On February 11, 2022, several conservation groups filed a Petition challenging the federal government’s approval of a rail line that would link the national rail network to oil and gas resources in Utah and Colorado. While many of the groups’ arguments focus on environmental pollution and climate concerns, underpinning the groups’ arguments are notions of environmental justice for the communities that would allegedly be disproportionately affected by the project. With increasing scrutiny on environmental justice issues, especially in light of the EPA’s Draft Environmental Justice Action Plan in 2022, the Petition is an important reminder to companies that consideration of environmental justice impacts of projects is a key consideration for risk mitigation.

Environmental Justice Issues In the Rail Project

The Utah-Colorado rail project (the Uinta Basin Railway project) is a $1.5 billion undertaking that would serve to connect various oil and natural gas refineries to the national rail link, thereby improving distribution nationwide of these valuable resources.  The U.S. Surface Transportation Board (“Board”) approved the project; however, various groups petitioned the D.C. Circuit Court, arguing that the Board’s decision improperly ignored various environmental impact issues, including greenhouse gas emissions, as required under the National Environmental Policy Act (“NEPA”). In parallel, Eagle County, Colorado filed similar pleadings arguing that the project approval improperly ignored environmental impact issues.

The petitioners also argue that the Ute Indian Tribe, indigenous to the region that sections of the rail would run through, would be disproportionately and directly impacted by increased greenhouse gas emissions in the regions due to the project. Further, two types of cacti of cultural significance to the Ute Indian Tribe would be directly impacted by the project and petitioners allege that these considerations are not adequately addressed by the Board’s approval.

Lessons For Companies

The Uinta Basin Rail project petitions do not directly involve a challenge to private entity action that allegedly have impacts on marginalized communities. However, the lessons and takeaways from the rail project are informative for companies considering projects of their own that may have impacts on water, air, or soil environmental impacts that disproportionately impact marginalized communities. Increasingly, challenges to expansion projects undertaken by corporations are being challenged on environmental justice grounds, namely through the Clean Air Act, Clean Water Act, and the Civil Rights Act Title VI.

Without proper due diligence regarding environmental impacts of a project that will be disproportionately felt by marginalized communities, companies will increasingly see challenges in courts that focus on environmental justice issues. Risk mitigation begins with the simple step of recognizing the attention that environmental justice is receiving and incorporating environmental justice considerations into the planning phase.