Lee's Summit, Missouri v. Surface Transportation Board

No. 99-1435 (231 F.3d 39) (D.C. Cir. November 14, 2000)

ELR Digest

The court denies two Missouri cities' petition to review the Surface Transportation Board's approval of restoration train service over an unused 278-mile railroad line without performing an environmental assessment (EA) under the National Environmental Policy Act.

The cities argued that the proposed two trains a day on the reopened line constituted a 100% increase of service that required an EA under the board's regulations. The board determined that when a line currently carries no traffic, any resumption of service represents an infinite increase of service. Therefore, drawing an analogy to reinstated service on abandoned lines, the board applied the alternative measurement of eight trains a day for triggering an EA, and, thus, decided no EA was necessary for the proposed two trains a day. The court first holds that the cities have standing. Although an EA of the restored train service apparently would only affect a line remote from the cities, if an EA is required for a portion of a line, the board's practice is to conduct an EA of the entire transaction, which in this case included the line running near the cities. The court next holds that the board's application of the eight trains per day standard is not plainly erroneous or inconsistent with the regulations. Any attempt to determine a 100% increase on zero is problematic because 100% of zero is zero. Thus, to maintain consistency with the closely analogous situation of abandoned lines, the board properly applied the alternative measurement of eight trains a day.

The full text of this opinion is available from ELR (5 pp., ELR Order No. L-293).

Counsel for Petitioners
Steven J. Kalish
McCarthy, Sweeney & Harkaway
1750 Pennsylvania Ave. NW, Washington DC 20006
(202) 393-5710

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

[31 ELR 20241]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]