12-1298 | D.C. Cir. | Jun 11, 2013
Lead Opinion
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring Opinion filed by Circuit Judge KAVANAUGH.
The Chlorine Institute, Inc. (Institute)
I.
In 2008, the Congress enacted the Act with the intent, inter alia, “to prevent railroad fatalities, injuries, and hazardous materials releases.” Pub.L. No. 110-432, 122 Stat. at 4848. Section 104 of the Act governs the “Complementation of positive train control systems” and requires that no later than 18 months after its enactment date of October 16, 2008, each Class I railroad carrier
(A) its main line over which intercity rail passenger transportation or commuter rail passenger transportation, as defined in section 24102, is regularly provided;
(B) its main line over which poison- or toxic-by-inhalation hazardous materials, as defined in [49 C.F.R. §§] 171.8, 173.115, and 173.132 ..., are transported; and
(C) such other tracks as the Secretary [of Transportation] may prescribe by regulation or order.
49 U.S.C. § 20157(a)(1).
The Secretary shall prescribe regulations or issue orders necessary to implement this section, including regulations specifying in appropriate technical detail the essential functionalities of positive train control systems, and the means by which those systems will be qualified.
Id. § 20157(g).
FRA has since promulgated three successive final rules governing PTC. The first rule, issued in January 2010, established calendar year 2008 as the baseline year for determining whether a main line carries either passenger or PIH traffic so as to require PTC. Positive Train Control Systems, 75 Fed.Reg. 2598, 2700 (Jan. 15, 2010) (January 2010 Final Rule) (49 C.F.R. § 236.1005(b)(2) (2010)). Recognizing, however, that routing could change between the 2008 baseline and the Act’s December 31, 2015 PTC implementation deadline, the January 2010 Final Rule permitted a railroad to request the “[e]xelusion or removal of track segments from [the] PTC baseline ... based upon changes in rail traffic such as reductions in total traffic volume or cessation of passenger or PIH service.” Id. at 2701 (49 49 C.F.R. § 236.1005(b)(4)® (2010)). “In the case of cessation of PIH traffic over a track segment,” the request was to be approved “upon a showing by the railroad that ... [t]here is no remaining local PIH traffic expected on the track segment” and that the PTC exclusion/removal satisfied a two-part test, which included: (1) an “alternative route” analysis requiring that alternative route(s) to the excluded tracks be “shown to be substantially as safe and secure” as the excluded tracks; and (2) a “residual risk” analysis, requiring that, after cessation of PIH traffic, “the remaining risk associated with PTC-preventable accidents” not exceed the average comparable risks of other tracks required to be PTC-equipped. Id. at 2701-02 (49 C.F.R. § 236.1005(b)(4)® (2010), superseded by 49 C.F.R. § 236.1020 (effective Nov. 26, 2010)).
This is a final rule; however, FRA has identified specific provisions for which we are considering making changes to the final rule, if warranted by the public comments received. We expect to publish our response to those comments, including any possible changes to the rule made as a result of them, as soon as possible following the end of the comment period. However, the limited areas of this rule open for additional comment do not affect the requirement for railroads to prepare and submit plans in accordance with the deadlines established in this final rule.
Id. at 2598. In particular, it advised:
FRA will continue to seek comments limited to increasing the clarity, certainty, and transparency of the criteria governing the removal from a PTC [Implementation Plan] (and therefore from the requirement to install PTC) of any track segments on which PTC systems have yet to be installed for which a railroad seeks relief from the requirement to install PTC.... Any further comments should be limited to the scope of the issues indicated in this preamble to which FRA seeks further comments.
Id. at 2605.
After further comments and a hearing, FRA promulgated its second final rule in September 2010. Positive Train Control Systems, 75 Fed.Reg. 59,108 (Sept. 27, 2010). (September 2010 Final Rule). The September 2010 Final Rule left the exclusion/removal provision largely unchanged but moved it to a separate, newly promulgated regulation, 49 C.F.R. § 236.1020 (“Exclusion of track segments for implementation due to cessation of PIH materials service or rerouting.” (2010-11)). 75 Fed.Reg. at 59,117. Under the reworded (but substantively unchanged) regulation, each carrier was required to show that there was “no remaining local PIH materials traffic expected on the track segment” and that the rerouting passed both the “alternative route” and the “residual risk” prongs of the qualifying test. Id. at 59,117 (49 49 C.F.R. § 236.1020(b)(l-3) (2010)).
The Association of American Railroads (AAR) petitioned this court to review both the January 2010 Final Rule and the September 2010 Final Rule, challenging, inter alia, the “backward-looking” 2008 baseline. See Pet’r Br., Ass’n. of Am. R.Rs. v. Fed. R.R. Admin., Nos. 10-1198 & 10-1308, at 36 (D.C. Cir. Nov. 10, 2010). On March 2, 2011, AAR and FRA reached a settlement, agreeing to move to hold the case in abeyance pending a new rulemaking proceeding. On March 3, 2011, we granted their motion. Ass’n. of Am. R.Rs. v. Fed. R.R. Admin., Nos. 10-1198 & 10-1308 (D.C. Cir. filed Mar. 3, 2011) (per curiam order).
Pursuant to the settlement, in August 2011, FRA filed a new Notice of Proposed Rulemaking to consider eliminating the two-part test for exclusion/removal from the 2008 baseline. Positive Train Control Systems, 76 Fed.Reg. 52,918, 52,921 (Aug. 24, 2011). In May 2012, FRA published the 2012 Final Rule, which did precisely that, stating in the preamble: “Having considered the public comments on the [Notice of Proposed Rulemaking], FRA is promulgating this final rule eliminating the two qualifying tests.” 77 Fed.Reg. at 28,-286. FRA explained that retaining the two-part test “could potentially require PTC system implementation at a great
II.
Ordinarily, we would review FRA’s interpretation of the Act under Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837" court="SCOTUS" date_filed="1984-06-25" href="https://app.midpage.ai/document/chevron-u-s-a-inc-v-natural-resources-defense-council-inc-111221?utm_source=webapp" opinion_id="111221">467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and FRA’s application of the statute pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. See Ass’n of Am. R.R. v. Dep’t of Transp., 38 F.3d 582" court="D.C. Cir." date_filed="1994-10-28" href="https://app.midpage.ai/document/association-of-american-railroads-american-short-line-railroad-association-v-department-of-transportation-federico-pena-680968?utm_source=webapp" opinion_id="680968">38 F.3d 582 (D.C.Cir.1994). Here, however, we lack jurisdiction to consider the Institute’s arguments on the merits because its challenge is not ripe. See Exxon Mobil Corp. v. FERC, 501 F.3d 204" court="D.C. Cir." date_filed="2007-07-27" href="https://app.midpage.ai/document/exxon-mobil-corp-v-federal-energy-regulatory-commission-186974?utm_source=webapp" opinion_id="186974">501 F.3d 204, 207 (D.C.Cir.2007) (“Before we reach the merits ..., we consider whether the issue is ripe for judicial review.... The question of ripeness goes to our subject matter jurisdiction, and thus we can raise the issue sua sponte at any time.” (quotation marks omitted)).
The ripeness doctrine is “designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ ” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803" court="SCOTUS" date_filed="2003-05-27" href="https://app.midpage.ai/document/national-park-hospitality-association-v-department-of-the-interior-127928?utm_source=webapp" opinion_id="127928">538 U.S. 803, 807-08, 123 S. Ct. 2026" court="SCOTUS" date_filed="2003-05-27" href="https://app.midpage.ai/document/national-park-hospitality-association-v-department-of-the-interior-127928?utm_source=webapp" opinion_id="127928">123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136" court="SCOTUS" date_filed="1967-05-22" href="https://app.midpage.ai/document/abbott-laboratories-v-gardner-107451?utm_source=webapp" opinion_id="107451">387 U.S. 136, 148-149, 87 S. Ct. 1507" court="SCOTUS" date_filed="1967-05-22" href="https://app.midpage.ai/document/abbott-laboratories-v-gardner-107451?utm_source=webapp" opinion_id="107451">87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “Part of the doctrine is subsumed into the Article III requirement of standing, which requires a petitioner to allege inter alia an injury-in-fact that is ‘imminent’ or ‘certainly impending.’ ” Am. Petroleum Inst. v. EPA, 683 F.3d 382" court="D.C. Cir." date_filed="2012-06-08" href="https://app.midpage.ai/document/american-petroleum-institute-v-environmental-protection-agency-801891?utm_source=webapp" opinion_id="801891">683 F.3d 382, 386 (D.C.Cir.2012); see Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102" court="SCOTUS" date_filed="1974-12-16" href="https://app.midpage.ai/document/regional-rail-reorganization-act-cases-109117?utm_source=webapp" opinion_id="109117">419 U.S. 102, 138, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (“[I]ssues of ripeness involve, at least in part, the existence of a live ‘Case or Controversy’.... ”); Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43" court="D.C. Cir." date_filed="1999-01-15" href="https://app.midpage.ai/document/wyoming-outdoor-council-v-united-states-forest-service-184751?utm_source=webapp" opinion_id="184751">165 F.3d 43, 48 (D.C.Cir.1999) (“Just as the constitutional standing requirement for Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury.”); Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423" court="D.C. Cir." date_filed="1996-12-13" href="https://app.midpage.ai/document/national-treasury-employees-union-v-united-states-730972?utm_source=webapp" opinion_id="730972">101 F.3d 1423, 1427 (D.C.Cir.1996) (“Ripeness, while often spoken of as a justiciability doctrine distinct from standing, in fact shares the constitutional requirement of standing that an injury in fact be certainly impending.”).
To establish such an injury, the Institute must show that “at least one of its members ‘is under threat of suffering “injury in fact” that is concrete and particularized [and] the threat must be actual and imminent, not conjectural or hypothetical.’ ” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6" court="D.C. Cir." date_filed="2011-12-09" href="https://app.midpage.ai/document/national-assn-of-home-builders-v-environmental-protection-agency-618639?utm_source=webapp" opinion_id="618639">667 F.3d 6, 12 (D.C.Cir.2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488" court="SCOTUS" date_filed="2009-03-03" href="https://app.midpage.ai/document/summers-v-earth-island-institute-145904?utm_source=webapp" opinion_id="145904">555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555" court="SCOTUS" date_filed="1992-06-12" href="https://app.midpage.ai/document/lujan-v-defenders-of-wildlife-112747?utm_source=webapp" opinion_id="112747">504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Institute claims its members are “directly injured by FRA’s policy decision to no longer rely upon traffic movements during
For the foregoing reasons, we dismiss the Institute’s petition for lack of jurisdiction.
So ordered.
. The Institute is a trade association representing producers, packagers, distributors, users and suppliers of chlorine and related products.
. A PTC system is “a system designed to prevent train-to-train collisions, over-speed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position.” 49 U.S.C. § 20157(i)(3); see 49 C.F.R. subt. B, ch. II, pt. 236, Subpt. I.
.A Class I carrier is one having annual operating revenues of $250 million or more. Commuter Rail Div. of Reg’l Transp. Auth. v. Surface Transp. Bd., 608 F.3d 24" court="D.C. Cir." date_filed="2010-06-15" href="https://app.midpage.ai/document/commuter-rail-division-of-regional-transportation-authority-v-surface-transportation-board-148591?utm_source=webapp" opinion_id="148591">608 F.3d 24, 28 n. 2 (D.C.Cir.2010) (citing 49 C.F.R. § 1201.1-1).
. "The term 'main line’ means a segment or route of railroad tracks over which 5,000,000 or more gross tons of railroad traffic is transported annually....” 49 U.S.C. § 20157(f)(2).
. The Secretary delegated to the FRA his authority to implement the Act. 49 C.F.R. § 1.49(oo) (2009), recodified at id. § 1.89(b) (2012).
.The two-part test was new in the January 2010 Final Rule. The proposed rule had sim
. "Even if a case is 'constitutionally ripe,’ though, there may also be 'prudential reasons for refusing to exercise jurisdiction.’ ” Am. Petroleum Inst. v. EPA, 683 F.3d 382" court="D.C. Cir." date_filed="2012-06-08" href="https://app.midpage.ai/document/american-petroleum-institute-v-environmental-protection-agency-801891?utm_source=webapp" opinion_id="801891">683 F.3d at 386.
. The picture is further blurred by the prospect that three separate federal agencies may be involved in shaping it: (1) FRA, which regulates PTC; (2) the Pipeline and Hazardous Materials Safety Administration, which carries out "duties and powers related to pipeline and hazardous materials transportation and safety,” 49 U.S.C. § 108(f), including overseeing rail carrier routing, 49 C.F.R. § 172.820; and (3) the Surface Transportation Board (STB), which generally regulates rail carrier transportation, service and rates, see 49 U.S.C. § 11101. FRA insists that the STB’s exercise of its own authority to enforce a railroad carrier’s statutory obligation to “provide [] transportation or service on reasonable request,” id. § 11101(a), will ensure the availability of rail carriage to PIH shippers. See Oral Argument Recording at 37:50 (Apr. 4, 2013) ("Positive Train Control takes a
. Under the 2012 Final Rule, third parties such as the Institute “have an opportunity to express their views on the plans submitted pursuant to the PTC rule.” 77 Fed.Reg. at 28,290. Under 49 C.F.R. § 236.1011(e): Upon receipt of a [PTC plan], FRA posts on its public web site notice of receipt and reference to the public docket in which a copy of the filing has been placed. FRA may consider any public comment on each document to the extent practicable within the time allowed by law and without delaying implementation of PTC systems.
Concurrence Opinion
concurring:
I join the Court’s opinion but add a point significant to my resolution of the case. As was discussed at oral argument, the Surface Transportation Board will ensure that chlorine shippers continue to receive common-carrier transportation on railroads when such transportation is reasonably requested. See 49 U.S.C. § 11101(a) (“A rail carrier providing transportation or service subject to the jurisdiction of the Board under this part shall provide the transportation or service on reasonable request.”). When the Board requires a railroad to provide common-carrier service to chlorine shippers, the railroad will have to allow the shipment and, if necessary under the Rail Safety Improvement Act of 2008, will have to equip the relevant track with positive train control. With that understanding, I join the judgment and opinion of the Court holding that the Chlorine Institute does not at this time face an actual or imminent injury from the 2012 Final Rule.