Lee's Summit v. Surface Transportation Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2000 Decided November 14, 2000

No. 99-1435

Lee's Summit, Missouri and

Raytown, Missouri,

Petitioners

v.

Surface Transportation Board and

United States of America,

Respondents

Missouri Central Railroad Company,

Intervenor

On Petition for Review of Orders of the

Surface Transportation Board

Steven J. Kalish argued the cause and filed the briefs for

petitioners.

Evelyn G. Kitay, Attorney, Surface Transportation Board,

argued the cause for respondents. With her on the brief

were Ellen D. Hanson, General Counsel, and M. Alice Thur-

ston, Attorney, U.S. Department of Justice. Evelyn S. Ying,

Attorney, entered an appearance.

Stuart F. Pierson and David C. Reeves were on the brief

for intervenor.

Daniel A. LaKemper was on the joint brief of amici curiae

Keokuk Junction Railway Co. and Arkansas-Oklahoma Rail-

road, Inc.

Before: Ginsburg, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This is a joint petition for review

of orders of the Surface Transportation Board authorizing the

restoration of service over, and trackage rights to operate on,

an existing but unused 278 mile railroad line in Missouri.

Petitioners, the cities of Lee's Summit and Raytown, contend

that the Board erred in deciding that its regulations required

no environmental review under the National Environmental

Policy Act (NEPA), 42 U.S.C. s 4321, et seq.1

I.

In December of 1997, GRC Holdings Corporation filed a

notice with the Board to acquire from the Union Pacific

Railroad Company a railroad line and associated real proper-

ty. The line runs from the eastern border of Missouri to the

city of Pleasant Hill near the western border of the state.

GRC announced its intention to retain the real property not

needed for rail operations and to convey the line to the

Missouri Central Railroad Company. Missouri Central filed

a Notice of Exemption, indicating that it intended to acquire

the line from GRC, and to obtain trackage rights from Union

Pacific to operate over additional segments at the line's

eastern and western ends. GRC and Missouri Central sought

__________

1 The cities do not challenge the validity of the regulations.

to avoid full Board review of the transaction, claiming an

exemption under 49 U.S.C. s 10502.

The cities of Lee's Summit and Raytown are located on the

24.8 mile segment at the western end, with respect to which

Missouri Central proposed obtaining trackage rights from

Union Pacific. The cities petitioned the Board to reject

GRC's and Missouri Central's claim for exemption. Of the

arguments the cities raised, only one is before us--namely,

that the Board's regulations obligated it to perform an envi-

ronmental assessment of the transaction.

The regulations require such an assessment when the

acquisition of a segment of rail or the construction of track

results in "either ... an increase in rail traffic of at least 100

percent (measured in gross ton miles annually) or an increase

of at least eight trains a day on any segment of rail line

affected by the proposal." 49 C.F.R. s 1105.7(e)(5)(i)(A). An

environmental assessment is also required when an acquisi-

tion results in "[a]n increase in railyard activity of at least 100

percent (measured by carload activity)." 49 C.F.R.

s 1105.7(e)(5)(i)(B).

Much of the Missouri line had not been used since 1979,

although it had never been formally abandoned. The cities

argued that the increase in rail traffic from the present level

of zero to the levels proposed by the transaction--two trains

a day five days per week--constituted at least a 100 percent

increase in gross annual tons and therefore compelled an

environmental assessment. The Board denied the cities'

petition. Missouri Central Railroad Company-Acquisition

and Operation Exemption-Lines of the Union Pacific Rail-

road Company, S.B. Finance Docket No. 33508; GRC Hold-

ings Corporation-Acquisition Exemption-Union Pacific

Railroad Company, STB Finance Docket No. 33537 at 6

(STB served Apr. 30, 1998) ("1998 Decision"). As the Board

saw it, when "a line currently carries no traffic, any resump-

tion of service, no matter how small, represents an increase

mathematically of infinite magnitude." Id. at 7. The Board

therefore turned to the alternative measurement of eight

trains per day, drawing an analogy to transactions in which

carriers reinstate service on abandoned lines. For aban-

doned lines an environment assessment is required only when

the restored operations amount to eight trains per day. Id.

(citing 49 C.F.R. s 1105.7(e)(5)(i)(C)). Thus, "reading the

regulations as a whole," the Board declined to order an

assessment.

On their petition for reconsideration, the cities offered an

additional argument: Missouri Central's planned rail car

interchange at Pleasant Hill, at the beginning of the western

"trackage rights" segment, required an environmental assess-

ment because the facility constituted a "rail yard" and the

activity there would increase at least 100 percent. Without

deciding whether the Pleasant Hill facility constituted a "rail

yard," the Board ruled again that it would be "inappropriate

to apply a percentage increase to a base of zero."

II.

When there is doubt about a party's constitutional stand-

ing, the court must resolve the doubt, sua sponte if need be.

See Steel Co. v. Citizens for a Better Environment, 523 U.S.

83 (1998); National Ass'n of Reversionary Property Owners

v. Surface Transp. Bd., 158 F.3d 135, 141 n.12 (D.C. Cir.

1998). Here the cities' Article III standing is unclear be-

cause, under the Board's regulation (49 C.F.R. s 1105.6(c)(4)),

the acquisition of trackage rights can never trigger a manda-

tory environmental assessment, and yet the cities are located

on the western "trackage" portion of the line. This suggests

that the cities were not injured or perhaps could not get

redress. If the Board had ordered an environmental evalua-

tion, one might assume that it would have dealt only with the

portion of the line to the east of the cities; hence the effect of

the increased rail traffic in the cities' vicinity would not have

been evaluated in any event. Oral argument brought some

new information to light. We learned from Board counsel

that if an environmental assessment is required for one

portion of a line, the Board's practice is to conduct the

assessment for the entire transaction, which in this case

would include the line running near the cities. For this

reason we are satisfied that the cities have demonstrated the

requisite "injury in fact" "fairly traceable" to the Board that

can be "redressed by a favorable decision." Lujan v. Defend-

ers of Wildlife, 504 U.S. 555, 560-61 (1992). The Board, we

should add, agrees that the cities have standing.

III.

On the merits, the main issue is whether the Board improp-

erly disregarded the part of its regulation demanding an

environmental assessment whenever the acquisition of rail

line would result in "an increase in rail traffic of at least 100

percent (measured in gross ton miles annually)." 49 C.F.R.

s 1105.7(e)(5)(i)(A). The cities believe that an increase from

zero tonnage to whatever gross tonnage is represented by 520

trains per year (10 per week) equals an "increase in rail

traffic of at least 100 percent." How the cities calculate this

is a mystery. The regulation asks the question: what is the

percentage increase on the acquired line? Suppose there

were 100 tons per year before the acquisition and 200 tons

afterwards. One does not have to be a Richard Feynman to

figure out that 200 tons is 100% greater than 100 tons. The

formula 100 x (a / b) yields the percentage, when a equals

the post-acquisition increase in tonnage (100 tons) and b

equals the pre-acquisition tonnage (100 tons). But there is

trouble when b equals zero, as it does here. Then there must

be division by zero. Yet as mathematicians know, "you can't

legitimately divide by 0. [Symbol not available electronically] doesn't mean anything." Robert

Kaplan, The Nothing That Is 73 (1999); see also Charles

Seife, Zero 23 (2000) ("[d]ividing by zero destroys the entire

framework of mathematics").2

We may approach the problem differently by trying to

calculate what percentage the post-acquisition traffic repre-

__________

2 For the reasons stated in the text, the Board also properly

refused to require an assessment based on the increased activity at

the Pleasant Hill exchange. Even if the exchange were a "rail

yard," the Board determined that its 100 percent standard could not

be applied because pre-acquisition activity was zero. See 49 C.F.R.

s 1105.7(e)(5)(i)(B).

sents of the pre-acquisition traffic. Suppose 1 train equals 1

ton. The Missouri Central will run 10 trains per week on the

line, 52 weeks per year. What percentage of zero tons is 520

tons? Once again, as a matter of mathematics, the answer is

problematic. If one asked what is 5% of 100, multiplying .05

x 100 yields 5. But if we ask what is 5% of 0, the answer is 0.

Zero multiplied by any number is zero. So what is 100% of

0? Zero of course. One might say, and this perhaps is what

the cities have in mind, that since zero is 100% of zero, it

follows that anything (any tonnage) greater than zero must

trigger the assessment. But the Board had an additional good

reason for not reading its regulation this way. Another

subsection of the regulation--49 C.F.R. s 1105.7(e)(5)(i)(C)--

provides that "[f]or a proposal ... to construct a new line or

re-institute service over a previously abandoned line, only the

eight train a day provision ... will apply." All abandoned

lines will, by definition, have had zero traffic. The Board

thought that the Missouri Central line was analogous; it had

been without traffic for nearly 20 years. 1998 Decision at 7;

Missouri Central Railroad Company--Acquisition and Op-

eration Exemption--Lines of Union Pacific Railroad Com-

pany, STB Finance Docket No. 33508; GRC Holdings Corpo-

ration--An Acquisition Exemption--Union Pacific Railroad

Company, STB Finance Docket No. 33537 at 2 (STB served

Sept. 14, 1999). Although the Board refused to find a "de

facto" abandonment here, it did not have to ignore its aban-

donment rule. If the cities' argument were credited, any

increase in traffic above zero would trigger an assessment;

yet in the comparable situation of an abandoned line being

reactivated, an assessment would be triggered only if the new

traffic amounted to eight trains per day. To maintain some

consistency in its regulatory treatment of these closely analo-

gous situations, the Board therefore decided to apply the

eight-trains-per-day portion of the rule to this transaction.

It is true that the Board's resolution is not perfect. If on

the same rail line involved in this case, there had been 1 train

per day, five days per week (instead of zero traffic), the

increased traffic after the acquisition would have required an

environmental assessment because 2 trains per day over the

same period (assuming equal weight) amounts to a 100%

increase. So an environmental assessment would be required

for an increase of 1 train per day but not, as here, for an

increase of 2 trains per day on the same line. That, say the

cities, is senseless.

They have a point but so does the Board when it relies on

the manner in which it treats abandoned lines. There is, as

we have indicated, no perfect solution to the problems posed

by applying the 100% increase standard to a baseline of zero.

In these circumstances, the Board's interpretation of its

regulation is deserving of respect. Application of the eight

trains per day standard is not "plainly erroneous or inconsis-

tent with the regulation." United States v. Larionoff, 431

U.S. 864, 872 (1976); Bluestone Energy Design, Inc. v.

FERC, 74 F.3d 1288, 1292 (D.C. Cir. 1996).3

The petition for judicial review is denied.

__________

3 We reject the cities' claim that rehabilitation of the line will

constitute construction of track and therefore trigger an assessment

under a different regulation (49 C.F.R. s 1105.6(b)(1)). Improve-

ment of existing track does not constitute "construction," and does

not even trigger Board jurisdiction under 49 U.S.C. s 1091. City of

Detroit v. Canadian Nat'l Ry., 9 I.C.C. 1208, 1215-17 (1993), aff'd

sub nom. Detroit/Wayne County Port Auth. v. ICC, 59 F.3d 1314,

1316-17 (D.C. Cir. 1995).