ELR Citation: ELR 20113
No(s). 09-60108 (5th Cir. Apr 6, 2010)

The Fifth Circuit denied an environmental group’s petition to review a Surface Transportation Board (STB) decision that granted an exemption to a railroad company to construct and operate a rail line to service a proposed limestone quarry, which was to be developed in phases, without meeting certain approval requirements. At issue was whether the STB and the FWS complied with their obligations under ESA §7 to ensure that the proposed rail was not likely to jeopardize the continued existence of certain endangered species before approving the exemption. The group asserted, among other things, that the decision was arbitrary and capricious because it relied on a biological assessment that assessed only the proposed rail and the first phase of the project, and not the proposed development of the entire project. To start, the court held that the STB’s and FWS’s refusal to consider the proposed development of the entire project as an “interrelated action” did not render the decision arbitrary and capricious. The issue, for purposes of determining whether the proposed development of the entire project was an interrelated action, is whether, but for the proposed rail, development of the quarry would occur. Here, STB specifically found that the quarry could feasibly be operated without a rail line. At the same time, STB’s and FWS’s refusal to consider the proposed development of the entire project as a “cumulative effect” of the proposed rail line did not render the decision arbitrary and capricious: the group had not shown that the future phases of the quarry were free from regulatory and financial contingencies such that their occurrence would be reasonably foreseeable, much less reasonably certain. Finally, the record does not support the conclusion that the STB’s and FWS’s refusal to consider the proposed development of the entire project as an “indirect effect” rendered the decision arbitrary and capricious. As determined in the cumulative effects analysis, the development of the remaining phases of the quarry is not “reasonably certain to occur”—the same standard applicable to “indirect effects.”