ELR Citation: 53 ELR 20138
No(s). 22-1019 (D.C. Cir. Aug 18, 2023)

The D.C. Circuit granted in part and denied in part petitions to review a Surface Transportation Board order authorizing construction and operation of a new rail line in the Uinta Basin. Environmental groups and a Colorado county argued the Board failed to take a "hard look" at environmental impacts, and erred in exempting the line from the ICC Termination Act's (ICCT Act's) full application process—namely, requirements addressing transportation benefits and environmental impacts. The county also argued the Board violated the National Historic Preservation Act by failing to consult with the county and to evaluate impact on historic properties. The groups raised separate ESA challenges concerning the Board's reliance on FWS' biological opinion (BiOp) and validity of the BiOp itself. The court found the EIS failed to demonstrate that the Board took a "hard look" at all of the environmental impacts of the line; that the Board arbitrarily narrowed the scope of ESA review, and FWS adopted that flawed determination in the BiOp on which the order relied; and that the Board failed to "supply an acceptable rationale" for its consideration of relevant rail policies, and therefore violated the ICCT Act by exempting the line from the Act's full application process; but that the county effectively conceded it failed to name any historic resources during administrative proceedings or notify the Board of potential impacts to them. It vacated the order, vacated the EIS and BiOp in part, and remanded to the Board for further proceedings.