Commuter Rail Division of Regional Transportation Authority v. Surface Transportation Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 7, 2010 Decided June 15, 2010

No. 08-1346

COMMUTER RAIL DIVISION OF THE REGIONAL

TRANSPORTATION AUTHORITY, METRA,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND

UNITED STATES OF AMERICA,

RESPONDENTS

CANADIAN PACIFIC RAILWAY COMPANY ET AL.,

INTERVENORS

Consolidated with 08-1377

On Petitions for Review of a Final Order

of the Surface Transportation Board

Robert P. vom Eigen argued the cause for petitioner

Commuter Rail Division of the Regional Transportation

Authority. David T. Ralston Jr. was on brief. James B.

Dougherty was on brief for petitioner Sierra Club.

Theodore L. Hunt, Attorney, Surface Transportation Board,

argued the cause for the respondents. Robert B. Nicholson, John

P. Fonte and Brian C. Toth, Attorneys, United States

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Department of Justice, Ellen D. Hanson, General Counsel,

Surface Transportation Board, Evelyn G. Kitay, Associate

General Counsel, and Anika S. Cooper, Attorney, were on brief.

Craig M. Keats, Deputy General Counsel, and Jeffrey D.

Komarow, Trial Attorney, Surface Transportation Board, entered

appearances.

Richard A. Allen, Terence M. Hynes and Noah A. Clements

were on brief for intervenors Canadian Pacific Railway

Company et al. in support of the respondents.

Before: GINSBURG, HENDERSON and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Canadian

Pacific Railway Corporation (CPR), along with its indirect

subsidiary Soo Line Holding Company (Soo Holding), and

Dakota, Minnesota & Eastern Railroad Corporation (DME),

along with its subsidiary Iowa, Chicago & Eastern Railroad

Corporation (ICE), (collectively Applicants) applied to the

Surface Transportation Board (STB or Board) for approval of a

merger in which Soo Holding (and indirectly CPR) was to

acquire DME and ICE. They filed the application under 49

U.S.C. § 11324, which authorizes the Board to initiate a

proceeding to approve various transactions within its

jurisdiction, including the acquisition of one or more railroads

by another railroad. See 49 U.S.C. §§ 11324(a), 11323. The

STB approved the acquisition. Canadian Pac. Ry.

Co.—Control—Dakota, Minn. & E. R.R. Corp., 2008 WL

4415850 (STB September 30, 2008) (DME Acquisition). Metra

and the Sierra Club1 seek review of the STB’s decision

1

Sierra Club is a non-profit conservation organization. Pet’rs’ Br.

at i. Metra provides commuter rail passenger service in the Chicago

metropolitan area over track it shares with freight railroads, and

3

approving the acquisition. Metra challenges the Board’s refusal

to attach “conditions” to the approval, pursuant to 49 U.S.C.

§ 11324(c), in order to protect Metra’s rights over its track line

running north from Chicago toward Wisconsin over which Soo

Holding has trackage rights and for which CPR is the dispatcher.

Sierra Club challenges the Board’s decision to defer preparation

of an environmental impact study (EIS) until CPR decides

whether to move forward with the construction of a line

connecting DME’s track in South Dakota to certain coal mines

located in Wyoming’s Powder River Basin (PRB). For the

reasons set out below, we dismiss Sierra Club’s petition for lack

of constitutional standing and deny Metra’s petition because the

Board’s approval of the merger was not an abuse of its

discretion.

I.

Metra operates two rail lines that are potentially affected by

CPR’s acquisition of DME/ICE: one line running west from

Chicago (West Line), on which DME and ICE also operate

trains, and one line running north (North Line) from Chicago, on

which Soo Holding runs trains. CPR is the train dispatcher for

both lines pursuant to separate trackage agreements first

negotiated in 1985 between CPR/Soo Holding and Metra’s

predecessor in interest.

In February 1998, DME filed an application with the STB

to construct and operate approximately 280 miles of track

connecting the PRB coal mines to track DME owned in South

Dakota and Minnesota. After an EIS was prepared, the Board

approved DME’s application in January 2002. DME Constr.

comprises both the Commuter Rail Division of the Regional

Transportation Authority, an Illinois special purpose unit of local

government, and the Northeast Illinois Regional Commuter Railroad

Corporation, an Illinois municipal corporation. Id.

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into the Powder R. Basin, Finance Docket No. 33407, 2002 WL

121210 (STB Jan. 28, 2002). The Eighth Circuit vacated and

remanded the Board’s decision for a supplemental

environmental impact statement (SEIS). Mid States Coal. for

Progress v. STB, 345 F.3d 520 (8th Cir. 2003). In 2006, at the

conclusion of an 8-year proceeding, the Board again approved

DME’s application to construct and operate the PRB rail line

and the Eighth Circuit upheld the Board’s decision. Dakota,

Minn. & E. R.R. Corp. Constr. into the Powder R. Basin,

Finance Docket No. 33407, 2006 WL 383507 (STB Feb. 13,

2006), pet. for rev. denied, Mayo Found. v. STB, 472 F.3d 545

(8th Cir. 2006).

Shortly after the Board’s initial approval of the PRB track,

it approved an application by ICE to acquire I&M Rail Link

(IMRL), which owned track running through Illinois,

Minnesota, Missouri and Wisconsin that connected with Metra’s

West Line. See Ia., Chi. & E. R.R. Corp.—Acquisition &

Operation Exemption—Lines of I&M Rail Link, LLC, Finance

Docket No. 34177, 2002 WL 1609341 (STB July 22, 2002)

(IMRL Acquisition). Aware that DME sought to acquire ICE,

the Board deferred considering the “cumulative impacts” of the

two acquisitions (of IMRL by ICE and of ICE by DME) together

with DME’s proposed PRB track construction—because of “the

prospect of adding at least a portion of th[e] substantial traffic”

from the PRB coal mines to the traffic that already moved over

the IMRL lines ICE was acquiring—until such time as DME

“obtained authority to control IC[]E” and was “prepared to

exercise the construction authority that [the Board] issued” for

the PRB line. IMRL Acquisition at 16, 2002 WL 1609341, at *8.

Deferral was “appropriate,” the Board explained, “given the

current uncertainty as to whether the line approved in DME

Construction will be built and, if built, what portion of the

traffic to and from the new line would move over which IMRL

lines.” Id. at 16, 2002 WL 1609341, at *8. The Board

subsequently approved DME’s acquisition of ICE in 2003.

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Dakota, Minn. & E. R.R. Corp.—Control—Ia., Chi. & E. R.R.

Corp., Finance Docket No. 34178, 2003 WL 221559 (STB Jan.

31. 2003).

While DME’s PRB track construction proceeding was

pending, Metra, concerned that DME might over-use ICE’s

trackage rights over Metra’s West Line—in particular, for PRB

coal traffic —used its right of prior approval over assignment of

trackage rights as leverage to negotiate two agreements among

Metra, CPR and ICE, which agreements, inter alia, limited the

level of daily traffic over the line and established fees for

exceeding the limit, required Metra’s consent before allowing

PRB coal traffic and established a procedure to reach consensus

on capital contributions and expenditures as necessary to handle

additional traffic.

In October 2007, the Applicants filed their application for

Board approval of the acquisition of DME/ICE by CPR

subsidiary Soo Holding. Application by Canadian Pac. R.R. Co.

for Approval of Control of Dakota, Minn. & E. R.R. Corp.,

Finance Docket No. 35081 (filed Oct. 5, 2007). In their

application, they advised the Board that, after conferring with

the Board’s Section of Environmental Analysis, they believed it

was “appropriate” to continue to defer preparing an EIS for

transporting PRB coal over ICE’s track, explaining it was not

“possible . . . to evaluate any potential environmental issues that

might be associated with the transportation of PRB coal traffic”

because DME had “not yet secured contracts with shippers for

the movement of PRB coal over the proposed new PRB line”

and CPR had “not yet made a decision to build it.” Id. at 24.

Sierra Club submitted comments on February 4, 2008,

asserting that the Applicants’ proposed “[b]ifurcation of its

environmental review into two phases would violate the STB’s

obligation to consider these matters cumulatively.” Envt’l

Comments of Sierra Club and Sierra Club of/du Can. at 2. The

Board agreed with the Applicants’ proposal, explaining (1) it

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was “satisfied” that the DME acquisition “would not result in an

increase in train traffic or rail yard activity in excess of the

thresholds for environmental review contained in [its] rules, and

there is nothing in the available environmental information that

would indicate a potential for significant environmental impacts

resulting from the proposed change in corporate control itself”

and (2) “the preparation of environmental documentation on

routing DM[]E PRB coal traffic over the rail lines of IC[]E

and/or CPR[] . . . can and should be deferred until more

definitive information is available.” Canadian Pac. R.R.

Co.—Control—Dakota, Minn. & E. R.R. Corp., Finance Docket

No. 35081 at 5-6, 8, 2008 WL 906056, at *4, *6 (STB Apr. 3,

2008).

Metra filed comments on March 4, 2008, expressing its

concern that (1) CPR, as an interested party with regard to the

West Line because of its acquisition of DME/ICE, could no

longer be relied upon as a neutral enforcer of the 2003

agreements, (2) CPR might divert traffic from Metra’s West

Line (which was subject to the 2003 trackage agreement’s

limitations) to Metra’s North Line (which was not subject to

such limitations) and (3) construction of the PRB line (with its

additional traffic on Metra’s tracks) was more likely if the

merger went through. Metra Comments in Opposition to

Proposed Transaction & Request for Conditions at 7 (Metra

Comments). Accordingly, Metra asked that the STB impose

seven “conditions” on CPR’s acquisition of DME/ICE pursuant

to 49 U.S.C. § 11324(c), namely, that (1) CPR transfer to Metra

the right to dispatch trains over its North and West Lines; (2)

CPR refrain from operating PRB coal trains over either the West

or North Line until Metra upgraded both lines; (3) CPR bear the

expense of capacity improvements necessary for operating the

PRB coal trains; (4) CPR pay Metra excess traffic fees for the

North Line like those negotiated in the West Line agreements;

(5) all trains originating or terminating on DME/ICE track and

operating on either the West or North Line be considered ICE

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trains for the purpose of any agreement Metra has with CPR,

DME or ICE; (6) CPR and its affiliates acknowledge that they

may not admit a third party carrier to either the West or North

Line; and (7) CPR negotiate with Metra appropriate agreements

to incorporate the preceding six conditions. Id. at 9-10.

The STB approved CPR’s acquisition of DME/ICE on

September 29, 2008. See DME Acquisition, supra. It first

determined that, because the acquisition “does not involve the

merger or control of two or more Class I railroads,”2 it is

governed by subsection (d) rather than subsection (b) of 49

U.S.C. § 11324, the latter of which by its terms applies to an

application for “merger or control of at least two Class I

railroads,” 49 U.S.C. § 11324(b) (emphasis added); DME

Acquisition at 8, 2008 WL 4415850, at *5. Subsection (d)

provides in relevant part:

In a proceeding under this section which does not

involve the merger or control of at least two Class I

railroads, as defined by the Board, the Board shall

approve such an application unless it finds that—

(1) as a result of the transaction, there is

likely to be substantial lessening of

competition, creation of a monopoly, or

restraint of trade in freight surface

transportation in any region of the United

States; and

2

A Class I carrier has annual carrier operating revenues of $250

million or more while a Class II carrier has annual carrier operating

revenues of less than $250 million but more than $20 million. 49

C.F.R. § 1201.1-1. Although CPR is a Class I railroad, DME and ICE

are both Class II railroads.

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(2) the anticompetitive effects of the

transaction outweigh the public interest in

meeting significant transportation needs.

49 U.S.C. § 11324(d). Noting that the “primary focus” of

subsection (d) is “whether there would be adverse competitive

impacts that are both likely and substantial”—and, if so,

“whether the anticompetitive impacts would outweigh the

benefits or could be mitigated through conditions,” DME

Acquisition at 8, 2008 WL 4415850, at *5—the Board

concluded that “the public benefits of the transaction offset any

minimal decrease in geographic competition,” id. at 11, 2008

WL 4415850, at *7. The Board further denied Metra’s proposed

conditions because they “do[] not relate to competition, the

major focus of [a] section 11324(d) analysis” and because it

believed such conditions were better left to “commercial

negotiation,” given “the intricate details involved in

coordinating freight and passenger rail operations, capital

expenditures, and compensation.” Id. at 15, 2008 WL 4415850,

at *10. Citing CPR’s stated “commit[ment] to working

cooperatively with Metra,” the Board “strongly encourage[d]

both parties to work together to achieve a mutually acceptable

arrangement to govern joint operations.” Id. In addition, the

Board confirmed its intent to defer preparing an EIS, explaining

that it was “not ‘bifurcating’ [its] environmental process,” as

Sierra Club charged, but rather it “ha[d] determined that the

acquisition itself does not have sufficient potential to affect the

environment to require environmental documentation and that

a determination of what cumulative effect the Board’s approval

of DM[]E PRB Construction might have on the Board’s

approval of the proposed acquisition here is premature.” Id. at

25, 2008 WL 4415850, at *19. This was so because the Board

expressly forestalled such effects by “impos[ing] conditions

precluding applicants from carrying [PRB] traffic over IC[]E

and/or CPR[] lines until an EIS has been prepared.” Id.

9

Metra filed a timely petition for review on October 29, 2008

and Sierra Club followed suit on December 1, 2008.

II.

Sierra Club challenges the Board’s failure to prepare an EIS

before approving CPR’s acquisition of DME. Metra challenges

the Board’s approval of the acquisition without imposing

conditions on the North Line similar to those in place on the

West Line. We address, and reject, each challenge in turn.

A. Sierra Club

Sierra Club contends that the Board’s decision to defer the

EIS of the cumulative effects of the railroad acquisitions and the

PRB line construction violated the National Environmental

Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., which “requires

agencies to prepare an environmental evaluation for all

proposals for ‘major Federal actions significantly affecting the

quality of the human environment.’ ” Citizens Against

Rails-to-Trails v. STB, 267 F.3d 1144, 1150 (D.C. Cir. 2001)

(quoting 42 U.S.C. § 4332(2)(C)). The STB responds that Sierra

Club lacks standing under Article III of the United States

Constitution to challenge its decision. We agree.

Sierra Club claims Article III standing as the representative

of two of its members whose sworn declarations it has

submitted: Mark A. Snyder and Sam N. Clauson. An

organization has representational standing to litigate on behalf

of its members “if ‘(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and (c)

neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.’ ” Int’l Bhd.

of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134-35

(D.C. Cir. 2005) (quoting United Food & Commercial Workers

Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553

(1996)) (internal quotation omitted). Sierra Club fails the first

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prong of this test because it has not shown that either of the two

members has standing in his own right.

“The ‘irreducible constitutional minimum of standing

contains three elements’: (1) injury-in-fact, (2) causation, and

(3) redressability.” Jackson County, N.C. v. FERC, 589 F.3d

1284, 1288 (D.C. Cir. 2009) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)) (internal quotation

omitted). Thus, to demonstrate standing, “a petitioner must

allege (1) a personal injury-in-fact that is (2) fairly traceable to

the defendant's conduct and (3) redressable by the relief

requested.” Int’l Bhd. of Teamsters, 429 F.3d at 1134 (internal

quotations omitted). Sierra Club has not made the required

showing because neither Snyder’s declaration nor Clauson’s

declaration alleges an injury that was caused by the Board’s

decision in this case.

Clauson, an “environmentalist” and “avid hunter” who lives

in Rapid City, South Dakota, claims he will be injured by the

STB’s decision approving the DME acquisition because (1) “the

proposed CP[R]/DM&E rail line . . . will drive away the deer

and antelope” that he hunts nearby and (2) the “coal train traffic

. . . will be a frequent source of noise and air pollution, and it

will disturb the natural tranquility of the wild places” he visits.

Sam N. Clauson ¶¶ 4-6 (dated Dec. 2, 2009). The claimed

injuries, however, will not be traceable to the Board’s decision

in this case; nor can they be redressed in this proceeding.

Construction of the proposed rail line of which Clauson

complains was finally authorized in 2006 and the Eighth Circuit

found the Board’s EIS and SEIS fully satisfied NEPA’s

requirements for that “major Federal action.” See Mid States

Coal. for Progress, 345 F.3d 520; Mayo Found., 472 F.3d 545.

The EIS the Board deferred in this proceeding is the EIS

required to assess the additional cumulative environmental

effects caused by “the possible future movement of DM[]E PRB

coal traffic over the IC[]E and CPR[] lines” attributable to the

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subsequent corporate acquisitions (of IMRL by ICE, ICE by

DME and DME by CPR). DME Acquisition at 7-8 (emphasis

added). If the Board’s decision here is overturned, the

construction authorization would not be affected and no new

EIS would be required for the area Clauson visits and hunts.

Snyder, who lives in Minneapolis (a location not covered

by the STB’s 2006 PRB line construction authorization), alleges

as his injury that, “[i]f the Canadian Pacific Rail [CPR] system

is opened to large coal trains, it will create noise, dust, vibration

and adverse visual impacts, and have an adverse impact on [his]

quality of life” inasmuch as he can see and feel the vibration of

CPR trains in his neighborhood and he occasionally hikes on

trails close to the CPR track. Decl. of Mark A. Snyder ¶¶ 4-7

(dated Dec. 3, 2009). Again, the alleged injuries are not

traceable to the Board’s decision in DME Acquisition, which

expressly prohibits coal traffic on the subject track until after an

EIS is completed:

Approval of the [CPR/DME/ICE] control application

in STB Finance Docket No. 35081 is subject to the

condition that applicants may not transport over lines

currently operated by IC[]E and/or CPR[] unit trains of

coal originating on the new rail line approved for

construction in DM[]E PRB Construction, until the

Board has prepared an Environmental Impact

Statement, and has issued a final decision addressing

the environmental impacts of such coal operations and

allowed such operations to begin.

STB Decision 27 ¶ 3, 2008 WL 4415850, at *20. The alleged

injuries, should they ever occur, would result from the Board’s

contemplated “final decision addressing the environmental

impacts” and expressly authorizing coal traffic from the PRB

(via the yet-to-be-constructed PRB extension) to travel over

existing lines now operated by ICE or CPR. And under the

terms of the just quoted passage, such a decision will not issue

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until after an EIS has been prepared, the very relief Sierra Club

seeks. Meanwhile, the Board’s approval of the DME acquisition

by itself—without the addition of coal traffic to the line—will

cause Snyder no injury. He remains free to live in and hike the

area undisturbed by PRB coal traffic.

Because Sierra Club has not shown, as it must, “a causal

connection between the government action that supposedly

required the disregarded procedure”—here, approval of the

DME acquisition— “and some reasonably increased risk of

injury to its particularized interest,” we dismiss its petition for

lack of standing. Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658,

664 (D.C. Cir. 1996) (en banc).

B. Metra

Metra challenges the STB’s refusal to impose the conditions

Metra requested pursuant to subsection (c) of 49 U.S.C.

§ 11324. Subsection (c) provides in relevant part: “The Board

shall approve and authorize a transaction under this section

when it finds the transaction is consistent with the public

interest. The Board may impose conditions governing the

transaction, including the divestiture of parallel tracks or

requiring the granting of trackage rights and access to other

facilities.” Under this provision, the Board “has extraordinarily

broad discretion in deciding whether to impose protective

conditions in the context of railroad consolidations.” Grainbelt

Corp. v. STB, 109 F.3d 794, 798-99 (D.C. Cir. 1997) (citing

predecessor provision 49 U.S.C. § 11344(c), applicable to STB’s

predecessor, the Interstate Commerce Commission) (internal

quotation omitted). “Affording ‘great deference’ to the [Board’s]

selection of such conditions,” we “will deny a petition for

review so long as the [Board’s] decision is supported by

substantial evidence in the record and was reached by reasoned

decision-making.” Id. at 798-99 (citing 5 U.S.C. § 706(2)(A) &

(E); Lamoille Valley R.R. v. ICC, 711 F.2d 295, 307 (D.C. Cir.

1983)). The Board’s decision satisfies this standard.

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Metra argues first that the STB construed section 11324 too

narrowly to preclude—in a subsection (d) proceeding—

imposing subsection (c) conditions that are “not designed to

remedy a competitive problem”—contrary to the Board’s own

previous interpretations of subsection (c) as conferring “broad”

conditioning authority. Pet’rs’ Br. at 24-25 & n.22. We find

Metra’s reading of the Board’s decision too cramped.

It is true the Board observed that “Metra’s alleged harm

does not relate to competition, the major focus of [its] section

11324(d) analysis,” DME Acquisition at 15, 2008 WL 4415850,

at *10—and reasonably so. Subsection (d)’s primary focus is

indeed to preserve competition after a merger or acquisition and

Metra acknowledges the Board’s past practice has been to

“generally impose[] conditions on § 11324(d) transactions

designed only to mitigate anticompetitive impacts of such

transactions.” Pet’rs’ Br. at 24 n.22. But the Board did not stop

there—it also made an affirmative determination not to impose

the conditions Metra sought because they address contractual

issues the Board considered properly the subject of contract

negotiations, not Board directives:

Moreover, Metra seeks material changes to (or

extensions of) existing agreements, or to compel new

contractual commitments from CPR[] to protect Metra

from potential traffic increases that it might not have

considered during prior contractual negotiations. We

will not use our conditioning power here to compel

resolution of potential differences between CPR[] and

Metra with respect to operating, dispatching, and

compensation matters. Given the intricate details

involved in coordinating freight and passenger rail

operations, capital expenditures, and compensation,

commercial negotiation seems to be the better avenue

for resolving such issues. CPR[] has indicated that it

remains committed to working cooperatively with

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Metra, and the Board strongly encourages both parties

to work together to achieve a mutually acceptable

arrangement to govern joint operations.

DME Acquisition at 15, 2008 WL 4415850, at *10. In short, the

Board declined to use its conditioning authority to alter (or

interpret) the existing contractual terms in Metra’s favor,

consistent with its past practice. See CSX Corp.—Control &

Operating Leases/Agreements—Conrail, Inc., 3 S.T.B. 196, 297

(1998) (“[T]hese parties seek material changes to, or extensions

of, existing contracts, or to compel new contractual

commitments or property sales . . . . We are reluctant to use our

conditioning power to compel resolution of differences between

freight railroads and passenger agencies with respect to

operating, dispatching, and compensation matters.”).

Metra also argues the STB abused its discretion under

subsection (c) in refusing to consider the merger’s impact on

Metra’s “commuter services” pursuant to the Board’s “essential

services regulations.” Pet’rs’ Br. at 31-32 (citing 49 C.F.R.

§ 1180.1(c)(2)(ii)). Contrary to Metra’s claim, however, the

Board did consider the impact on Metra’s essential passenger

services, DME Acquisition at 13-14, 2008 WL 4415850, at *9-

10, and concluded it was best addressed through contract

negotiations, as we discussed above. In so reasoning, the Board

did not abuse its discretion. Metra successfully negotiated

comparable conditions in the 2003 agreements governing the

West Line and we see no reason why it cannot attempt to do the

same now, as the Board urged, in light of CPR’s expressed

“commit[ment] to working cooperatively with Metra.” Id. at 15,

2008 WL 4415850, at *10. In any event, even under the 1985

trackage agreement governing the North Line, CPR is required

to “provide priority to Metra’s schedules and operations, and to

ensure that there be no material interference with that service.”

Metra Comments at 4. Accordingly, if negotiations fail and

CPR does not afford the unimpeded priority guaranteed under

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the 1985 agreement, then, as the Board noted, “any contractual

disputes between Metra and CPR[] can be litigated by them in

an appropriate court.” DME Acquisition at 15 n.25, 2008 WL

4415850, at *10 n.25. As we have noted, this merger does not

involve two or more Class I railroads. We do not decide

whether the Board’s determination that negotiation or litigation

is the best avenue to address impacts on Metra’s services would

be reasonable in the context of a merger that does involve two

or more Class I railroads. In such mergers, the Board is

expressly required by statute to “consider,” inter alia, “the effect

of the proposed transaction on the adequacy of transportation to

the public.” 49 U.S.C. § 11324(b).

For the foregoing reasons, Sierra Club’s petition for review

is dismissed for lack of jurisdiction and Metra’s petition for

review is denied.

So ordered.