United Transp. Union- Il. v. Surface Transp. Bd.

• Decision Date: 20 September 1999
• Docket Number: No. 98-3412,98-3412
• Citation: 183 F.3d 606
• Parties: (7th Cir. 1999) UNITED TRANSPORTATION UNION- ILLINOIS LEGISLATIVE BOARD, Petitioner, v. SURFACE TRANSPORTATION BOARD and UNITED STATES OF AMERICA, Respondents
• Court: U.S. Court of Appeals — Seventh Circuit

Page 606

183 F.3d 606 (7th Cir. 1999)

UNITED TRANSPORTATION UNION- ILLINOIS LEGISLATIVE BOARD, Petitioner, v. SURFACE TRANSPORTATION BOARD and UNITED STATES OF AMERICA, Respondents.

No. 98-3412

United States Court of Appeals, Seventh Circuit

Argued May 12, 1999

Decided June 29, 1999

Rehearing Denied September 20, 1999

On Petition for Review of Orders of the Surface Transportation Board. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before COFFEY, RIPPLE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

The United Transportation Union-Illinois Legislative Board (the "Union") challenges several determinations of the Surface Transportation Board (the "Board") as to whether Effingham Railroad Company ("Effingham Railroad") required Board authorization to operate various sections of track in and near an industrial park in Effingham, Illinois. The Board, for its part, contends that the Union lacks standing to sue and defends its own determinations. We hold that the Union has standing, but we deny the Union's petition for review because, under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the determinations of the Board were based on a reasonable agency interpretation of the applicable statutes.

I.

The City of Effingham, Illinois, is served by the Illinois Central Railroad ("Illinois Central") and Consolidated Rail Corporation ("Conrail"). In November 1996, Effingham Railroad, a new carrier which had not yet begun operations, proposed to the Board (in its "Proposal I") to operate approximately 206.05 feet of existing track, which it intended to acquire from Agracel Corporation ("Agracel"). This existing track was part of a 490-foot track (called "the beer track" because it was used to transfer beer from rail cars to trucks) connected to Conrail's line. Effingham Railroad also proposed to construct 9,835 feet of new track within the industrial park. Ready-Mix, an existing shipper located in the industrial park, and which apparently did not have rail service, would be served by 1,867 feet of this new track. This track would also serve new shippers that might locate in the industrial park.

Normally provision of rail service as part of the interstate rail network, 49 U.S.C. sec. 10501(a)(2), including construction, acquisition, or operation of extended or additional "railroad line[ ]," requires authorization from the Board, see 49 U.S.C. sec. 10901, unless the transaction is exempted from Board regulatory requirements under recent deregulatory initiatives. See 49 U.S.C. sec. 10502 and 49 C.F.R. sec. 1150.31(a). However, Board authorization is not required for the construction, acquisition, or operation of "spur, industrial, team, switching, or side track[ ]" (hereinafter "spur" track). 49 U.S.C. sec. 10906 (providing an exception to Board authority under sec. 10901).¹

Effingham Railroad asked the Board for a declaratory order that the Board lacked "jurisdiction" under the sec. 10906 spur track exception over the new and existing track it proposed to operate within the industrial park. Alleging union employee safety and environmental concerns, the Union opposed Effingham Railroad's petition. The proposed construction, the Union argued, was railroad line under sec. 10901, requiring Board authorization or exemption. In opposing the petition, the Union did not address the classification of the "beer track" segment. The Board rejected Effingham Railroad's petition in an order of September 8, 1997 ("Decision I"), treating all the track discussed in the petition as sec. 10901 railroad line and instructing Effingham Railroad to file an application for authorization or a notice of exemption. The Union then petitioned the Board to reconsider its determination that the "beer track" segment in particular was railroad line, arguing that this segment was properly classified as spur and also that the Board should simply have declined to issue a declaratory order and refrained from making any determination about the status of the track. This petition was denied.

A few weeks later in September 1997, Effingham Railroad filed the appropriate notices seeking an exemption for operation of railroad line pursuant to 49 C.F.R sec. 1150.31(a). Such exemptions are available and effective automatically seven days after filing, see id. sec. 1150.41 et seq., although they are subject to revocation upon a proper showing that regulation of the track is necessary to carry out federal rail transportation policy. See 49 U.S.C. sec. 10502(d). By the time of this new filing, Effingham Railroad's proposal had changed. According to its Proposal II, Effingham Railroad would now operate the 206.05-foot segment of the "beer track" under a lease or operating agreement from Agracel instead of purchasing that track. It would also operate a longer segment of new track under sidetrack agreements with Total Quality Warehouse ("TQW"), a noncarrier shipper that would construct and own the track. Effingham Railroad and TQW are distinct and, apart from the arrangement just described, unrelated enterprises. The new track to be constructed by TQW would now comprise two segments: (1) 400 feet of sidetrack (the "warehouse track") connecting with the beer track, serving a new facility to be built by TQW, which had an existing facility on the beer track, and (2) 9,210 feet of sidetrack (the "long track") connecting Effingham Railroad with Illinois Central. No one requested Board authorization or filed any notice of exemption for the construction of the long track.

In September and December 1997, the Union filed petitions to "reject, revoke, or stay" Effingham Railroad's exemptions and for reconsideration of Decision I. The Union argued that: (1) the beer track should be classified as excepted spur track; (2) Decision I required that the warehouse track should be classified as railroad line; and (3) the exemption for operation of the long track, undisputedly classified as railroad line, should be withheld because its construction by TQW was a device to circumvent the normal requirement of environmental analysis for such construction. In an order of September 18, 1998 ("Decision II"), however, the Board reaffirmed its determination in Decision I that the beer line was sec. 10901 railroad line requiring authorization or exemption and further determined that the warehouse track was sec. 10906 spur track excepted from Board authority. Finally, the Board found that the long track was railroad line and declined to revoke Effingham Railroad's exemption for that track. This appeal followed.

II.

The Board argues that the Union's petition should be dismissed for lack of standing because the Union failed to show the actual or imminent, concrete and particularized injury, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), which is the first prong of the Article III requirements for standing to sue in federal court.² But the Union argues that its members risk losing their jobs by virtue of the Board's decisions, and we have held that "this injury satisfies all three prongs of the Article III standing requirement." Simmons v Interstate Commerce Comm'n, 900 F.2d 1023, 1026 (7th Cir. 1989). We have indeed also held that the Union's interest in preserving jobs in the context of federal railway law fails our prudential, nonconstitutional standing requirements on the grounds that it is not within the "zone of interest"³ of the old Interstate Commerce Act, 49 U.S.C. sec. 10101 et seq., because the statute does not mention a worker's interest in his or her job, see Simmons, 909 F.2d at 190, although we have not decided whether this holding survives the Interstate Commerce Commission ("ICC") Termination Act of 1995, Pub.L. 104-88, 109 Stat. 803, 941. Because the Board does not raise the issue of prudential standing, however, it has waived any argument based on that doctrine. See Lindley for Lindley v. Sullivan, 889 F.2d 124, 129 (7th Cir. 1989); MacLauchlan v. Prudential Ins. Co., 970 F.2d 357, 359 (7th Cir. 1992). The Union has standing here to sue on the basis of job loss.⁴

In any event, the environmental concerns raised by the Union about health and safety risks posed to its members by the construction of the warehouse track and the long track are sufficient to establish Union standing. All three Article III standing requirements are satisfied: (1) the risk of environmental injury to employees (2) caused by railroad construction and operation is both obvious and acknowledged by the Board's own regulations, see 49 C.F.R. sec. 1105.6 (requiring Environmental Impact Statement for certain railroad construction), and (3) the requested remedy is essential to redressing the harm alleged. The prudential requirements are satisfied, since the governing statute expressly makes it federal rail transportation policy "to encourage . . . safe and suitable working conditions in the railroad industry," 49 U.S.C. sec. 10101(11). Unionized railroad employees who have health and safety concerns about the environment at work are within the zone of protection of sec. 10901 because they are among the chief intended beneficiaries of the federal rail transportation policy under sec. 10101.

The Board further disputes whether environmental concerns are germane to the Union's purpose,⁵ but it is difficult to see what might be more germane to the purpose of a union than protecting its members from environmental risks that could affect job-related health and safety. In labor relations, practices affecting safety, sanitation, and health are considered mandatory subjects of bargaining. See, e.g., Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280, 1286 (D.C. Cir. 1983) ("[F]ew policies and practices could be considered more central to an employee's working conditions than those relating to job safety."); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 222 (1964) (Stewart, J., concurring) (Safety...