Alaska Survival v. Surface Transp. Bd.

The Surface Transportation Board's ("STB") grant of an exemption under the Interstate Commerce Commission Termination Act ("ICCTA") to the Alaska Railroad Corporation ("ARRC") to build a rail line did not violate the National Environmental Protection Act of 1969 ("NEPA") or the Administrative Procedure Act ("APA") because STB "thought hard" when it adopted the purpose and need statement which addressed ARRC's goals; STB considered "reasonable" alternatives to the project; and STB engaged in "thoughtful discussion" when it assessed the mitigation measures that ARRC must employ in order to build the rail line.

The Alaska Railroad Corporation (“ARRC”) sought approval from the Surface Transportation Board (“STB”) to construct a rail line. STB’s Office of Environmental Analysis (“OEA”) prepared an Environmental Impact Statement (“EIS”), which acknowledged the rail line’s harmful environmental effects and suggested mitigation measures that the ARRC must employ. The STB adopted all of the OEA’s conclusions and permitted the ARRC to construct the rail line. Petitioner filed for review challenging STB’s decision. Under the Administrative Procedure Act (“APA”), the Ninth Circuit will uphold STB’s decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Petitioner challenged STB’s grant of an exemption to ARRC under § 10502(a) of the Interstate Commerce Commission Termination Act (“ICCTA”). STB can grant the exemption “if the project is either of limited scope or the full statutory proceedings are not necessary to protect shippers from abuse of market power.” STB only has to consider one of those factors. Therefore, STB “acted within its authority” and did not have to engage in analysis about the scope of the project, because it concluded that the project would not harm shippers. Petitioner also brought a claim under the National Environmental Protection Act of 1969 (“NEPA”), which requires agencies to take a “hard look” at environmental consequences, and consider “reasonable alternatives” that would “minimize adverse impacts.” The Ninth Circuit concluded that STB “thought hard about the appropriate factors” when it adopted a “purpose and need statement” that focused on ARRC’s goals. Furthermore, STB did not have to consider “an infinite range of alternatives.” It was sufficient that STB considered only the “reasonable or feasible” ones. Lastly, STB used proper methodology and engaged in “thoughtful discussion” when it assessed the mitigation measures ARRC must use when it builds the rail line. PETITION FOR REVIEW DENIED.