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 Writ of Certiorari to the United States Court

of A ppeals for the District of Columbia Circuit

BRIEF OF COLORADO

COMMUNITIES AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Matthew R. A rnold

Eubanks & Associates PLLC

1629 K Street NW,

Suite 300

Washington, DC 20006

William S. Eubanks II

Counsel of Record

Eubanks & Associates PLLC

1629 K Street NW,

Suite 300

Washington, DC 20006

(970) 703-6060

bill@eubankslegal.com

Counsel for Amici Curiae

(additional counsel at the end of the brief)

117089

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF THE AMICI CURIAE . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I.

The Question Presented Has No Bearing

on the Adequacy of the Board’s Analysis of

Impacts to Western Colorado . . . . . . . . . . . . . . . 14

A. No One Seriously Disputes That the

Railway Will Foreseeably Impact

Western Colorado and the Natural

Resources on Which Amici Rely . . . . . . . . 16

B. T he Bo a r d ’s O w n R e g u l at ion s

Reinforce the Foreseeability of the

Railway’s Effects on Colorado . . . . . . . . . . 19

II. The Indirect Effects Analysis Discloses

Critically Important Information Otherwise

Unavailable to Local Governments . . . . . . . . . . 20

A. Local Governments Depend on the

Information NEPA Discloses and

the Collaboration It Requires . . . . . . . . . . . 22

ii

Table of Contents

Page

B. Petitioners’ Proposed Rule Would

Undu ly Const r ict NEPA’s Core

Disclosure Function . . . . . . . . . . . . . . . . . . . 25

III. Petitioners Incorrectly Demonize NEPA

By Overstating Its Burdens and Ignoring

Its Many Successes . . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

ADDITIONAL COUNSEL . . . . . . . . . . . . . . . . . . . . . . 35

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Arizona v. Navajo Nation,

599 U.S. 555 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

City of Auburn v. United States,

154 F.3d 1025 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . 21

Department of Transportation v. Public Citizen,

541 U.S. 752 (2004) . . . . . . . . . . . . . . . . . . . . . 15, 22, 25

Marsh v. Or. Nat. Res. Council,

490 U.S. 360 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mid States Coal. for Progress v.

Surface Transp. Bd.,

345 F.3d 520 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 21

Nat. Res. Def. Council v. McCarthy,

993 F.3d 1243 (10th Cir. 2021) . . . . . . . . . . . . . . . . . . 25

New England Coal. on Nuclear Pollution v.

Nuclear Regulatory Comm’n,

727 F.2d 1127 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . 17

Or. Nat. Desert Ass’n v Bureau of Land Mgmt.,

625 F.3d 1092 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . 23

Tex. Cent. Bus. Lines Corp. v.

City of Midlothian,

669 F.3d 525 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 21

iv

Cited Authorities

Page

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P.,

595 U.S. 178 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 13, 20

Yee v. Escondido,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Constitution

Colo. Const. art. XX, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Colo. Const. art. XIV, § 16 . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes

42 U.S.C. § 4331 . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 26

42 U.S.C. § 4332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 4336a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

49 U.S.C. § 10501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Colo. Rev. Stat. § 24-33.5-707 . . . . . . . . . . . . . . . . . . . . . 21

Colo. Rev. Stat. § 25-15-06 . . . . . . . . . . . . . . . . . . . . . . . . 20

Colo. Rev. Stat. § 29-20-104 . . . . . . . . . . . . . . . . . . . . . . . 21

Colo. Rev. Stat. § 29-22.5-101 . . . . . . . . . . . . . . . . . . . . . 21

Colo. Rev. Stat. § 30-11-101 . . . . . . . . . . . . . . . . . . . . . . . 20

v

Cited Authorities

Page

Regulations

40 C.F.R. § 1508.1(aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

40 C.F.R. § 1508.7 (1979) . . . . . . . . . . . . . . . . . . . . . . 22, 23

40 C.F.R. § 1508.8 (1979) . . . . . . . . . . . . . . . . . . . 16, 22, 23

40 C.F.R. § 1508.18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

49 C.F.R. § 1105.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Other Authorities

65 Fed. Reg. 42,529, 42,529 (July 10, 2000) . . . . . . . . . . 26

85 Fed. Reg. 43,304, 43,376 (July 16, 2020) . . . . . . . . . . 16

2021: Grizzly Creek Flooding and Debris Flows,

U.S. G eol o gica l S u rv. (Aug. 24, 2021),

https://bit.ly/3ETuAXd . . . . . . . . . . . . . . . . . . . . . . . . .5

2021: Grizzly Creek Flooding and Debris Flows,

U.S. G eol o gica l S u rv. (Aug. 24, 2021),

https://bit.ly/3yTRqdA . . . . . . . . . . . . . . . . . . . . . . . . . 4

Collaborative Effort, Colo. Dep ’t of T ransp.,

h t t p s : // b i t . l y / 3 Z N P n 9 7 ( l a s t v i s i t e d

Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

vi

Cited Authorities

Page

Colo. Leg. Counci l Sta ff, Colorado Local

Government Handbook (Res. Pub. No. 795)

(2023), https://bit.ly/4gRP8j . . . . . . . . . . . . . . . . . . . . 21

Colorado River Cooperative Agreement, Colo.

Riv. Dist., https://bit.ly/4eSq0XR (last visited

Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Dan Boyce, Colorado’s Grizzly Creek Fire Shows

Climate Change’s Threat to Transport Routes,

NPR (Sept. 29, 2020), https://n.pr/3DaUXqw . . . . . . 3

David Lassen, News Photos: Union Pacific

Reopens Route After Colorado Mudslides

(Second Update), T r a ins (Aug. 4, 2021),

https://bit.ly/4fygRV1 . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Dep’t of Transp., I-70 Mountain Corridor Record of

Decision and Final Programmatic Environmental

Impact Statement (2011) . . . . . . . . . . . . . . . . . . . . . . 28

Glenwood Canyon and Debris Flows (Dec. 16, 2021),

https://on.doi.gov/3CJ8cx1 . . . . . . . . . . . . . . . . . . . . . . 4

Glenwood Springs, Glenwood Springs Water and

Resiliency After the Grizzly Creek Fire (2021),

https://bit.ly/3ETpvOK . . . . . . . . . . . . . . . . . . . . . . . . . 4

Intergovernmental Agreement for the Learning

By Doing Cooperative Effort, Grand Cnty.

(May 15, 2012) https://bit.ly/4h56REh . . . . . . . . . . . 32

vii

Cited Authorities

Page

Interstate 70 Mountain Cor r idor Express

Lanes: Managed Lanes Repurpose Highway

Shoulders in Peak Periods to Improve Traffic

Access, HDR, https:// bit.ly/487ZzeV (last

visited Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

John C. Ruple & Kayla M. Race, Measuring the

NEPA Litigation Burden: A Review of 1,499

Federal Court Cases, 50 Envt. L. 479 (2020) . . . . . 27

NEPA Reviews of Tolling and Road Pricing

Projects: I-70 Mountain Express Lanes, U.S.

Dep’t of Transp., https://bit.ly/4dCy4ez (last

visited Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Press Release, Colo. Dep’t of Transp., CDOT,

CSP Urge I-70 Drivers in Glenwood Canyon to

Follow All Safety Instructions and Help Prevent

More Closures, https://bit.ly/3zYmVXx (last

visited Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rya n Sp encer, Col o r a d o Dep ar tm e n t of

Transportation Project Aims to Reduce

I-70 Cl os ur es Near th e Tunn el s Thi s

Win t e r, S u m m i t D a i ly ( Nov. 8 , 2 0 2 3),

https://bit.ly/3BQNcaY . . . . . . . . . . . . . . . . . . . . . . . . 11

Surface Transp. Bd., Draft Environmental Impact

Statement for the Tongue River Railroad at 17-3

(2015), https://bit.ly/4gRYH1J . . . . . . . . . . . . . . . . . . 19

viii

Cited Authorities

Page

Town Statistics and History, Minturn, https://

bit.ly/40lj7KV (last visited Oct. 23, 2024) . . . . . . . . . . 7

Wildfires in Glenwood Springs, Visit Glenwood

Springs , https://bit.ly/3CIRi1E (last visited

Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

White River National Forest, U.S. Forest

S erv., https:// bit.ly/4hcBebG (last visited

Oct. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1

INTERESTS OF THE AMICI CURIAE 1

Amici curiae are a bipartisan coalition of local

governments and communities located along the Union

Pacific Rail Line and Interstate 70 (I-70) in western

Colorado. This places them in what the Surface

Transportation Board (Board) calls the “down-line study

area” for the decision under review, which authorizes the

construction of the Uinta Basin Railway (Railway). That

poorly reasoned decision adversely affects Amici’s interest

in numerous ways described below. This is why many of

the Amici also filed an amicus brief in the D.C. Circuit,

explaining the importance of the Board’s NEPA process

for analyzing effects to Amici’s interests in wildfire

prevention, water quality, public health, and safety, as

well as the glaring defects in the Board’s analysis of those

issues. 2

Situated along the Union Pacific Line—which will

receive 90% of the new rail traffic authorized by the Board,

J.A.513—Amici are directly impacted by the decision

approving the Railway. Ultimately, it is the Amici who

are responsible for responding to the accidents, wildfires,

river contamination, and destruction of private property

inevitably caused by the Board’s decision. All of this

places an enormous strain on these local governments’

1. Amici represent that no counsel for any party has authored

this brief in whole or in part, and no entity or person, aside from

amici curiae and their counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2. Colorado communities, including the towns of Avon,

Minturn, and Red Cliff, also participated in the Board’s NEPA

process by submitting comments on the draft Environmental

Impact Statement (EIS).

2

comparatively diminutive operating budgets and the

ensuing environmental fallout threatens lasting damage

to the outdoor recreation and tourism industry on which

these communities heavily rely. Amici thus maintain

a clear interest in understanding the full array of the

downline effects in Colorado, i.e., foreseeable effects that

will occur along existing railways due to the substantial

increase in rail traffic, including what can be done to

mitigate those impacts and how Amici should prepare to

respond to them.

Glenwood Springs, Colorado is a home -r ule

municipality of roughly 10,000 residents in Garfield

County. 3 It sits in Glenwood Canyon at the confluence of

the Roaring Fork and Colorado rivers. Surrounded by

steep, rugged topography, Glenwood Canyon represents a

natural mountain pass for both I-70 and the Union Pacific

Line.

Glenwood Springs was established as and continues

to be a respite for visitors to the Rockies. Annually, 1.5

million people visit Glenwood Springs to enjoy the world’s

largest mineral hot springs, whitewater rafting, kayaking,

fly-fishing, hiking, and skiing. The nearby White River

National Forest receives “more than 12 million visitors

per year,” making it “the most-visited recreation forest

in the country.” White River National Forest, U.S.

Forest Serv., https://bit.ly/4hcBebG (last visited Oct. 23,

2024). Glenwood Springs’ economy is heavily dependent

on tourism; nearly 40% of residents are employed in the

3. The Colorado Constitution empowers cities and towns to

adopt “home rule” governance, allowing them to exercise greater

control over matters of local significance. Colo. Const. art. XX,

§ 6; id. art. XIV, § 16.

3

leisure, hospitality, and retail sectors, which is double the

national average.

Glenwood Springs has witnessed a marked rise in

wildfires due to extreme drought conditions that are fast

becoming the norm. In August 2020, a fire ignited one

mile east of Glenwood Springs that burned for 130 days

and consumed 32,631 acres. That fire—known as the

Grizzly Creek Fire—caused severe upheaval, including

area-wide evacuations, long-term closures of I-70, food and

supply shortages, and substantial property damage. See

Dan Boyce, Colorado’s Grizzly Creek Fire Shows Climate

Change’s Threat to Transport Routes, NPR (Sept. 29,

2020), https://n.pr/3DaUXqw. It also cost the city “tens

of millions of dollars” in lost tourism revenue. Id. (“[T]

he two-week-long highway closure wreaked havoc on

the Glenwood Springs economy during a tourism season

already wounded by the pandemic,” with some businesses

losing “two-thirds” of their revenue “once travelers were

cut off from the area by the fire.”).

Containment did not end the fire’s devastation.

Because the fire stripped Glenwood Canyon’s steep

slopes of vegetation, subsequent rainstorms triggered

landslides and debris f lows that covered the Union

Pacific Line and deposited burnt sediment and toxic ash

into the Colorado and Roaring Fork rivers. See David

Lassen, News Photos: Union Pacific Reopens Route After

Colorado Mudslides (Second Update), Trains (Aug. 4,

2021), https://bit.ly/4fygRV1 (depicting, via photographs,

the effects of landslides on the Union Pacific Line). Those

“debris flows have had enormous impacts on the citizens

of Colorado,” including by threatening critical drinking

water supplies. Boyce, supra. In turn, Glenwood Springs

4

has diverted millions of dollars to protect its residents’

water. See Glenwood Springs, Glenwood Springs Water

and Resiliency After the Grizzly Creek Fire at 2, 6 (2021),

https://bit.ly/3ETpvOK (outlining turbidity monitoring,

solids collection system, and other improvements made

after the debris flows).

Debris flows caused repeated closures of I-70, which

exacerbated economic harm to local businesses. In fact, in

2021, “[n]early every strong storm triggered debris flows

that carr[ied] mud, rocks, and woody material from steep

side drainage basins into Glenwood Canyon,” damaging

“portions of [I-70], as well as the Union Pacific [Line].”

Glenwood Canyon and Debris Flows (Dec. 16, 2021),

https://on.doi.gov/3CJ8cx1. The following photographs

show the repeated annihilation of I-70 and the Union

Pacific Line by post-fire debris flows in Glenwood Canyon.

Debris flow covering eastbound lanes of I-704

4. Photo by U.S. Geological Survey (USGS). See June 26

and 27, 2021: Grizzly Creek Flooding and Debris Flows, U.S.

Geological Surv. (Aug. 24, 2021), https://bit.ly/3yTRqdA.

5

Debris flow covering westbound lane of I-705

Later investigations concluded that the fire was

“human-caused,” likely from a single ignition-point on

I-70. Wildfires in Glenwood Springs, Visit Glenwood

Springs, https://bit.ly/3CIRi1E (last visited Oct. 23, 2024).

Consequently, communities in this extremely fire-prone

region have become vigilant about potential ignition

sources in the Canyon, including the Union Pacific Line.

Of course, increasing the number of trains traveling along

this line necessarily increases the risk of large-scale

wildfires. See infra at 19.

Grand County, Colorado is located in Colorado’s

North Central mountains and is home to the headwaters of

the Colorado River. Grand County’s watersheds are vital

to both the Upper and Lower Colorado River Basins, as

5. Photo by USGS. See June 26 and 27, 2021: Grizzly Creek

Flooding and Debris Flows, U.S. Geological Surv. (Aug. 24, 2021),

https://bit.ly/3ETuAXd.

6

its streams and rivers bring clean, high-quality water to

communities and agricultural operations throughout the

West. Situated at the west entrance of Rocky Mountain

National Park, Grand County’s tourism-based economy

is supported by year-round outdoor activities like worldclass skiing at Winter Park Resort, boating and fishing

on the county’s many lakes, and rafting and fly-fishing

on the Colorado River, which attracts over 7.7 million

visitors a year. In 2020, the East Troublesome Fire—the

second largest fire in Colorado’s history—burned through

193,812 acres of land in Grand County, destroying over

500 structures and homes. After the 15,000-acre Williams

Fork Fire, nearly 17% of Grand County was impacted by

wildfire in 2020 and it continues to deal with the fallout

from debris flows caused by those fires. Thanks to a

multi-agency collaborative restoration effort, these fragile

ecosystems and watersheds that are tributaries to the

Colorado River are beginning to show signs of recovery.

The Union Pacific Line winds through Grand County

along the Colorado River, passing through sharply curved

and hard-to-access canyons where trains have repeatedly

derailed within the last twenty years. Long stretches of

railroad tracks are merely feet from the Colorado and

Fraser rivers. Any oil spill into either river would have

devastating impacts on outdoor recreation, agriculture,

and the aquatic environment.

Grand Junction, Colorado is a home-rule municipality,

located in Mesa County near the Utah border, and the

most populous city in western Colorado. The City’s

name derives from its location at the confluence of the

Gunnison and Colorado rivers. Beginning in the 1880s,

and continuing today, two major railroads contributed to

the development of Grand Junction and the Grand Valley.

7

The Union Pacific Depot and Railyard are fixtures in the

City and accommodate significant daily commercial and

passenger rail traffic in and through the City. The City

has several at-grade crossings that may be impassable

for extended periods with longer trains. The City is

currently studying “quiet zones” and is interested in how

additional trains may impact that effort, and/or what

effect the type of train has on local safety concerns. The

City holds significant water rights in the Colorado and

Gunnison Rivers that would be impacted by any spills

in the river. Grand Junction is in the 15 Mile Reach

for Threatened and Endangered species. The City is

fortunate to be surrounded by federal public lands—

including the Colorado National Monument and McInnis

Canyons National Conservation Area—that are subject

to NEPA decisionmaking processes. The City’s economy

relies on balancing industrial development with outdoor

recreation’s need for the protection of its landscapes and

waterways.

Minturn, Colorado is a home-rule municipality

of 1,100 residents, located two miles south of I-70 in

Colorado’s Vail Valley, near the Vail and Beaver Creek

ski resorts, White River National Forest, and Holy Cross

Wilderness. It was established as a strategic railroad

town where workers “installed extra engines in railroad

cars for more power over [the] steep mountain passes”

characteristic of the Union Pacific Line. Town Statistics

and History, Minturn, https://bit.ly/40lj7KV (last visited

Oct. 23, 2024). Today, however, Minturn relies heavily on

travelers to keep local businesses and the town as a whole

viable and vibrant. Indeed, Minturn suffered considerable

harm to its economy as a result of the Grizzly Creek Fire,

the ensuing debris slides, and the closures of I-70.

8

Avon, Colorado is a home-rule municipality located

on I-70. It sits adjacent to Beaver Creek and eight miles

west of the Vail Valley. It has a year-round population of

6,072, which increases significantly during the ski season.

Avon is also a popular tourist destination for hiking,

horseback riding, bicycling, kayaking, and rafting. Yearround tourism and winter recreation-related businesses

account for a significant portion of employment and earned

income of area residents. As such, it remains vigilant

about wildfires and river contamination that may detract

from the area’s appeal. Avon, for example, now spends

roughly $80,000 per year on a wildfire fuel source removal

program.

Red Cliff, Colorado is a town of 300 residents nestled

between Beaver Creek and Vail. It sits along the Colorado

Scenic Byway, ten miles south of I-70. Residents and

tourists alike enjoy mountain biking, cross-country skiing,

snowmobiling, kayaking, fly fishing, rock climbing, and

hiking with fantastic wildflower viewing, all within and

around Red Cliff. Like nearby towns, a single wildfire and

its effects—including drinking water impacts, landslides,

debris flows, and road closures—can cripple Red Cliff ’s

tourism-based economy for years.

Crested Butte, Colorado was founded as a mining

camp but once the coal and silver ran out it transitioned

to agriculture and an outdoor recreation hub. When

molybdenum ore was discovered and proposed to be mined

in Mt. Emmons (a.k.a. Red Lady) the community banded

together to “Save Red Lady” and nearly 50 years later that

goal was accomplished through collaboration with local

governments, the mine owner, community groups, and

the federal government. The town is an active participant

9

in NEPA processes relating to the surrounding federal

public lands that serve as the economic backbone of the

community.

Basalt, Colorado is a home-rule municipality located

in Eagle and Pitkin Counties at the confluence of the

Fryingpan and Roaring Fork rivers, both known for

their Gold Medal trout fishing. Basalt is home to several

fishing guide services and fly-fishing shops that cater to

and accompany anglers on the Colorado River. The Town

utilizes its water rights in Ruedi Reservoir to help both

game fish and endangered fish in the Colorado River

survive during increasingly hot, dry summer conditions.

Surrounded by state and federal public lands, Basalt

appreciates that NEPA allows it to participate in the

decisionmaking process for projects that impact its

residents and infrastructure.

Routt County, Colorado has over 25,000 residents

and extends north from Eagle County to the Wyoming

border. The county seat is the City of Steamboat Springs,

which shares its name with the world-renown ski resort

located there. The resort is an outdoor-recreation and

tourism hub, serving the public while providing significant

economic benefit. The county’s southern boundary lies

within a couple of miles of the Union Pacific Central

Corridor and any impacts from a fire or spill nearby would

foreseeably result in negative effects to the county, its

residents, and its economy. While I-70 lies outside of Routt

County, the recommended detour during all Glenwood

Canyon closures (Highway 40) traverses the entirety of

the county, and Glenwood Canyon closures and subsequent

detours significantly impact county infrastructure and the

health, safety, and welfare of its residents.

10

Boulder County, Colorado has 330,758 residents and

lies in north-central Colorado on the eastern slopes of the

Rocky Mountains. It contains forests, mountains, and

canyons, which hold creeks that supply water to the cities,

high plains, grasslands, and farmlands in the eastern part

of the county. Boulder County’s extensive efforts to protect

open space and promote conservation have attracted

farming, business, recreation, and tourism revenue. Since

1989, Boulder County has experienced at least nine major

wildfires, including the 2021 Marshall Fire—the most

destructive in Colorado history—which destroyed more

than 1,000 homes and over 30 commercial structures. Part

of the Union Pacific Line travels through the county. Local

water supplies for the county depend upon South Boulder

Creek, which runs alongside the Union Pacific Line, and

would be impacted by any contamination triggered by

the Railway.

Pitkin County, Colorado is located in Colorado’s

Central Mountains. It has a population of 17,548 that

swells during peak tourism seasons. Home to the famed

Aspen-Snowmass ski resorts, it attracts summer and

winter visitors for skiing, fishing, hiking, rafting, and

other outdoor pursuits.

Northwest Colorado Council of Governments

(NWCCOG) is an association of 31 county and municipal

governments created by Executive Order as a regional

planning district. Its purpose is to work together on a

regional basis to provide benefits and services that could

not be obtained alone. The region includes municipalities

and counties located in the central mountain region

of Colorado. Many of its members are located along

11

the proposed route. 6 Through its water quality and

quantity arm, NWCCOG works to enhance member local

government efforts to protect and improve water quality.

NWCCOG also is the designated Regional Water Quality

Management Agency pursuant to Section 208 of the

federal Clean Water Act.

The NWCCOG Region comprises the headwaters of

the Colorado River and its major tributaries, where three

counties and seven municipalities are adjacent to the River

(and the Union Pacific Corridor). Outdoor recreation and

tourism are significant drivers of the local economy in

this region.

The NWCCOG Region would be severely impacted

by any increase in spills, derailments, or wildfires caused

by increased rail traffic from the Railway. Such incidents

jeopardize drinking water supplies, interrupt fishing

and rafting activities for months or years, and could shut

down I-70. Between $1–2 million is lost every hour that

I-70 is closed in the mountain region. See Press Release,

Colo. Dep’t of Transp., CDOT, CSP Urge I-70 Drivers in

Glenwood Canyon to Follow All Safety Instructions and

Help Prevent More Closures, https://bit.ly/3zYmVXx

(last visited Oct. 23, 2024); see also Ryan Spencer,

Colorado Department of Transportation Project Aims

to Reduce I-70 Closures Near the Tunnels This Winter,

SummitDaily (Nov. 8, 2023), https://bit.ly/3BQNcaY. As

with other Amici, the member jurisdictions of NWCCOG

along the route are first responders to emergencies on

6. The Town of Gypsum, which is not located along the route,

is not participating in this brief.

12

transportation corridors of national significance such as

the I-70 and the Union Pacific.

SUMMARY OF THE ARGUMENT

The D.C. Circuit correctly held that the Board’s

analysis of downline impacts on western Colorado failed

for numerous reasons under NEPA and the Administrative

Procedure Act. This Court should affirm that decision.

1. The answer to the question presented has no

bearing on whether the Board’s analysis of downline

impacts in western Colorado passed muster under NEPA

and the Administrative Procedure Act. In the decision

under review, the D.C. Circuit’s analysis rests in part

on the understanding that downline impacts fell within

the agency’s regulatory ambit and were a foreseeable

result of the Board’s decision to approve the construction

and operation of a new railway that essentially serves as

an extension of the Union Pacific line running through

western Colorado’s narrow mountain passes.

(a) In this Court, Petitioners suddenly contend that

the Board was not obligated to consider the Railway’s

effects on western Colorado because now they feel those

impacts are too “contingent and remote” to be considered

under NEPA. Petrs. Br. 36. This is a sea change from prior

proceedings; before now, no party has ever challenged

the foreseeability of the Railway’s effects on western

Colorado. Indeed, the Board did consider these issues

as part of its normal NEPA review, and the D.C. Circuit

invalidated that analysis as “utterly unreasoned.”

In any case, it would be impossible to dismiss the

Railway’s effects on western Colorado’s environment

13

as unforeseeable. Ninety percent of the new rail traffic

created by the Board’s decision—i.e., up to 9.5 oil trains

(or, 1,100 rail cars) every day—will travel on the Union

Pacific line that bisects Amici’s communities.

(b) The foreseeability of the Railway’s effects on

western Colorado, and therefore the Board’s duty to

consider those impacts, is further reinforced by the

Board’s own regulations implementing NEPA and other

federal environmental laws. Where, as here, the Board

must evaluate the transportation merits of a proposed

railroad, those regulations compel the Board to consider

the foreseeable environmental effects of increasing rail

traffic on existing rail lines that will receive that new

traffic. The Union Pacific corridor easily fits the bill and

the Board’s failure to disclose the full spectrum of those

effects on that corridor thus flunks under NEPA and the

Board’s separate regulations.

Assuming the Court agrees that Petitioners’ failure to

contest the foreseeability of impacts on western Colorado

at any time before now obscures the issues necessary

to resolve the question presented, the Court can and

should consider dismissing the petition as improvidently

granted. See Unicolors, Inc. v. H&M Hennes & Mauritz,

L.P., 595 U.S. 178, 190 (2022) (Thomas, J., dissenting)

(counseling in favor of dismissal where petitioners relied

“on a different argument in [its] merits briefing” from that

in its certiorari briefing, especially when that argument

“was not clearly pressed or passed upon below”).

2. To the extent Petitioners actually propose a new

test for delimiting the scope of NEPA, which is by no

means clear, their proposed rule cannot be sustained by

NEPA’s text, is inconsistent with the Act’s purposes, and

14

the Court should reject it. Amici strenuously object to the

limitation that Petitioners have tried to foist on NEPA (i.e.,

limiting the scope of an effects analysis to issues within

the lead agency’s remit) because local governments depend

on the information disclosures NEPA compels, as well as

the collaborative approach to decisionmaking that allows

small government bodies to have their concerns seriously

considered and/or mitigated during the NEPA review

process. If Petitioners get their way, Amici will lose the

invaluable tools NEPA provides in all but the most direct

impact cases. This kind of hyper-narrow limitation on

NEPA review is neither supported by the Act’s text nor

consistent with its animating purposes.

3. Finally, Petitioners’ claims about NEPA’s

allegedly exorbitant delays and costs are overblown and

refuted by data. Amici’s experiences with NEPA do not

track with Petitioners’ claims. If anything, in Colorado,

NEPA has been used to formulate some of the state’s

most enduring, innovative compromises when dealing

with otherwise intractable conflicts over the state’s muchcelebrated natural resources.

ARGUMENT

I.

The Question Presented Has No Bearing on the

Adequacy of the Board’s Analysis of Impacts to

Western Colorado

The question before the Court is whether NEPA

“requires an agency to study environmental impacts

beyond the proximate effects of the action over which

the agency has regulatory authority.” Pet. i. Although

Petitioners do not stick to any one test, they suggest their

15

rule excuses a lead agency from considering unforeseeable

impacts “far outside its limited remit.” Petrs. Br. 26.

Petitioners contend the second part of that question—

i.e., whether an agency’s “regulatory authority” delimits

its analysis—comports with the “rule of reason” described

by this Court in Department of Transportation v. Public

Citizen, 541 U.S. 752 (2004). But the holding in that case

does not go as far as Petitioners hope. That holding merely

reiterates the straightforward NEPA rule that “where an

agency has no ability to prevent a particular effect due to

its limited statutory authority over the relevant actions,

the agency cannot be considered a legally relevant ‘cause’

of that effect.” Pub. Citizen, 541 U.S. at 770 (emphasis

added).

Insofar as Amici’s interests in protecting western

Colorado communities are concerned, the answer to

the question presented has no bearing on the lower

court’s holding correctly rejecting the Board’s failure to

adequately consider the action’s inevitable impacts in the

downline study area, i.e., the Union Pacific Line between

Kyune, Utah and Denver, Colorado. There is no dispute

here that the Railway’s environmental impacts on western

Colorado are foreseeable, as confirmed by the Board’s own

analysis. Nor is there any dispute that the Board retains

authority to prevent those effects from coming to pass, as

required by Public Citizen. See Pet.App.36a (“The Board

concededly has exclusive jurisdiction over the construction

and operation of the railway, including authority to deny

the exemption petition if the environmental harm caused

by the railway outweighs its transportation benefits.”

(citations omitted)); see also Pet.App.83a (describing the

Board’s own authority to “deny the proposal[ ] or grant

16

it with conditions,” “including environmental mitigation

conditions,” after analyzing “the environmental impacts

associated” with its decision).

In short, NEPA—as well as the Board’s ow n

regulations—required the Board to alert western

Colorado communities to the foreseeable effects of its

decision coming down the line. The Board’s failure to

adequately analyze these indisputably foreseeable impacts

is a run-of-the-mill violation of NEPA.

A.

No One Seriously Disputes That the Railway

Will Foreseeably Impact Western Colorado and

the Natural Resources on Which Amici Rely

W hen the Board acted, longstanding, binding

regulations implementing NEPA compelled the Board

to consider and disclose to the public the “reasonably

foreseeable” effects of its decision, including those “caused

by the action [that] are later in time or farther removed in

distance, but are still reasonably foreseeable,” 40 C.F.R.

§ 1508.8, 40 C.F.R. § 1508.18(b)7; see also Pet.App.107a08a (acknowledging duty to examine same).

But throughout the litigation below and the Board’s

administrative proceeding, nobody disputed the

understanding that the Railway will foreseeably impact

7. Before the Board reached a final determination on the

Railway, NEPA’s implementing regulations were amended to

define “reasonably foreseeable” as being “sufficiently likely to

occur such that a person of ordinary prudence would take it into

account in reaching a decision.” 85 Fed. Reg. 43,304, 43,376 (July

16, 2020) (codified at 40 C.F.R. 1508.1(aa) (2021)).

17

western Colorado communities. Indeed, the Board’s

own analysis confirms that the Union Pacific corridor

in western Colorado will receive 90% of all rail traffic

emanating from the Uinta Basin. J.A.513. And, in the very

decision under review, the Board admits it considered

“reasonably foreseeable impacts that could occur outside

the project area as a result of construction and/or

operation of trains using the Line.” Pet.App.110a. That

consideration, however, simply did not go far enough to

satisfy NEPA.

The dispositive flaw in that analysis identified by the

D.C. Circuit rests on the fact that the Board washed its

hands of adequately disclosing many foreseeable impacts

to western Colorado by resorting to “utterly unreasoned”

defenses of its analysis. Pet.App.44a. For example, with

respect to the heightened wildfire risk in the downline

area, the Board’s decision is internally contradictory and,

therefore, patently arbitrary. E.g., New England Coal.

on Nuclear Pollution v. Nuclear Regulatory Comm’n,

727 F.2d 1127, 1130 (D.C. Cir. 1984) (Scalia, J.) (For an

agency to say one thing and do another “is the essence of

arbitrary and capricious action” (quoting Squaw Transit

Co. v. United States, 574 F.2d 492, 496 (10th Cir. 1978))).

Whereas the Board says its decision will not produce a

significant wildfire risk to downline communities because

“construction and operation of the [Railway] would not

introduce a new ignition source for wildfires along the

downline segments,” Pet.App.95a (emphasis added),

elsewhere it suggests the opposite conclusion, J.A.282

(“Trains can contribute to wildfires by providing an

ignition source.”); J.A.201 (acknowledging that increasing

the number of rail cars increases the likelihood of

ignition).

18

Petitioners’ newly minted attempt to automatically

dismiss all downline impacts as unforeseeable is simply

not credible. The record here is crystal clear that the

Board’s decision will introduce roughly 1,100 new, crudeoil-laden rail cars every day to existing rail lines. J.A.51314. The increased rail traffic foreseeably induced by and

acknowledged in the Board’s decision means that each

train from the Uinta Basin will bring over two miles of

rail cars filled with flammable waxy crude oil through the

communities Amici are entrusted to protect on a daily

basis. C.A.App.888.

The Board’s analysis determined the risk of rail

accidents will more than double on the Union Pacific Line

as a result of the Board’s decision, J.A.202, including

possible derailments and spills contaminating the

invaluable water supplies on which western communities

depend, see, e.g., Arizona v. Navajo Nation, 599 U.S. 555,

561 (2023) (acknowledging that for the “western United

States,” especially those reliant on the Colorado River,

“[w]ater has long been scarce, and the problem is getting

worse”).

In Amici’s view, a commonsense reading of the

Board’s decision and supporting analysis under NEPA

clearly illustrates the Railway’s inevitable effects on the

citizens and communities that Amici are entrusted to

protect by Colorado law, supra at 22. According to the

Board, eastbound trains will account for 90% of the new

rail traffic emanating from the Uinta Basin. J.A.513.

Not only is the Union Pacific Line (from Kyune, UT to

Denver, CO) a foreseeable route for that new rail traffic, it

“is the only practical route for all rail traffic moving

eastward from the Uinta Basin Railway.” Id. (emphases

added). Thus, the Railway’s effects on western Colorado

19

are plainly foreseeable with devastating consequences

for Amici.

B. The Board’s Own Regulations Reinforce the

Foreseeability of the Railway’s Effects on

Colorado

Although Petitioners ignore the issue, the Board’s

regulations implementing NEPA (and other laws) further

reinforce that the agency was required to consider the

Railway’s foreseeable impacts on western Colorado

and the interests Amici seek to protect from unwise

decisionmaking.

The Board’s longstanding regulations compel it to

consider downline impacts whenever certain magnitude

thresholds have been met, just as they were in this decision.

49 C.F.R. § 1105.7(e)(11)(v); Pet.App.110a. The Board’s

regulations seemingly equate “down-line impacts” to

“indirect” effects, see id., although the Board has refined

the meaning of the former by specifying that it specifically

includes “impacts that could occur along existing rail lines

as a result of increased rail traffic due to the addition of

new trains originating or terminating on the proposed rail

line.” J.A.511. The Board has also consistently defined the

“downline study area” as the “existing rail lines that could

experience an increase in rail traffic ... if the proposed

rail line were constructed.” J.A.312; see also Surface

Transp. Bd., Draft Environmental Impact Statement

for the Tongue River Railroad at 17-3 (2015), https://bit.

ly/4gRYH1J (“The study area for potential rail-related

down-line impacts is defined as the mainline rail lines

outside of the project area that could see an increase in

train traffic coming from the proposed rail line.”).

20

As detailed above, the Railway’s effects on western

Colorado satisfy both parts of the Board’s understanding

of downline impacts. Because it will receive 90% of the new

rail traffic created by the Board’s authorization, J.A.513,

the Union Pacific corridor (from Kyune, UT to Denver,

CO) will obviously “experience an increase in rail traffic

... if the proposed rail line were constructed.” J.A.312.

Hence, the Board’s regulations also plainly compelled the

disclosure and consideration of these issues.

This additional ground for rejecting the Board’s

incomplete analysis of downline effects adds yet another

wrinkle to this case. To the extent the Court finds that this

issue, or Petitioners’ failure to contest the foreseeability

of downline impacts in western Colorado before now,

obscures the issues necessary to resolve the question

presented, it can and should consider dismissing the

Petition as improvidently granted. See Unicolors, 595 U.S.

at 190 (Thomas, J., dissenting); see also Yee v. Escondido,

503 U.S. 519, 538 (1992) (“Prudence also dictates awaiting

a case in which the issue was fully litigated below, so that

we will have the benefit of developed arguments on both

sides and lower court opinions squarely addressing the

question.” (citing Lytle v. Household Mfg., Inc., 494 U.S.

545, 552 n.3 (1990))).

II. The Indirect Effects Analysis Discloses Critically

Important Information Otherwise Unavailable to

Local Governments

Under Colorado law, counties and municipalities like

Amici are tasked with protecting the public health, safety,

and welfare of their constituents. Colo. Rev. Stat. §§ 25-1506, 30-11-101 (2024). To execute those broader duties, state

21

law authorizes local governments to, inter alia, develop

county-wide wildfire response plans, Colo. Rev. Stat.

§ 29-22.5-101 (2024), provide emergency management

services, id. § 24-33.5-707, and “regulat[e] the use of

land so as to provide ... protection of the environment in

a manner consistent with constitutional rights,” id. § 2920-104; see also Colo. Leg. Council Staff, Colorado Local

Government Handbook (Res. Pub No. 795) at 19 (2023),

https://bit.ly/4gRP8j.

Nevertheless, local governments are generally barred

from exercising regulatory authority over railroads.

The ICC Termination Act of 1995 (ICCTA), 49 U.S.C.

§ 10501(b), gives the Board “exclusive licensing authority

for the construction and operation of rail lines.” Mid

States Coal. for Progress v. Surface Transp. Bd., 345

F.3d 520, 533 (8th Cir. 2003). Courts have interpreted

the Board’s authority broadly, holding that the ICCTA

ordinarily preempts state and local regulatory authority

over the construction and operation of railroads. See, e.g.,

Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669

F.3d 525, 530, 537 (5th Cir. 2012) (“Congress intended to

preempt state and local laws that come within the Board’s

jurisdiction,” including city ordinances designed to protect

the “health and safety” of the public); City of Auburn v.

United States, 154 F.3d 1025, 1031 (9th Cir. 1998) (holding

that the ICCTA preempted local regulations aimed at

preserving the environment).

Still, local governments must prepare to respond to

a foreseeable uptick in spills, derailments, and wildfires

that the Board acknowledges will result from increased

train traffic. Local governments are also responsible

for maintaining many of the roads that intersect with

22

railroad crossings through the Union Pacific Corridor.

NEPA plays a crucial role in informing local governments

of potential impacts to services and infrastructure within

their domain, even without direct authority to regulate

railroads. Even if they could, local governments often lack

the resources necessary to properly inform their citizens

about the effects of a proposed federal project in the way

that NEPA does.

Now, Petitioners invite the Court to jettison NEPA’s

basic information gathering and disclosure function in

most circumstances. The Court should decline to deliver

this devastating blow to Amici and the many local

communities throughout the United States that depend

heavily on the participatory approach embodied by NEPA.

A.

Local Governments Depend on the Information

NEPA Discloses and the Collaboration It

Requires

This Court has repeatedly stressed the twin aims

served by NEPA. E.g., Pub. Citizen, 541 U.S. at 768.

First, it “ensures that the agency, in reaching its decision,

will have available, and will carefully consider, detailed

information concerning significant environmental

impacts.” Id. Second, NEPA “guarantees that the relevant

information will be made available to the larger audience

that may also play a role in both the decisionmaking

process and the implementation of that decision.” Id.; see

also Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371

(1989). 8

8. NEPA’s operative implementing regulations required

the Board to disclose, inter alia, the Railway’s direct, indirect,

and cumulative impacts. See 40 C.F.R. §§ 1508.7-1508.8 (1979).

23

In NEPA, Congress sought to create a collaborative

decisionmaking structure whereby local, State, Federal,

and private expertise could be brought to bear on major

federal issues affecting the environment. 42 U.S.C.

§ 4331(a) (declaring policies animating NEPA, including

“cooperation with State and local governments ... to

create and maintain conditions under which man and

nature can exist in productive harmony”); Or. Nat.

Desert Ass’n v Bureau of Land Mgmt., 625 F.3d 1092,

1099 (9th Cir. 2010) (“NEPA’s purpose is realized not

through substantive mandates but through the creation

of a democratic decisionmaking structure that, although

strictly procedural, is ‘almost certain to affect the agency’s

substantive decision[s].’” (quoting Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989))).

NEPA reviews and the information gleaned from them

are crucial for counties and municipalities in Colorado for

a number of reasons. First, as discussed above, Colorado’s

local governments are often specifically tasked by statute

with the protection of their citizens’ health and safety,

including emergency response and the maintenance of

road infrastructure. NEPA assists local governments

in discharging those duties by alerting counties and

municipalities to federal projects that may affect their

“Direct effects” are defined as those “caused by the action and

occur[ring] at the same time and place.” Id. § 1508.8 (a). “Indirect

effects” are “caused by the action and are later in time or farther

removed in distance, but are still reasonably foreseeable.” Id.

§ 1508.8(b). And, “cumulative” effects (or “impacts”) “result[ ] from

the incremental impact of the action when added to other past,

present, and reasonably foreseeable future actions regardless of

what agency (Federal or non-Federal) or person undertakes such

other actions.” Id. § 1508.7.

24

constituents, or undermine their ability to fulfill their

statutorily prescribed duties. If a federal authorization

conflicts with local priorities (e.g., public safety and

welfare), NEPA provides an avenue for local governments

to present their concerns directly to the attention of the

federal decisionmaker, who is required by law to give

consideration to the views of local governments. 42 U.S.C.

§ 4331

Further, where a proposed federal action threatens to

impede a local government’s ability to fulfill its duties to

its citizens, NEPA provides a forum for amicably resolving

those disputes. As the examples discussed below reveal,

see infra at 28-33, the mandatory collaboration prescribed

by NEPA is an underappreciated aspect of the statute,

and one that has been responsible for some of the most

ingenious and enduring solutions to otherwise intractable

conflicts over shared natural resources.

Finally, as Petitioners repeatedly stress in their

brief, comprehensive environmental reviews of the kind

generated under NEPA can be expensive, especially

when considering projects of the magnitude of the Uinta

Basin Railway. For local governments, which often lack

the capital reserves necessary to fund such a review, the

costs can be prohibitive. By partnering with state and

federal agencies under NEPA, however, local governments

can defray those costs while examining important issues

related to public health, safety, and environmental

concerns.

25

B. Petitioners’ Proposed Rule Would Unduly

Constrict NEPA’s Core Disclosure Function

Petitioners argue that we need more NEPA rules to

have less NEPA rules. They say lead agencies like the

Board should only consider “reasonably foreseeable”

effects within the “remit” of the lead agency (the agency

foreseeing), not “the purview of other agencies[ ]”—

especially when those other agencies could better address

the issue if similarly situated. Petrs. Br. 26, 27.

But Amici do not read Public Citizen as imposing

some free-standing limitation on top of that decision’s

limits-of-authority holding. Instead, it merely reiterated

straightforward NEPA precedent that excuses lead

agencies from analyzing a given effect when doing so

“would serve ‘no purpose’ in light of NEPA’s regulatory

scheme as a whole” because the agency cannot prevent

that effect from coming to pass. Pub. Citizen, 541 U.S. at

767-68; see also Nat. Res. Def. Council v. McCarthy, 993

F.3d 1243, 1251 (10th Cir. 2021) (“[W]here an agency action

is non-discretionary and mandated by law, environmental

analysis ‘would serve no purpose,’ and NEPA does not

apply.” (citation omitted)).

Petitioners’ proposed rule, however, would reach far

beyond the universal “rule of reason” endorsed in Public

Citizen to cabin the scope of a NEPA review process to

those effects within the agency’s delegated remit. That is

contrary to the letter and spirit of NEPA, and therefore

problematic for a number of reasons.

First, nothing in NEPA’s text or its implementing

regulations supports such a draconian limitation on NEPA

26

analyses. If anything, Petitioners’ proposed rule cuts

against the interdisciplinary, all-of-government approach

clearly embodied by the Act’s terms. See 42 U.S.C. § 4331

(directing “Federal Government to use all practicable

means” and measures to achieve NEPA’s policy goals); see

also id. § 4332 (instructing agencies to implement NEPA’s

provisions “to the fullest extent possible”); id. § 4336a(a)

(authorizing “any Federal, State, Tribal, or local agency

that has jurisdiction by law or special expertise with

respect to any environmental impact involved in a proposal

to serve as a cooperating agency” in the NEPA process).

Second, the rule Petitioners propose is ill-defined and

Amici fear the questions left open by its formulation will

lead to more, not less, litigation in the future. For example,

under Petitioners’ proposed rule, which agency would be

responsible for determining the appropriate responder? If

two agencies share overlapping expertise in a given subject

matter—e.g., railroad safety, see 65 Fed. Reg. 42,529,

42,529 (July 10, 2000) (acknowledging the “statutory

safety authority” delegated to the Federal Railroad

Administration and Federal Transit Administration

“straddle[s] the jurisdictional line”)—which agency is

responsible for analyzing and disseminating the relevant

information? What if both agencies refuse to do so,

washing their hands of the issue by pointing to the other

agency’s overlapping expertise? Which agency bears

the burden of showing that a given action is (or is not)

the proximate cause of a given effect? And what if those

agencies disagree about proximate causation?

Finally, as this case and the examples discussed

below illustrate, Petitioners’ proposed rule threatens to

arbitrarily cut local governments out of the decisionmaking

27

and dispute-resolution processes available under NEPA—

even where, as here, the agency admits its decision

will inevitably impact local interests and priorities in a

negative manner. That is particularly concerning here

because the ICCTA ordinarily preempts State and local

regulations that might otherwise allow these communities

to protect themselves from unwise federal decisionmaking.

See supra at 21 (collecting cases discussing the ICCTA’s

preemptive effect on non-federal regulation).

III. Petitioners Incorrectly Demonize NEPA By

Overstating Its Burdens and Ignoring Its Many

Successes

Petitioners, joined by several supporting amici, rehash

familiar but tired policy attacks against NEPA, claiming

that a vicious circle of litigation and agency caution have

resulted in excessive delays and untold sunk costs. Petrs.

Br. 6-7. The problem is that it fails to find purchase in the

actual data collected on NEPA reviews and litigation. To

the contrary, the data show “that NEPA litigation has not

been used excessively in order to stop or delay federal

decisions.” John C. Ruple & Kayla M. Race, Measuring

the NEPA Litigation Burden: A Review of 1,499 Federal

Court Cases, 50 Envt. L. 479, 483 (2020). In fact, the

research shows that “[o]nly a small fraction of NEPA

decisions result in litigation,” where “approximately one

in 450 decisions are litigated.” Id.

This lesser known but empirically supported view

of NEPA tracks with Amici’s general experience.

Indeed, Colorado is home to several recent examples of

multidisciplinary NEPA reviews in which collaborative

decisionmaking yielded simultaneously acceptable

outcomes for the regulated entity, the environment, and

28

the local governments that will feel the proposal’s effects

most concretely. Below, Amici briefly recap some of those

examples to illustrate why comprehensive NEPA review

remains an imperative tool for counties and municipalities

in Colorado.

I-70 Mountain Corridor Express Lanes

For residents and tourists alike, the I-70 corridor is

infamous for its many chokepoints that can quickly snarl

rail and vehicle traffic traveling to and from the West Slope

(of the Rockies) to Denver and/or other points east. The

steep canyon walls and narrow rock ledges that typify

this corridor make it a difficult area to navigate safely,

regardless of the mode of transport. During periods of

peak congestion—mainly Fridays and Sundays during the

ski season—the congestion on I-70 routinely added an hour

or more to travel times in the area, with some reporting

eight-mile drives taking as long as two-and-a-half hours

through the mountains.

The Federal Highway Administration (FHWA) and

Colorado Department of Transportation (CDOT) released

a draft programmatic EIS in 2004 that recommended

some solutions to the congestion issue. Those proposals,

however, included several publicly unpopular and

environmentally destructive choices, including recurring

rockface blasting, unattractive retaining walls, and even

channeling watercourses routinely utilized by outdoor

recreationists. The agencies received “substantial public

and agency comments” opposing the project and its

predicted impacts. Fed. Hwy Admin. & Colo. Dep’t of

Transp., I-70 Mountain Corridor Record of Decision and

Final Programmatic Environmental Impact Statement

at 1-2 (2011).

29

To their credit, the agencies recognized from these

comments an opportunity to build consensus. Rather than

force through the project as proposed, the agencies formed

a working group comprised of 27 diverse stakeholders

to find an acceptable solution to the congestion issue.

Collaborative Effort, Colo. Dep’t of Transp., https://bit.

ly/3ZNPn97 (last visited Oct. 23, 2024). Eight months

after it was formed, that group, called “Collaborative

Effort,” recommended a multi-modal solution that included

adding express travel lanes to the existing eastbound and

westbound shoulders of I-70 to be opened as a relief valve

during periods of peak congestion.

The results of that process speak volumes about how

NEPA can be used to find consensus. CDOT opened the

eastbound express lane on I-70 in 2015, making it “the first

project in the United States to use a highway shoulder

as a part-time lane based on recreational traffic instead

of a regular commuter base.” Interstate 70 Mountain

Corridor Express Lanes: Managed Lanes Repurpose

Highway Shoulders in Peak Periods to Improve Traffic

Access, HDR, https://bit.ly/487ZzeV (last visited Oct. 23,

2024). Since opening, moreover, “the eastbound express

lane has relieved traffic congestion, reduced crashes, and

increased reliability. Travel times have declined by 21

minutes and crash clean-up times by four minutes during

periods when the lane is operating.” Fed. Hwy. Admin.,

NEPA Reviews of Tolling and Road Pricing Projects:

I-70 Mountain Express Lanes, https://bit.ly/4dCy4ez (last

visited Oct. 23, 2024). That, in turn, “relieves congestion on

the local roads, improving access for residents, businesses,

and emergency service providers.” Id.

30

If NEPA had not requi red a comprehensive,

transparent process to analyze and disclose the full array

of impacts (including indirect effects) of the original

proposals, FHWA and CDOT likely would have built one

of those initial (but environmentally harmful and highly

unpopular) options without feedback from, or the benefit

of collaboration and consensus-building with, important

stakeholders such as affected local governments and their

residents.

Thompson Divide Administrative Withdrawal

For those who live on the West Slope, the Thompson

Divide area is special. It is beloved by locals in the Glenwood

Springs, Carbondale, and Pitkin County communities as

a respite from otherwise crowded recreational areas in

the Roaring Fork Valley during peak tourism seasons.

For instance, the Divide is home to Sunlight Mountain,

a lesser-known yet cherished ski area utilized by locals

when other places like Aspen and Vail become too busy. It

is also an immensely popular location amongst sportsmen

for its hunting and angling opportunities.

About 20 years ago, the Thompson Divide area

became an attractive exploration location for extractive

mineral operations. When a proposed project threatened

to negatively impact the area’s solitude and recreational

opportunities, local stakeholders from across the

ideological spectrum came together to voice their support

for establishing long-term protections for the Thompson

Divide. This included local governments that engaged in

multiple NEPA processes to initially oppose extraction

activities within or in close proximity to their jurisdiction,

and later to support administrative protections. The

31

only reason that these communities learned of threats to

their backyard was because of NEPA. The broad array

of interests represented by the coalition and brought

together by NEPA—including ranchers, hunters,

recreational fisherman, and local governments—

impressed decisionmakers in Washington. As a result,

the Bureau of Land Management and the Forest Service

agreed to a 25-year administrative withdrawal in the

Thompson Divide, which honors the diverse interests that

utilize and thus wish to conserve the unique resources of

the Thompson Divide.

The foregoing withdrawal also included the backdrop

to the Town of Crested Butte known as Mt. Emmons.

For years, a series of mining companies had looked

at extracting molybdenum deposits that would have

effectively collapsed the mountain. Through NEPA, local

communities—including the Town of Crested Butte and

Gunnison County—were able to engage with the federal

agencies and mining company to effectuate the withdrawal

and a land exchange (in which the federal government

conveyed 551 acres of less environmentally sensitive land

to the mining company). This NEPA-inspired compromise

has ensured Mt. Emmons will always stand as the iconic

backdrop for the community.

The Moffat Collection System Project

The Moffat Collection System Project is large-scale

water diversion project proposed by Denver Water. As

with many of Denver Water’s diversion projects, this

action seeks to expand existing infrastructure that

transports water from the West Slope—specifically, two

headwater streams of the Colorado River known as the

32

Fraser and the Williams Fork rivers—to reservoirs on

the East Slope, where that water can be treated and

distributed to customers in the Denver Metro area.

Because the project required multiple federal

authorizations, including a Section 404 permit under

the Clean Water Act and a license amendment from the

Federal Energy Regulatory Commission, the project was

subject to review under NEPA. Serving as the lead agency,

the U.S. Army Corps of Engineers began NEPA public

scoping for the project in 2003. From that process, several

upstream communities on the West Slope, including Grand

and Eagle counties, learned that the project would have

devastating indirect effects on West Slope water resources

(e.g., increased water temperatures and turbidity due to

Denver Water’s increased drawdowns).

Initially, both Denver Water and the West Slope

communities signaled steadfast unwillingness to change

position on the project; however, because of the NEPA

process, both sides were forced to grapple with the others’

views on the project’s likely effects on both sides of the

Rocky Mountains. That opened the door to negotiations

between the West Slope communities and Denver Water.

T hose negot iat ions resu lt ed i n mu lt iple

intergovernmental agreements that allowed Denver Water

to move the project forward in exchange for long-term

commitments to protect the originating water bodies. See

Colorado River Cooperative Agreement, Colo. Riv. Dist.,

https://bit.ly/4eSq0XR (last visited Oct. 23, 2024); see also

Intergovernmental Agreement for the Learning By Doing

Cooperative Effort, Grand Cnty. (May 15, 2012) https://

bit.ly/4h56REh (establishing an ongoing duty amongst

33

signatories, including Denver Water, Grand County,

and others from both sides of the Continental Divide,

to adaptively manage the Fraser and Colorado rivers in

response to on-the-ground problems after implementing

the Moffat water diversion project). Those agreements

are still viewed favorably throughout the State as an

example of how controversial, large-scale water diversion

projects can result in durable, collaborative solutions that

benefit many stakeholders (rather than only one) that use

and rely upon an important shared resource such as the

Colorado River.

These are just a few of many anecdotal examples

demonstrating that, contrary to popular misconception,

NEPA remains an effective vehicle for resolving intergovernmental disputes and obviating unnecessary

litigation. Amici routinely rely on and genuinely appreciate

the invaluable tools NEPA provides to small governments.

Thus, Amici urge the Court to stay its hand in disturbing

this critically important regulatory regime that assists

local governments in protecting the health, safety,

environmental, and property interests of communities

and their residents.

34

CONCLUSION

The Court should affirm the decision below.

Respectfully submitted,

Matthew R. A rnold

Eubanks & Associates

PLLC

1629 K Street NW,

Suite 300

Washington, DC 20006

William S. Eubanks II

Counsel of Record

Eubanks & Associates

PLLC

1629 K Street NW,

Suite 300

Washington, DC 20006

(970) 703-6060

bill@eubankslegal.com

Counsel for Amici Curiae

35

ADDITIONAL COUNSEL

K arl Hanlon

K arp Neu Hanlon, P.C.

201 14th Street, Suite 200

Glenwood Springs, CO 81601

Counsel for Amici

City of Glenwood Springs

and Town of Crested

Butte, Colorado

Maxine LaBarre-Krostue

P.O. Box 264

Hot Sulphur Springs, CO

80451

Counsel for Amicus

Grand County, Colorado

John Shaver

250 N 5th Street

Grand Junction, CO 81501

Counsel for Amicus

City of Grand Junction,

Colorado

Michael J. Sawyer

K arp Neu Hanlon, P.C.

201 14th Street, Suite 200

Glenwood Springs, CO 81601

Counsel for Amicus

Town of Minturn,

Colorado

Nina P. Williams

Wilson Williams

Fellman Dittman

1314 Main Street, Suite 101

Louisville, CO 80027

Counsel for Amicus

Town of Avon, Colorado

Richard J. Peterson-Cremer

K arp Neu Hanlon, P.C.

201 14th Street, Suite 200

Glenwood Springs, CO 81601

Counsel for Amicus

Town of Red Cliff,

Colorado

Ben Pearlman

1325 Pearl Street, 5th Floor

Boulder, CO 80302

Counsel for Amicus

Boulder County, Colorado

Jeffery J. Conklin

K arp Neu Hanlon, P.C.

201 14th Street, Suite 200

Glenwood Springs, CO 81601

Counsel for Amicus

Town of Basalt, Colorado

36

Erick Knaus

522 Lincoln Avenue,

Suite 34

P.O. Box 773598

Steamboat Springs, CO

80477

Counsel for Amicus

Routt County, Colorado

Richard Y. Neiley III

530 East Main Street,

Suite 301

Aspen, CO 81611

Counsel for Amicus

Pitkin County, Colorado

Torie Jarvis

Barbara Green

Sullivan Green Seavy

Jarvis LLC

3223 Arapahoe Ave., Suite 300

Boulder, CO 80303

Counsel for Amicus

Northwest Colorado

Council of Governments