Chlorine Inst., Inc. v. Fed. R.R. Admin.

• Decision Date: 11 June 2013
• Docket Number: No. 12–1298.,12–1298.
• Citation: 718 F.3d 922
• Parties: CHLORINE INSTITUTE, INC., Petitioner v. FEDERAL RAILROAD ADMINISTRATION, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

718 F.3d 922

CHLORINE INSTITUTE, INC., Petitioner

v.FEDERAL RAILROAD ADMINISTRATION, et al., Respondents.

No. 12–1298.

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 2013.

Decided June 11, 2013.

On Petition for Review of a Final Rule of the Federal Railroad Administration.

Paul M. Donovan argued the cause for the petitioner.

Mark W. Pennak, Attorney, United States Department of Justice, argued the cause for the respondents. Stuart F. Delery, Principal Deputy Assistant Attorney General, Michael Jay Singer, Attorney, Paul M. Geier, Assistant General Counsel, United States Department of Transportation, Peter J. Plocki, Deputy Assistant General Counsel, and Christopher Perry and Rebecca S. Behravesh, Trial Attorneys, Federal Railroad Administration, were on brief.

Thomas H. Dupree Jr., Michael R. Huston, Louis P. Warchot and Michael J. Rush were on brief for amicus curiae Association of American Railroads in support of the respondents.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring Opinion filed by Circuit Judge KAVANAUGH.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The Chlorine Institute, Inc. (Institute) ¹ challenges the final rule promulgated by the Federal Railroad Administration (FRA) to implement section 104 of the Rail Safety Improvement Act of 2008(Act), which requires that a qualifying rail carrier submit an implementation plan to install a “positive train control” (PTC) system ² no later than December 31, 2015 on certain tracks used for passenger service or for transporting “poison- or toxic-by-inhalation” hazardous material (PIH or TIH), such as chlorine, Pub.L. No. 110–432 § 104(a)(1), 122 Stat. 4848, 4857 (Oct. 16, 2008) ( 49 U.S.C. § 20157(a)(1)). Positive Train Control Systems (RRR), 77 Fed.Reg. 28,285 (May 14, 2012) (2012 Final Rule). The 2012 Final Rule establishes 2008 as the baseline year for determining whether tracks carry passengers or PIH so as to require PTC—subject to an exclusion/removal exception for segments that will no longer carry such traffic as of the December 31, 2015 implementation deadline. The Institute challenges as arbitrary and capricious and contrary to congressional intent FRA's decision to omit from the 2012 Final Rule a two-part risk assessment test a carrier had been required to meet to qualify for exclusion/removal under two previous PTC rules. Because the Institute has not established that its members now face a present or imminent injury from the 2012 Final Rule's omission, we conclude its challenge is not ripe.

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 “[i]mplementation 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 ³ and any entity providing regularly scheduled intercity or commuter rail passenger transportation develop and submit to the Department of Transportation a plan for implementing a positive train control system by December 31, 2015, governing operations on—

(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).⁴Section 104 further (1) authorizes the Secretary to “provide technical assistance and guidance to railroad carriers in developing the [required PTC] plans,” (2) requires the Secretary to conduct an annual review to ensure the carriers' compliance therewith and to report to the Congress no later than December 31, 2012 on the carriers' progress and (3) authorizes the Secretary to assess civil penalties for violating any of section 20157's provisions. Id. § 20157(b)- (e). In addition, section 104(g) vests the Secretary with broad implementation authority:

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).⁵ Accordingly, in July 2009, FRA issued a notice of proposed rulemaking to implement the mandate. Positive Train Control Systems, 74 Fed.Reg. 35,950 (July 21, 2009).

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]xclusion 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)(i) (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)(i) (2010), superseded by49 C.F.R. § 236.1020 (effective Nov. 26, 2010)).⁶

Finally, the January 2010 Final Rule warned:

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)(1–3) (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 cost to the railroads on lines that will not carry PIH materials traffic as of December 31, 2015.” Id. at 28,298. Accordingly, under the 2012 Final Rule, an exclusion/removal request is approved upon a showing that, as of December 31, 2015, there will be no passenger service or PIH traffic on the tracks. Id. at 28,305 (codified at 49 C.F.R. § 236.1005(b)(...