Tuesday, January 3, 2012

Northern Plains Resources v. The Surface Transportation Bd.

Dec 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 97-70037, 97-70099, and 97-70217. On Petition for Review of Orders of the Surface Transportation Board, Department of Transportation.
    The Appeals Court indicates that the case arises out of three applications by the Tongue River Railroad Company, Inc. (TRRC) to build a 130-mile railroad line in Southeastern Montana to haul coal. The Surface Transportation Board (Board), or its predecessor, the Interstate Commerce Commission (ICC), approved each of the three applications (individually, TRRC I, II, and III). Northern Plains Resource Council, Inc. (NPRC), Mark Fix, the City of Forsyth, Native Action, Inc. (Native Action), and United Transportation Union-General Committee of Adjustment (UTU-GCA) (collectively, Petitioners) challenge TRRC II and III. Petitioners challenge the approval of TRRC II and III on a number of environmental and public convenience and necessity grounds.
    The Appeals Court said, "We hold that the Board failed to take the requisite 'hard look' at certain material environmental impacts inherent in TRRC II and III in the manner required by the National Environmental Policy Act (NEPA) prior to approving those applications. We further hold that the Board did not err in its public convenience and necessity analyses, except with respect to its reliance on the viability of TRRC II during the approval of TRRC III. Accordingly, we reverse and remand in part, and affirm in part."
    The Appeals Court indicates that, "Petitioners contend that the Board's cumulative impact analysis in TRRC III ignores the combined impacts of future coal bed methane (CBM) well development and coal mining projects that will also come into being in Southeastern Montana. Petitioners further contend that the Board failed to account for the combined effects of the referenced projects and the likely effects on air quality, wildlife, and water quality of the proposed construction and operation of the TRRC railroad. We agree with Petitioners' contentions concerning the cumulative foreseeable effects of CBM wells and the Otter Creek Coal Mine. . . we hold that the Board arbitrarily and capriciously relied on the five-year time frame, which resulted in a faulty analysis of the possible cumulative impacts from reasonably foreseeable CBM projects that could overlap construction of the railroad line." On other issues the Appeals Court ruled in favor of the Board.
    Access the complete opinion (click here). [#Transport, #Land, #CA9]

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