GREEN MOUNTAIN RAILROAD CORPORATION, Plaintiff-Appellee, v. State of VERMONT, Vermont Agency of Natural Resources and William H. Sorrell, as Attorney General of the State of Vermont, Defendants-Appellants.
No. 04-0366-CV.
United States Court of Appeals, Second Circuit.
Decided: April 14, 2005.
404 F.3d 638
Before: CARDAMONE, JACOBS, CABRANES, Circuit Judges.
Argued: December 6, 2004.
Robert B. Luce, (Eric A. Poehlmann, on the brief) Downs Rachlin Martin PLLC, Burlington, VT, for Plaintiff-Appellee.
Evelyn G. Kitay (Ellen D. Hanson, General Counsel, on the brief) Washington, D.C. for Amicus Curiae Surface Transportation Board.
Robert M. Jenkins III, David M. Gossett, Mayer Brown Rowe & Maw LLP, Washington D.C.; Louis P. Warchot, Dennis J. Starks, Association of American Railroads, Washington, D.C.; George A. Aspatore, Sarah J. Bailiff, Paul Guthrie, Thomas J. Healey, Paul R. Hitchcock, Theodore K. Kalick, Robert T. Opal, Louise Anne Rinn, Peter J. Shudtz, Sidney L. Strickland, Jr., of Counsel, on submission, for Amicus Curiae Association of American Railroads.
JACOBS, Circuit Judge.
Green Mountain Railroad Corporation (“Green Mountain“) proposed to build transloading facilities on its property in Vermont, and brings this action seeking a declaration that Vermont‘s environmental land use statute, Act 250,
The Termination Act expressly preempts “remedies provided under Federal or State law” and vests with the Surface Transportation Board (the “Transportation Board“), a federal agency, exclusive jurisdiction over “transportation by rail carriers” and “the construction ... of ... facilities....”
“We review a district court‘s grant of summary judgment de novo.” See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In so doing, we construe the evidence in the light most favorable to the State as the non-moving party, and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For the reasons that follow, we affirm.
Green Mountain is a “rail carrier” as defined by the Termination Act,
Green Mountain proposed to build facilities at Riverside to serve the following operations: (1) unloading bulk salt arriving by rail for local distribution by truck or for temporary storage in a shed pending distribution; (2) temporary storage and transport of “non-bulk goods, such as steel pipe[s]“; and (3) unloading bulk cement arriving by rail for storage in silos and eventual transport by truck. Some of these operations are conducted within a 100-foot strip alongside the Green Mountain tracks and the Connecticut River.
Vermont argues that construction of the transloading facilities is subject to Act 250, an environmental land use statute that mandates preconstruction permits for land development. Permit applications are filed with one of nine District Commissions that evaluate environmental impact using ten criteria, including: “undue water or air pollution,”
In 1997, PMI Lumber leased part of Riverside and applied for an Act 250 construction permit. PMI Lumber proposed to satisfy environmental criteria by a 75-foot buffer zone along the river. The Vermont Agency of Natural Resources recommended that the buffer be increased to 100 feet.
A local permitting agency subsequently issued Land Use Permit # 2W0038-2 (the “dash-2 permit“) in the names of PMI Lumber and Green Mountain. Condition 14 required maintenance of a 100-foot buffer zone. When PMI Lumber ceased operations at the site, Green Mountain used it for its transloading activities. Green Mountain encroached on the buffer zone with a settling pond, storage of materials, and vehicles.
In Spring 1998, Green Mountain sought to amend the dash-2 permit to allow construction of a 100-foot by 275-foot salt storage shed. In January 1999, the State granted Land Use Permit # 2W0038-3 (the “dash-3 permit“), which stipulated conditions, including that the shed be rectangular, and either brown or dark green. Several months later, in October 1999, Green Mountain applied for another permit amendment (the “dash-3B permit” application) to modify the size, color and location of the salt shed. Although no such permit issued, Green Mountain started construction of its modified salt shed in November 1999.
In January 2000, the State issued a notice of violation of the dash-2 permit, citing (among other things) storage of materials within the 100-foot buffer zone. The State issued a second notice of violation in February 2000, alleging construction of the salt shed without the dash-3B permit.
In Spring 2000, the State conducted hearings on Green Mountain‘s dash-3B salt shed permit application. Green Mountain objected orally and in writing that the State Environmental Commission lacked jurisdiction to adjudicate the pending permit application because the Termination Act, which expressly preempts “remedies provided under Federal or State law” and vests with the Transportation Board, a federal agency, exclusive jurisdiction over “transportation by rail carriers,”
Faced with the threatened enforcement of Act 250, Green Mountain filed this suit in June 2001, seeking a declaration that the Termination Act preempts Act 250. Simultaneously, Green Mountain requested a declaratory order to the same effect from the Transportation Board.
The Transportation Board denied the declaratory relief in May 2002, deferring to the district court. In the meantime, the State moved to dismiss the district court action. While that motion was pending, the State issued the dash-3B permit in August 2001. A month later, the district court granted the State‘s motion to dismiss Green Mountain‘s facial challenge to the applicability of Act 250, but ordered “further development of the record” to determine whether the State‘s “effort to enforce one or more conditions of the [dash-2] Permit violates the [Termination Act] in this particular case.” Green Mountain R.R., No. 1: 01CV181, 2003 U.S. Dist. LEXIS 23774, at *2 (quoting an earlier ruling) (internal quotation marks omitted).
II
The question presented is whether the Termination Act preempts Vermont‘s Act 250 with respect to the underlying permit controversy. State law is preempted by federal law when: (1) the preemptive intent is “`explicitly stated in [a federal] statute‘s language or implicitly contained in its structure and purpose‘“; (2) state law “actually conflicts with federal law“; or (3) “federal law so thoroughly occupies a legislative field `as to make reasonable the inference that Congress left no room for the States to supplement it.‘” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), and Fidelity Fed. Sav. & Loan Ass‘n v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)). The “ultimate touchstone” of preemption analysis is congressional intent: “Congress’ intent, of course, primarily is discerned from the language of the pre-emption statute and the statutory framework surrounding it.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation marks omitted).
The Termination Act contains an express preemption clause:
Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
Other federal courts recognize that the Termination Act preempts most pre-construction permit requirements imposed by states and localities. See, e.g., City of Auburn, 154 F.3d at 1030-31 (affirming the Transportation Board‘s finding that the Termination Act preempted a local environmental permitting requirement); Soo Line R.R. Co. v. City of Minneapolis, 38 F.Supp.2d 1096, 1101 (D.Minn.1998) (“The Court concludes that the City‘s demolition permitting process upon which Defendants have relied to prevent [the railroad] from demolishing five buildings . . . that are related to the movement of property by rail is expressly preempted by the [Termination Act].“); CSX Transp., Inc. v. Ga. Pub. Serv. Comm‘n, 944 F.Supp. 1573, 1585 (N.D.Ga.1996) (finding state regulation of railroad agency closing preempted by the Termination Act).
For example, the Ninth Circuit concluded, in affirming a Transportation Board decision, that the Termination Act preempted state and local environmental regulations requiring a railway to submit to a permitting process before making repairs and improvements on its track line. City of Auburn, 154 F.3d at 1027-28, 1030-31. “[C]ongressional intent is clear, and the preemption of rail activity is a valid exercise of congressional power under the Commerce Clause.” Id. at 1031; see also Ga. Pub. Serv. Comm‘n, 944 F.Supp. at 1580-82.
The Transportation Board has likewise ruled that “state and local permitting or preclearance requirements (including environmental requirements) are preempted because by their nature they unduly interfere with interstate commerce.” Joint Petition for and Declaratory Order — Boston and Maine Corp. and Town of Ayer, MA, STB Finance Docket No. 33971, 2001 WL 458685, at *5 (S.T.B. Apr. 30, 2001), aff‘d, Boston & Maine Corp. v. Town of Ayer, 191 F.Supp.2d 257 (D.Mass.2002)(affirming the Transportation Board‘s determination that town‘s pre-construction permit requirement was preempted by the Termination Act); see also Green Mountain R.R. Corp., Petition for Declaratory Order, STB Finance Docket No. 34052, 2002 WL 1058001 (S.T.B. May 24, 2002). As the agency authorized by Congress to administer the Termination Act, the Transportation Board is “`uniquely qualified to determine whether state law . . . should be preempted‘” by the Termination Act.2 Ga. Pub. Serv. Comm‘n, 944 F.Supp. at 1584 (quoting Medtronic, 518 U.S. at 496, 116 S.Ct. 2240).
Nevertheless, as the district court observed, “not all state and local regulations are preempted [by the Termination Act]; local bodies retain certain police powers which protect public health and safety.” Id. It therefore appears that states and towns may exercise traditional police powers over the development of railroad property, at least to the extent that the regulations protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions. Electrical, plumbing and fire codes, direct environmental regulations enacted for the protection of the public health and safety, and other generally applicable, non-discriminatory regulations and permit requirements would seem to withstand preemption. Cf. Vill. of Ridgefield Park v. New York, Susquehanna & W. Ry. Corp., 163 N.J. 446, 750 A.2d 57, 64 (2000) (noting the Transportation Board‘s position that: (1) “while state and local government entities . . . retain certain police powers and may apply non-discriminatory regulation to protect public health and safety, their actions must not have the effect of foreclosing or restricting the railroad‘s ability to conduct its operations or otherwise unreasonably burdening interstate commerce“; and (2) “railroads are exempt from the traditional permitting process but not . . . from most other generally applicable laws“).
The legislative history of the Termination Act supports this approach: “Although States retain the police powers reserved by the Constitution, the Federal scheme of economic regulation and deregulation is intended to address and encompass all such regulation and to be completely exclusive.” See H.R.Rep. No. 104-311, at 96 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 808. We need not draw a line that divides local regulations between those that are preempted and those that are not, because in this case preemption is clear: the railroad is restrained from development until a permit is issued; the requirements for the permit are not set forth in any schedule or regulation that the railroad can consult in order to assure compliance; and the issuance of the permit awaits and depends upon the discretionary rulings of a state or local agency.
III
The State‘s primary appellate argument is that Act 250 cannot be preempted on its face unless there is “no possible set of conditions that [the permitting authority] could place on its permit that would not conflict with federal law.” See Cal. Coastal Comm‘n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (applying facial challenge standard in a statutory preemption case). We disagree. No doubt, there could be permit applications affecting railroad facilities that could be promptly approved without the slightest imposition on rail operations. However, what is preempted here is the permitting process itself, not the length or outcome of that process in particular cases. Cf. Chamber of Commerce v. Lockyer, 364 F.3d 1154, 1169 (9th Cir.2004) (noting that in certain situations federal law preempts “the act of regulation itself, not the effect of the state regulation in a specific factual situation“). California Coastal Commission is easily distinguished on that basis, as well as on the absence of a preemption provision.3
IV
The State argues that Act 250 withstands preemption because it is an environmental, rather than economic, regulation. The distinction is not useful. “[I]f local authorities have the ability to impose `environmental’ permitting regulations on the railroad, such power will in fact amount to `economic regulation’ if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line.” City of Auburn, 154 F.3d at 1031. Green Mountain serves industries that rely on trucks to transport goods from the rail site for processing; so the proposed transloading and storage facilities are integral to the railroad‘s operation and are easily encompassed within the Transportation Board‘s exclusive jurisdiction over “rail transportation.” Notwithstanding the environmental goals of the legislation, Act 250‘s permitting process “necessarily interfere[s]” with Green Mountain‘s “ability to construct facilities and conduct economic activities.” Green Mountain R.R. Corp., 2003 U.S. Dist. LEXIS 23774, at *13.
V
The State argues that Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765 (2d Cir.1999), compels a different conclusion. In Ace Auto Body, this Court held that the section of the Termination Act relating to motor carrier operations (
In contrast to the federal statute at issue in Ace Auto Body, the plain language of Section 10501 reflects clear congressional intent to preempt state and local regulation of integral rail facilities. “It is difficult to imagine a broader statement of Congress‘s intent to preempt state regulatory authority over railroad operations.” Ga. Pub. Serv. Comm‘n, 944 F.Supp. at 1581 (holding that the Termination Act preempted state regulation of railroad agency closing). We therefore need not conduct a fact-based inquiry weighing the economic impact of Act 250‘s permitting process upon Green Mountain; based on the facts before the Court, the State‘s effort to regulate rail transportation through the Act 250 pre-permitting process is necessarily preempted by the Termination Act.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
Notes
Vermont failed to raise explicitly this facial preemption argument with the district court. As a result, the district court‘s opinion does not discuss California Coastal Commission. Generally, we do not consider an issue raised for the first time on appeal. See Silverman v. Mut. Benefit Life Ins. Co., 138 F.3d 98, 103 (2d Cir.1998). However, Vermont points out that, although it never cited to California Coastal Commission in its submissions to the district court, it preserved this issue for appellate review by arguing, in its August 2001 reply to Green Mountain‘s opposition to its motion to dismiss, that to succeed on its facial preemption claim, Green Mountain was obligated to show “that there are no circumstances under which Act 250 could be found constitutional,” and did not press the argument thereafter because it believed that the district court adopted the State‘s position on facial preemption when it stated, granting in part the State‘s motion to dismiss: “to the extent the [State] ask[s] the Court to dismiss Green Mountain‘s claim that the [Termination Act] preempts Act 250 under all circumstances, the motion is granted.”