ELR Citation: ELR 20223
No(s). s. 81-2037, -2038 (D.C. Cir. Jul 22, 1982)

The court rules that the Interstate Commerce Commission (ICC) complied with the National Environmental Policy Act (NEPA) in approving construction of a jointly operated rail line and a connector rail line in the Powder River Basin in Wyoming. After resolving challenges based on the Interstate Commerce Act, the court rules that the ICC properly permitted segmentation of the two projects in analyzing their environmental impacts under NEPA, because the ICC had approved the joint line before the railroad company proposed to build the connector line. The court then holds that the ICC approved adequate environmental impact mitigation measures and that the measures obligate the railroad company to offer a fair market price for severed property if the company chooses to purchase the land rather than provide access, water supply, and irrigation flow. In addition, the court rules that the environmental impact statement (EIS) contains an adequate discussion of alternatives to the connector line. Also, NEPA did not require the ICC to file a supplemental EIS after it received notice of coal traffic flow changes, because these changes will not necessitate substantial modifications in the connector line. Finally, the court holds that the ICC complied with the requirements of §7 of the Endangered Species Act. The EIS supports a finding that the ICC conducted an adequate biological assessment of endangered species and properly consulted the Fish and Wildlife Service.

Counsel for Petitioners
Bruce J. Terris, Nathalie V. Black
Terris and Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

David Sutherland, Everett Hutchinson, Richard G. Lepley
Fulbright & Jaworski
1150 Connecticut Ave. NW, Washington DC 20036
(202) 452-6800

Counsel for Respondents
Robert S. Burke, Acting General Counsel; John J. McCarthy Jr., Ellen K. Schall
Interstate Commerce Commission, Washington DC 20423
(202) 275-7312

Kenneth P. Kolson, John J. Powers III, Barry Grossman
Antitrust Division
Department of Justice, Washington DC 20530
(202) 633-2435

Before TAMM, MacKINNON, and ROBB, Circuit Judges.