D.C. Circuit Court hits the brakes on Uinta Basin Railway, but oil transport through Colorado is still on the table
Loretta Lohman
D.C. Circuit Court hits the brakes on Uinta Basin Railway, but oil transport through Colorado is still on the table
Aug. 26 protest turns celebratory for Colorado citizens fighting Utah project
Close to 30 boats floated the Colorado River through Glenwood Canyon on Aug. 26 as part of a flotilla protesting the Uinta Basin Railway. The event turned celebratory after the Aug. 18 ruling from the U.S. Court of Appeals that overturned the Federal Surface Transportation Board’s 2021 approval of the project.
Uinta Basin Railway (UBR) opponents floated a portion of the Colorado River on Aug. 26 to celebrate a setback to the UBR. Organized by two citizen groups — Colorado Rising and 350 Roaring Fork — a flotilla of about 30 boats and 100 activists put in at Grizzly Creek in the Glenwood Canyon and landed at Two Rivers Park in Glenwood Springs for a rally and picnic. The flotilla was originally planned as a protest to draw attention to the river and what would happen if a train carrying waxy crude derailed in the Glenwood Canyon.
“We’re not fighting a train. We’re not fighting increased train traffic. We’re a rail town,” said former Glenwood Springs Mayor Jonathan Godes, who is now a City Council member and who emceed the rally. “We’re fighting a train that is full of toxic, waxy crude. To think that five trains, two miles long, every day would not derail in one of the most difficult, sensitive places on the entire line is crazy.”
The Colorado River is the lifeblood for local communities and provides water to 40 million people across the western U.S. and parts of Mexico. The proposed UBR — an 88-mile line that would connect oil fields in the Uinta Basin to the national rail network near Price, Utah, in order to access Gulf Coast refineries — would increase the amount of waxy crude shipped east by rail to between 130,000 to 350,000 barrels per day. The federal Surface Transportation Board (STB) approved the UBR in December 2021, which was followed by two separate lawsuits — one filed by the Center for Biological Diversity (CBD) on behalf of four other conservation groups, and another by Eagle County. They were consolidated in February 2022. On Aug. 18, U.S. Court of Appeals for the District of Columbia Circuit Judge Robert L. Wilkins overturned the STB’s decision, transforming the planned flotilla from a protest to a celebration. Five Colorado counties and five municipalities along the national railway — the proposed route for eastbound Uinta Basin waxy crude — signed on to an amicus brief in support of Eagle County in October, making the Aug. 18 decision a victory across the state.
Ted Zukoski, CBD attorney, told Aspen Journalism that the STB and the U.S. Fish and Wildlife Service (FWS), whose flawed biological opinion (BiOp) informed the STB’s decision, must go back to the drawing board. “The existing approvals from the STB and FWS are null and void,” he said. “The UBR has been knocked back a number of steps.”
A CBD news release summarized Wilkins’ ruling by stating that the STB “violated the National Environmental Policy Act [NEPA] by failing to fully analyze the railway’s potential harm to the climate, wildlife, the Colorado River and people, including environmental justice communities along the Gulf Coast.” Key findings show a mixed bag of what counted as a violation and what did not.
According to the ruling, NEPA violations include ignoring the risk to endangered fish in the Colorado River and failure to take a hard look at upstream and downstream impacts of oil production, accident data and downline wildfire risk. The court’s discussion of the UBR’s impacts from production in the Uinta Basin and the downstream impacts on communities near refineries continues a line of precedent and keeps federal agencies accountable, said Zukoski.
“When federal agencies are the on/off switches for climate impacts, air pollution impacts, surface impacts of wildlife habitat, they can’t say, as the [STB] did here, ‘Oh, no, not our problem. We don’t control who develops oil in the Uinta Basin. We don’t know where the oil is going. We’re just approving the railway,’” he said. “The court saw through that.”
In the December 2021 decision, STB Chair Martin Oberman cast the sole dissenting vote, stating that “the environmental impacts outweigh the transportation merits.” Oberman’s opinion questioned his colleagues’ evaluation of the downstream impacts of the UBR and the overall contribution to climate change. He also cited the financial viability of the project given volatile oil prices and the shifting fossil fuel industry.
Wilkins found that the STB violated its own rail policies by looking at the UBR’s economic benefits while ignoring the full significance of the UBR’s environmental costs. He did not uphold plaintiffs’ claims about failure to address landslide risks, violation of the National Historic Preservation Act, downline impacts on biological resources, land use and recreation, or increased noise and potential impacts to the Tennessee Pass rail line.
Glenwood Springs pleased with outcome
Glenwood Springs City Attorney Karl Hanlon, who worked on the amicus brief in support of Eagle County, told Aspen Journalism that the circuit court opinion was a “huge, huge win,” particularly for the process. “There were things that [the court] did accept and things that they didn’t,” he said. “But at the core of it, NEPA requires a more detailed analysis than [the STB] did. You can’t just sort of gloss over it and rubber-stamp a NEPA process.”
Hanlon said the money and time that Glenwood Springs and other towns spent working on the amicus brief was well spent. “I think [the ruling] lays out three really big areas,” he said. “Quantifying the reasonably foreseeable upstream and downstream impacts from increased drilling in the Uinta Basin on vegetation and special status species, the increased oil train traffic along the UP line, and the issue of environmental justice on the Gulf Coast.”
According to a 2018 feasibility study conducted as part of the EIS, most of the refineries equipped for Uinta Basin waxy crude are in MIssissippi and Louisiana, including Marathon Petroleum in Garyville, Louisiana. On Aug. 25, a massive fire at that refinery, caused by a leaky naphtha tank, produced a plume of black smoke and forced nearby evacuations. “This is the kind of harm the Uinta Basin Railway will worsen by pouring billions of gallons of crude per year into Gulf Coast refineries,” said Zukoski. “And the kind of harm that the D.C. Circuit Court of Appeals explicitly held that the [STB’s] EIS failed to take a hard look at.”
Hanlon is satisfied with the ruling and how comprehensive it was. He said it’s a win for those who work on conservation and environmental issues. “I think it affirms the rules that we all thought we were operating under, right? That these agencies have to take these analyses seriously,” he said.
Godes added that he’s proud of the stance that many Colorado communities have taken. “We are in a really good space with a recent victory,” he said at the rally. “We have a lot of support. This flotilla is proof of that. All of the neighboring communities and jurisdictions, save for Garfield County, have come out against this.”
What’s next?
Aspen Journalism reached out to the Seven County Infrastructure Coalition, the quasigovernmental engine behind the UBR, for comment on the ruling. In an official email statement, Melissa Cano, strategic communications coordinator for Jones and DeMille Engineering, said the UBR team is not giving up.
“While we disagree with the D.C. Circuit Court’s recent decision, we respect the authority of the U.S. Court of Appeals,” the statement said. “We firmly believe that the railway’s environmental impact statement (EIS) contains appropriate and thorough analysis of the highlighted concerns, as it stands today. Nonetheless, we are ready, willing and capable of working with the U.S. Surface Transportation Board to ensure additional reviews and the project’s next steps proceed without further delay. We look forward to bringing this railway to the basin in a safe and cost-effective way to enable economic stability, sustainable communities and an enriched quality of life to Utahns and beyond.”
Zukoski said there are strategies the SCIC could use as result of the Wilkins ruling, including an appeal to the U.S. Supreme Court. “But they are better off just saying, ‘Well, now we have a roadmap from the courts on what we need to fix. Let’s go fix it.” He added that the “fix” would be, more or less, a do-over. “They’re going to need approval from the STB again,” he said.”They’re going to need to go through a supplemental environmental impact statement process and get a new biological opinion from the FWS that looks at the spill risk to endangered fish.”
Hanging in the balance are the September 2022 lawsuit against the U.S. Forest Service (USFS) decision to allow construction of the UBR through an inventoried roadless area (IRA); the expansion of the Wildcat Loadout Facility near Price, which would allow an increase in production, storage and transport of Uinta Basin crude regardless of the success or failure of the UBR; and the use of Private Activity Bonds (PAB) issued through U.S. Department of Transportation to fund the UBR. The City of Glenwood Springs wrote a letter to U.S. Transporation Secretary Pete Buttigeig in early August against the use of PAB bonds and requesting a meeting this month. “It would be incredibly precedent-setting if we ever started allowing our tax dollars to be utilized by a private corporation for their profit and their shareholders,” Godes said at the rally. “It doesn’t benefit Colorado and it doesn’t benefit this country.”
USFS suit undecided
The USFS approved construction of the UBR in July 2022 through 12 miles of an IRA in Utah’s Ashley National Forest. Prior to the approval, CBD and other conservation groups sent a letter to USFS Chief Randy Moore, urging him to reject the Ashley National Forest’s application. But Moore refused, stating, “By definition, a railway does not constitute a road under the Roadless Rule.”
In September 2022, CBD, Living Rivers, Sierra Club and Utah Physicians for a Healthy Environment filed suit in D.C. Circuit Court of Appeals. Zukoski told Aspen Journalism at the time that the argument goes beyond whether a railroad is a road. “We raised many issues, including a failure of the Forest Service to consider the impact on roadless values,” he said. That case has not been briefed.
Legal documents show that the court on April 24 granted an abeyance request by the USFS, the Seven County Infrastructure Coalition and the Uinta Basin Railway, temporarily suspending court proceedings until the Eagle County suit was decided. The original request shows that the USFS Record of Decision used portions of the same EIS and FWS BiOp that were used in the STB approval and that a decision in favor of Eagle County could make moot the USFS case.
On Aug. 18, the court requested that all parties involved in the suit file motions to govern future proceedings by Sept. 18. “The order suggests that the parties come up with a plan, or competing plans, for resolving the case in light of the decision in the Eagle County case,” said Zukoski. “So, it’s up to the parties to address that decision and seek further relief on the USFS decision. We’ll have to do that by Sept. 18.”
The outcome could also be compromised by the fact that federal approval no longer exists and that construction of the UBR cannot begin until all approvals are finalized. “One potential path forward is that the USFS voluntarily takes some action, such as withdrawing the ROD, and then one or more of the parties files a motion to dismiss the case,” said Zukoski. “Another potential outcome is the USFS believes that it can continue to litigate the case on the merits and we proceed to briefing.”
Wildcat workaround
Meanwhile, Uinta Basin oil producers are upping their game. Utah’s output of crude oil has more than doubled in the past four years. Most of the state’s crude comes from Carbon, Daggett, Duchesne, Rich, Summit and Uintah counties — all within the Uinta Basin. Utah state Division of Natural Resources statistics show that Uinta Basin oil production has increased from a total of 31 million barrels per year in 2020 to 45.3 million in 2022. In the first five months of 2023, nearly 20.1 million barrels have come out of the ground.
Several loadout facilities currently transfer Uinta Basin oil from trucks to rail cars bound for California and the Gulf Coast. More and more tanker trucks are carrying crude over winding, two-lane highways from Myton to loadout facilities near Price, Helper, Ogden and Salt Lake City. Wildcat is one such facility near Price.
The Bureau of Land Management is considering a request from Coal Energy Group 2 to expand the capacity of the existing Wildcat Loadout Facility (WLF) to 100,000 bpd from 30,000 bpd. The project would add tank farm facilities, loading and unloading and other operations on about 13 acres of the existing right of way.
Zukoski said there are two theories about Wildcat. “One is that it’s a workaround. It’s a way to take advantage of high oil prices now,” he said. “The other is that it’s basically a proof-of-concept exercise.” The SCIC needs to show investors that there is a market for Uinta Basin crude. Mark Hemphill, who is with Rio Grande Pacific, in 2019 told the Utah Division of Oil, Gas and Mining that a minimum of 130,000 bpd would need to come out of the basin to support the UBR. But without the UBR, the increase in production has been impossible due to caps on Salt Lake City refineries and no way to transport that much crude to other refineries. Wildcat could be a way out of the financial catch-22 that has been dogging the UBR. “If industry can show a significant boost in Uinta Basin oil production and proof that refineries will take that crude, they can take it to investors,” said Zukosky. “They’re in it to make money. That’s what this whole thing is about, and they’re just trying to figure out how to do it.”
The BLM needs to decide what kind of National Environmental Protection Act (NEPA) analysis is best for the WLF expansion. ”Actions are analyzed in an EA [environmental assessment] if they are not categorically excluded, not covered in an existing environmental document, and not normally subject to an EIS,” Angela Hawkins, public affairs officer for Utah BLM, said in an email. “The EA is used to determine if the action would have significant impacts. If that is the case, then BLM would need to prepare an EIS.”
Glenwood Springs, Eagle County and conservation groups, including CBD, would prefer an EIS. Over the summer, they informed the BLM of their concerns in separate letters. CBD public lands senior campaigner Deeda Seed said in the conservation groups’ letter that the ruling in the Eagle County case “demonstrates that BLM has a duty to disclose all of the environmental harms the Wildcat Loadout Project would cause, and makes clear that BLM must weigh those harms in evaluating whether the project is in the public interest.” Zukosky told Aspen Journalism that WLF’s maximum capacity would be less than one-third of the UBR’s top capacity of 350,000 bpd. “So, presumably the upstream and downstream impacts would be reduced,” he said. ”But since they didn’t look at those [in the EIS or FWS BiOp), they have to go look at them for this project.”
Meanwhile, Colorado state Sen. Lisa Cutter (D-Senate District 20) told Aspen Journalism at the Aug. 26 rally that the state legislature has begun to take a look at rail-transport issues. She’s on the Interim Transportation Legislative Review Committee that has been meeting over the summer. One of the ideas they talked about was enhanced rail safety. But this, too, is in its initial phase.
“It’s not drafted yet, but we’re looking at several provisions,” she said. “Maybe training people along the route, training first responders, maybe having more people on board, more hazardous material specialists on board.” She figures if toxic materials are going to be transported by rail through the state, safeguards must be in place. “We’re not threatening Colorado, our forests, our water, our recreation, our hearts,” said Cutter, whose district includes Jefferson County and parts of Arvada and Lakewood. “I mean, this is the most important thing to me — the mountains, the forests and the way we live here in Colorado.”
Cutter is not sure why Colorado Gov. Jared Polis remains silent on the issue. Asked what she had to say to him about it, she replied that she knows he cares about the Colorado way of life. “Please lend your voice should the opportunity become available,” she said. Aspen Journalism has not yet received a statement from the governor’s office.
For now, citizens from Grand County to Glenwood Springs are celebrating the recent, hard-won success. But Godes urged Polis, a Democrat, and U.S. Rep. Lauren Boebert, a Republican who represents many of the communities that would be impacted by increased crude oil transport out of the Uinta Basin, to clarify their positions on the issue. Godes wonders if Boebert’s silence on the issue is a tacit objection to the UBR. “Congresswoman Boebert is not against it,” he said. “But she has not come out in support of this and that’s a victory.”
More on the Uinta Basin Railway from Aspen Journalism
