United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

      Argued September 7, 2000   Decided November 14, 2000 

                           No. 99-1435

                   Lee's Summit, Missouri and 
                       Raytown, Missouri, 
                           Petitioners

                                v.

                Surface Transportation Board and 
                    United States of America,
                           Respondents

               Missouri Central Railroad Company, 
                            Intervenor

             On Petition for Review of Orders of the 
                   Surface Transportation Board

     Steven J. Kalish argued the cause and filed the briefs for 
petitioners.

     Evelyn G. Kitay, Attorney, Surface Transportation Board, 
argued the cause for respondents.  With her on the brief 
were Ellen D. Hanson, General Counsel, and M. Alice Thur- ston, Attorney, U.S. Department of Justice.  Evelyn S. Ying, 
Attorney, entered an appearance.

     Stuart F. Pierson and David C. Reeves were on the brief 
for intervenor.

     Daniel A. LaKemper was on the joint brief of amici curiae 
Keokuk Junction Railway Co. and Arkansas-Oklahoma Rail- road, Inc.

     Before:  Ginsburg, Randolph, and Tatel, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Randolph.

     Randolph, Circuit Judge:  This is a joint petition for review 
of orders of the Surface Transportation Board authorizing the 
restoration of service over, and trackage rights to operate on, 
an existing but unused 278 mile railroad line in Missouri.  
Petitioners, the cities of Lee's Summit and Raytown, contend 
that the Board erred in deciding that its regulations required 
no environmental review under the National Environmental 
Policy Act (NEPA), 42 U.S.C. s 4321, et seq.1

                                I.

     In December of 1997, GRC Holdings Corporation filed a 
notice with the Board to acquire from the Union Pacific 
Railroad Company a railroad line and associated real proper- ty.  The line runs from the eastern border of Missouri to the 
city of Pleasant Hill near the western border of the state.  
GRC announced its intention to retain the real property not 
needed for rail operations and to convey the line to the 
Missouri Central Railroad Company.  Missouri Central filed 
a Notice of Exemption, indicating that it intended to acquire 
the line from GRC, and to obtain trackage rights from Union 
Pacific to operate over additional segments at the line's 
eastern and western ends.  GRC and Missouri Central sought 

__________
     1 The cities do not challenge the validity of the regulations.

to avoid full Board review of the transaction, claiming an 
exemption under 49 U.S.C. s 10502.

     The cities of Lee's Summit and Raytown are located on the 
24.8 mile segment at the western end, with respect to which 
Missouri Central proposed obtaining trackage rights from 
Union Pacific.  The cities petitioned the Board to reject 
GRC's and Missouri Central's claim for exemption.  Of the 
arguments the cities raised, only one is before us--namely, 
that the Board's regulations obligated it to perform an envi- ronmental assessment of the transaction.

     The regulations require such an assessment when the 
acquisition of a segment of rail or the construction of track 
results in "either ... an increase in rail traffic of at least 100 
percent (measured in gross ton miles annually) or an increase 
of at least eight trains a day on any segment of rail line 
affected by the proposal."  49 C.F.R. s 1105.7(e)(5)(i)(A).  An 
environmental assessment is also required when an acquisi- tion results in "[a]n increase in railyard activity of at least 100 
percent (measured by carload activity)."  49 C.F.R. 
s 1105.7(e)(5)(i)(B).

     Much of the Missouri line had not been used since 1979, 
although it had never been formally abandoned.  The cities 
argued that the increase in rail traffic from the present level 
of zero to the levels proposed by the transaction--two trains 
a day five days per week--constituted at least a 100 percent 
increase in gross annual tons and therefore compelled an 
environmental assessment.  The Board denied the cities' 
petition.  Missouri Central Railroad Company-Acquisition 
and Operation Exemption-Lines of the Union Pacific Rail- road Company, S.B. Finance Docket No. 33508;  GRC Hold- ings Corporation-Acquisition Exemption-Union Pacific 
Railroad Company, STB Finance Docket No. 33537 at 6 
(STB served Apr. 30, 1998) ("1998 Decision").  As the Board 
saw it, when "a line currently carries no traffic, any resump- tion of service, no matter how small, represents an increase 
mathematically of infinite magnitude."  Id. at 7.  The Board 
therefore turned to the alternative measurement of eight 
trains per day, drawing an analogy to transactions in which 

carriers reinstate service on abandoned lines.  For aban- doned lines an environment assessment is required only when 
the restored operations amount to eight trains per day.  Id. 
(citing 49 C.F.R. s 1105.7(e)(5)(i)(C)).  Thus, "reading the 
regulations as a whole," the Board declined to order an 
assessment.

     On their petition for reconsideration, the cities offered an 
additional argument:  Missouri Central's planned rail car 
interchange at Pleasant Hill, at the beginning of the western 
"trackage rights" segment, required an environmental assess- ment because the facility constituted a "rail yard" and the 
activity there would increase at least 100 percent.  Without 
deciding whether the Pleasant Hill facility constituted a "rail 
yard," the Board ruled again that it would be "inappropriate 
to apply a percentage increase to a base of zero."

                               II.

     When there is doubt about a party's constitutional stand- ing, the court must resolve the doubt, sua sponte if need be.  
See Steel Co. v. Citizens for a Better Environment, 523 U.S. 
83 (1998);  National Ass'n of Reversionary Property Owners 
v. Surface Transp. Bd., 158 F.3d 135, 141 n.12 (D.C. Cir. 
1998).  Here the cities' Article III standing is unclear be- cause, under the Board's regulation (49 C.F.R. s 1105.6(c)(4)), 
the acquisition of trackage rights can never trigger a manda- tory environmental assessment, and yet the cities are located 
on the western "trackage" portion of the line.  This suggests 
that the cities were not injured or perhaps could not get 
redress.  If the Board had ordered an environmental evalua- tion, one might assume that it would have dealt only with the 
portion of the line to the east of the cities;  hence the effect of 
the increased rail traffic in the cities' vicinity would not have 
been evaluated in any event.  Oral argument brought some 
new information to light.  We learned from Board counsel 
that if an environmental assessment is required for one 
portion of a line, the Board's practice is to conduct the 
assessment for the entire transaction, which in this case 
would include the line running near the cities.  For this 

reason we are satisfied that the cities have demonstrated the 
requisite "injury in fact" "fairly traceable" to the Board that 
can be "redressed by a favorable decision."  Lujan v. Defend- ers of Wildlife, 504 U.S. 555, 560-61 (1992).  The Board, we 
should add, agrees that the cities have standing.

                               III.

     On the merits, the main issue is whether the Board improp- erly disregarded the part of its regulation demanding an 
environmental assessment whenever the acquisition of rail 
line would result in "an increase in rail traffic of at least 100 
percent (measured in gross ton miles annually)."  49 C.F.R. 
s 1105.7(e)(5)(i)(A).  The cities believe that an increase from 
zero tonnage to whatever gross tonnage is represented by 520 
trains per year (10 per week) equals an "increase in rail 
traffic of at least 100 percent."  How the cities calculate this 
is a mystery.  The regulation asks the question:  what is the 
percentage increase on the acquired line?  Suppose there 
were 100 tons per year before the acquisition and 200 tons 
afterwards.  One does not have to be a Richard Feynman to 
figure out that 200 tons is 100% greater than 100 tons.  The 
formula 100 x (a / b) yields the percentage, when a equals 
the post-acquisition increase in tonnage (100 tons) and b 
equals the pre-acquisition tonnage (100 tons).  But there is 
trouble when b equals zero, as it does here.  Then there must 
be division by zero.  Yet as mathematicians know, "you can't 
legitimately divide by 0.  [Symbol not available electronically]  doesn't mean anything."  Robert Kaplan, The Nothing That Is 73 (1999);  see also Charles 
Seife, Zero 23 (2000) ("[d]ividing by zero destroys the entire 
framework of mathematics").2

     We may approach the problem differently by trying to 
calculate what percentage the post-acquisition traffic repre- __________
     2 For the reasons stated in the text, the Board also properly 
refused to require an assessment based on the increased activity at 
the Pleasant Hill exchange.  Even if the exchange were a "rail 
yard," the Board determined that its 100 percent standard could not 
be applied because pre-acquisition activity was zero.  See 49 C.F.R. 
s 1105.7(e)(5)(i)(B).

sents of the pre-acquisition traffic. Suppose 1 train equals 1 
ton.  The Missouri Central will run 10 trains per week on the 
line, 52 weeks per year.  What percentage of zero tons is 520 
tons?  Once again, as a matter of mathematics, the answer is 
problematic.  If one asked what is 5% of 100, multiplying .05 
x 100 yields 5.  But if we ask what is 5% of 0, the answer is 0.  
Zero multiplied by any number is zero.  So what is 100% of 
0?  Zero of course.  One might say, and this perhaps is what 
the cities have in mind, that since zero is 100% of zero, it 
follows that anything (any tonnage) greater than zero must 
trigger the assessment. But the Board had an additional good 
reason for not reading its regulation this way.  Another 
subsection of the regulation--49 C.F.R. s 1105.7(e)(5)(i)(C)-- provides that "[f]or a proposal ... to construct a new line or 
re-institute service over a previously abandoned line, only the 
eight train a day provision ... will apply."  All abandoned 
lines will, by definition, have had zero traffic.  The Board 
thought that the Missouri Central line was analogous;  it had 
been without traffic for nearly 20 years.  1998 Decision at 7;  
Missouri Central Railroad Company--Acquisition and Op- eration Exemption--Lines of Union Pacific Railroad Com- pany, STB Finance Docket No. 33508;  GRC Holdings Corpo- ration--An Acquisition Exemption--Union Pacific Railroad 
Company, STB Finance Docket No. 33537 at 2 (STB served 
Sept. 14, 1999).  Although the Board refused to find a "de 
facto" abandonment here, it did not have to ignore its aban- donment rule.  If the cities' argument were credited, any 
increase in traffic above zero would trigger an assessment;  
yet in the comparable situation of an abandoned line being 
reactivated, an assessment would be triggered only if the new 
traffic amounted to eight trains per day.  To maintain some 
consistency in its regulatory treatment of these closely analo- gous situations, the Board therefore decided to apply the 
eight-trains-per-day portion of the rule to this transaction.

     It is true that the Board's resolution is not perfect.  If on 
the same rail line involved in this case, there had been 1 train 
per day, five days per week (instead of zero traffic), the 
increased traffic after the acquisition would have required an 
environmental assessment because 2 trains per day over the 

same period (assuming equal weight) amounts to a 100% 
increase.  So an environmental assessment would be required 
for an increase of 1 train per day but not, as here, for an 
increase of 2 trains per day on the same line.  That, say the 
cities, is senseless.

     They have a point but so does the Board when it relies on 
the manner in which it treats abandoned lines.  There is, as 
we have indicated, no perfect solution to the problems posed 
by applying the 100% increase standard to a baseline of zero.  
In these circumstances, the Board's interpretation of its 
regulation is deserving of respect.  Application of the eight 
trains per day standard is not "plainly erroneous or inconsis- tent with the regulation."  United States v. Larionoff, 431 
U.S. 864, 872 (1976);  Bluestone Energy Design, Inc. v. 
FERC, 74 F.3d 1288, 1292 (D.C. Cir. 1996).3

     The petition for judicial review is denied. __________
     3 We reject the cities' claim that rehabilitation of the line will 
constitute construction of track and therefore trigger an assessment 
under a different regulation (49 C.F.R. s 1105.6(b)(1)).  Improve- ment of existing track does not constitute "construction," and does 
not even trigger Board jurisdiction under 49 U.S.C. s 1091.  City of 
Detroit v. Canadian Nat'l Ry., 9 I.C.C. 1208, 1215-17 (1993), aff'd 
sub nom. Detroit/Wayne County Port Auth. v. ICC, 59 F.3d 1314, 
1316-17 (D.C. Cir. 1995).