By H. Michael Keller and Elizabeth Stubbs
The Seven County Infrastructure Coalition, composed of seven counties in Eastern Utah, has proposed building the Uinta Basin Railway Project, an approximately 80-mile rail line connecting two termini near South Myton Bench in Duchesne County and Leland Bench in Uintah County, to the national rail network. The purpose of the project is to provide a safer, more efficient way of transporting oil, mined minerals and other goods in and out of the Uinta Basin. The line would also be used to transport steel, machinery, fracturing sand and proppant into the Uinta Basin.
The coalition estimates seven trains a day will move along the railway in either direction. Currently, the primary method of transporting goods in and out of the Uinta Basin is trucking over rural highways. Utah’s oil refineries, located in the Salt Lake City area, process nearly 200,000 barrels of crude oil per day, most of which is brought in by pipeline from Utah, Colorado, Wyoming and Canada. The proposed railway would expand transportation options and access to markets.
Major players involved in the project’s public-private partnership include the coalition, the U.S. Surface Transportation Board (STB), Drexel Hamilton and the Rio Grande Pacific Corp. As the lead federal agency tasked with determining whether the project will be authorized, the STB is responsible for preparing the environmental impact statement (EIS) and coordinating with federal and state regulatory agencies, including the Bureau of Land Management (BLM), U.S. Forest Service, U.S. Army Corps of Engineers, Bureau of Indian Affairs and State of Utah Public Lands Policy Coordinating Council. The STB will also engage in government-to-government consultation with potentially affected Indian tribes. Drexel Hamilton (an investment bank) and Rio Grande Pacific Corp. (a short-line railroad holding company) make up the private portion of the partnership and will be responsible for financing, construction, operation and maintenance of the railway.
The environmental review process, under the National Environmental Policy Act of 1969 (NEPA), is designed to assist the STB and the public in assessing and weighing the potential environmental consequences of the proposed railway. The coalition has proposed three alternative railway routes for consideration: the Indian Canyon route, the Craig route and the Wells Draw route. The coalition’s preferred Indian Canyon route, located south of Duchesne, would connect an existing Union Pacific rail line near Kyune to a terminus point in the Uinta Basin near Leland Bench. The EIS will analyze the potential impacts of 1. construction and operation of the proposed rail line, 2. all reasonable and feasible alternative routes, and 3. the no-action alternative (denial of construction and operation authority). Specifically, the EIS will address issues of safety, transportation systems, land use, parks and recreation, biological resources, water resources, geology and soils, air quality, noise and vibration, energy resources, socioeconomics, cultural and historic resources, aesthetics and environmental justice.
The environmental review process for the project was effectively initiated on June 19, when the Office of Environmental Analysis (OEA) of the STB published a “Notice of Intent to Prepare an Environmental Impact Statement” and a “Draft Scope of Study” for the project in accordance with NEPA. Public comments are invited on the range of alternatives and potential impacts to be considered. Public meetings were scheduled in local communities in mid-July, and the comment period on this initial scoping for the EIS closes Aug. 3.
Following the current scoping process, the STB will draft the EIS, hold additional public meetings, and accept public comment on a draft EIS. Then, the STB will complete the final EIS, which will be open for public comment before a final record of decision is issued for the project.
The coalition ambitiously projects completing the environmental review process and design of the railway project in 2021, with construction to begin in either 2022 or 2023. For such a major infrastructure project, this timeline may appear to be aggressive, but might be possible under the current administration’s new “One Federal Decision” protocol. On Aug. 15, 2017, President Trump issued Executive Order (EO) 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” The purpose of the EO is to achieve more effective and efficient federal decisions on infrastructure projects so Americans can reap the economic benefits of improved infrastructure more expeditiously. All federal agencies involved in an infrastructure project are to cooperate and come to a unified decision on whether a project is authorized. The goal under the EO is for the NEPA review process to be completed and to have a record of decision prepared within two years of the publication of the Notice of Intent to prepare an EIS.
In a memorandum of understanding, federal agencies, including the STB, have explicitly agreed to cooperate and implement a timely process of environmental reviews according to the timeline set out by the EO.
Even in a favorable regulatory environment, the EIS process for the project will be complicated and challenging. The One Federal Decision protocol and its compressed review times have not yet been tested in the courts, and undoubtedly, there will be opposition, just as there is for any major project significantly affecting the environment and public lands.
The BLM’s Little Snake, Vernal, Price, White River and Salt Lake field offices intend to participate with the STB on the EIS. Both the Indian Canyon route and the Wells Draw route would require issuing a right-of-way across lands managed by the BLM and could require amendments to the Vernal, Price and Salt Lake field offices resource management plans. Also, the Craig route would require an issuance of a right-of-way across BLM lands and amendments to the Little Snake and White River resource management plans. For similar reasons, the U.S. Forest Service’s Ashley National Forest will participate as a cooperating agency for this environmental review process. The Indian Canyon route would cross National Forest System lands, so a right-of-way may be required, which too would require amending the Ashley Forest Land and Resource Management Plan. Analysis of those various amendments will be included in the EIS and may complicate the environmental review process.
H. Michael Keller practices environmental law and energy law as a shareholder in the Salt Lake City office of the Fabian VanCott law firm. Elizabeth Stubbs is a student at the University of Oregon School of Law and a 2019 summer associate at Fabian VanCott.ELIZABETH