Background

• Chlorine Institute challenges FRA's 2012 Final Rule implementing the PTC mandate under the Rail Safety Improvement Act of 2008, focusing on tracks used for passenger service or TIH/PIH shipments.
• The 2012 Rule eliminated the prior two-part exclusion/removal test and bases eligibility for exclusion/removal on whether, as of December 31, 2015, there will be no passenger or PIH traffic on the tracks.
• Institute alleged the omission of the two-part test and the 2008 baseline contradicted congressional intent and would harm TIH shippers, including chlorine shippers.
• Institute sought judicial review of the 2012 Rule on ripeness grounds, arguing imminent injury from potential routing changes and reduced PIH traffic.
• The court held the Institute’s challenge is not ripe because it has shown only speculative, non-imminent injury pending FRA’s plan submissions and their concrete effects.
• The court dismissed the petition for lack of jurisdiction, with a concurrence noting that the Surface Transportation Board will ensure common-carrier service and may compel PTC on needed tracks.

Issues

Key Cases Cited

• Exxon Mobil Corp. v. FERC, 501 F.3d 204 (D.C. Cir. 2007) (ripeness and standing considerations govern subject-matter jurisdiction)
• National Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803 (Supreme Court 2003) (ripeness tied to concrete consequences and injury in fact)
• American Petroleum Institute v. EPA, 683 F.3d 382 (D.C. Cir. 2012) (trade association standing; injury must be concrete and particularized)
• Summers v. Earth Island Institute, 555 U.S. 488 (Supreme Court 2009) (injury must be concrete and imminent for ripeness)
• Luján v. Defenders of Wildlife, 504 U.S. 555 (Supreme Court 1992) (injury-in-fact requirement for standing and ripeness)
• Abbott Labs. v. Gardner, 387 U.S. 136 (Supreme Court 1967) (ripeness and justiciability considerations)