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Missouri Mining, Inc. v. Interstate Commerce Comm'n

ELR Citation: 25 ELR 20464
Nos. No. 93-3722, 33 F.3d 980/39 ERC 1477/(8th Cir., 08/29/1994)

The court holds that the Interstate Commerce Commission (ICC) did not violate the §102 of the National Environmental Policy Act (NEPA) or the ICC's implementing regulations when it granted a railroad company's request to waive the preparation of an environmental impact statement for the construction and operation of a 17-mile rail line. The court first holds that the ICC's decision to waive the preparation of an EIS under 49 C.F.R. §1105.6 was not arbitrary or capricious. Preliminary studies, the environmental report, the comments received from other government agencies, and the ICC's site visit all indicated that the project would have no significant environmental impact. The court holds that the waiver was not improper because the ICC granted it orally and did not make it public. No requirement exists that the ICC publish such a waiver or put it in writing. Moreover, the ICC noted in the environmental analysis (EA) that it had granted the waiver and explained the bases for its decision. The court next holds that the ICC did not waive its obligation under NEPA §102(2)(E) to study appropriate alternatives to the proposed project. The ICC merely determined that the railroad company's proposals were the only alternatives reasonably requiring evaluation. The court holds that the ICC did not violate §102(2)(E) by not considering petitioners' suggested alternative. Because the EA concluded that the proposed rail line would have a minimal environmental effect, the ICC only needed to consider a narrow range of alternatives, and petitioners failed to show that their desired alternative is within this range. The record clearly reveals that petitioners' desired route is neither economical or practical and petitioners have not demonstrated that their preferred route is environmentally superior to the route already constructed. Finally, the court holds that the ICC acted properly in denying petitioners' request to revoke an exemption from 49 U.S.C. §10901(a)'s certification process that the ICC granted under 49 U.S.C. §10505 for construction and operation of the rail line.

Counsel for Petitioners
John T. Sullivan
Jackson & Jessup
3426 N. Washington Blvd., Arlington VA 22210
(703) 525-4050

Counsel for Respondents
John H. LeSeur
Slover & Loftus
1224 17th St. NW, Washington DC 20036
(202) 347-7170

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.