Mayo Foundation v. Surface Transp. Bd.
| Citation | 472 F.3d 545 |
| Decision Date | 28 December 2006 |
| Docket Number | No. 06-2047.,No. 06-2031.,No. 06-2048.,No. 06-2032.,06-2031.,06-2032.,06-2047.,06-2048. |
| Parties | MAYO FOUNDATION, Petitioner, v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents, Edison Electric Institute; Western Coal Traffic League; National Rural Electric Cooperative Association; City of Highmore, SD; City of Huron, SD; City of Wolsey, SD; City of Philip, SD; City of Desmet, SD; City of Miller, SD; City of Wall, SD; City of Midland, SD; City of Pierre; City of Ree Heights, SD; Greater Huron Development Corporation; Wall Economic Development Committee; On Hand Development Corporation; South Dakota Chamber of Commerce & Industry; Farmers Union COOP Elevator Highmore, SD; Farmers Union COOP Elevator Kennebec, SD; South Dakota Soybean Processors; Urethane Soy Systems Company; OAHE Grain Corporation; South Dakota Association of Cooperatives; South Dakota Farmers Union; South Dakota Grain and Feed Association; South Dakota Wheat Incorporated; Yale Farmers COOP; South Dakota Corn Growers Association; South Dakota Farm Bureau; South Dakota Wheatgrowers Association; North Central Farmers Elevator; Dakota AG COOP; Lake Preston Cooperative Elevator; Dakotaland Feeds LLC; AGFirst Farmers COOP; City of Springfield, MN; City of Balaton, MN; City of Lewiston, MN; City of Stockton, MN; City of Cobden, MN; City of Dover, MN; City of Sanborn, MN; City of Tracy, MN; City of Lake Benton, MN; Minnesota Soybean Processors; Minnesota Grain & Feed Association; Midwest Shippers Association; Minnesota Agri-Growth Council; Winona County; Winona River and Rail, Inc.; Southern Grainbelt Shippers Association; Farmers COOP Hanska, MN; Harvest Land Cooperative; Minnesota Farmers Union; Minnesota Farm Bureau Federation; City of Eyota, MN, Intervenors on Appeal. City of Rochester, Petitioner, v. Surface Transportation Board; United States of America, Respondents, Edison Electric Institute; Western Coal Traffic League; National Rural Electric Cooperative Association; Edison Electric Institute; Western Coal Traffic League; National Rural Electric Cooperative Association; City of Highmore, SD; City of Huron, SD; City of Wolsey, SD; City of Philip, SD; City of Desmet, SD; City of Miller, SD; City of Wall, SD; City of Midland, SD; City of Pierre, SD; City of Ree Heights, SD; Greater Huron Development Corporation; Wall Economic Development Committee; On Hand Development Corporation; South Dakota Chamber of Commerce & Industry; Farmers Union COOP Elevator Highmore, SD; Farmers Union COOP Elevator Kennebec, SD; South Dakota Soybean Processors; Urethane Soy Systems Company; OAHE Grain Corporation; South Dakota Association of Cooperatives; South Dakota Farmers Union; South Dakota Grain and Feed Association; South Dakota Wheat Incorporated; Yale Farmers COOP; South Dakota Corn Growers Association; South Dakota Farm Bureau; South Dakota Wheatgrowers Association; North Central Farmers Elevator; Dakota AG COOP; Lake Preston Cooperative Elevator; Dakotaland Feeds LLC; AGFirst Farmers COOP; City of Springfield, MN; City of Balaton, MN; City of Lewiston, MN; City of Stockton; City of Cobden, MN; City of Dover; City of Sanborn; City of Tracy; City of Lake Benton; Minnesota Soybean Processors; Minnesota Grain & Feed Association; Midwest Shippers Association; Minnesota Agri-Growth Council; Winona County Farm Bureau; Winona River and Rail, Inc.; Southern Grainbelt Shippers Association; Farmers COOP Hanska, MN; Harvest Land Cooperative; Minnesota Farmers Union; MN Farm Bureau; City of Eyota, MN, Intervenors on Appeal. Sierra Club; Mid States Coalition for Progress, Petitioners, v. Surface Transportation Board; United States of America, Respondents. Olmsted County, Petitioner, v. Surface Transportation Board; United States of America, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Keith G. O'Brien, argued, Rea & Cross, Washington, DC, for Petitioner, Mayo Foundation in No. 06-2031.
Steven J. Kalish, argued, Washington, DC, for Petitioners City of Rochester in No. 06-2032.
James B. Dougherty, argued, Washington, DC, for Petitioners Mid States Coalition and Sierra Club in No. 06-2047.
Sanne Hjarno Knudsen, argued, Minneapolis, MN, for Petitioner Olmsted County.
Michael Flynn McBride, argued, Leboeuf & Lamb, Washington, DC, for Intervenor-Respondents Edison Electric Institute, Nat. Rural Elec. Co-op Assoc., and Western Coal Traffic League.
Brian James Donahoe, argued, Cutler & Donahoe, Sioux Falls, SD, for Intervenor-Respondents, Dakota, Minnesota & Eastern R.R. Corp.
Evelyn G. Kitay, argued, Washington, DC, for Respondents Surface Transp. Bd.
Before BYE, ARNOLD, and RILEY, Circuit Judges.
The petitioners challenge the decision of the Surface Transportation Board, which, after considering the issues that we remanded to it in Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir.2003), and certain other issues, again approved a proposal of the Dakota, Minnesota & Eastern Railroad Corporation (DM & E) to construct approximately 280 miles of new rail line to reach the coal mines of Wyoming's Powder River Basin (PRB) and to upgrade nearly 600 miles of existing rail line in Minnesota and South Dakota. The petitioners contend that in giving its approval the Board violated 49 U.S.C. § 10901 and the National Environmental Policy Act (NEPA), see 42 U.S.C. §§ 4321-4347. We deny the petition.
DM & E is required to obtain approval from the Board before constructing the new rail line. See 49 U.S.C. § 10901. Because granting such approval is "a major Federal action[ ] significantly affecting the quality of the human environment," NEPA requires the Board to evaluate the environmental impact of the project. 42 U.S.C. § 4332(2)(C). The Board therefore prepared both a draft environmental impact statement (DEIS) and a final environmental impact statement (FEIS) examining the environmental effects of the proposal, and after imposing 147 conditions designed to mitigate the project's environmentally adverse effects (pursuant to its authority under 49 U.S.C. § 10901(c)), the Board approved the project in 2002.
We reversed the Board's approval of the project for failure to comply with NEPA and remanded the case to the Board. As relevant here, we directed the Board to give further consideration to its decision not to impose mitigating conditions for horn noise (as distinct from wayside noise) and to consider the expected environmental effects of increased coal consumption due to the availability of shorter and cheaper rail routes for PRB coal distribution. Mid States, 345 F.3d at 532, 536, 550. Petitioners do not challenge the Board's disposition of the other remanded issues.
On remand, the Board issued a draft supplemental environmental impact statement (DSEIS), and after receiving comments to the DSEIS, it issued a final supplemental environmental impact statement (FSEIS). The Board thereafter approved the DM & E project based on the analysis in the DSEIS and the FSEIS, specifically addressing the remanded issues as well as additional issues raised during the supplemental environmental review. The Board reimposed the 147 mitigating conditions that it initially imposed in its 2002 approval, modifying one of the conditions to require DM & E community liaisons to assist communities or other entities interested in establishing and funding quiet zones (zones in which horn noise is eliminated).
Relatedly, after the Board's initial approval of the construction project in 2002, it separately approved DM & E's acquisition of over 1,000 miles of existing rail line in Minnesota, Iowa, Kansas, Missouri, Wisconsin, and Illinois from I & M Rail Link (IMRL), with which DM & E has a connection at Owatonna, Minnesota. As discussed below, petitioners raise this addition to DM & E's rail lines as an alternative routing to the contested route through Rochester, Minnesota (the Rochester route connects to points east at Winona, on Minnesota's eastern border).
The Administrative Procedure Act governs our review of the Board's compliance with NEPA, and requires us to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
In reviewing the Board's decision, we keep in mind that NEPA requires the Board to "take a hard look at the environmental consequences" of a major federal action before approving such action. Baltimore Gas & Elec. Co. v. Natural Res Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotations marks and citation omitted). As we remarked in Mid States, "[o]ur role in the NEPA process `is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.'" Mid States, 345 F.3d at 534 (quoting Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. 2246).
We turn first to the argument raised by the Mayo Foundation, the City of Rochester, and Olmsted County, that DM & E's acquisition of IMRL constitutes "significant new circumstances" that should give rise to the consideration of this new line as an alternative to routing trains through Rochester, see 40 C.F.R. §§ 1502.9(c)(1)(ii), 1502.14. The Board disagreed, stating that "it was not necessary to delay the SEIS to include consideration of the impacts of the IMRL acquisition ... The IMRL acquisition and the DM & E construction project are separate and distinct, and each has its own utility and benefit." Dakota, Minn. & Eastern R.R. Corp.Constr. into the Powder River Basin, STB Finance Docket No. 33407 at 19, 2006 WL 383507, at * 14 (STB served Feb. 15, 2006) (hereafter STB 2006 Decision).
The Board is required to consider all "reasonable" alternatives. See 40 C.F.R. § 1502.14(a). It is not required, however, to consider alternatives that would...
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