Paul Fuhs: Supreme Court ruling limits green Lawsuits, clears path for Alaska projects

By PAUL FUHS

The very recent US Supreme Court ruling in the 7 County Infrastructure Coalition vs. Eagle case is especially important for Alaska, but it has received little attention in the media.  It is a landmark decision with substantial clarifications for environmental impact statements and associated lawsuits under the National Environmental Policy Act.  The decision is embedded at the end of this column and I encourage you to read it. It’s fairly technical but easy to explain and based on common sense. 

The essence of the ruling is that the agencies (and the courts) can only consider the environmental impacts of the actual project before them, not any imagined upstream and downstream impacts of the project.

The particular case involved a railroad from the Uinta Basin oil field in Utah to refiners in the southern US. The oil had previously been transported by on-the-road tank trucks, presenting a safety hazard and potential for accidents.  After issuing a 3,600 page environmental impact statement, the US Surface Transportation Board authorized the permit. They were immediately sued by local and environmental groups, including the notorious Center for Biological Diversity, which has already filed 266 lawsuits against the Trump administration in their quest to shut down all oil, gas and mining operations in the United States.

They had argued that the rail line would mean more production at the oil field and increased refinery operations, which would create more fuel which could be burned elsewhere and thus create more CO2. No mention was made that if this oil wasn’t transported, it would just come from somewhere else.

By a vote of 8-0 the Supreme Court overruled the Washington DC Appeals court that had found these arguments persuasive and had blocked the rail line. The Supreme Court decisively ruled that an EIS should only cover the project under that agency’s jurisdiction, which then limits the judicial challenges to the EIS. It also detailed and clarified many of the processes of an EIS under NEPA, and stated that there was no “statutory text” to justify these extended considerations. In other words, ending the endless claims of increasingly tenuous impacts.

We witnessed a good example of this judicial abuse in the Center for Biological Diversity lawsuit against Alaska’s Willow project (which will eventually put 180,000 barrels a day into the Trans Alaska Pipeline). Their pleadings are a textbook case of the abuse of the judicial process, arguments similar to those in their many other cases across the country. Unfortunately, for far too long, these tenuous claims were accepted by gullible or even complicit judges which CBD venue shopped for. Even if they couldn’t win, they could use time to destroy a project. When they did win, they were awarded attorney fees, which they then used to bankroll further lawsuits, in one case, for instance, where the judge granted them $340,000 over a biological opinion against the Fish and Wildlife Service.

In their pleadings against the Willow project, they claimed that because the oil will be burned, the project should be blocked because it would cause 258 million tons of CO2 over the life of the project, including “foreign oil and gas consumption.” 

The Center for Biological Diversity then complains that the Bureau of Land Management EIS did consider these claims, but found that the project would result in a “net increase of only 35 million tons CO2.”  The Bureau made this conclusion based on the fact that If the oil was burned in Japan, it would displace coal fired plants and result in a “net reduction”.  The Center for Biological Diversity calls this an “implausible conclusion,” but how can you see it any other way? This is only common sense.

What really reveals their motivation in bringing this lawsuit, which is contained in Section 47 of their pleadings, is where they state:  “This necessary transition (from carbon based fuels), leaves no room in the global carbon budget for developing new fossil fuel discoveries, especially in the Arctic.”

This openly displays their strategy, not to “protect endangered species”, but to shut down oil and gas production wherever it occurs. Particularly egregious is singling out of the “Arctic” in their attacks.  It is ridiculous on its face, since it wouldn’t mean even one drop less oil being burned.  It would just come from somewhere else.

In the case of Alaska, that somewhere else is the Alberta Tar Sands, the dirtiest oil in the world. They already produce four times as much oil as we do for the US, and have indicated they would increase production to meet any deficiencies. They stated their reserves would allow these levels of production for the next 149 years. That is the alternative.

Thankfully, for this unanimous Supreme Court decision, most, if not all, of this foolishness will go away. Combined with the Chevron decision,  the provisions in the Big Beautiful Bill and President Trump’s Alaska executive order, we can look forward to a prosperous future in our resource based economy.

Paul Fuhs is the former mayor of Dutch Harbor, Former commissioner of Commerce and International Trade for Alaska, former chairman of the board of AIDEA, the Alaska Energy Authority, and the State Bond Bank. He currently serves as the Arctic Goodwill Ambassador for the Northern Forum, the transArctic coalition of regional governments and states.