending court case, so we’re aggressively monitoring it, and it would have profound implications across the West.”
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