Western Coal Traffic League v. STB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2021 Decided May 28, 2021

No. 20-1058

WESTERN COAL TRAFFIC LEAGUE,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND UNITED STATES OF

AMERICA,

RESPONDENTS

On Petition for Review of Orders

of the Surface Transportation Board

William L. Slover argued the cause for petitioner. With

him on the briefs were John H. LeSeur and A. Rebecca

Williams.

Erik G. Light, Attorney, Surface Transportation Board,

argued the cause for respondents. With him on the joint brief

were Michael F. Murray, Deputy Assistant Attorney General,

U.S. Department of Justice, Robert B. Nicholson, Attorney,

Craig M. Keats, General Counsel, Surface Transportation

Board, and Anika S. Cooper, Deputy General Counsel.

Kathleen S. Kiernan, Attorney, U.S. Department of Justice,

entered an appearance.

2

Before: SRINIVASAN, Chief Judge, WILKINS, Circuit

Judge, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

Dissenting opinion filed by Circuit Judge WILKINS.

SILBERMAN, Senior Circuit Judge: The Surface

Transportation Board deadlocked 1–1–1 on what, if anything,

to do about an existing rule governing rail carrier fuel

surcharges. After five years with no majority position on how

to proceed, the Board unanimously voted to discontinue its

Advanced Notice of Proposed Rulemaking (ANPRM) in the

interest of administrative finality. Petitioner Western Coal

Traffic League brings various arguments as to why the Board’s

action was unreasonable. But since the League lacks standing,

we dismiss its petition.

I

The Surface Transportation Board is charged with

oversight of the freight rail industry. It regulates carrier “rates”

and “practices.” 49 U.S.C. § 10702. Although the Board’s

regulation of rates is dependent on a determination that a rail

carrier “has market dominance,” id. § 10707(b), regulation of

practices does not require any such finding. At full strength,

the Board is composed of five members nominated by the

President and confirmed by the Senate. Id. § 1301(b)(1).

Members serve five-year terms, subject to for-cause removal.

Id. § 1301(b)(3).

This petition concerns a Board Rule governing “fuel

surcharges,” or charges that rail carriers impose to recover

increases in fuel costs. Two decades ago (in response to rising

fuel prices), rail carriers began to assess fuel surcharges as a

3

separate, added percentage on top of the base rate for

transportation. Shippers challenged the surcharges before the

Board, arguing that imposing “fuel surcharges” was an

unreasonable practice. Because the base rate is determined by

market forces—not simply carrier costs—imposing the

surcharge over the base rate as a fixed percentage, in the

shippers’ view, resulted in overcharges for fuel.

In response to the shipper’s complaints, the Board adopted

a rule requiring carriers to calculate fuel surcharges based on

factors tied to the movement of goods—e.g., mileage and

weight—rather than a percentage over the base rate. Rail Fuel

Surcharges, Ex Parte No. 661, 2007 WL 201205, at *4 (S.T.B.

Jan. 25, 2007) (“the Rule”). The Board further specified that a

fee may not be called a “fuel surcharge” if it recovers more than

the carrier’s actual fuel costs (carriers can still impose profit-

generating fees under a different label). Id. Nevertheless, the

Board also adopted a “safe harbor” fuel index that shippers

could use to approximate actual changes in fuel prices. Id. at

*8. To calculate a “fuel surcharge,” rail carriers could rely on

changes in the safe harbor index (even if doing so generates a

profit) instead of determining the actual change in fuel costs.1

Over time, the Board perceived a potential problem with

its safe harbor provision. In Cargill, Inc. v. BNSF R. Co.,

1

Because the Rule addresses “the manner in which railroads

apply what they label a fuel surcharge” instead of the “the total

amount a rail carrier can charge,” the Rule purports to be a practice

regulation and not a rate regulation. Rail Fuel Surcharges at *4–5.

But see infra at 7 (Board Members questioning that premise). And

since the Rule regulates fuel surcharges as a practice (not a rate), it

need not find that a carrier has market dominance before declaring a

surcharge unreasonable. See Rail Fuel Surcharges at *4–5. The

regulation of rail fuel surcharges as a practice does not affect a

shipper’s ability to bring a challenge to the total rate. See id.

4

Docket No. NOR 42120, 2013 WL 4067719 (S.T.B. Aug. 9,

2013), the defendant carrier had implemented a mileage-based

fuel surcharge formula based on the safe harbor index. But the

defendant’s actual incremental fuel costs were far lower than

its fuel surcharge (to the tune of some $181 million over five

years). Id. at *11.2 The Board explained that this result could

be attributed to a growing spread between index fuel prices and

the carrier’s de facto fuel prices. As the Board noted, the safe

harbor index was designed to allow railroads to recover

incremental fuel costs—not to generate significant added

revenue. Yet, since the defendant carrier complied with the

safe harbor provision, the Board could not conclude that the

carrier’s practice was unreasonable.

Still, the Board noted that this result “raised concerns

about the safe harbor,” explaining that the safe harbor

“provides rail carriers with an unintended advantage” by

offering them a choice. Id. at *14. If the change in actual fuel

costs is greater than the change in the safe harbor index, a

railroad can revise its fuel surcharge program to recover actual

costs. But if the change in the index is greater than the change

in actual costs, the safe harbor allows a railroad to collect a

profit that cannot be challenged as an unreasonable practice.

Id. Accordingly, “[b]ecause it is possible this aspect of the safe

harbor provision could lead to future abuse” the Board stated

its intention to “issue an [ANPRM] to give shippers, rail

carriers, and other interested parties the opportunity to

comment on the safe harbor, including whether it should be

modified or removed.” Id.

2

In comments to the agency, the League asserted that between

2011 and 2013, two large carriers (BNSF and the Union Pacific

Railroad Company) collected safe harbor-based profits of over $846

million. J.A. 169–70, 210, 271–73.

5

As promised, the Board issued a broad ANPRM to

facilitate evaluation of the existing safe harbor provision:

We are seeking comments from the public on

whether the safe harbor provision of Fuel

Surcharges should be modified or removed. In

particular, we seek comments on: [1] whether

or not the phenomenon that we observed in

Cargill (a growing spread between a rail

carrier’s internal fuel costs and the [Safe

Harbor] Index) was likely an aberration; [2]

whether there are problems associated with the

Board’s use of the [Department of Energy’s]

Index as a safe harbor in judging the

reasonableness of fuel surcharge programs; [3]

whether any problems with the safe harbor

could be addressed through a modification of

it; and [4] whether any problems with the safe

harbor are outweighed by its benefits. Parties

are also encouraged to comment on any other

matter that they believe bears on whether the

safe harbor should be modified or removed.

Rail Fuel Surcharges (Safe Harbor), No. EP 661 (SUB-No. 2),

2014 WL 2217800, at *2 (S.T.B. May 22, 2014).

Five years after the close of the ANPRM comment period,

the Board discontinued the Safe Harbor docket.3 The Board’s

3

Both Congress and Petitioner expressed their frustration with

the Board’s delay in the interim period. In the Surface

Transportation Board Reauthorization Act of 2015, Pub. L. 114–110

(2015), Congress required the Board to issue progress reports on

certain “major” unfinished regulatory proceedings. 49 U.S.C. § 1304

note. It also expanded the Board’s membership “from three

6

decision described the history of the safe harbor index as well

as noted the various perspectives contained in the 15 comments

and 10 replies that it received. Those comments were varied;

some commentors supported repeal of the safe harbor, some

advocated for keeping it as is, and still others suggested

keeping the safe harbor in some modified form. Similarly, the

commenters did not agree on whether the Cargill issue was an

aberration, whether there was enough information to answer

that question, or whether Cargill represented an advantage or

disadvantage of the Rule.4 The Board then succinctly stated:

Since the comment period closed in 2014, the

Board has been unable to reach a majority

decision on what additional Board action

should be taken in response to the comments

received. Because of the lack of a majority

opinion and in the interest of administrative

finality, the Board Members agree that this

docket should be discontinued.

Safe Harbor, No. EP 661 (SUB-No. 2), 2019 WL 4127256, at

*2 (S.T.B. Aug. 28, 2019).

members to five in order to address inefficient quorum

requirements.” S. Rep. No. 114-52 at 11 (2015); see 49 U.S.C.

§ 1301(b). Petitioner filed a mandamus petition in this Court to

compel the Board to act. See Petition For Writ of Mandamus, In re

W. Coal Traffic League, No. 19-1080 (D.C. Cir. Apr. 4, 2019). But

once the agency discontinued its rulemaking docket, we granted the

Board’s unopposed motion to dismiss the mandamus petition as

moot.

4

The dissent calculates the comments, assuming the number in

support or opposition is relevant. But see Nat. Res. Def. Council, Inc.

v. EPA, 822 F.2d 104, 122 (D.C. Cir. 1987) (“[A]gency rulemaking

is [not] a democratic process by which the majority of commenters

prevail by sheer weight of numbers.”).

7

Each of the Board’s three members published separate

statements explaining their preferred course of action. Board

Chairman Ann Begeman explained her view that the safe

harbor provision is “misguided” and should be repealed. Id. at

*3. Board Member Martin Oberman would reverse the Rail

Fuel Surcharges Rule in its entirety—not just the safe harbor

provision. In his view, the Rule is really an impermissible rate

regulation (as opposed to a practice regulation). Id. at *4.

Board Member Patrick Fuchs thought the Rule suffered from

internal tensions—if it was not self-contradictory. And he

would not risk “exacerbating” those tensions “by modifying or

removing the safe harbor provision.” Id. at *3. Citing reliance

interests, Fuchs went on to explain that he would not reverse

the entire Rule but would instead advance reforms to how the

Board evaluated overall rates. Id. at *4.

The League sued to set aside the Board’s termination of

the ANPRM as arbitrary and capricious. Although Petitioner

did not explicitly indicate what it thought would ensue if it

prevailed, it seems that the League expected that such an order

would lead to a continuation of the rulemaking process. In any

event, in light of the Board’s deadlock, we asked the Parties to

explain how any order from this court would offer Petitioner

relief. In other words, is Petitioner’s injury redressable? 5

5

After this Petition was filed, two additional members of the

Board were appointed, bringing it to full strength—which, of course,

gives Petitioner a new avenue for relief. Although we questioned the

Parties about whether this development rendered the dispute moot,

we need not address that issue since the League lacks standing.

8

II

Petitioner argues that the Board acted unreasonably by

deadlocking. It contends that an impasse “does not excuse an

agency from issuing a ‘well-reasoned’ merits decision that

considers ‘the relevant factors.’” Pet’r Br. 25 (citing Radio

Television News Dirs. Ass’n v. FCC, 184 F.3d 872, 885–86

(D.C. Cir. 1999)). The Board counters that dismissal for

deadlock was entirely proper.

We think Petitioner lacks standing. It is obvious that the

League alleges an injury-in-fact: The costs of shipping are

supposedly too high. Causation is also easily met because the

Board’s safe harbor provision, coupled with the Board’s failure

to issue a rule that would modify or eliminate that provision,

plausibly created the higher rates. Petitioner’s problem is the

third standing requirement, redressability. To satisfy that

requirement, the asserted injury must be “capable of resolution

and likely to be redressed by judicial decision.” Sierra Club v.

EPA, 755 F.3d 968, 973 (D.C. Cir. 2014). Here, Petitioner’s

claim is not capable of resolution through a judicial decision

because we lack the power to issue an order to break the

Board’s deadlock.

The Board is deadlocked over the whole question as to

what, if anything, it should do about fuel surcharges. That

issue—as is true of all relevant policy decisions—is delegated

to the agency, not our court. We certainly lack authority to

order any individual Board Member to change his or her policy

position. Yet, Petitioner implicitly asks us to compel the

Members to reach agreement—akin to (but even exceeding the

bounds of) an Allen charge that a district judge might issue to

a deadlocked jury. But a federal administrative agency is not a

jury; it is an organ of a coequal branch of government. We are

without power to issue an order to break the deadlock.

9

According to the dissent, the Board should “hire

consultants [or] hold hearings” as a prod to break the deadlock.

Dissent at 8. That seems to us to be an imposition of added

procedures exceeding the APA’s requirements. See Vermont

Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

435 U.S. 519, 543–545 (1978). In addition to imposing new

procedures, the dissent’s solution doesn’t respect the Board’s

autonomy. In any event, given the five-year deadlock, the

dissent’s prescriptions are a recipe for the continued spinning

of wheels.

Those suggestions highlight a fundamental disagreement

that we have with the dissent. Of course, a favorable decision

must be “likely to [] redress[]” the asserted injury. E.g., Valley

Forge Christian Coll. v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982). (Or, assuming

a procedural injury, “some possibility” of redress, see

Massachusetts v. EPA, 549 U.S. 497, 517 (2007).) This inquiry

normally overlaps with causation, since correcting the conduct

that causes an injury typically solves the problem. But rarely—

as in this case—causation is satisfied but redressability is not.

That is because the requested relief is itself an authority we do

not possess. See e.g., Frothingham v. Mellon, 262 U.S. 447,

489 (1923); cf. Franklin v. Massachusetts, 505 U.S. 788, 802

(1992) (plurality) (separating out the “thornier standing

question” of whether the judicial power extends to injunctive

relief against the President).

Admittedly, we remanded to a deadlocked agency in

Radio-Television. 184 F.3d 872. In that case, the FCC (after

fifteen years of attempted rulemaking and two mandamus

petitions) deadlocked 2–2 on its proposal to repeal personal

attack and political editorial rules. Without addressing our

jurisdiction—and without objection from the Commission—

10

we issued an unpublished opinion requiring the two

commissioners voting against repeal to explain their rationale

in a joint statement. 159 F.3d 636 (D.C. Cir. 1998)

(unpublished table decision). Later finding that court-

mandated explanation inadequate, we vacated the joint

statement and remanded to the Commission for further

deliberation. 184 F.3d at 880–89. After the deadlock persisted

for an additional two years, we issued a writ of mandamus

directing the Commission to immediately repeal its rules. 229

F.3d 269, 272 (D.C. Cir. 2000).

Radio-Television does not stand for the proposition that we

have the general power to break agency deadlocks. It is crucial

to recognize that case does not constitute a precedent on

jurisdiction because it failed to address that question. See

Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (“[T]he existence

of unaddressed jurisdictional defects has no precedential

effect.”).

Even if it had contemplated jurisdiction, Radio-Television

should be distinguished. There, the FCC had “imposed upon

itself a particularly heavy burden” to justify its existing rules.

184 F.3d at 886 (internal quotation and citation omitted). In

light of the Commission’s elimination of the fairness doctrine

(on which the attack and editorial rules were predicated), the

FCC had previously articulated that its rules would be repealed

unless it could articulate a good reason to keep them. We

explained that the FCC had, rather uniquely, “framed the []

rulemaking proceeding in terms of providing a persuasive

rationale for a rule that seemed unnecessary” (if not illegal).

Id. (internal quotations and citations omitted). And, having

taken on this heavy burden, we saw no problem with holding

the agency to its self-imposed standard. But in the present case,

the Board has accepted no such heightened burden, and an

agency decision to dismiss an ANPRM is entitled to “very

11

substantial” deference. Consumer Fed’n of Am. v. Consumer

Prod. Safety Comm’n, 990 F.2d 1298, 1304–05 (D.C. Cir.

1993).

* * *

Creatively, Petitioner presents us with two arguments that

indirectly attack the deadlock: (1) We should review the

individual statements of the Board Members and conclude that

two of the three are arbitrary and capricious (the third

apparently agrees with Petitioner), and (2) the whole Board’s

failure to answer one of the four questions it posed in its

ANPRM—whether the Cargill decision was an “aberration”—

was itself unreasonable. “With that answer in hand,” the

League explains, the Board “could turn to rationally address

the issue of whether it should modify or eliminate the safe

harbor.” Pet’r Br. 24.

The first alternative argument is quite out of bounds. We

exercise judicial review only over the actions of the Board, not

over the substance of the views of the individual

commissioners. Compare 28 U.S.C. §§ 2321(a), 2342(5)

(authorizing our review of “rules, regulations, or final orders”

of the “Surface Transportation Board”) with 49 U.S.C.

§ 1306(b)(3) (An individual Board Member “is entitled to

express the views of that individual.”). After all, when we

review the actions of a collective body such as the Board, “it is

its institutional decisions—none other—that bear legal

significance.” Pub. Serv. Comm’n v. Fed’l Power Comm’n,

543 F.2d 757, 776 (D.C. Cir. 1974).6 In this sense, the separate

6

We acknowledge that we have required the joint statements of

members of the Federal Election Commission when that agency

deadlocks and thereby dismisses a complaint contrary to the

12

statements of the Board Members are akin to concurring (or

dissenting) opinions of judges. And of course, a judge’s

separate statement cannot be imputed to an opinion of the

court. So too administrative decisions must be equally

respected. See United States v. Morgan, 313 U.S. 409, 422

(1941).

To be sure, we could examine the separate statements for

the limited purpose of determining whether an agency’s

members have acted in bad faith. See San Luis Obispo Mothers

for Peace v. U.S. Nuclear Regul. Comm’n, 789 F.2d 26, 44–45

(D.C. Cir. 1986) (en banc). But that proposition does not

extend to empowering a court to determine whether the

positions of individual commissioners are reasonable. In this

respect, the situation is similar to our refusal to consider

internal deliberations that lead to the decision of a single head

of a department or agency. We would permit such an inquiry

only if faced with a strong showing of bad faith, which

recommendation of its General Counsel. See Democratic Cong.

Campaign Comm. v. Fed. Election Comm’n, 831 F.2d 1131, 1133

(D.C. Cir. 1987); Common Cause v. Fed. Election Comm’n, 842 F.2d

436, 449 (D.C. Cir. 1988) (“[I]mportant statutory policies [are]

served by requiring an explanation for deadlock dismissals contrary

to the recommendation of the General Counsel.”). In that situation,

we review the joint statement of the “controlling commissioners”

who would decline to proceed as the rationale of the Commission (a

practice that we have characterized as a “fiction raising problems of

its own.”). Citizens for Resp. & Ethics in Washington v. Fed.

Election Comm’n, 892 F.3d 434, 437–38 (D.C. Cir. 2018). Here,

however, we have no “controlling commissioners”—each Board

Member would act differently. See id. at 438 n.4 (rhetorically

asking, “What if the three [FEC] Commissioners each expressed a

different reason for voting against enforcement proceedings?”).

Neither do we have a contrary recommendation of the agency’s

general counsel, nor are the same “statutory policies” at play.

Therefore, we don’t think our FEC precedents bear on our case.

13

Petitioner does not argue is present here. See Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). Indeed,

there is not a shred of evidence to suggest that the Members’

irreconcilable policy differences are somehow artificial or not

in good faith.

We turn to Petitioner’s other alternative argument, that the

Board acted unreasonably when it did not consider whether the

Cargill decision was an “aberration.” Although our review is

highly deferential, it is true that we have required agencies (in

the absence of a deadlock) to provide satisfactory explanations

for the dismissal of a rulemaking docket. See, e.g., Consumer

Fed’n of Am. v. Consumer Prod. Safety Comm’n, 990 F.2d

1298, 1305–08 (D.C. Cir. 1993). If not, we have set aside the

agency’s dismissal for it to adequately determine whether to

continue the rulemaking. Williams Nat. Gas Co. v. FERC, 872

F.2d 438, 450 (D.C. Cir. 1989). Petitioner’s view is not just

that the deadlock is a problem, but that the agency failed to

consider an important aspect of the problem. Overcoming the

impasse, according to Petitioner, directly flows from

appropriate consideration of the Cargill issue.

This argument is a distinction without a difference. In

effect, the League attempts to end run the Board’s deadlock.

Petitioner’s focus on Cargill is clever but rather arbitrary.

After all, it was only one of four issues the Board mentioned in

its ANPRM. And it is wholly speculative, assuming the Board

would conclude that Cargill is not an aberration, that the Board

would come to an agreement on what to do about fuel costs,

and then reach an accord—after five years of impasse—about

whether to modify the rule. The Board did not tell us that it

was at loggerheads about Cargill—it was at loggerheads about

what to do about the fuel surcharges problem all together.

14

Assuming we could review the Board Members’ separate

statements as evidence in our jurisdictional inquiry, those

statements confirm that considering Cargill would make no

difference.7 It is not apparent how consideration of the

aberration issue would influence any Board Member’s vote.

It will be recalled that Chairman Begeman wished to

repeal the safe harbor rule—and would thus give Petitioner the

result it seeks. The views of Board Members Oberman and

Fuchs, on the other hand, turn on their legal analysis, not the

factual question of whether Cargill is an aberration. Board

Member Oberman would reverse the Rule in its entirety—not

just the safe harbor provision. In his view, challenges to fuel

surcharges are really objections to the reasonableness of the

overall rate. Such challenges must, as a matter of law, be

brought as a rate challenge rather than a practice challenge.

Board Member Fuchs similarly would not risk “exacerbating”

the tension between the Board’s standard of review for rail

surcharges (as a practice) and the standard of review for rates

(requiring market dominance) by eliminating or modifying the

safe harbor.

The dissent agrees with Petitioner’s Cargill-centric

argument, reasoning that “[h]ad the Board acknowledged the

7

Paradoxically, the government asserts that we cannot review

the Board Members’ separate statements for reasonableness while

simultaneously allowing them to be considered as evidence in its

jurisdictional argument. Compare Resp’ts Br. 17 (only decisions “of

the Board” may be reviewed for reasonableness) with Oral Arg.

1:45:00–1:50:00 (Feb. 4, 2021) (arguing that the Cargill issue would

not have impacted the Board Members’ separate statements). The

dissent quite rightly points out this contradiction. But since both

Parties invite us to entertain these statements for the purpose of

assessing redressability, we accept their position only for the sake of

argument.

15

evidence” that Cargill is a problem, “there is at least a

reasonable probability it would have decided to continue

working on a solution.” Dissent at 14. And that, in the

dissent’s view, “is all that Western Coal requests from this

Court.” Id. But, if mere continued deliberation is really all

Petitioner seeks, redressability of its injury is clearly lacking.

Petitioner must, at least, link a permissible court order to its

concrete injury, not simply to an extension of the (so far futile)

deliberations. See Narragansett, 949 F.3d at 13–14 (injury not

redressable where petitioner “does not explain how any

correction of procedural course would help it or what it could

obtain out of a remand.”).

Contrary to the dissent’s suggestion, we do not hold that

Petitioner must show that it would achieve a different

substantive outcome. Our holding is a modest one: Where an

agency has dismissed an ANPRM because it is mired in a good-

faith deadlock, judges lack the power to pick the winning

policy position. Sending the dispute back for continued

deliberations—where nothing in the record indicates the

reasonable possibility that remand would break that impasse—

does not remedy Petitioner’s injury.8

The dissent assumes that an alleged failure to address a

major issue is a procedural injury. But we very much doubt

that is so. Undeniably, we have “struggled” with the distinction

between substance and procedure. See JEM Broadcasting Co.,

INC v. FCC, 22 F.3d 320, 327 (D.C. Cir. 1994). Depriving a

party of the opportunity to participate in notice and comment

is, for instance, a procedural injury. See Summers v. Earth

Island Institute, 554 U.S. 488, 496–97 (2009). But the failure

8

We cannot imagine why the dissent argues that our opinion,

holding that we lack jurisdiction, undermines State Farm, a case in

which jurisdiction is undisputed.

16

to respond to significant comments—which is what Petitioner

essentially claims—violates a substantive guarantee of the

APA. As Justice White famously described, agency action is

arbitrary and capricious if it “entirely failed to consider an

important aspect of the problem.” Motor Vehicle Mfrs. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). He did so in a list of actions that are all substantive—

not procedural—violations of the APA. Id.; see also

Lilliputian Sys., Inc. v. Pipeline & Hazardous Materials Safety

Admin., 741 F.3d 1309, 1312 (D.C. Cir. 2014).9 Logically,

Petitioner’s claim that the Board failed to consider whether

Cargill was an aberration is no different than whether an

agency properly considered a statutory provision. We don’t

9

The dissent errs by relying on Perez v. Mortgage Bankers

Ass’n, 575 U.S. 92, 96 (2015), for the proposition that a failure to

respond to significant comments is procedural. There, the Court

used the word procedure to describe an agency’s order of analysis,

not whether any command of the APA is procedural or

substantive. At best, we have said, the failure to respond to

significant points raised during the comment period may be

“described as ‘quasi-procedural’ rather than ‘procedural.’” Nat’l

Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1042 (D.C. Cir.

2012) (quoting Merrick B. Garland, Deregulation and Judicial

Review, 98 Harv. L. Rev. 505, 530 (1985)). That requirement is

concerned “not with the external process by which litigants

present their arguments to the agency, but with the internal

thought process by which an agency decisionmaker reaches a

rational decision. Thus, these requirements can be said to flow

not from the APA’s procedural dictates, but from its substantive

command that agency decisionmaking not be ‘arbitrary’ or

‘capricious.’” Id.; see also Am. Trading Transp. Co. v. United

States, 841 F.2d 421, 424 (D.C. Cir. 1988) (a court reviews both the

“substantive” question of whether an action is arbitrary and

capricious as well as the “procedures . . . employed in reaching its

decision.”).

17

think that redressability is “relaxed” as the dissent believes.

See Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5

(D.C. Cir. 2005) (whether an injury is categorized as

substantive or procedural may affect our evaluation of chains

of causation and redressability). However, assuming that the

dissent is correct in describing the situation as involving a

procedural injury, as we previously noted, the prospect of a

remedy has to be a reasonable possibility. “Unadorned

speculation will not suffice to invoke the judicial power.” Ctr.

for L. & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1159 (D.C.

Cir. 2005) (citations omitted).

Petitioner wishes us to hint that issue one in the

ANPRM—whether Cargill is an aberration—is the crucial

factor (even if cost-benefit analysis were to suggest no change

is warranted). And the dissent appears to agree that the Cargill

decision is, in fact, a problem. Even if we had jurisdiction over

this case (which we do not), we think it is inappropriate to

suggest that Petitioner is correct on the underlying issue, since

that question is not before us.

The petition is dismissed.10

So ordered.

10

After the Board dismissed its ANPRM, the League sought

reconsideration of that decision, which the Board denied. Rail Fuel

Surcharges (Safe Harbor) Reconsideration Decision, Fed. Carr. Cas.

(CCH) ¶ 37432, 2019 WL 7484096 (S.T.B. Dec. 26, 2019).

Although Petitioner also sought review of the denial of its request for

reconsideration, it now concedes that the reconsideration decision “is

of no practical consequence in this case.” Reply Br. 17.

Accordingly, we similarly dismiss Petitioner’s challenge to the

reconsideration decision for lack of jurisdiction.

WILKINS, Circuit Judge, dissenting: The first step in

solving a problem is recognizing there is one. In 2014, the

Surface Transportation Board (“Board”) issued an advance

notice of proposed rulemaking (“ANPR”) seeking comment

from interested parties on whether the phenomenon it observed

in the Cargill adjudication—where a rail carrier was found to

have used a safe harbor provision to make over $180 million in

revenue from the fuel surcharge—was an aberration, and, if so,

whether and how to address this problem. Five years and one

mandamus petition later, the Board discontinued the ANPR

without responding to the comments it received. Contrary to

the majority, I would hold that the Western Coal Traffic

League (“Western Coal”) has standing to challenge the Board’s

discontinuation of the ANPR. I would also hold that the

Board’s discontinuation was arbitrary and capricious.

I.

The Surface Transportation Board is tasked with

overseeing the freight rail industry and, in this capacity,

reviews the rates rail carriers charge and the carriers’ practices.

49 U.S.C. §§ 10701; 10702. In 2007, the Board promulgated a

rule that addressed rail carriers’ assessment of fuel surcharges

on shippers. Before 2007, carriers calculated fuel charges

based on a base rate, which was market-based and not

grounded in actual fuel cost increases. As a result, carriers

were earning more from fuel surcharges than they were

spending on fuel. In response, the Board’s rule prohibited

carriers from assessing fuel surcharges as a percentage of that

base rate. Instead, the fuel surcharges had to be based on

factors directly related to fuel consumption. The rule, however,

did not prohibit additional surcharges; it only prohibited rail

carriers from identifying them as fuel surcharges if those

surcharges exceeded the amount spent on increased fuel costs.

The rule also did not set a uniform fuel index to measure

“incremental fuel costs”—additional fuel costs caused by

2

increased fuel prices that exceed a certain amount set in the fuel

surcharge formula. Instead, the rule adopted a “Highway

Diesel Fuel Index” (“HDF Index”), which served as a safe

harbor index that carriers could rely on instead of using their

actual incremental fuel costs.

In 2010, Cargill, Inc. (“Cargill”), a shipper of agricultural

products, filed a complaint against carrier BNSF Railway

Company (“BNSF”) with the Board. Cargill, Inc. v. BNSF

Railway Co., 2013 WL 4067719 (S.T.B. 2013). Cargill alleged

that BNSF was using the HDF Index to reap profits well in

excess of its actual incremental fuel costs. The Board rejected

Cargill’s allegations. Id. at *5. The Board concluded that

BNSF’s reliance on the HDF Index to calculate the fuel

surcharge was reasonable as long as BNSF used the “HDF

Index as a proxy to measure changes in [its] internal fuel costs.”

Id. at *11. The Board then calculated the changes in internal

fuel costs using the HDF Index and concluded that BNSF did

not over-recover fuel costs. Id. at *14.

But the Board recognized that BNSF’s use of the safe

harbor provision “raised concerns.” Id. The Board

acknowledged that “the safe harbor can allow a rail carrier to

recover more than its incremental fuel costs as measured by the

carrier’s internal fuel costs.” Id. In this instance, the Board

calculated that BNSF’s fuel surcharge revenues exceeded its

incremental fuel costs by some $181 million over five years.

Since the Board did “not know if this was a unique situation”

or “a more widespread phenomenon” and was concerned that

the safe harbor could “immunize . . . over-recovery from

scrutiny,” the Board decided to “issue an advance[] notice of

proposed rulemaking to give shippers, rail carriers, and other

interested parties the opportunity to comment on the safe

harbor, including whether it should be modified or removed.”

Id.

3

True to its word, the Board issued an advance notice of

proposed rulemaking in 2014. The Board requested

“comments from the public on whether the safe harbor

provision of Fuel Surcharges should be modified or removed.”

J.A. 19. “In particular,” the Board requested comments on (1)

“whether or not the phenomenon . . . observed in Cargill . . .

was likely an aberration,” (2) “whether there are problems

associated with the Board’s use of the HDF Index as a safe

harbor in judging the reasonableness of fuel surcharge

programs,” (3) “whether any problems with the safe harbor

could be addressed through a modification of [the provision],”

and (4) “whether any problems with the safe harbor are

outweighed by its benefits.” Id.

The Board received a total of twenty-five comments from

carriers, shippers (including Petitioner Western Coal Traffic

League), and other interested parties. Most commenters who

addressed whether the Cargill phenomenon was an aberration

argued that it was not, and that carriers had pocketed hundreds

of millions of dollars in profits from these fuel surcharges. One

commenter suggested that it might be a common occurrence

but warranted further study. The carriers unanimously

supported preserving the status quo; the shippers were divided.

Some shippers, including Petitioner, recommended that the

Board eliminate the safe harbor. Other shippers suggested that

the safe harbor be modified. One shipper suggested that the

HDF Index was not the primary cause of fuel surcharge

problems. The Board closed the record in October 2014.

Then the Board did nothing for five years. Two years after

the record closed, Western Coal requested that the Board take

action, but the Board denied its request. After five years of

inaction, Western Coal petitioned this Court for a writ of

mandamus. We referred the petition to a merits panel. Order,

In re Western Coal Traffic League, No. 19–1080 (Aug. 23,

2019). Five days later, the Board issued its decision to

4

discontinue the ANPR, which rendered the mandamus petition

moot.

In its decision, the Board catalogued the “varied”

comments submitted in response to the ANPR. The Board

acknowledged that “many [comments] did not directly address

the Board’s question about whether the . . . phenomenon seen

in Cargill was an aberration.” J.A. 9. The Board noted that

“[s]ome commenters claimed the Cargill outcome was an

aberration, while another said there was insufficient evidence

to answer the question.” Id. (footnote omitted). But the Board

did not acknowledge the numerous commenters who argued

that the Cargill phenomenon was not an aberration and the

evidence they presented that suggested that shippers were

reaping profits in the hundreds of millions of dollars.

The Board “recognize[d] and appreciate[d] that

commenters devoted substantial time and effort to responding

to the” ANPR. J.A. 10. But the Board stated that it was

“unable to reach a majority decision on what additional Board

action should be taken in response to the comments received.”

Id. Thus, “[b]ecause of the lack of a majority opinion and in

the interest of administrative finality,” the Board discontinued

the ANPR. Id. 1

1

The three Board members issued commenting statements.

Chairwoman Begeman stated that she believed the safe harbor

should be eliminated, but, because “there hasn’t been a majority to

coalesce around any approach (mine or any other one),” she voted

“to close the proceeding rather than wait for a full complement of

Board members in hopes that a majority view would be reached to

repeal the safe harbor provision.” J.A. 11. Board member Fuchs

commented that he was opposed to modifying or removing the safe

harbor provision out of fear of exacerbating the tension that would

result from different standards for the fuel surcharge and the overall

5

Western Coal then petitioned for reconsideration and

subsequently for judicial review. Western Coal claims that the

Board’s decision was arbitrary and capricious because it failed

to respond to the comments answering the Board’s own

question of whether the Cargill phenomenon was an

aberration. On review, Western Coal asks this Court to “hold

unlawful, vacate and set aside the Decision[] and grant such

further relief as may be deemed just and proper.” Pet. for

Review, Western Coal Traffic League v. Surface Transp.

Board, No. 20–1058, at 2 (Feb. 28, 2020).

II.

To establish the “irreducible constitutional minimum” of

standing, the plaintiff must have “(1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robbins, 136 S. Ct. 1540,

1547 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992)). “When determining whether a plaintiff has

Article III standing,” we must assume that the plaintiff “will

prevail on the merits.” Comm. on Judiciary of U.S. House of

Reps. v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (en

rate. J.A. 12. In addition, Fuchs commented that carriers and

customers have relied on the HDF Index, so he proposed leaving it

in place and instead focusing on reforming the overall rate review

process. J.A. 12–13. Finally, Board member Oberman commented

that he thought that the relief sought in Cargill and the proposed

amendment here was “at base, rate relief” and not a regulation of

carrier practices. J.A. 13. Rather than eliminate the safe harbor

provision, Oberman preferred that the Board reverse its Rail Fuel

Surcharges decision, “which created the fuel surcharges rules and

their safe harbor provision.” Id. All three members, however, agreed

that the proper course of action was to discontinue the proceedings.

6

banc). The majority concludes that Western Coal has failed to

establish that its injury is redressable. I respectfully disagree.

We have held that when “a party alleges deprivation of its

procedural rights, courts relax the normal standards of

redressability.” Sierra Club v. FERC, 827 F.3d 59, 65 (D.C.

Cir. 2016) (citing Summers v. Earth Island Inst., 555 U.S. 488,

496–97 (2009)). “[T]he relaxed redressability requirement is

met when correcting the alleged procedural violation could still

change the substantive outcome in the petitioner’s favor; the

petitioner need not go further and show that it would effect such

a change.” Narragansett Indian Tribal Historic Pres. Office v.

FERC, 949 F.3d 8, 13 (D.C. Cir. 2020). Thus, a party has

satisfied the redressability prong when prevailing on the merits

would require the agency to “incorporate into its . . . analysis

the omitted” data, and “[u]pon considering [this data], the

[agency] could change its position.” Sierra Club, 827 F.3d at

67; see also Ctr. for Biological Diversity v. EPA, 861 F.3d 174,

185 (D.C. Cir. 2017) (finding that the petitioner satisfied the

redressability prong by showing that the agency “could reach a

different conclusion” with the necessary data). The relaxed

standard of redressability is clearly met here.

In issuing the ANPR, the Board specifically framed its

central question of whether to modify or remove the safe harbor

provision around “whether . . . the phenomenon . . . observed

in Cargill . . . was likely an aberration.” J.A. 19. Although the

Board did not know “if this was a unique situation,” Cargill,

2013 WL 4067719, at *14, it qualified that “a more widespread

phenomenon . . . could undermine the usefulness of the safe

harbor provision,” J.A. 19. The Board further recognized that

“the safe harbor provision provides rail carriers with an

unintended advantage.” Id. Consequently, the Board issued

the ANPR, which specifically asked interested parties to

address “whether or not the phenomenon . . . observed in

Cargill . . . was likely an aberration.” Id. In so doing, the Board

7

made clear that if the Cargill phenomenon was a common

occurrence, it would pose a problem that the Board needed to

address in one way or another. 2

In answering whether the Cargill phenomenon was a

common occurrence, the majority of commenters responded

“yes.” But you would never know that from reading the Board

decision, which did not acknowledge those comments at all.

Instead, the Board gave the misimpression that the commenters

either did not address Cargill, believed that Cargill was an

aberration, or were not sure whether Cargill was an aberration.

J.A. 9–10. This was absolutely false. The Board received

multiple comments stating that the Cargill phenomenon was

not an aberration. 3 And these comments were not solely from

shippers. Indeed, the United States Department of Agriculture,

a government agency with expertise in rail transportation

matters, submitted a comment stating that the Cargill

phenomenon was likely not an aberration. J.A. 31. In ignoring

these comments, the Board made it easier for itself to dodge the

problem—because the Board could discontinue the proceeding

without ever acknowledging the considerable evidence that

there was a problem.

2

The majority suggests that because the Cargill question was only

one of four presented in the ANPR, it was not a material error for the

Board to fail to address the comments responding to that question.

Maj. Op. at 13. But the context shows that the Cargill question was

the entire reason for the rulemaking, and understanding the Cargill

issue was key to determining how best to proceed.

3

I highlight the number of comments not because their numerosity

indicates that the comments were correct, as suggested by the

majority, Maj. Op. at 6 n.4, but because their numerosity

demonstrates how much the Board contorted itself to avoid

acknowledging those comments. The Board’s silence in response to

what most of the commenters were saying is indeed deafening.

8

It is axiomatic that the first step of addressing a problem is

to acknowledge that it exists. That is why the basic rule from

State Farm is that agencies cannot ignore relevant data. As the

Supreme Court made clear, “the agency must examine the

relevant data and articulate a satisfactory explanation for its

action including a ‘rational connection between the facts found

and the choice made.’” Motor Vehicle Mfrs. Ass’n of United

States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983) (quoting Burlington Truck Lines v. United States, 371

U.S. 156, 168 (1962)). To hold that the injury is not redressable

here is to undermine the basic premise of State Farm. The

Board made a choice to give up; it could instead have made a

choice to hire consultants, to hold hearings, to strive for a

compromise, or to take any number of other steps commonly

used when trying to forge a solution. 4 Yet the Board never

articulated any explanation, let alone a “satisfactory” one, for

choosing to give up in the face of evidence that the Cargill

phenomenon it had identified was endemic and costing

shippers hundreds of millions of dollars. There was never any

“rational connection between the facts found and the choice

4

These examples merely highlight that the Board could have done

what agencies do all the time to attempt to make progress on their

deliberations and potentially reach a solution. Perhaps the Board

would try one or more of these tactics, or perhaps it would try

something else—its specific path forward is irrelevant, as is Vermont

Yankee. Maj. Op. at 9. The point is that if the Board were forced to

consider all of the evidence before it, there is at least a possibility

that it would conclude the Cargill phenomenon is widespread and

merits further work towards a policy solution. It is often the case that

fully reckoning with the vast scope of an issue motivates compromise

and a solution. As the saying goes, “necessity is the mother of

invention.” This is not an intrusion on the Board’s prerogatives; it is

simply requiring the Board to base its action (or inaction) on a

consideration of all the material evidence, rather than on a cherry-

picked set of facts.

9

made,” id., because the Board refused to acknowledge the

facts.

It is much easier to give up on a mission if you believe that

you can later say, with a straight face, that the mission was not

really that important after all. That is what the Board did

here—it said no one presented evidence that the Cargill

phenomenon was a common occurrence, which made it easier

for the Board to walk away from further efforts to forge a

solution to the problem identified in the Cargill case. All that

is required to show redressability in these circumstances is that

if the Board were forced to address the evidence that the

problem identified in Cargill was a recurring one, to the tune

of hundreds of millions of dollars, the Board could decide to

keep working on the problem, rather than throwing in the

towel. See Sierra Club, 827 F.3d at 67.

That is not a heavy lift. Even though we have recognized

that members of an agency “may cast their votes solely to void

an impasse, or otherwise to draw the administrative phase to a

close,” Pub. Serv. Comm’n v. Fed. Power Comm’n, 543 F.2d

757, 777 (D.C. Cir. 1974), we also explained that “[w]e d[id]

not mean to suggest that a commissioner’s vote, once made,

imprisons him in an intellectual strait-jacket.” Id. After all,

there is no “requirement, statutory or otherwise, that members

of administrative agencies maintain consistent positions

throughout the course of lengthy proceedings.” Id. But that is

precisely what the majority assumes when it concludes that the

Board members could not have changed their minds after

properly considering the record before them. We set a

dangerous precedent if we hold that an agency that not just

ignores, but misstates the comments and evidence before it,

could not change its mind if forced to truly address the record

on remand. “[I]t bears repeating that the duty to respond to

significant comments finds a statutory basis in required notice

and comment procedures, for ‘the opportunity to comment is

10

meaningless unless the agency responds to significant points

raised by the public.’” Alabama Power Co. v. Costle, 636 F.2d

323, 384 (D.C. Cir. 1979) (quoting Home Box Office, Inc. v.

FCC, 567 F.2d 9, 35–36 (D.C. Cir. 1977)); Sugar Cane

Growers Coop. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002)

(Silberman, J.) (“If a party claiming the deprivation of a right

to notice-and-comment rulemaking under the APA had to show

that its comment would have altered the agency’s rule, section

553 would be a dead letter.”).

The majority does not seem to dispute that the Board

ignored the numerous comments indicating that the Cargill

phenomenon was not an aberration. Yet, without

acknowledging our precedent that Board members are not

confined to an “intellectual straitjacket” and can change their

minds during the course of a lengthy proceeding, Pub. Serv.

Comm’n, 543 F.2d at 777, and notwithstanding the bedrock

principle that agency decision-making should be based on a

consideration of all of the relevant facts, State Farm, 463 U.S.

at 43, the majority holds that the Board could not change its

decision even if it actually considered all of the facts. “Don’t

confuse us with the facts” is now apparently acceptable agency

practice.

The majority errs further by holding that remand is futile

because the Board could not possibly break its deadlock, even

if it is told to consider the record evidence that it ignored. Maj.

Op. at 15. As best as I can tell, this is the first time we have

ever presumed, in a case where the agency ignored clearly

material comments, that there is no chance that the agency’s

final decision would be different if the agency had considered

the ignored comments. 5 To find no redressability on this

5

The majority relies on our decision in Narragansett, 949 F.3d at

13–14, to emphasize that Western Coal must “link a permissible

11

ground cuts against the grain of all our procedural injury

precedent. We have unequivocally stated that “[a] plaintiff

asserting procedural injury ‘never has to prove that if he had

received the procedure the substantive result would have been

altered.’” City of Dania Beach v. FAA, 485 F.3d 1181, 1186

(D.C. Cir. 2007) (quoting Sugar Cane Growers, 289 F.3d at

94); Am. Fuel & Petrochemical Mfrs. v. EPA, 937 F.3d 559,

595 (D.C. Cir. 2019) (per curiam) (“The Sierra Club need not

show that the EPA ‘would alter’ the 2018 rule if ordered to

comply with its ESA obligations, but rather that ‘the EPA could

reach a different conclusion.’ The Sierra Club has made this

showing. There ‘remains at least the possibility’ that the EPA

could set different standards, by, for example, invoking the

general waiver for severe environmental harm.” (quoting Ctr.

for Biological Diversity, 861 F.3d at 185) (citations omitted)).

For the same reason, the majority’s repeated declaration

that this Court has no power to break the Board’s deadlock is a

red herring. Maj. Op. at 8, 9, 10, 15. Petitioner has not asked

us to break the deadlock, but to find that the Board acted

unlawfully by failing to consider all of the significant

comments and to remand. Pet’r Br. at 2, 23–27, 29. In Sugar

Cane Growers, we reversed the district court’s holding that the

court order to its concrete injury.” Maj. Op. at 15. But Narragansett

is inapposite. There, the harm to the Narragansett Tribe’s cultural

heritage had already occurred and could not be remedied by righting

the procedural injury. Narragansett, 949 F.3d at 13–14 (“[F]ixing

the alleged defect in the Commission’s regulatory procedures could

not possibly prevent or mitigate the harm to the Narragansett Tribe’s

cultural and religious interests” because “there was ‘no possibility’

that the already completed action could be undone”) (quoting

Humane Soc’y of the United States v. Babbitt, 46 F.3d 93, 100–01

(D.C. Cir. 1995)). Here, on the other hand, a remand to the Board

for further deliberation and consideration of the comments

addressing the Cargill phenomenon could undo the harm alleged by

Western Coal.

12

plaintiffs could not show redressability because they could not

prove that the agency would have adopted a different rule had

it considered the significant comments that were ignored,

because requiring the plaintiffs to show that consideration of

all of the comments would lead to a different outcome “simply

misstates the law.” 289 F.3d at 94. By requiring Petitioner to

prove that we can (and should) break the deadlock, the majority

addresses a remedy that was never even sought, and it

erroneously raises the redressability bar contrary to Sugar Cane

Growers and numerous other cases. See Lujan, 504 U.S. at 572

n.7 (“There is this much truth to the assertion that ‘procedural

rights’ are special . . . . [U]nder our case law, one living

adjacent to the site for proposed construction of a federally

licensed dam has standing to challenge the licensing agency’s

failure to prepare an environmental impact statement, even

though he cannot establish with any certainty that the

statement will cause the license to be withheld or altered . . . .”

(emphasis added)); West v. Lynch, 845 F.3d 1228, 1237 (D.C.

Cir. 2017) (holding that when an agency prepares an

environmental impact statement, “the plaintiff need not allege

that, if he were to succeed in enforcing a NEPA-required

procedure the defendant agency did not follow, the agency’s

substantive policy would change”); Fla. Audubon Soc’y v.

Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996) (en banc) (“[I]n EIS

suits, a court should not review redressability—whether the

preparation of the EIS might alter the decision to license the

dam (or, here, grant the tax credit).”); Western Org. of Res.

Councils v. Zinke, 892 F.3d 1234, 1249 (D.C. Cir. 2018)

(Edwards, J., concurring) (“[T]he right to challenge an

agency’s failure to act in preparing an EIS is not diminished by

the fact that such a suit protects merely a plaintiff’s ‘procedural

right’ to have the EIS issued, rather than any ‘substantive right’

regarding the action the agency will ultimately take.”). None

of these cases remanded to the agency because the court was

trying to “pick the winning policy position,” see Maj. Op. at

13

15, rather, the purpose of the remand was always simply to

compel the agency to follow the mandated procedures. So it is

here.

The majority “doubts” that the failure to respond to

significant comments is a procedural injury. Maj. Op. at 15.

But the Supreme Court has held otherwise. See Perez v.

Mortgage Bankers Ass’n, 575 U.S. 92, 96 (2015). In Perez, the

Supreme Court explained that an agency’s obligation to

“consider and respond to significant comments received during

the period for public comment” was part of the three-step

procedure for notice-and-comment rulemaking pursuant to

Section 553 of the APA. Id. Contrary to the protestations of

the majority, Maj. Op. at 16 n.9, the Court explicitly stated that

“the purpose” of Section 553 is to “say what procedures an

agency must use when it engages in rulemaking.” Perez, 575

U.S. at 101; see also id. at 109 (Scalia, J., concurring) (“The

Act [Section 553] guards against excesses in rulemaking by

requiring notice and comment. Before an agency makes a rule,

it normally must notify the public of the proposal, invite them

to comment on its shortcomings, consider and respond to their

arguments, and explain its final decision in a statement of the

rule’s basis and purpose.” (emphasis added)). Prior to Perez,

we had also described an agency’s failure to respond to

significant comments as a procedural injury. Int’l Fabricare

Inst. v. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992) (citing PPG

Indust., Inc. v. Costle, 630 F.2d 462, 466 (6th Cir. 1980));

Home Box Office, 567 F.2d at 35–36. It is true, as the majority

points out, that State Farm described the failure to respond to

comments as a classic form of arbitrary and capricious

decision-making, 463 U.S. at 43, as have we, see Lilliputian

Systems, Inc. v. Pipeline & Hazardous Materials Safety

Admin., 741 F.3d 1309, 1312 (D.C. Cir. 2014); Allied Local &

Regional Mfrs. Caucus v. EPA, 215 F.3d 61, 80 (D.C. Cir.

2000); Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.

Cir. 1993). But that observation hardly strengthens the

14

majority’s position; rather, it shows that when an agency

ignores significant comments, it flouts both substance and

procedure. Yet the majority concludes that there is no

possibility that the agency would conduct itself differently if

forced to correct this double-error. Of course, standing was not

at issue in Perez or State Farm, but in each case, the Court

described the injury that occurs when an agency ignores

significant comments as a violation of cardinal principles of

administrative law. By applying a heightened, rather than

relaxed, standard of redressability in this case, the majority

responds to the injury described by Perez, State Farm, and a

plethora of other cases as so fundamental with little more than

a shrug, severely undermining the impact of these important

precedents.

When it issued the ANPR, the Board acknowledged that

the entire motivation for commencing the proceeding was that

“th[e] result [in Cargill] concerned the Board.” J.A. 18. Had

the Board acknowledged the evidence suggesting that the

magnitude and scope of the Cargill phenomenon was indeed

vast, there is at least a reasonable probability it would have

decided to continue working on a solution.6 That is all that

Western Coal requests from this Court. See Pet. for Review,

Western Coal Traffic League, No. 20–1058, at 2. And that is

all that is required to satisfy the “relaxed” standard of

redressability under our precedent. To hold otherwise fails to

apply the “relaxed” standard of redressability and grants

license for agencies to ignore evidence and pretend that

6

The majority concludes, and I agree, that we should look only to

the Board’s decision. Maj. Op. at 11. But the majority proceeds to

rely on the statements by Board Members Oberman and Fuchs to

confirm that they would not change their stance. Maj. Op. at 14.

And since the individual statements are “quite out of bounds,” we

should not consider them for the purposes of determining

redressability.

15

problems within their purview do not exist. It’s always easier

to take the route of the ostrich, but members of federal agencies

swear an oath to solve the problems assigned to them by the

Congress.

The claims of Western Coal satisfy Article III standing. I

would therefore proceed to the merits.

III.

Although it faces a heavier burden on the merits than on

standing, I would also find for Western Coal on the merits and

vacate and remand to the Board. We review the Board’s

decisions under the standards set forth in the APA. Snohomish

Cnty. v. STB, 954 F.3d 290, 301 (D.C. Cir. 2020).

Consequently, we will set aside an agency action if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). “An agency

decision is arbitrary and capricious if it is not reasonably

explained.” Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d

10, 15 (D.C. Cir. 2020). And while “[t]he arbitrary and

capricious standard is deferential,” only requiring that the

“agency action simply be ‘reasonable and reasonably

explained,’” POET Biorefining, LLC v. EPA, 970 F.3d 392,

409 (D.C. Cir. 2020) (quoting Cmtys. for a Better Env’t v. EPA,

748 F.3d 333, 335 (D.C. Cir. 2014)), the agency must have

“examined the relevant considerations and articulated a

satisfactory explanation for its action, including a rational

connection between the facts found and the choice made.” Int’l

Longshore & Warehouse Union v. NLRB, 971 F.3d 356, 360

(D.C. Cir. 2020) (quoting FERC v. Elec. Power Supply Ass’n,

577 U.S. 260, 292 (2016)).

When reviewing an agency’s discontinuation of

proceedings under an ANPR, we are more deferential to the

agency than we are when it discontinues a notice of proposed

rulemaking. But the agency receives less deference than it

16

would were it denying a petition for rulemaking. Consumer

Fed’n of Am. v. Consumer Prod. Safety Comm’n, 990 F.2d

1298, 1304–05 (D.C. Cir. 1993). Yet even when reviewing an

agency’s denial of a petition for rulemaking, which we will

“overturn[] only in the rarest and most compelling of

circumstances,” we have held that an agency’s failure to

provide any “articulation of the factual and policy bases for

[the] decision” is sufficient to warrant a remand. Am. Horse

Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1, 5–6 (D.C. Cir. 1987)

(internal quotations and citations omitted) (second alteration in

original).

In discontinuing the ANPR, the Board failed to respond to

the significant comments that directly provided the information

that the Board itself requested. The Board specifically solicited

comments that addressed “whether or not the phenomenon . . .

observed in Cargill . . . was likely an aberration,” J.A. 19, after

it acknowledged that “a more widespread phenomenon” could

“undermine the usefulness of the current safe harbor provision”

by “immuniz[ing] . . . over-recovery from scrutiny,” Cargill,

2013 WL 4067719, at *14. The Board’s framing in Cargill and

the ensuing ANPR thus placed it in the class of cases in which

an agency questions whether the factual premise underlying its

regulatory scheme is wrong in such a way that requires

amendment. See Am. Horse Prot. Ass’n, 812 F.2d at 5 (“[A]

refusal to initiate a rulemaking naturally sets off a special alert

when a petition has sought modification of a rule on the basis

of a radical change in its factual premises.”). Once the Board

reached this point, it was compelled to—at a minimum—

respond to comments stating that the Cargill phenomenon was

not an aberration, or, put differently, whether the factual

premise underlying its regulatory scheme had changed.

But the Board failed to meet this minimal requirement.

Instead, the Board noted that some commenters (including

BNSF, the respondent in Cargill) believed that the Cargill

17

phenomenon was an aberration and acknowledged that one

commenter stated that there was insufficient evidence to

answer the question. 7 J.A. 10. The Board failed to even tip its

hat to the commenters who claimed that the Cargill

phenomenon was not an aberration. These commenters stated

that the safe harbor provision “can involve millions of dollars,

even for a single shipper,” J.A. 32, that two carriers reaped

almost $850 million in profits using the safe harbor provision

during a three-year stretch, J.A. 81, and that the safe harbor

provision “reduce[s] transparency and diminish[es] shipper

confidence,” J.A. 171. And rather than acknowledge that it

disagreed with these comments or that it had insufficient

information to determine whether the Cargill phenomenon was

an aberration, the Board stuck its head in the sand and ignored

those comments entirely. This behavior falls short of the

minimal process the decision to rescind an ANPR requires.

As stated earlier, it is a hallmark of administrative law that

an agency must “examine the relevant data.” State Farm, 463

U.S. at 43. To adhere to this principle, the agency must

“respond to significant points raised by the comments,

especially when those comments challenge a fundamental

premise underlying” the agency action. Carlson v. Postal

Regul. Comm’n, 938 F.3d 337, 345 (D.C. Cir. 2019).

7

And this characterization of the comment finding insufficient

evidence is dubious. In its comment, Dow Chemical stated that “the

phenomenon noted by the Board in Cargill may not be an

aberration.” J.A. 236. Dow Chemical commented that “[p]ublicly

available data raises serious questions about whether the significant

revenue generated by these fuel surcharge programs is limited solely

to recovery of the incremental fuel cost incurred by the railroads.”

Id. While Dow Chemical acknowledged that there was “a paucity of

publicly available data . . . evidence suggests the Board’s Cargill

concern is not misplaced,” and Dow urged the Board to “continue its

investigation into the fuel surcharge programs used by the nation’s

railroads.” J.A. 236–37.

18

Fundamentally, “the opportunity to comment is meaningless

unless the agency responds to significant points raised by the

public.” Home Box Office, 567 F.2d at 35–36 (footnote

omitted). Indeed, we have repeatedly made clear that an

agency’s failure to consider relevant evidence is arbitrary and

capricious. See, e.g., Butte Cnty v. Hogen, 613 F.3d 190, 194

(D.C. Cir. 2010) (“[A]n agency’s refusal to consider evidence

bearing on the issue before it constitutes arbitrary agency

action within the meaning of § 706.”); Morall v. DEA, 412 F.3d

165, 178 (D.C. Cir. 2005) (“[The agency’s] decision does not

withstand review because the agency decisionmaker entirely

ignored relevant evidence.”); ALLTEL Corp. v. FCC, 838 F.2d

551, 558 (D.C. Cir. 1988) (“[T]he Commission must do more

than simply ignore comments that challenge its assumptions

and must come forward with some explanation that its view is

based on some reasonable analysis.”). As shown above, not

only did the Board fail to respond to the comments suggesting

that Cargill was not an aberration, it ignored them entirely, all

to make it easier to justify its decision to discontinue efforts to

reach an agreement. But the Board’s claim of administrative

impasse does not relieve it of its responsibility to respond to

significant comments, and this abdication of responsibility

cannot survive arbitrary-and-capricious review.

IV.

Because I believe that Western Coal has satisfied its

Article III standing obligations by showing that the Board

could have changed course had it considered the comments

submitted, I respectfully dissent. Good government surely

requires more than this.