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Sierra Club v. Interstate Commerce Comm'n

Citation: 8 ELR 20265
No. No. 76-1557, 11 ERC 1241/(D.C. Cir., 02/21/1978)

The court remands an Interstate Commerce Commission (ICC) order authorizing construction of a railroad line for transportation of coal in the Powder River Basin because of National Environmental Policy Act (NEPA) violations, but refuses to invalidate the order and enjoin further construction. The agency is mistaken in contending that petitioner may not now assert that the environmental impact statement (EIS) for the project is inadequate for failure to consider the "off-site" impacts of building the railroad or alternative routes on the ground that it failed to raise these questions in the certification proceeding. This objection was raised by petitioner and others in comments on the draft impact statement and had therefore been brought to the agency's attention. Moreover, the court suggests, the doctrine of exhaustion of administrative remedies may apply less forcefull in NEPA litigation. Moving to the merits of petitioner's challenge, the court rules that the EIS contains a sufficiently extensive discussion of the coal slurry pipeline alternative but fails to discuss adequately prospective off-site impacts. The court holds that the ICC also violated the requirements of NEPA by failing to rank the alternative routes for the railroad line in terms of overall environmental desirability either in the EIS or when making the decision to issue a certificate of convenience and necessity for construction of the line. Stating that ordinarily the agency's failure to consider environmental factors would require that the order authorizing construction be vacated and the case remanded for further consideration, the court determines that under the circumstances of this case the ICC order should not be invalidated at this time. The court notes in this regard that construction of the rail line may now be well-advanced, largely because of petitioner's delay in seeking a stay. The ICC is directed to determine within 60 days whether construction should be halted while alternative routes are assessed. The agency must also begin to repair the deficiencies in the order and the EIS as expeditiously as possible.

In dissent, Judge Leventhal argues that the court should dismiss the petition for review because of petitioner's failure to present its NEPA objection in the proceeding that led to issuance of the certificate.

Counsel for Petitioner
Bruce J. Terris, Nathalie V. Black, Suellen T. Keiner
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Counsel for Respondents
Peter A. Fitzpatrick, Ass't General Counsel; Mark L. Evans, General Counsel
Interstate Commerce Commission, Washington DC 20423
(202) 275-7312

Jacques B. Gelin, Edmund B. Clark
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 737-8200

Counsel for Intervenor Kerr-McGee Coal Corp.
Peter J. Nickles, John Michael Clear, Margaret E. Clark
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 293-3300

Counsel for Intervenor Atlantic Richfield Co.
John E. Nolan, Jr., Richard H. Porter
Steptoe & Johnson
1250 Connecticut Ave. NW, Washington DC 20036
(202) 862-2000

Before: BAZELON, Chief Judge, LEVENTHAL and ROBINSON, Circuit Judges.

Concurring opinion filed by Circuit Judge ROBINSON.

Dissenting opinion filed by Circuit Judge LEVENTHAL.