Mayo Foundation v. Surface Transportation Board , 472 F.3d 545 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2031
___________
Mayo Foundation, *
*
Petitioner, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, * On Petition for Review of an
* Order of the Surface
Edison Electric Institute; Western * Transportation Board.
Coal Traffic League; National Rural *
Electric Cooperative Association; *
City of Highmore, SD; City of *
Huron, SD; City of Wolsey, SD; *
City of Philip, SD; City of Desmet, SD; *
City of Miller, SD; City of Wall, SD; *
City of Midland, SD; City of Pierre; *
City of Ree Heights, SD; Greater *
Huron Development Corporation; *
Wall Economic Development *
Committee; On Hand Development *
Corporation; South Dakota Chamber *
of Commerce & Industry; Farmers *
Union COOP Elevator Highmore, SD; *
Farmers Union COOP Elevator *
Kennebec, SD; South Dakota Soybean *
Processors; Urethane Soy Systems *
Company; OAHE Grain Corporation; *
South Dakota Association of *
Cooperatives; South Dakota Farmers *
Union; South Dakota Grain and Feed *
Association; South Dakota Wheat *
Incorporated; Yale Farmers COOP; *
South Dakota Corn Growers *
Association; South Dakota Farm *
Bureau; South Dakota Wheatgrowers *
Association; North Central Farmers *
Elevator; Dakota AG COOP; Lake *
Preston Cooperative Elevator; *
Dakotaland Feeds LLC; AGFirst *
Farmers COOP; City of *
Springfield, MN; City of Balaton, MN; *
City of Lewiston, MN; City of *
Stockton, MN; City of Cobden, MN; *
City of Dover, MN; City of *
Sanborn, MN; City of Tracy, MN; *
City of Lake Benton, MN; Minnesota *
Soybean Processors; Minnesota Grain *
& Feed Association; Midwest Shippers *
Association; Minnesota Agri-Growth *
Council; Winona County; Winona *
River and Rail, Inc.; Southern *
Grainbelt Shippers Association; *
Farmers COOP Hanska, MN; Harvest *
Land Cooperative; Minnesota Farmers *
Union; Minnesota Farm Bureau *
Federation; City of Eyota, MN, *
*
Intervenors on Appeal. *
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___________
No. 06-2032
___________
City of Rochester, *
*
Petitioner, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
Edison Electric Institute; Western *
Coal Traffic League; National Rural *
Electric Cooperative Association; *
Edison Electric Institute; Western *
Coal Traffic League; National Rural *
Electric Cooperative Association; *
City of Highmore, SD; City of *
Huron, SD; City of Wolsey, SD; *
City of Philip, SD; City of Desmet, SD; *
City of Miller, SD; City of Wall, SD; *
City of Midland, SD; City of *
Pierre, SD; City of Ree Heights, SD; *
Greater Huron Development *
Corporation; Wall Economic *
Development Committee; On Hand *
Development Corporation; South *
Dakota Chamber of Commerce & *
Industry; Farmers Union COOP *
Elevator Highmore, SD; Farmers *
Union COOP Elevator Kennebec, SD; *
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South Dakota Soybean Processors; *
Urethane Soy Systems Company; *
OAHE Grain Corporation; South *
Dakota Association of Cooperatives; *
South Dakota Farmers Union; South *
Dakota Grain and Feed Association; *
South Dakota Wheat Incorporated; *
Yale Farmers COOP; South Dakota *
Corn Growers Association; South *
Dakota Farm Bureau; South Dakota *
Wheatgrowers Association; North *
Central Farmers Elevator; Dakota AG *
COOP; Lake Preston Cooperative *
Elevator; Dakotaland Feeds LLC; *
AGFirst Farmers COOP; City of *
Springfield, MN; City of Balaton, MN; *
City of Lewiston, MN; City of *
Stockton; City of Cobden, MN; *
City of Dover; City of Sanborn; *
City of Tracy; City of Lake Benton; *
Minnesota Soybean Processors; *
Minnesota Grain & Feed Association; *
Midwest Shippers Association; *
Minnesota Agri-Growth Council; *
Winona County Farm Bureau; Winona *
River and Rail, Inc.; Southern *
Grainbelt Shippers Association; *
Farmers COOP Hanska, MN; Harvest *
Land Cooperative; Minnesota Farmers *
Union; MN Farm Bureau; City of *
Eyota, MN, *
*
Intervenors on Appeal. *
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___________
No. 06-2047
___________
Sierra Club; Mid States Coalition for *
Progress, *
*
Petitioners, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents. *
___________
No. 06-2048
___________
Olmsted County, *
*
Petitioner, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents. *
___________
Submitted: November 13, 2006
Filed: December 28, 2006
___________
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Before BYE, ARNOLD, and RILEY, Circuit Judges.
___________
ARNOLD, Circuit Judge.
The petitioners challenge the decision of the Surface Transportation Board,
which, after considering the issues that we remanded to it in Mid States Coalition for
Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003), and certain other
issues, again approved a proposal of the Dakota, Minnesota & Eastern Railroad
Corporation (DM&E) to construct approximately 280 miles of new rail line to reach
the coal mines of Wyoming's Powder River Basin (PRB) and to upgrade nearly
600 miles of existing rail line in Minnesota and South Dakota. The petitioners
contend that in giving its approval the Board violated 49 U.S.C. § 10901 and the
National Environmental Policy Act (NEPA), see 42 U.S.C. §§ 4321-4347. We deny
the petition.
I.
DM&E is required to obtain approval from the Board before constructing the
new rail line. See 49 U.S.C. § 10901. Because granting such approval is "a major
Federal action[] significantly affecting the quality of the human environment," NEPA
requires the Board to evaluate the environmental impact of the project. 42 U.S.C.
§ 4332(2)(C). The Board therefore prepared both a draft environmental impact
statement (DEIS) and a final environmental impact statement (FEIS) examining the
environmental effects of the proposal, and after imposing 147 conditions designed to
mitigate the project's environmentally adverse effects (pursuant to its authority under
49 U.S.C. § 10901(c)), the Board approved the project in 2002.
We reversed the Board's approval of the project for failure to comply with
NEPA and remanded the case to the Board. As relevant here, we directed the Board
to give further consideration to its decision not to impose mitigating conditions for
horn noise (as distinct from wayside noise) and to consider the expected
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environmental effects of increased coal consumption due to the availability of shorter
and cheaper rail routes for PRB coal distribution. Mid States, 345 F.3d at 532, 536,
550. Petitioners do not challenge the Board's disposition of the other remanded issues.
On remand, the Board issued a draft supplemental environmental impact
statement (DSEIS), and after receiving comments to the DSEIS, it issued a final
supplemental environmental impact statement (FSEIS). The Board thereafter
approved the DM&E project based on the analysis in the DSEIS and the FSEIS,
specifically addressing the remanded issues as well as additional issues raised during
the supplemental environmental review. The Board reimposed the 147 mitigating
conditions that it initially imposed in its 2002 approval, modifying one of the
conditions to require DM&E community liaisons to assist communities or other
entities interested in establishing and funding quiet zones (zones in which horn noise
is eliminated).
Relatedly, after the Board's initial approval of the construction project in 2002,
it separately approved DM&E's acquisition of over 1,000 miles of existing rail line in
Minnesota, Iowa, Kansas, Missouri, Wisconsin, and Illinois from I&M Rail Link
(IMRL), with which DM&E has a connection at Owatonna, Minnesota. As discussed
below, petitioners raise this addition to DM&E's rail lines as an alternative routing to
the contested route through Rochester, Minnesota (the Rochester route connects to
points east at Winona, on Minnesota's eastern border).
II.
The Administrative Procedure Act governs our review of the Board's
compliance with NEPA, and requires us to "hold unlawful and set aside agency action,
findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
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In reviewing the Board's decision, we keep in mind that NEPA requires the
Board to "take a hard look at the environmental consequences" of a major federal
action before approving such action. Baltimore Gas & Elec. Co. v. Natural Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983) (internal quotations marks and citation omitted).
As we remarked in Mid States, "[o]ur role in the NEPA process 'is simply to ensure
that the agency has adequately considered and disclosed the environmental impact of
its actions and that its decision is not arbitrary or capricious.' " Mid States, 345 F.3d
at 534 (quoting Baltimore Gas, 462 U.S. at 97-98).
A.
We turn first to the argument raised by the Mayo Foundation, the City of
Rochester, and Olmsted County, that DM&E's acquisition of IMRL constitutes
"significant new circumstances" that should give rise to the consideration of this new
line as an alternative to routing trains through Rochester, see 40 C.F.R.
§§ 1502.9(c)(1)(ii), 1502.14. The Board disagreed, stating that "it was not necessary
to delay the SEIS to include consideration of the impacts of the IMRL acquisition ...
The IMRL acquisition and the DM&E construction project are separate and distinct,
and each has its own utility and benefit." Dakota, Minn. & Eastern R.R. Corp.–
Constr. into the Powder River Basin, STB Finance Docket No. 33407 at 19, 2006 WL
383507, at *14 (STB served Feb. 15, 2006) (hereafter STB 2006 Decision).
The Board is required to consider all "reasonable" alternatives. See 40 C.F.R.
§ 1502.14(a). It is not required, however, to consider alternatives that would frustrate
the very purpose of the project. As we said in City of Richfield, Minn. v. F.A.A.,
152 F.3d 905, 907 (8th Cir. 1998), an "alternative is unreasonable if it does not fulfill
the purpose of the project." See also Missouri Mining, Inc. v. I.C.C., 33 F.3d 980, 984
(8th Cir. 1994); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.
Cir. 1991), cert. denied, 502 U.S. 994 (1991).
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Even though the Board's decision does not explicitly state that it did not
consider the IMRL alternative because that route is simply inconsistent with the
project's purposes, we believe that this is implicit in its decision. For one thing, the
Board noted that it had "made a preliminary finding in 1998 that there would be
transportation and other public benefits from the proposed new line due to improved
productivity and efficiency over this shorter route." STB 2006 Decision at 3, 2006
WL 383507, at *2. Furthermore, in stating that the construction and acquisition
projects are "separate and distinct, and each has its own utility and benefit," we
believe that the Board was relying on and implicitly importing into its decision its
earlier findings in both the acquisition and construction proceedings.
The Board recognized in its 1998 decision that central to the success of
DM&E's proposed construction project would be its ability to have multiple routing
options, including routing trains over the lines of other railroad companies. There, the
Board stated that "DM&E's Plan depends on its ability to interchange cars with other
railroads," and noted that DM&E's "application identifies three primary interchange
points with other railroads: (1) UP at Mankato, MN; (2) I&M Rail Link at Owatonna,
MN; and (3) UP, CP and I&M at Winona/Minnesota City, MN." Dakota, Minn. &
Eastern R.R. Corp.– Constr. into the Powder River Basin, STB Finance Docket No.
33407, 3 S.T.B. 847, 900, 1998 WL 869567, at *31 (Dec. 9, 1998) (emphasis added)
(hereafter STB 1998 Decision). Removing the ability to route trains through
Rochester, Minnesota, to the connection point at Winona, Minnesota, would therefore
frustrate the purpose of the construction project.
The Board also discussed at length in its 1998 decision the competitive
advantages of a PRB connection added to the DM&E line, primarily focusing on
DM&E's shorter, more direct route as compared to its would-be competitors
transporting PRB coal to eastern markets. For example, the Board concluded that
"[b]ased on DM&E's mileage advantage to the Great Lakes ... we find adequate
support in the record ... for DM&E's claim that it could gain a 62% share of the coal
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delivered to this market." STB 1998 Decision at 878, 1998 WL 869567, at *17. The
Board further found that "DM&E's assertion that it would gain a 61% share of the
tonnage of the Upper Midwest Rail market is based on its mileage advantage to plants
accounting for a majority of the tonnages in that market ... we think that DM&E's
argument that it would become the dominant rail carrier of coal in the Upper Midwest
market is supported on the present record." Id. at 881, 882, 1998 WL 869567, at *19,
*20. Again, with respect to the Upper Mississippi River market, the Board stated:
"Because the plants in this market currently ship one-third of their coal from
Wyoming and the DM&E route is at least 140 miles shorter than either BNSF's or
UP's from Wyoming origins, it appears that DM&E could have the upper hand in this
market." Id. at 882, 1998 WL 869567, at *20.
The Board relied on these findings in determining the public benefit and
financial soundness of the PRB construction project. And, as the Board points out in
its brief in this appeal, the DM&E route through Rochester "would be about 150 miles
shorter for movements to certain key plants in Wisconsin than a circuitous DM&E-
IMRL route through Owatonna that Petitioners would have the Board force on
DM&E."
With respect to the IMRL acquisition, the Board's 2003 decision in that case
points to multiple public-interest justifications for the acquisition that are unrelated
to DM&E's PRB construction. For example, the Board concluded that "[s]hippers on
the DM&E/IC&E system will benefit from the better equipment coordination and
utilization, improved service patterns, and other operating efficiencies made possible
by common control. Common control also will give shippers ... new routing and
service options and more efficient and competitive single-system access to significant
new markets and gateways. These beneficial effects for shippers provide additional
support for approval of the DM&E/IC&E control transaction." Dakota, Minn. &
Eastern R.R. Corp. and Cedar Am. Rail Holdings, Inc. Control Iowa, Chicago &
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Eastern R.R. Corp., STB Finance Docket No. 34178 at 8, 2003 WL 221559, at *9
(STB served Feb. 3, 2003).
Given this record, it is clear that the Board thoroughly examined the purposes
of the two projects, and this examination – as illuminated by the Board's prior
decisions – informed its conclusion in its 2006 decision that the IMRL acquisition did
not provide a reasonable alternative to DM&E's route through Rochester (the
environmental effects of which have been exhaustively studied). The Board was thus
not required to consider the environmental impacts of the IMRL alternative, and its
decision not to do so was not arbitrary and capricious or an abuse of discretion.
B.
We turn next to the arguments advanced by Rochester and Olmsted County that
the Board, in considering the horn noise mitigation issue on remand, should have
required DM&E to fund measures required for the establishment of quiet zones in
Rochester, to build sound walls in Rochester and Chester, and to install noise
insulation at sites subjected to adverse levels of horn noise.
In Mid States, we held that the Board did not take the requisite "hard look" at
horn noise mitigation because it did not " 'explain fully its course of inquiry, analysis
and reasoning' " as to why no mitigation for horn noise was required. Mid States, 345
F.3d at 536 (quoting Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292,
1299 (8th Cir. 1976), cert. denied, 430 U.S. 922 (1977)). Specifically, we noted the
disparity between the Board's imposition of mitigating conditions for receptors of
wayside noise of 70 decibels or higher and its failure to impose mitigating conditions
for receptors experiencing similar levels of horn noise. Mid States, 345 F.3d at 536.
On remand, the Board again decided not to impose horn noise mitigation, other than
to require DM&E's community liaisons to assist in the establishment of quiet zones
upon request from communities interested in establishing them. STB 2006 Decision
at 10, 2006 WL 383507, at *2.
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As a preliminary matter, we observe that the Federal Railroad Administration
(FRA) recently implemented regulations allowing public authorities to declare quiet
zones without formal application to, or approval by, the FRA. 49 C.F.R. § 222.39.
To establish a quiet zone without formal application, however, certain safety measures
must be installed. The FSEIS estimated that the expense of installing the required
safety measures to qualify for quiet zones along the rail line without application would
be approximately $2.5 million. FSEIS at 2-16.
Rochester and Olmsted County essentially argue that the Board has the
authority to require DM&E to pay for these quiet-zone-related measures and that the
Board's decision not to impose this cost on DM&E (as it did with respect to wayside
noise mitigation) is arbitrary and capricious. More precisely, Rochester and Olmsted
County argue that the Board overly emphasized the cost of horn noise mitigation in
its decision not to impose such conditions, and inappropriately failed to consider the
cost of the mitigation measures within the context of the total cost of the project
(a project the Board admits is "the largest and most challenging rail construction
proposal ever to come before the [Board]"). Dakota, Minn. & Eastern R.R. Corp.
Constr. Into the Powder River Basin, STB Finance Docket No. 33407 at 4 (STB
served Jan. 28, 2002).
Olmsted County points out that if the cost of all horn noise-mitigating measures
(i.e., quiet zones, sound walls and sound insulation) were included in the estimated
cost of all mitigating conditions, the total mitigation costs, using the most conservative
estimates, would be 12.2% of the total cost of the project. This assumes an estimate
of total mitigation costs (including these three) of $133.5 to $170.5 million (using the
upper end of that range) and a total project estimated cost of $1.4 billion (the
estimated cost of the project in 2001). (The total project estimated cost is now $2
billion, increased to reflect the increase in construction costs since 2001; and, as
Olmsted County points out, if this higher estimate is used, the total cost for mitigating
conditions [including the requested horn noise-mitigating measures] drops to 8.5%.)
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Olmsted County goes on to argue that the Board admitted in the FSEIS that " '[f]or
large capital projects ... it is not unusual for mitigation to total 10 to 20 percent of
construction costs,' " see FSEIS at 12-24, and therefore that the Board's failure to
impose the requested horn noise-mitigation conditions was arbitrary and capricious.
These arguments are initially appealing and certainly beg the question why the
Board would not impose such costs when it acknowledges the adverse effects of horn
noise on certain affected areas. See, e.g., FSEIS at 2-18, 2-26. And this issue goes to
the heart of the ultimate question that Rochester poses, the spirit of which motivated
our remand on this issue in Mid States: "Why is it reasonable for the Board to require
mitigation for wayside noise, but not for horn noise?"
We believe that the Board sufficiently answered this question on remand by
pointing out that communities have an option for addressing horn noise concerns (i.e.,
quiet zones) that they did not have with respect to wayside noise. The Board adopts
the rationale set forth in the FSEIS, which states that "the commenters [to the DSEIS]
have failed to show that DM&E should be required to fund the establishment of a
quiet zone just because this project requires a license and a NEPA review from the
Board ... [the Section on Environmental Analysis (SEA)] is aware of no instance
where a railroad has been required to fund a quiet zone or other horn noise abatement
measures, even under traffic increases in excess of those anticipated as a result of this
project." The Board concluded by pointing out that "a variety of Federal, state, and
local funding options are available to help communities establish quiet zones. For all
of these reasons, [the SEA] does not believe it would be appropriate ... that DM&E be
made responsible for establishing or funding ... quiet zones." FSEIS at 2-20 to 2-21.
Not requiring DM&E to provide the funds necessary to implement the needed
measures to establish quiet zones, moreover, does not make this option otherwise
unavailable to the concerned communities. As further support for its decision not to
require DM&E to fund the measures needed to implement quiet zones, the FSEIS
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states that the Board "consulted informally with FRA to learn how the numerous
communities seeking to establish quiet zones under FRA's Final Rule are planning to
fund the necessary grade improvements ... FRA pointed out that for none of the
communities seeking quiet zones was a railroad contributing any funding to the
effort." FSEIS at 2-18.
The Supreme Court has made clear that a reviewing court cannot substitute its
own judgment of reasonableness for that of the agency. In Marsh v. Oregon Natural
Res. Council, 490 U.S. 360, 375 (1989), the federal agency argued that the reviewing
court need only decide whether the agency's decision not to prepare a supplemental
EIS was "arbitrary and capricious," whereas those challenging the agency's action
argued "that the reviewing court must make its own determination of reasonableness
to ascertain whether the agency action complied with the law." The Court noted that
the agency action required a high level of technical expertise, and concluded that
"review of the narrow question" was "controlled by the 'arbitrary and capricious'
standard of § 706(2)(A)." Marsh, 490 U.S. at 375-76; see also Vermont Yankee
Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 555 (1978).
Furthermore, it bears repeating that the court's role "is simply to ensure that the
agency has adequately considered and disclosed the environmental impact of its
actions and that its decision is not arbitrary or capricious." Baltimore Gas, 462 U.S.
at 97-98; see also Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d
1115, 1128 (8th Cir. 1999). Given the Board's consideration of the adverse effects of
the expected increase in horn noise and its reasoned conclusions with respect to what
mitigating conditions it would ultimately impose (in addition to its consideration of
the options independently available to the affected communities), we believe the
Board has met this standard.
The Board's conclusion with respect to another proposed mitigating condition
for horn noise – the construction of sound walls in Rochester and Chester – is equally
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supported by the Board's disclosure of the environmental concerns and its reasons for
ultimately deciding not to require their construction. In its brief, Olmsted County
argues that in the "course of rejecting the construction of sound walls for larger
communities such as Rochester, the [Board] improperly rejected this mitigation
measure for all communities, including smaller communities such as Chester. This
one-size-fits-all analysis falls short of the hard look required by NEPA."
What Olmsted County does not include in its brief, though, is that the
discussion of sound walls encompassed nearly five pages in the FSEIS, and multiple
concerns were advanced questioning the advisability of sound walls in general, not
just in Rochester. The FSEIS ultimately recommended against sound walls as a
mitigating alternative for horn noise "in light of the safety concerns for motorists, train
crews, and pedestrians; questions regarding the ultimate effectiveness of sound walls;
and significant costs associated with sound wall construction and maintenance."
FSEIS at 2-31. The Board also specifically addressed the issue of sound walls in
Chester, stating in the DSEIS that "no sound barriers in Chester, Minnesota warranted
consideration due to the minimal length of residential development along the existing
line through this community." DSEIS at 2-12 n.22.
We thus believe the Board's rejection of the sound wall mitigating condition,
see STB 2006 Decision at 9, 2006 WL 383507, at *6, was not arbitrary and capricious,
but rather a reasoned consideration of an ultimately unavailing proposition.
Petitioners do not argue that the Board's rejection of sound insulation treatments
was arbitrary and capricious other than in relation to their arguments, discussed above,
that the cost of all requested horn noise mitigation measures was not appropriately
considered within the larger context of the project's total expected cost. We thus
conclude that the Board's rejection of this mitigation measure was not arbitrary and
capricious for the same reasons discussed above.
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C.
We turn finally to petitioner Sierra Club's argument that the Board did not
adequately address what increase in the use of PRB coal – and therefore in certain air
polluting emissions – could be expected due to the availability of a shorter, cheaper
distribution route from Wyoming's Powder River Basin.
In Mid States, we held that the Board inappropriately approved the DM&E
construction project "without first examining the effects that may occur as a result of
the reasonably foreseeable increase in coal consumption" expected from the project
due to the availability of cheaper and easier distribution of PRB coal. Mid States, 345
F.3d at 550. We rejected in Mid States the Board's argument that such effects are too
speculative by pointing to the CEQ regulations specifically designed for " 'evaluating
reasonably foreseeable significant adverse effects on the human environment' " when
" 'there is incomplete or unavailable information.' " Id. at 549-50 (quoting 40 C.F.R.
§ 1502.22). We also found fault with the FEIS conclusion that further study of this
issue was not warranted because the 1990 Clean Air Act Amendments placed caps on
sulfur dioxide emissions. We found the FEIS to be inadequate because it did not also
include information on the potential increase in emissions of other pollutants –
specifically, nitrous oxide, carbon dioxide, particulates and mercury – none of which
was subject to caps. As we noted in Mid States, moreover, computer "programs could
be used to forecast the effects of this project on the consumption of coal." Mid States,
345 F.3d at 548-50.
On remand, the Board undertook just such a study using the Energy Information
Administration's (EIA) National Energy Modeling System (NEMS). The Board noted
in its decision on remand that it chose this computer program, after considering
several others, "because it not only forecasts coal supply and demand but also
quantifies environmental impacts." STB 2006 Decision at 11, 2006 WL 383507, at
*7. The Board concluded, in reliance on the study results, that "on both national and
regional levels, projected air emissions for sulfur dioxide, nitrogen oxides, carbon
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dioxide, and mercury associated with the small increase of additional coal usage
would be less than 1%" and that "increases for carbon monoxide and particulate
matter would also be less than 1%." Id. at 12, 2006 WL 383507, at *9. The Board
also noted that there "were no Federal standards for carbon dioxide or mercury at the
time EIA ran the rate sensitivity analysis in this case. However, in March 2005, EPA
issued rules to regulate mercury, as well as additional regulations for sulfur dioxide
and nitrogen oxides emissions at power plants (the Clean Air Interstate Rule)" that
will be applicable to DM&E's core markets. Id. at 13 n.35, 2006 WL 383507, at *38
n.35.
The Board admitted that NEMS could not be used to model these impacts at the
local level, and thus followed the procedure that the CEQ regulations require when
critical information is unavailable or incomplete. These regulations require that the
adverse effects be addressed in an environmental impact statement, and, "[i]f the
information relevant to reasonably foreseeable significant adverse impacts cannot be
obtained because the overall costs of obtaining it are exorbitant or the means to obtain
it are not known," the agency must include the following information in the
environmental impact statement:
(1) A statement that such information is incomplete or
unavailable; (2) a statement of the relevance of the
incomplete or unavailable information to evaluating
reasonably foreseeable significant adverse impacts on the
human environment; (3) a summary of existing credible
scientific evidence which is relevant to evaluating [such
impacts], and (4) the agency's evaluation of such impacts
based upon theoretical approaches or research methods
generally accepted in the scientific community.
40 C.F.R. § 1502.22(b).
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The Board explained that NEMS is "essentially a national and regional
modeling tool" that could not be used to obtain the same level of predictive
information for the local level. The Board stated that such predictive information was
relevant since "there could be an increase in certain air emissions because more PRB
coal would be consumed as a result of this project." With respect to existing credible
scientific evidence and its potential impacts, the Board explained further that in order
"to reasonably foresee the likely impacts of this project on a local level, [it] would
need to know not only what existing or new power plants would actually use DM&E's
service, but also whether they would otherwise not burn PRB coal, not burn as much
coal, or burn a different mix of coal." The Board concluded that this could not "be
determined in advance here with any degree of confidence." STB 2006 Decision at
13, 2006 WL 383507, at *9.
After noting that "the impacts of this project on coal consumption and resulting
air emissions would be small" on a national and regional basis and that any potential
local air quality impacts were "speculative" and "ultimately unforeseeable," the Board
concluded that it was not necessary to impose additional mitigating conditions on the
project. Id. at 17, 2006 WL 383507, at *12.
The Sierra Club is the only petitioner that maintains that the Board's handling
of this issue on remand was inadequate. It argues in its brief that "[i]nstead of
conducting the required analysis, the [Board] bolstered the argument that it had
unsuccessfully presented to the panel – that not all of the DM&E-transported coal
would represent new combustion, that some would be simply a substitute for existing
coal supplies, and that it was not, therefore, required by NEPA to address the
consequential air pollution within the FEIS."
The Sierra Club's argument is meritless. The DSEIS, the FSEIS, and the
Board's decision on remand each extensively discuss the potential impacts on air
quality that may result from the implementation of the project. See DSEIS at 4-1 to
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4-53; FSEIS at 4-1 to 4-41; STB 2006 Decision at 10-17, 2006 WL 383507, at *7-
*13. We therefore believe that the Board more than adequately considered the
"reasonably foreseeable significant adverse effects [of increased coal consumption]
on the human environment" on remand.
III.
For the reasons stated above, we affirm the decision of the STB.
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