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Concord Township v. United States

ELR Citation: 11 ELR 20833
Nos. No. 79-1887, 625 F.2d 1068/(3d Cir., 06/23/1980)

Although setting aside on other grounds the Interstate Commerce Commission's granting of a certificate for reinstitution of a railroad freight service, the court upholds the Commission's threshold finding that its action would have no significant environmental impact and thus no environmental impact statement was required under the National Environmental Policy Act. The proposed service would require rehabilitation of an old right-of-way located in a floodplain, including the rebuilding of railroad bridges that had once obstructed the runoff of floodwaters. Nonetheless, the issuance of a certificate by the Commission in itself would result in no physical impact on the floodplain because the certificate neither directs nor authorizes the erection of physical structures. Thus, the Commission's negative determination was not arbitrary and capricious.

Counsel for Petitioners
John W. Wellman
Petrikin, Wellman, Damico & Carney
William Penn Bldg., 109 Chesley Dr., Media PA 19063
(215) 565-2670

Michael J. Glasheen
Clark, Ladner, Fortenbaugh & Young
32d Floor, 1818 Market St., Philadelphia PA 19103
(215) 241-1800

William J. Woodward Jr., George J. Miller
Dechert, Price & Rhoads
3400 Center Square W., 1500 Market St., Philadelphia PA 19102
(215) 972-3400

Counsel for Respondents
Evelyn G. Kitay; Richard Allen, General Counsel; Frederick W. Read III, Associate Counsel
Interstate Commerce Commission, Washington DC 20423
(202) 275-7312

John H. Shenefield, Ass't Attorney General; Robert Lewis Thompson
Department of Justice, Washington DC 20530
(202) 633-3301

Counsel for Intervenors
Edward F. Mannino, Samuel W. Morris Jr., Marguarite A. Sivak
Dilworth, Paxon, Kalish, Levy & Kauffman
2600 Fidelity Bldg., Philadelphia PA 19109
(215) 546-3000

Before ADAMS, GIBBONS, and ROSENN, Circuit Judges.