Amicus Curiae Brief — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.

No. 23-975

IN THE

Supreme Court of the United States

___________________

SEVEN COUNTY INFRASTRUCTURE

COALITION, et al.,

Petitioners,

v.

EAGLE COUNTY, COLORADO, et al.,

Respondents.

___________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

___________________

BRIEF OF AMICUS CURIAE

UTAH AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS

IN SUPPORT OF PETITIONERS

___________________

Frank D. Mylar

MYLAR LAW, P.C.

2494 Bengal Blvd.

Salt Lake City, Utah 84121

Phone: (801) 858-0700

office@mylarlaw.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Table of Contents .........................................................i

Table of Authorities.................................................... ii

Interest of Amicus Curiae ........................................... 1

Summary of Argument................................................ 2

Argument ..................................................................... 3

Conclusion ................................................................. 13

ii

TABLE OF AUTHORITIES

Cases

Ctr. for Biological Diversity v. U.S. Army Corps of

Eng’rs, 941 F.3d 1288, 1299–1300 (11th Cir. 2019)

................................................................................ 9

Department of Transportation v. Public Citizen, 541

U.S. 752 (2004) ............................................... 2, 3, 9

Eagle Cty. v. Surface Transp. Bd., 82 F.4th 1152

(D.C. Cir. 2023) ............................................ 4, 9, 10

Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357,

1373 (D.C. Cir. 2017) ......................................... 4, 5

Other Authorities

Utah Department of Workforce Services, Annual

Income and Wages by County, JOBS.UTAH.GOV,

https://jobs.utah.gov/wi/data/library/wages/annual

profilewages.html (last updated October 16,

2023). ...................................................................... 7

Utah Department of Workforce Services, County

Labor Force Profile, JOBS.UTAH.GOV,

https://jobs.utah.gov/wi/data/library/laborforce/lab

orforceprofile.html (last updated September

2022). ...................................................................... 7

Utah Department of Workforce Services, Utah

Seasonally Adjusted Unemployment Rates,

JOBS.UTAH.GOV,

https://jobs.utah.gov/wi/update/une/season.pdf

(last accessed April 3, 2024). ................................. 7

iii

Utah Regional Economic Analysis Project, Uintah

County vs. Utah Comparative Trends Analysis:

Gross Domestic Product Growth and Change,

2001-2021, UTAH.REAPROJECT.ORG,

https://utah.reaproject.org/analysis/comparativetrendsanalysis/gross_domestic_product/tools/490047/490

000/ (last accessed April 3, 2024). ......................... 7

1

INTEREST OF AMICUS CURIAE 1

The Utah AFL-CIO is one of nearly five-hundred

state and local labor councils of the American

Federation of Labor and Congress of Industrial

Organizations (AFL-CIO). The Utah AFL-CIO is a

democratically elected body dedicated to representing

the interests of working people in the state of Utah.

The Utah AFL-CIO represents 38 unions and more

than 40,000 members across Utah.

Jeff Worthington, President of the Utah AFL-CIO,

has over 45 years of dedicated involvement in labor

unions. Mr. Worthington’s goal is to foster

collaboration between employee groups and

employers to promote mutual benefit and a sense of

equity and harmony between these two essential

groups. The Utah AFL-CIO has a vested interest in

creating more jobs in Utah and the overall increase in

economic welfare of the workers of the state.

The railway project into the Uinta Basin would

empower the individuals that the Utah AFL-CIO

represents within the labor industry to secure

meaningful employment, while at the same time

providing a professionally built infrastructure that

will benefit federal, state, county, and city

governments; private entities; and the citizens of the

state of Utah. In doing so, the Uinta Basin railway

1 Counsel for Utah AFL-CIO authored this brief in whole. No

person other than Utah AFL-CIO and its members and counsel

made any monetary contribution to fund the preparation or

submission of this brief. Counsel of record received notice on

March 26, 2024, of Utah AFL-CIO’s intent to file this brief.

2

project would strengthen the Utah economy as well as

enrich the laborers who work on this project.

The Court should reverse the order blocking the Uinta

Basin railway project. The lower court’s holding,

which is based on a faulty construal of Department of

Transportation v. Public Citizen, 541 U.S. 752 (2004),

will foster arbitrary and inconsistent decisions in

lower courts across the country because the

“foreseeability standard” is vague and overreaching

and will result in a wide variety of varied decisions

based upon similar facts.

SUMMARY OF ARGUMENT

The Uinta Basin Railway Project would foster jobs

and economic growth in the Uinta Basin and the

surrounding region. Shipping oil by rail is a safer and

a more environmentally friendly alternative to

transport by semi-trucks. There are two concerns that

impact the Amicus in this case: (1) the practical effects

that this ruling will foster arbitrary and inconsistent

rulings, potentially based upon politics rather than

legal reasoning because the various judges’ decisions

in making future determinations of “foreseeability”

will necessarily vary based upon highly subjective and

personal preference rather than the rule of law; and

(2) the result in this particular case does not seek to

protect the environment but elevates form over

substance, and thus will negatively affect the labor

and economic well-being of these rural communities

in Utah by potentially killing a worthwhile project due

to its delay.

The Amicus is concerned that, based upon the

lower court’s conclusion, the National Environmental

3

Policy Act (NEPA) is being used to kill a worthwhile

project for arbitrary reasons and not based upon logic

or concern for the environment. The lower court’s

decision enables a myriad of subjective decisions

based upon how the judge or judges imagine the

concept of “foreseeability.”

ARGUMENT

This Amicus Brief essentially adopts the legal

reasoning in the Petition for Writ of Certiorari and will

not repeat their legal arguments except as necessary

to make a point about the lower court’s ruling and the

standard it applied.

Further, unlike most Amicus briefs, this brief is

written on behalf of Jeff Worthington, the head of the

Utah AFL-CIO, who personally studied the idea of this

particular railroad project because he saw its benefit

to the labor and economy in these rural communities

in Utah. While the Utah AFL-CIO has no desire to

harm the environment, it does see the benefit of this

project to the lives and economic wellbeing of Utah

laborers who would work on the project.

The U.S. Supreme Court held in Department of

Transportation v. Public Citizen that “where an

agency has no ability to prevent a certain effect due to

its limited statutory authority over the relevant

actions, the agency cannot be considered a legally

relevant ‘cause’ of the effect. Hence . . . the agency need

not consider these effects” in its statement of the

proposed action’s environmental effects pursuant to

NEPA. 541 U.S. 752, 770 (2004).

4

In this case, the Surface Transportation Board

issued its decision approving the Railroad and

addressing all the relevant environmental effects of

the project. In other words, the Board did its job as

required by its statutory grant of authority. The Board

appropriately noted that it did not possess “authority

or jurisdiction over development of oil and gas in the

Basin nor any authority to control or mitigate the

impacts of any such development.” Pet.App.108.a. The

sole fact that this oil and gas development, and other

distant environmental impacts, would not occur

without the Board’s approval of the railway project

does not make those impacts an “indirect effect” for

NEPA purposes. Id.

The D.C. Circuit vacated the Board’s decision,

reasoning that because “the Board has authority to

deny an exemption to a railway project on the ground

that the railway's anticipated environmental and

other costs outweigh its expected benefits, the Board's

argument that it need not consider effects it cannot

prevent is simply inapplicable.” Eagle Cty. v. Surface

Transp. Bd., 82 F.4th 1152, 1180 (D.C. Cir. 2023).

The D.C. Circuit’s decision opens a pandora’s box

of potentially arbitrary issues that are not within the

purview of the Surface Transportation Board, focusing

not on what activities the STB oversees but on the

potential to kill a worthwhile project because it might

be “too harmful to the environment.” Sierra Club v.

FERC (Sabal Trail), 867 F.3d 1357, 1373 (D.C. Cir.

2017). The D.C. Circuit wrongly focused on

hypothetical environmental effects and not on the

expertise and statutory focus of the agency. The

appellate court further held, “[T]he existence of permit

5

requirements overseen by another federal agency or

state permitting authority cannot substitute for a

proper NEPA analysis.” Id. at 1375. This ruling invites

agencies to delve into matters that are beyond their

control and require review of issues outside their scope

of authority, when they are ill-equipped to do so.

The Utah AFL-CIO is frustrated that the lower

court’s decision allows an agency to study issues that

are beyond its statutory authority, such that the result

will be to delay the Uinta Basin railway project,

potentially indefinitely. This delay potentially will

prevent the project from being implemented even

though no environmental issue within the STB’s

purview of jurisdiction has been identified as a basis

to stop this project.

The effect of the lower Court’s decision is a personal

issue with Jeff Worthington. In 2018, while Mr.

Worthington was attending the Uinta Basin Energy

Summit in Vernal, Utah, an idea emerged about

building an 88-mile Short Line Railroad terminating

in the Uinta Basin and connecting with a Class 1

Railroad in Helper Utah, which is located in Carbon

County. Drawing on his thirty-nine-year career as a

Locomotive Engineer with Union Pacific Railroad

before assuming the role of President of the Utah AFLCIO, Mr. Worthington brings a unique perspective and

valuable institutional knowledge of shipping products

and goods by rail.

Recognizing the efficiency and benefits of this mode

of transportation in and out of the Uinta Basin for

delivering a wide range of commodities, Mr.

Worthington was enthusiastic about the positive

impact it could have on the entire state of Utah. A

6

long-awaited project in a region that has experienced

cycles of prosperity and decline for far too many years,

this eighty-eight-mile short-line railroad would finally

provide Vernal, Utah and Roosevelt, Utah some

stability in their economies.

The construction of the railroad not only promises

to boost the economy of the Uinta Basin but also

presents a significant opportunity for Utah labor

unions to compete for contracts in constructing the

railroad connecting the Uinta Basin to Carbon

County. This expansive project, spanning multiple

years, would greatly benefit Utah’s construction

trades. Thousands of hours of technical work would be

needed to excavate a new roadbed for the railroad,

bore tunnels, and build bridges. American workers

would install electrical wiring for a brand-new signal

system, lay large-diameter underground pipes and

culverts to manage seasonal runoff, and construct

office buildings for railroad crews and management to

oversee the railroad’s daily operations. The volume

and range of needed construction activities underscore

the scale and beneficial impact of this endeavor.

This collaborative effort among Utah labor

professionals, unions, investors, and corporations

aims to revitalize a previously depressed region of the

state, breathing new life into its economy. Utah’s

unemployment rate stands at 2.8 percent. In contrast,

Uintah County, Utah, most of which lies within the

Uinta Basin, has an unemployment rate of 3.4

7

percent.2 As of 2021, the median annual household

income in Uintah County was $61,293, almost $15,000

below the 2021 Utah median household income of

$79,133.3 The labor-force participation rate in Utah as

a whole was 77 percent in the years 2016 through

2020, while it was only 71 percent in Uintah County.4

While Uintah County’s gross domestic product (GDP)

grew 34.74 percent from 2002 to 2021, Utah’s GDP

grew 99.78 percent over the same period.5

The GDP growth rate of Vernal and Roosevelt,

Utah may vary from year to year, but in general, these

two cities have experienced slower GDP growth

compared to the rest of the state. This is mainly due to

their reliance on industries such as oil and gas

Utah Seasonally

Adjusted Unemployment Rates, JOBS.UTAH.GOV,

2 Utah Department of Workforce Services,

https://jobs.utah.gov/wi/update/une/season.pdf (last accessed

April 3, 2024).

3 Utah Department of Workforce Services,

Wages by County, JOBS.UTAH.GOV,

Annual Income and

https://jobs.utah.gov/wi/data/library/wages/annualprofilewages.

html (last updated October 16, 2023).

4 Utah Department of Workforce Services,

Profile, JOBS.UTAH.GOV,

County Labor Force

https://jobs.utah.gov/wi/data/library/laborforce/laborforceprofile.

html (last updated September 2022).

Uintah County vs.

Utah Comparative Trends Analysis: Gross Domestic Product

Growth and Change, 2001-2021, UTAH.REAPROJECT.ORG,

5 Utah Regional Economic Analysis Project,

https://utah.reaproject.org/analysis/comparative-trendsanalysis/gross_domestic_product/tools/490047/490000/ (last

accessed April 3, 2024).

8

extraction, which can be more volatile and subject to

fluctuations in prices. Additionally, the population

size and economic diversity of these two cities in the

Uinta Basin are smaller compared to other cities in

Utah, which can also impact their GDP growth rates.

Overall, Utah has a strong economy with low

unemployment rates and opportunities for job growth

in various industries. Conversely, the Uinta Basin’s

economy depends largely on its ability to export and

import commodities such as agricultural and energy

products out of the northeastern corner of the state of

Utah. Access to the Uinta Basin is restricted to twolane highways and depends on heavy semi-truck

traffic to grow the region’s economies.

The Uinta Basin is renowned for its vast reserves

of oil and gas that lie beneath the surface, but the

construction of a rail line into the basin holds the

potential to benefit various industries beyond just the

energy sector. The abundant agriculture industry in

the Uinta Basin stands to gain significantly from

having a railroad available for shipping products and

commodities in bulk. The railway will also allow for

shipments of all types of building materials, food and

dairy products, clothing and retail products, and more.

Every imaginable good could be delivered to the Uinta

Basin by rail shipment, reducing the area’s reliance on

18-wheeled semi-trucks on the current dangerous twolane highway that now serves as the only option to

ship or receive anything in or out of the Uinta Basin.

One factor in the D.C. Circuit’s analysis was the

increased risk of oil spills from additional train cars

that would carry Uinta-Basin oil on existing rail lines.

See Eagle Cty., 82 F.4th at1168, 1182, 1184-1185,

9

1187-1188, 1195. This Amicus is concerned that this

lower court decision should have stayed within the

holding of Public Citizen and not required the Board

to exceed its “limited statutory authority,” causing the

Board to be concerned about remote environmental

effects of oil that would be transported out of the

Basin. See Public Citizen, 541 U.S. at 770 (“where an

agency has no ability to prevent” an environmental

effect “due to its limited statutory authority over the

relevant actions, the agency cannot be considered a

legally relevant ‘cause’ of the effect.”). In such

situations, as we have here, the agency was not

required to study that effect in its National

Environmental Policy Act review. Id.

The Eleventh Circuit labeled the D.C. Circuit’s

approach as an “outlier” view, because of its “failing to

take seriously the rule in Public Citizen.” Ctr. for

Biological Diversity v. U.S. Army Corps of Eng’rs, 941

F.3d 1288, 1299–1300 (11th Cir. 2019). The Eleventh

Circuit correctly holds, contrary to the lower court

here, that when an agency “lacks the authority to

regulate” an effect “wholesale,” Public Citizen does not

require the agency to consider that effect. Id. at 1294.

The Eleventh Circuit further correctly held that an

environmental review may exclude “distantly caused

effects” that are subject to “independent regulatory

schemes.” Id. at 1292. The lower court here ignores

and rejects these principles that are based on Public

Citizen, to seemingly allow a “watch dog” mentality

that exceeds the agency scope of review.

The Board concluded it lacked “authority or

jurisdiction over development of oil and gas” and could

not “control or mitigate the impacts of any such

10

development.” Pet.App.108a. The Board further

decided that those impacts were not direct effects of

the rail line as required by Public Citizen. Id. The D.C.

Circuit ignored Public Citizen by holding, “The Board

[] cannot avoid its responsibility under NEPA to

identify and describe the environmental effects of

increased oil drilling and refining on the ground that

it lacks authority to prevent, control, or mitigate those

developments.” Eagle Cty., 82 F.4th at 1180. This

holding requires the Board to consider the

hypothetical, localized effects of processing the oil

carried on the line at separately regulated Gulf Coast

refineries a thousand miles away. Id. It is not the job

of the Board to entertain such speculations regarding

such issues outside of their statutory authority.

However, the reasoning of the lower court is also

misplaced in substance and this is yet another reason

why the holding in Public Citizen makes sense from

both a legal reasoning and fairness perspective.

These trains would be transporting waxy crude oil.

See id. at 1166 (No one disputes “that the Railway's

predominant and expected primary purpose would be

the transport of waxy crude oil produced in the Uinta

Basin.”). This type of oil requires heating to liquify

before loading and solidifies once again inside the tank

cars, making it a stable product for transportation.

While there are fears of potential derailments and

spills into rivers, it is essential to consider the safety

measures in place for transporting hazardous

materials by rail in addition to the waxy, solid

characteristics of this waxy crude oil.

Tank cars are designed to withstand severe

impacts and likely will not break or leak at all.

11

Moreover, the tank cars’ contents will be a waxy crude

oil, which is a “wax”-like product, not liquid, so it may

not leak into a water supply at all as suggested. This

waxy crude oil is far less likely to leak into rivers and

water supplies than what is currently shipped on

railroads all over the country. Moreover, waxy crude

oil is unlikely to ever seep into the water supply

because it will be easy to clean up even if a derailment

were to occur.

Furthermore, the track record of safely

transporting hazardous materials by rail, including

chlorine gas, ammonia, acids, and nuclear waste,

underscores the industry’s commitment to safety.

These products currently shipped by rail are far more

dangerous than the waxy crude oil at issue in the court

below. The particular facts of this case point to exactly

why it is inappropriate for an agency to concern itself

in matters that are beyond its purview.

Federal law requires that when railroads transport

hazardous commodities that Americans use daily

including crude oil, fertilizer and chlorine, 99.9

percent of these hazardous materials shipped by rail

reach its destination safely. Trains already transport

these materials on the very route in question between

Denver, Colorado and Salt Lake City, Utah.

These facts about waxy crude oil alone show that

the conclusion to delay this matter and to do further

review is arbitrary and capricious. The facts, on their

face, do not support the D.C. Circuit’s ruling, even if

this issue were within the purview of the Board’s

jurisdiction. It is as if the lower court simply saw that

crude oil was being transported and assumed there

could be negative consequences, but did not bother to

12

understand that waxy crude oil is far less likely to ever

damage the environment in the event of a train

derailment as compared to liquid materials.

Having been a locomotive engineer for thirty-nine

years, Mr. Worthington has transported all these

commodities that were brought into Salt Lake City via

Rio Grande Railroad and later, Union Pacific Railroad

and Burlington Northern Santa Fe Railroad. It is his

opinion that waxy crude oil represents a far reduced

risk of ever harming the environment than normal

liquid crude oil and that it is far more stable to

transport.

Finally, while the D.C. Circuit made much of the

remote possibility of railway accidents, it failed to

consider that the oil currently transported by semitrucks now could be transported by rail, decreasing

the likelihood of automobile accidents on the

dangerous two-lane highway between Vernal and

Heber City, Utah. Shipping by rail is significantly

safer than relying on thousands of semi-trucks on the

nation’s

already

deteriorating

interstates,

contributing to unsafe driving conditions.

In conclusion, shipping by rail offers a safer and

more environmentally friendly alternative to the

heavy reliance on semi-trucks, providing a viable

solution for transporting goods while mitigating risks

and enhancing overall safety. It was inappropriate for

the lower court to empower the agency to exceed its

statutory scheme by raising issues that are not within

its purview.

13

CONCLUSION

This case is a prime example of why agencies

should be required to “stay in their lanes” of authority

under federal law. The results of the D.C. Circuit’s

ruling seem more aimed at arbitrary delay than the

substance of the Board’s responsibilities in this

instance. It opens a pandora’s box of potentially

impossible obstacles for good projects that have little

or no ill effects upon the environment.

The Uinta Basin Railway Project holds the

potential to employ thousands of Union and nonUnion hard-working, skilled professional trade

workers, and would contribute to rebuilding the

middle class. So many entities have signed onto the

agreement to build a railroad from the Uinta Basin to

Carbon County Utah, including the Ute Indian Tribal

Nation, political representatives from Uintah and

Carbon Counties, the Utah Legislature, the Utah

Seven-County Infrastructure Coalition, and the Utah

AFL-CIO, just to name a few. All these parties care

about the future of rural Utah and the need for growth

and stimulus to help these communities recover from

the prohibition on extracting fossil fuels and mining

coal in their counties.

After years of dedication and hard work, all parties

involved have diligently met all requirements to move

this project forward. All permits and plans have been

set into motion, the Board granted its approval, and

the lower court’s decision has stopped a good project.

Based upon the lower court’s reasoning, a myriad of

subjective issues can and will be raised moving

forward, and a worthwhile project will be lost.

14

Jeff Worthington and the Utah AFL-CIO urge the

Court to carefully consider the difficulties imposed on

this project and the many good projects that will

follow, and how they can be arbitrarily delayed by

hypothetical questions that cannot even be answered

by the agency in question.

In this case, the advantages of constructing an 88mile short line railroad from Helper, Utah to Vernal,

Utah are many, and they met the Board’s approval.

This project would represent a positive environmental

stride by removing hundreds, if not thousands, of

semi-trucks from the hazardous two-lane highways in

and out of the Uinta Basin. The project would decrease

air pollution caused by the numerous semis on the

roads

and

generate

well-paying,

long-term

employment opportunities for Basin residents. This

initiative has the potential to revitalize all industries,

agriculture, and sectors of the regional economy,

fostering growth and prosperity for the future of the

Uinta Basin.

However, all such worthy projects will face an

endless subjective cycle of review if the clarity of

Public Citizen is not restored on this and other

projects that will surely follow.

15

Respectfully submitted this 5th day of April 2024.

Frank D. Mylar

Counsel of Record

MYLAR LAW, P.C.

2494 Bengal Blvd.

Salt Lake City, Utah 84121

Phone: (801) 858-0700

office@mylarlaw.com

Counsel for Amicus Curiae

Utah AFL-CIO