Vill. of Barrington v. Surface Transp. Bd.
| Decision Date | 11 June 2018 |
| Docket Number | No. 17-3586,17-3586 |
| Citation | 892 F.3d 252 |
| Parties | VILLAGE OF BARRINGTON, ILLINOIS, Petitioner, v. SURFACE TRANSPORTATION BOARD, et al., Respondents, and Canadian National Railway Company, et al., Intervening Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard Henry Streeter, Attorney, Law Office of Richard H. Streeter, Washington, for Petitioner.
Barbara A. Miller, Attorney, Theodore Leonard Hunt, Attorney, Surface Transportation Board, Office of the General Counsel, Washington, for Respondent Surface Transportation Board.
Mary Gabrielle Sprague, Attorney, Department Of Justice, Environment & Natural Resources Division, Washington, for Respondent.
David Hirsh, Attorney, Dentons US LLP, Washington, for Intervenors.
Before Flaum and Ripple, Circuit Judges, and Gettleman, District Judge.*
In 2007, Canadian National Railway Company ("CN") sought approval from the Surface Transportation Board (the "Board") of its acquisition of control of the Elgin, Joliet, and Eastern Railway Company ("EJ & E") rail line near Chicago. As part of its review, the Board considered the impact of the acquisition on 112 railroad crossings throughout the Chicagoland area, including the intersection at U.S. Highway 14 ("U.S. 14") in the Village of Barrington (the "Village"). Crossings projected to be "substantially affected" by the acquisition were eligible for mitigation measures imposed by the Board as a condition to its approval, up to and including grade separation between the roadway and rail line. The Board approved CN's acquisition in 2008, but determined that U.S. 14 would neither be substantially affected nor warrant a grade separation. The Village unsuccessfully petitioned the Board to reopen its decision in 2011 and 2014. It failed for a third time in 2017, and now appeals the Board's most recent denial. Because the Village does not present new evidence or substantially changed circumstances that mandate a different result, we deny the petition for review.
CN is one of Canada's two major railroads, extending from Halifax, Nova Scotia on the Atlantic coast to Vancouver and Prince Rupert, British Columbia on the Pacific. Through its Grand Trunk Corporation subsidiary, the company also controls numerous rail carriers in the United States. Its American railway system extends north/south from Chicago to the Gulf Coast, and east/west from Pennsylvania to Minnesota.
EJ & E West Company ("EJ & EW") is a wholly owned, noncarrier subsidiary of EJ & E. The EJ & E rail line, located in northeastern Illinois and northwestern Indiana, encompasses a 120-mile arc of mainline track around Chicago.
Beginning in the 1990s, the EJ & E line became a means for freight moving through Chicago to avoid railway congestion in the center of the city. Notably, Chicago is the only city in the United States where all seven Class I railroads (railroads with annual operating revenues of $250 million or more) operate. According to the Board, "one third of all rail freight in the United States moves to, from, or through Chicago," including more than 600 freight trains each day. "Converging in the Chicago Terminal District—a 2,800 mile rail network containing 70 train yards and terminals—these freight trains compete for track and yard space with each other and with over 750 commuter trains and 78 Amtrak trains per day, which together serve over 84 million passengers a year." Vill. of Barrington v. STB , 636 F.3d 650, 652 (D.C. Cir. 2011) [hereinafter Barrington I ]. "The resulting congestion slows freight traffic to a crawl." Id.
In 2007, CN sought acquisition of control of EJ & EW in order to move a majority of its Chicago rail traffic to the EJ & E line. At the time, CN's rail network "converge[d] on the city like the spokes of a wheel ... meet[ing] in the heart of the Chicago Terminal District." Id. As a result, trains passing through the city were forced to "contend with the city's congestion," which often turned the thirty-mile journey into a twenty-four hour endeavor. Id. The EJ & E line, however, cut across CN's existing rail lines, thus allowing trains the opportunity to by-pass the city center.
Under federal law, the Board "has authority to regulate the construction, operation, and abandonment of most railroad lines in the United States," Caldwell v. United States , 391 F.3d 1226, 1228 (Fed. Cir. 2004), including the "[a]cquisition of control of a rail carrier by any number of rail carriers." 49 U.S.C. § 11323(a)(3).1 The Board must approve and authorize any transaction "consistent with the public interest," but may nonetheless "impose conditions governing the transaction." Id. § 11324(c). CN applied for Board approval on October 30, 2007.
Many roadways that intersect the EJ & E line are important to regional mobility. At the time of the proposed acquisition, "nearly 340,000 people live[d] in close proximity to the EJ & E line," and "73% of road crossings lack[ed] bridges over the tracks." Barrington I , 636 F.3d at 653. Consequently, the Board conducted an environmental review in accordance with the National Environmental Policy Act ("NEPA"),2 42 U.S.C. §§ 4321 – 4370m-12.
The Board's Office of Environmental Analysis ("OEA")3 prepared an Environmental Impact Statement ("EIS") examining 112 crossings along the EJ & E rail line, including the intersection at U.S. 14 in Barrington. It "studied how increased freight traffic would worsen traffic congestion, increase the risk of collisions, slow emergency responders, and increase the likelihood of hazardous material spills in communities along the rail line." Barrington I , 636 F.3d at 668. In the course of preparing the EIS, OEA "publish[ed] notices in the Federal Register and ads in local news-papers, [held] twenty-two public meetings attended by over 7200 people, consult[ed] with local, state, and federal agencies and officials, publish[ed] for comment a 3500 page draft environmental impact statement, [and held] a sixty day comment period on that draft," during which it received over 13,500 comments. Id. at 653.
Substantially affected crossings were eligible for the imposition of mitigation measures as a condition to the Board's approval. Possible mitigation measures included: traffic advisory signs that notified drivers to stay clear of intersections; roadway modifications (such as widening); and, most relevant here, grade separation between the roadway and rail line. Critically, however, a substantially affected crossing did not automatically warrant mitigation. Rather, in determining what (if any) measures would be appropriate, OEA considered "the individual characteristics of each highway/rail at-grade crossing site." These factors included, inter alia , "the importance of the highway at the crossing to regional traffic flows, existing congestion, existing structures (such as mature trees and local roadways) near the highway/rail at-grade intersection, and the cost of a grade separation."
To determine whether a crossing would be substantially affected by the acquisition, OEA studied impacts on traffic congestion by examining rail and vehicle projections for 2015.4 Specifically, OEA examined three data "thresholds."5 The first was the crossing level of service ("LOS"), a measure of how freely traffic moves at a crossing. The LOS at a particular crossing was characterized by a letter from A through F, with "LOS A" indicating relatively free-flowing traffic and "LOS F" indicating extreme congestion. A crossing was declared substantially affected if it would be classified as LOS E or F as a result of the acquisition. Second, OEA examined effects on vehicle queue length, or how far traffic backs up when a train passes. Crossings were deemed substantially affected where acquisition-related queues were projected to block a major thoroughfare that would not otherwise be obstructed. Finally, OEA analyzed the total length of delay for all vehicles stopped at a crossing. Crossings expected to experience more than forty hours of acquisition-related vehicle delay in a twenty-four hour period were considered substantially affected.
OEA's draft EIS projected that if the acquisition were approved, 20.3 CN trains would travel across the Barrington segment of the EJ & E line each day by 2015, with an average length of 6,829 feet and speed of 40 miles per hour. OEA further concluded that U.S. 14 did not exceed any of the three thresholds for substantially affected crossings. In particular, it determined that, as a result of the acquisition, the intersection would: (1) remain at LOS A; (2) not experience queues that blocked a major thoroughfare (although average queue lengths were expected to increase from 558 to 1,048 feet); and (3) encounter only 31.78 hours of daily acquisition-related vehicle delay (compared to 2.49 hours if no CN trains were added).
In response to the draft EIS, the Village conducted its own independent "VISSIM"6 study using a different methodology than the EIS. The Village claimed that its VISSIM model calculated 135–249 hours of daily acquisition-related vehicle delay at U.S. 14, an amount substantially higher than the draft EIS forecast and above the forty-hour threshold established for substantially affected crossings.
To address the Village's study, the Board performed an additional VISSIM traffic analysis specifically focused on the Barrington area, referred to as the Village of Barrington Traffic Operational Analysis (the "VOBTOA Study"). The VOBTOA Study concluded that during morning and evening peak periods, overall vehicle delay in the Barrington region would increase by 4% and 5%, respectively. It also found, however, that "the major source of congestion" was not the proposed acquisition, but rather "excess vehicle demand at existing major thoroughfare intersections," which "backs up traffic into significant queues." As a result, it determined that "construction...
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