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Northern Plains Resource Council, Inc. v. Surface Transportation Board

ELR Citation: 42 ELR 20012
Nos. 97-70037 et al, (9th Cir., 12/29/2011)

The Ninth Circuit affirmed in part and reversed in part the Surface Transportation Board's approval of a railroad company's applications to build a 130-mile railroad line in Southeastern Montana to haul coal. The Board prepared EISs under NEPA and included numerous mitigation measures in its approval, but its cumulative impact analysis ignored the combined impacts of future coal bed methane (CBM) well development and coal mining projects that will also come into being in the area. The Board arbitrarily and capriciously relied on a five-year time frame, which resulted in a faulty analysis of the possible cumulative impacts from reasonably foreseeable CBM projects that could overlap construction of the railroad line. The Board, however, adequately considered the cumulative effect of the CBM wells and the railroad on air quality and wildlife. But in its analysis concerning wildlife and sensitive plants, the Board did not provide baseline data for many of the species, opting instead to conduct surveys and studies in the future as part of its post-approval mitigation measures. Accordingly, the Board did not take a sufficiently "hard look" to fulfill its NEPA-imposed obligations at the impacts as to these species prior to issuing its decision. The court also held that except for its decision not to review new evidence involving specific operational and safety concerns, the Board's public convenience and necessity analyses were supported by the record.