82 F.4th 1152
D.C. Cir.2023Background
- Seven County Infrastructure Coalition petitioned the Surface Transportation Board (STB) to build and operate an ~80-mile rail line (the Uinta Basin Railway) to connect the Uinta Basin to the national rail network; the line’s principal anticipated commodity was waxy crude oil.
- The STB used a two-step process: a conditional exemption based on transportation merits, followed by environmental review (Draft and Final EIS prepared by the Office of Environmental Analysis).
- The U.S. Fish and Wildlife Service prepared a Biological Opinion (BiOp) after the STB defined an action area limited to the project footprint, a 300-foot buffer, and the Upper Colorado River Basin area affected by water depletions.
- Petitioners (Eagle County and Center for Biological Diversity) challenged the STB’s Final Exemption Order, the EIS, and the BiOp under NEPA, NHPA, ESA, and the ICCTA exemption standards; they alleged failures to consider foreseeable upstream, downstream, and downline impacts (including spills, refining emissions, wildfires, and impacts to endangered fish and historic properties), and that the STB improperly granted an exemption without adequately weighing rail-policy factors (incl. financial viability and energy conservation).
- The D.C. Circuit found petitioners had standing and Hobbs Act jurisdiction, granted the petitions in part, vacated the Final Exemption Order, and vacated the EIS and BiOp in part, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA—upstream/downstream cumulative impacts (oil production, refining, GHGs, and environmental justice on Gulf Coast) | EIS failed to quantify reasonably foreseeable upstream oil development, downstream refinery emissions, and impacts on Gulf Coast EJ communities; mischaracterized effects as merely "cumulative" rather than as indirect effects of the railway. | STB said destinations/end-uses of oil and specific well/refinery locations are unknown and therefore not reasonably foreseeable, and that it cannot regulate or mitigate downstream actors. | Court: STB must quantify or adequately explain why it cannot forecast upstream/downstream impacts; treating these effects as not reasonably foreseeable was arbitrary in light of STB’s own forecasts identifying production volumes and likely refinery regions. Vacated EIS in part. |
| NEPA—downline impacts (accident risk, spills, and wildfire along existing rail such as Union Pacific line) | County argued STB ignored increased accident and wildfire risk from up to ~9.5 additional trains/day; used national accident rates without explaining missing local data and underestimated wildfire risk. | STB relied on national accident data, asserted low probability of train-ignited wildfires, and cited wildfire-hazard mapping showing most downline areas low-risk. | Court: STB failed to comply with 40 C.F.R. §1502.22 by not explaining unavailability of more specific accident data; its accident and wildfire analyses were inadequate and underestimated risk. Vacated EIS as to these downline analyses. |
| NEPA—geologic/landslide risk | Center argued landslide hazards mostly unknown and reliance on post-approval, developer-conducted surveys and incomplete maps was insufficient. | STB acknowledged incomplete mapping, relied on other credible datasets, explained why data were unavailable, and used accepted methods to compare alternatives. | Court: STB met §1502.22 by explaining data limits and articulating steps taken; landslide analysis upheld. |
| ESA—action area and Biological Opinion | Center argued the STB-defined action area improperly excluded downline waterways along Union Pacific line where spills could affect Colorado River endangered fishes; Service impermissibly adopted STB’s narrow action area without independent analysis. | STB and Service said additional downline risks were not reasonably certain to occur and that Service reasonably relied on STB analysis. | Court: STB’s narrow action-area determination was arbitrary; Service uncritically adopted it—BiOp flawed where it failed to consider reasonably foreseeable downline contamination risks to listed fishes and habitats. Vacated BiOp in part. |
| NHPA—consultation and historic properties downline | County said STB failed to consult Eagle County about impacts to historic properties downline (Union Pacific corridor) and omitted analysis of such impacts. | STB asserted it conducted outreach (including Colorado SHPO) through the EIS process and the County had opportunity to participate; County failed to identify properties during proceedings. | Court: County had opportunity and STB’s EIS outreach satisfied Section 106 process here; County waived many specific NHPA contentions by not raising them administratively. No NHPA violation found. |
| ICCTA exemption—application of rail policy (financial viability, energy conservation, weighing environmental harms) | Petitioners argued STB did not properly consider financial viability and failed to apply/ weigh relevant rail-policy provisions (including energy conservation and environmental-safety policies) against the project’s foreseeable environmental harms. | STB said exemptions can be granted even if financing questions remain because marketplace ultimately decides viability; STB relied on EIS and mitigation and concluded benefits outweighed impacts. | Court: STB’s approach improperly departed from prior practice and failed to meaningfully consider financial viability and the energy-conservation policy; because the EIS and BiOp were defective and STB did not adequately weigh environmental policies against claimed transportation benefits, the Final Exemption Order was arbitrary and capricious. Vacated Final Exemption Order. |
Key Cases Cited
- Snohomish Cnty. v. Surface Transp. Bd., 954 F.3d 290 (D.C. Cir. 2020) (distinguishing full-application vs. exemption procedures under the ICCTA)
- Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357 (D.C. Cir. 2017) (agencies must quantify reasonably foreseeable downstream greenhouse-gas emissions or explain why they cannot)
- Birckhead v. FERC, 925 F.3d 510 (D.C. Cir. 2019) (agency not excused from considering environmental impacts even if it lacks regulatory authority over downstream actors)
- Delaware Riverkeeper Network v. FERC, 45 F.4th 104 (D.C. Cir. 2022) (distinguishing when downstream emissions are not reasonably foreseeable versus when they are)
- Center for Biological Diversity v. EPA (Center I), 861 F.3d 174 (D.C. Cir. 2017) (procedural-standing test and two-link causation for procedural-rights plaintiffs)
- City of Tacoma v. FERC (Tacoma II), 460 F.3d 53 (D.C. Cir. 2006) (BiOp prepared during agency proceeding is reviewable on appeal of the primary agency order)
- Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 45 F.4th 291 (D.C. Cir. 2022) (NEPA §1502.22 obligations to explain unavailable information and steps taken)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious review standard)
- Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004) (CEQ-authorized NEPA regulatory framework; agency cannot avoid considering certain effects simply because it lacks power to control downstream actors)