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Auburn, City of v. United States

ELR Citation: 29 ELR 20096
Nos. Nos. 96-71051 et al., 154 F.3d 1025/(9th Cir., 09/03/1998, 10/20/1998)

The court holds that the Interstate Commerce Commission Termination Act (ICCTA) preempts state and local environmental review of a rail carrier's reacquisition and reopening of the Stampede Pass railroad line in Washington State. The court first holds that the plain language of two sections of the ICCTA explicitly grant the Surface Transportation Board (STB) exclusive authority over rail way projects like Stampede Pass. ICCTA §10501 states that the STB will have exclusive jurisdiction over the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one state. The same section states that the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under federal and state law. The court then rejects the cities' attempt to distinguish its permitting requirements as environmental rather than economic regulation. Given the broad language of §10501(b)(2), the distinction between economic and environmental regulation is blurred. Moreover, congressional intent to preempt this kind of state and local regulation of rail lines is explicit in the plain language of the ICCTA and the statutory framework surrounding it.

The court next holds that the STB took the requisite hard look at the possible environmental consequences of the railway proposal to satisfy the National Environmental Policy Act. The environmental assessment (EA) produced by the STB addresses environmental concerns such as rail traffic increases, transportation safety, energy, air quality, and noise. Further, the post-EA lays out a long list of mitigation measures. In addition, the affected cities were given ample opportunity to raise their environmental concerns before the STB, the STB properly considered alternatives, and the parameters of the EA set by the STB do not constitute an abuse of discretion.

Counsel for Petitioner
Peter J. Eglick
Helsell & Fetterman
1500 Puget Sound Plaza
1325 4th Ave., Seattle WA 98111
(206) 292-1144

Counsel for Respondents
Evelyn G. Kitay
Surface Transportation Board
1925 K St. NW, Washington DC 20423
(202) 565-1674

Before Goodwin and Pregerson, JJ.