998 F.3d 945
D.C. Cir.2021Background
- The Surface Transportation Board (STB) adopted a 2007 Rail Fuel Surcharges Rule that allowed carriers to use a Department of Energy "safe harbor" fuel index (HDF Index) as a proxy for incremental fuel costs instead of calculating actual fuel-cost changes.
- In Cargill v. BNSF (2013), the Board found a carrier’s safe-harbor–based surcharge produced substantial over‑recovery (~$181 million over five years) but concluded the carrier complied with the Rule, prompting concern that the safe harbor could allow unrecoverable profits.
- The STB issued an Advance Notice of Proposed Rulemaking (ANPRM) in 2014 soliciting comments on whether the safe harbor should be modified or removed and specifically asked whether the Cargill result was an "aberration." The record closed after 25 filings, many contending the Cargill phenomenon was not unique.
- After five years of deadlock among three Board members (each issuing separate statements), the Board discontinued the ANPRM in 2019 citing lack of a majority and "administrative finality." Chair Begeman favored repeal; Oberman favored vacating the Rule entirely; Fuchs opposed change given reliance concerns.
- Western Coal Traffic League sued to set aside the discontinuation as arbitrary and capricious. The D.C. Circuit dismissed the petition for lack of standing, concluding the injury was not redressable because the court cannot order agency members to break a good‑faith deadlock.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / redressability | Western Coal: Board’s discontinuation caused higher shipping costs; a court order remanding would likely lead to continued rulemaking and relief | STB/US: Injury not redressable because court cannot force Board members to change votes or break a deadlock | Court: No standing — redressability fails; federal courts lack power to order resolution of an agency deadlock |
| Arbitrary & capricious dismissal of ANPRM | Western Coal: STB ignored/failed to respond to significant comments (esp. that Cargill is not an aberration), making discontinuation unlawful | STB: Dismissal proper given lack of majority and deference to agency; remand would not change impasse | Court: Declined to reach merits due to lack of jurisdiction; did not set aside discontinuation |
| Reviewability of individual commissioners’ statements | Western Coal (implicitly): Court may scrutinize members’ views to show irrationality | STB: Review limited to the Board’s institutional decision; individual opinions are like judicial concurrences | Court: Only the Board’s collective action is reviewable; separate statements not substitute for agency action (except for limited bad‑faith inquiry) |
| Procedural vs. substantive failure to consider Cargill evidence | Western Coal: Failure to address comments on Cargill is a procedural/State‑Farm type error and would be redressable on remand | STB: Even if procedural, remand is futile; agency discretion and deference apply | Court: Majority treated redressability as lacking and dismissed; dissent would find standing and that the failure to consider significant comments was arbitrary and remandable |
Key Cases Cited
- Radio-Television News Dirs. Ass'n v. FCC, 184 F.3d 872 (D.C. Cir. 1999) (discussed prior deadlock/remand practice but distinguished on jurisdictional grounds)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency must consider relevant data and explain action)
- Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978) (courts may not impose extra procedural requirements beyond APA)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury, causation, redressability)
- Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016) (Supreme Court restatement of standing elements)
- Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015) (agency must consider and respond to significant comments under notice-and-comment)
- Narragansett Indian Tribal Historic Pres. Office v. FERC, 949 F.3d 8 (D.C. Cir. 2020) (redressability analysis where remand would be futile)