Federal Railroad Pre-Emption: Local Ordinances Don't Coveer Ancillary Construction
Federal law pre-empts state and local power to independently review the environmental impact and land-use consequences of construction projects dealing with railroads, the Ninth U.S. Circuit Court of Appeals has ruled.
A three-judge panel of the Ninth Circuit ruled that the King County, the City of Auburn, and several other local governments in the State of Washington can't undertake their own environmental review of the federal Surface Transportation Board's decision to permit reopening of the Stampede Pass railroad line. "State and local permitting laws regarding railroad operations are preempted by the plain language of the Interstate Commerce Commission Termination Act , and the statutory framework surrounding it."
The Ninth Circuit also ruled that the STB did not abuse its discretion in permitting the Stampede Pass to reopen without conducting a full environmental impact statement under the National Environmental Policy Act. The panel concluded that the mitigation measures contained in the environmental assessment should address the local governments' concerns about traffic delays at rail crossings, even though STB denied the cities' request for grade-separated crossings.
The case began in 1996, when the Burlington Northern Railroad sought approval from the STB to reaquire a portion of the Stampede Pass line, which it had sold in 1986 to the Washington Central Railroad. Burlington is hoping to use the line as part of a third major cross-country train route. As part of the proposal, Burlington proposed a variety of related construction projects such as snowsheds and communication towers. Burlington initially submitted these requests to local authorities but later contended that local review was pre-empted by federal authorities.
At the time, however, the pre-emption question was not at all clear. The request came shortly after the passage of the Interstate Commerce Commission Termination Act (ICCTA), which replaced the ICC with the STB. In June of 1996, STB issued an informal opinion that the Stampede Pass line was not subject to state and local permitting requirements. Later that year, King County requested a formal order as to whether ICCTA pre-empted the county's environmental review. STB issued a ruling concluding that the ICCTA did, in fact, pre-empt local environmental review.
Later, the City of Auburn sought to intervene in this process; STB denied this request but invited Auburn to file a separate petition for a declaratory order. Auburn and the City of Kent subsequently filed separate requests to intervene, which STB rejected as "a request for reconsideration of the King County petition". STB subsequently prepared an environmental assessment under NEPA but not an EIS. The STB approved Burlington's proposal in October of 1996, and the City of Auburn then challenged that approval in court.
In court, Auburn argued that ICCTA did not contain an explicit pre-emption of state and local land-use and environmental laws. However, the Ninth Circuit concluded that the law does contain such pre-emption. Referring to 49 U.S.C. 10501(b), the court noted that the law grants the board "exclusive jurisdiction" over various railroad-related construction projects and states that the legal remedies contained in the section "are exclusive and preempt the remedies provided under Federal or State law". Similarly, the court noted, 49 U.S.C. 11323-25 states that rail carriers covered under the federal law are "exempt from the antitrust laws and from all other law, including state and municipal law, as necessary to let that rail carrier ... hold, maintain, and operate property ... acquired through the transactions."
Said the Ninth Circuit: "We believe the congressional intent to preempt this kind of state and local regulation of rail lines is explicit in the plain language of the ICCTA and the statutory framework surrounding it."
On the environmental assessment, the Ninth Circuit noted that the EA is more than 60 pages long and that Auburn and Kent were given "ample opportunity to raise their environmental concerns before the board for the requisite consideration." The Ninth Circuit also noted that STB developed three specific mitigation measures: notice of expected train movements, discussion of funding options for crossing upgrades, and spacing of train movements to allow time for crossings to clear. "While the board denied the city's request to require construction of grade-separated crossings," the Ninth Circuit concluded, "there is no showing that this denial alone renders the mitigation measures inadequate."
The court also found "no merit in petitioners' claim that the STB failed to properly consider alternatives to Burlington's proposal to re-establish Stampede Pass as a major line." Among other things, the Ninth Circuit agreed with the STB that using trucks to transport the state goods is not a feasible alternative because the railroads "would forgo the expected improved service capabilities and increased operating efficiencies that this proposal is meant to achieve."
City of Auburn v. United States Government, 98 Daily Journal D.A.R. 9588 (September 4, 1998).
For cities in Washington State: Peter J. Eglick, Seattle.
For Surface Transportation Board: Evelyn G. Kitay, U.S. Department of Transportation, Washington, D.C.
For State of Washington: Christine O. Gregoire, Attorney General's Office, Olympia, Washington.
For Burlington Northern: Jeffrey R. Moreland, Burlington Northern Santa Fe Corp., Fort Worth, Texas.