Petition for Writ of Certiorari — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the D.C. Circuit

(Aug. 18, 2023) ...................................................... 1a

APPENDIX B: Order Denying Petition for

Rehearing En Banc (Dec. 4, 2023) ...................... 72a

APPENDIX C: Surface Transportation Board

Final Decision (Dec. 15, 2021) ............................ 74a

APPENDIX D: Surface Transportation Board

Decision (Jan. 4, 2021) ...................................... 190a

1a

_______________

APPENDIX A

_______________

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2023

Decided August 18, 2023

No. 22-1019

EAGLE COUNTY, COLORADO,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND UNITED STATES

OF AMERICA, RESPONDENTS

SEVEN COUNTY INFRASTRUCTURE COALITION AND

UINTA BASIN RAILWAY, LLC,

INTERVENORS

Consolidated with 22-1020

On Petitions for Review of Orders

of the Surface Transportation Board

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Nathaniel H. Hunt argued the cause and filed the

briefs for petitioner Eagle County, Colorado. Nicholas Clabbers entered an appearance.

Wendy Park argued the cause for petitioners Center

for Biological Diversity, et al. With her on the briefs

was Edward B. Zukoski. William J. Snape entered an

appearance.

Matthew R. Arnold and William S. Eubanks II were on

the brief for amici curiae City of Glenwood Springs, et

al. in support of petitioners.

Barbara A. Miller, Attorney, Surface Transportation

Board, argued the cause for respondent. With her on

the brief were Craig M. Keats, General Counsel, and

Theodore L. Hunt, Associate General Counsel.

Justin D. Heminger, Attorney, U.S. Department of

Justice, argued the cause for respondent. With him on

the brief were Todd Kim, Assistant Attorney General,

and Andrew M. Bernie, Attorney.

Jay C. Johnson argued the cause for intervenor- respondents Seven County Infrastructure Coalition, et

al. With him on the brief was Kathryn Kusske Floyd.

Margaret K. Fawal entered an appearance.

Melissa A. Holyoak, Solicitor General, Office of the Attorney General for the State of Utah, was on the brief

for amicus curiae State of Utah in support of respondents.

Before: MILLETT, PILLARD and WILKINS, Circuit

Judges.

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Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: These consolidated petitions concern an order of the Surface Transportation

Board (“Board” or “STB”) authorizing the construction

and operation of a new rail line in the Uinta Basin in

Utah (“Railway”). The Board exercised its authority

to exempt the Railway from the Board’s more extensive application requirements in a two-part process.

The first addressed the “transportation benefits” of

the Railway, and the second concerned the project’s environmental impacts. As part of its environmental

process, the Board created an environmental impact

statement (“EIS”) outlining the various environmental impacts associated with the Railway’s construction

and operation. The EIS was informed by the Board’s

consultation with the Fish and Wildlife Service (“Service”), which led to the development of a Biological

Opinion (“BiOp”) concerning the Railway’s potential

impacts on endangered species and critical habitats.

Petitioners include various environmental organizations and a Colorado county that alleges it will be

impacted by the Railway even though it is located

“downline” of the proposed rail line’s construction

area. Petitioners raised numerous challenges at various stages in the proceedings, ranging from whether

the Board properly exempted the Railway to whether

its environmental analysis was flawed. In these petitions, they lodge various challenges to the validity of

the Board order, the EIS, and the BiOp.

For the following reasons, we grant the petitions in

part, deny them in part, vacate the underlying order

as well as the EIS and the BiOp in part, and remand

to the Board for further proceedings.

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I.

A.

Congress gave jurisdiction over rail carriers to the

Board after passing the ICC Termination Act of 1995,

Pub. L. No. 104–88, 109 Stat. 803 (“ICCT Act”), which

abolished the Board’s predecessor, the Interstate

Commerce Commission (“ICC”). See Nat’l Ass’n of Reversionary Prop. Owners v. STB, 158 F.3d 135, 140

(D.C. Cir. 1998). The Board regulates, among other

things, “the sale and transfer of rail lines under 49

U.S.C. § 10901, [including] governing construction

and operation of railroad lines.” Ass’n of Am. R.R.s v.

STB, 161 F.3d 58, 60 (D.C. Cir. 1998).

There are two approaches a party can take to get

approval from the Board for the construction or operation of a railroad line. The party may seek a certificate authorizing the project from the Board by “submit[ting] an application that provides information

about itself and its proposed use of the line, including

operational, financial, environmental, and energy

data.” Snohomish Cnty. v. STB, 954 F.3d 290, 293

(D.C. Cir. 2020). “Upon receiving the application and

providing time for public comment, the Board issues

the certificate, potentially with modifications or conditions, ‘unless the Board finds that such activities are

inconsistent with the public convenience and necessity.’” Id. (quoting 49 U.S.C. §§ 10901(c), 10902(c)).

Alternatively, the party may seek an exemption from

the full application requirements by petitioning the

Board to find that “compliance with those provisions

‘is not necessary to carry out the transportation policy’

codified in 49 U.S.C. § 10101, and that either the

‘transaction or service is of limited scope’ or the ‘application in whole or in part of the provisions is not

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needed to protect shippers from the abuse of market

power.’” Id. at 293–94 (quoting 49 U.S.C. §

10502(a)(1)–(2)).

In addition, the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4321 et seq., requires all federal

agencies “to examine the environmental effects of proposed federal actions and to inform the public of the

environmental concerns that were considered in the

agency’s decisionmaking.” Citizens Against Rails-toTrails v. STB, 267 F.3d 1144, 1150 (D.C. Cir. 2001).

This environmental review process requires federal

agencies to “include a detailed environmental impact

statement . . . ‘in every recommendation or report on

. . . major Federal actions significantly affecting the

quality of the human environment.’” Mayo v. Reynolds, 875 F.3d 11, 15 (D.C. Cir. 2017) (quoting

42 U.S.C. § 4332(2)(C)). Since “NEPA’s mandate is

addressed to all federal agencies,” it applies also to the

Board’s determinations regarding the construction or

operation of rail lines that may affect the environment. Citizens Against Rails-to-Trails, 267 F.3d at

1150.

Federal agencies have additional environmental review obligations under the Endangered Species Act

(“ESA”), 16 U.S.C. § 1531 et seq., which Congress enacted “to provide a means whereby the ecosystems

upon which endangered species and threatened species depend may be conserved,” id. § 1531(b). “The

ESA requires every federal agency to ‘insure that any

action authorized, funded, or carried out by such

agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat’ that the . . . Service[] ha[s] determined

to be critical to those species.” Ctr. for Biological

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Diversity v. EPA (“Center II”), 56 F.4th 55, 62 (D.C.

Cir. 2022) (quoting 16 U.S.C. § 1536(a)(2)). To fulfill

this statutory obligation, “action agencies,” “whose

planned action may have such effect,” must consult

with the Service, which is tasked with, among other

things, identifying “anticipated adverse effects on species” and critical habitats. Id. at 62–63 (citing 16

U.S.C. § 1536(a)–(d)).

Prior to approving “a project, activity, or program,” 54 U.S.C. § 300320, federal agencies must also

“take into account the effect of the undertaking on any

historic property” under the National Historic

Preservation Act (“NHPA”), id. at § 306108. The

statute defines “historic property” broadly and includes “any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register.” Id. § 300308. The

NHPA mandates the creation of regulations to ensure

that federal agencies consult with local governments

“with respect to undertakings . . . that affect the local

governments.” Id. § 304108(b). “In light of the substantial overlap between the NHPA and NEPA inquiries, an EIS ‘should include consideration of the . . .

likely effects on historic properties.’” Oglala Sioux

Tribe v. U.S. Nuclear Regul. Comm’n (“Oglala”), 45

F.4th 291, 296 (D.C. Cir. 2022) (quoting 36 C.F.R. §

800.8(a)(1)).

B.

Respondent-Intervenor Seven County Infrastructure Coalition (“Coalition”) “is an independent political

subdivision of the State of Utah” composed of seven

different member counties. J.A. 252. On May 29,

2020, the Coalition petitioned the Board to allow for

the construction and operation of the Railway, see id.

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at 248, a more than 80-mile rail line in Utah that

would connect “two termini in the Uinta Basin . . . to

the national rail network at Kyune, Utah,” id. at 251.

The Uinta Basin is an “approximately 12,000 square

mile[]” geographic area spanning northeastern Utah

and northwestern Colorado. Id. at 279. It “contains extensive deposits of valuable minerals, including” phosphate, “crude oil, natural gas, oil shale, oil sands, gilsonite, natural asphalt, aggregate materials, and lowsulfur coal.” Id. at 280.

In its petition, the Coalition explained that “[c]urrently, trucking is the only mode of freight transportation in and out of the Basin” “primarily due to the geography of the Basin, which is bounded by high mountains or plateaus.” Id. Railway lines exist around the

Basin but there are not even “freeways in and out of

the Basin.” Id. Accordingly, “all goods produced or

consumed in the Basin must be transported by trucks

on two- lane highways that cross high mountain

passes.” Id. The Railway would “connect the Uinta

Basin to the national rail network,” “giv[ing] shippers

an additional option for freight transportation in and

out of the Uinta Basin.” Id. at 285. The project would

involve “construction of the rail line and associated

earthwork” as well as “construction of access roads,

tunnels, communications towers, road crossings, culverts, and stream crossings.” Id. at 255. Though the

Railway could carry any goods produced or consumed

in the Basin, the Coalition’s petition recognizes (and

no one disputes) that the Railway’s predominant and

expected primary purpose would be the transport of

waxy crude oil produced in the Uinta Basin. See id. at

260–61.

In its petition, the Coalition also provided that it

“entered into a preliminary Memorandum of

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Understanding” with two private companies—Drexel

Hamilton Infrastructure Partners and Rio Grande Pacific Corporation—which would be responsible for “financing and commercialization of the Project” and

“operations and maintenance of the Uinta Basin Railway,” respectively. Id. at 253. Though the Coalition

did not intend to operate the Railway itself, it expected that it would “remain responsible for project

planning, completion of the environmental review and

permitting processes, and obtaining authority to construct the Railway.” Id. at 253–54.

The May 2020 petition made two requests of the

Board. First, the Coalition sought exemption from the

Board’s formal application requirements. Second, the

Coalition asked the Board to authorize the Railway in

a two-part process. The Board would “conditionally

approve” the exemption petition based on the transportation merits of the Railway, subject to the condition that the project was found proper after

the “completion of the environmental review process

under the National Environmental Policy Act.” Id. at

273.

The Coalition asserted that the “ongoing COVID-19

pandemic and its economic impacts clearly create[d]

unique and compelling circumstances that justif[ied]

conditional approval.” Id. It described the impacts as

including rising unemployment levels, closed businesses, and substantial decline in state and local tax

revenues. Id. at 273–74. While noting that “these impacts should not persist in the long-term,” the Coalition asserted that completion of the “federal review

and approval processes as efficiently as possible”

would “have the potential to provide substantial economic stimulation,” which it described as “important

to state and local economies.” Id. at 274. Finally, the

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Coalition asserted that the environmental review process was ongoing and “should not interfere with consideration of the transportation merits on a conditional basis.” Id.; see also id. at 265 (explaining that

the Board released a final scope of study for preparation of an environmental impact statement on December 13, 2019).

Several groups filed oppositions to the exemption

petition, urging the Board to require the Coalition to

complete the full application process. See id. at 300,

329 (Center for Biological Diversity Response to Petition for Exemption); see also, e.g., J.A. 341–47 (Argyle

Wilderness Preservation Alliance Response to Petition for Exemption); Opening Br. of Pet’r Eagle

County 6 [hereinafter “Cnty. Br.”]. These oppositions

questioned the Railway’s financial viability, purported benefits, and “impact to public health, safety,

and the environment.” Cnty. Br. 5. The oppositions

were unsuccessful. The Board published an order conditionally granting the exemption petition based on

the “transportation merits” while deferring its “final”

ruling on the petition to allow for the completion of

the then-ongoing review of the Railway’s environmental impact. Seven Cnty. Infrastructure Coal.—

Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket

36284, 2021 WL 41926, at *10 (STB served Jan. 5,

2021) [hereinafter “Preliminary Exemption Order”].

Petitioners sought reconsideration of the Preliminary

Exemption Order, which the Board denied on September 30, 2021. See Seven Cnty. Infrastructure Coal.—

Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket

36284, 2021 WL 4483773 (STB served Sept. 30,

2021).

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As noted above, the environmental review process

for the Railway was ongoing at the time the Board requested conditional approval of its exemption petition.

The Board’s Office of Environmental Analysis (“OEA”)

had published a notice of intent to prepare an Environmental Impact Statement in June 2019 and issued

a final scope of study for the EIS in the Federal Register in December 2019. See Seven Cnty. Infrastructure

Coal.—Rail Constr. & Operation—in Utah, Carbon,

Duchesne, and Uintah Cntys., 84 Fed. Reg. 68,274

(Dec. 13, 2019). On October 30, 2020, the Board published its Draft EIS for review and comment. Public

comment on the Draft EIS lasted until February 12,

2021, and included six public online meetings and the

Board’s receipt of over 1,900 comments. See J.A. 802.

In the Draft EIS, “the Board determined that there

were three reasonable Action Alternatives (the Indian

Canyon Alternative, Wells Draw Alternative,

Whitmore Park Alternative), with the Whitmore Park

Alternative identified as the Preferred Alternative.”

Br. of Resp’t Surface Transp. Bd. 11 [hereinafter

“Board Br.”]; see also J.A. 445, 452. The Board issued

the Final EIS in August 2021, determining that “the

Whitmore Park Alternative would result in the fewest significant impacts on the environment.” J.A. 874.

Supplemental comments were submitted to the

Board, including objections by Petitioner Center for

Biological Diversity (“Center”) and supporting statements from the Ute Indian Tribe and the State of

Utah. See, e.g., J.A. 1321–22 (Center for Biological

Diversity Supplemental Comments); J.A. 1315–17

(Ute Indian Tribe Supplemental Comments); see also

Board Br. 14.

The Board issued its final decision accepting the

Coalition’s exemption petition and “authorizing

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construction and operation of the Whitmore Park Alternative subject to extensive environmental mitigation conditions” in December 2021. See Board Br. 14;

see also Seven Cnty. Infrastructure Coal.—Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket 36284, 2021

WL 5960905 (STB served Dec. 15, 2021) [hereinafter “Final Exemption Order”]. The Final Exemption

Order incorporated the final EIS to weigh the project’s

transportation merits against its environmental impacts.

The Final Exemption Order relied on the BiOp the

Service issued on September 20, 2021, which it based

on the Board- defined action area for considering the

expected environmental impact of the project on protected species and their designated critical habitat.

See Final Exemption Order, 2021 WL 5960905, at *5,

*10. That action area was limited to the project footprint, a 300-foot buffer around it, and “an area of the

Upper Colorado River Basin affected by water depletions” from the project. J.A. 1660. The Board’s final

decision stated that the construction and operation of

the Railway could have “major impacts” on water resources, air quality, special status species like the

greater sage-grouse, land use and recreation, local

economies, cultural resources, and the Ute Indian

tribe, as well as “minor impacts” on vehicle safety and

delay, rail operations safety, big game, fish and wildlife, vegetation, and geology in the Uinta Basin. Final

Exemption Order, 2021 WL 5960905, at *7–13. The

Board also conducted a geological analysis of the project area to evaluate the risk that construction and operation of the proposed rail line could cause landslides

or other geologic movements.

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As for climate effects, the Board noted that, “[t]o the

extent that the crude oil would be refined into fuels

that would be combusted to produce energy, emissions

from the combustion of the fuels would produce

[greenhouse gas] emissions that would contribute to

global warming and climate change,” which, under a

“high oil production scenario could represent up to approximately 0.8% of nationwide [greenhouse gas]

emissions and 0.1% of global [greenhouse gas] emissions.” Id. at *17.

The Board’s order also considered whether to disclose “impacts from rail operations along existing rail

lines segments” from “[t]rains originating or terminating on the proposed rail line,” id. at *11, known as

“downline impacts,” see id. at *18–20; J.A. 1230 (defining “downline impacts”). Its environmental analysis

found that the majority of trains originating or terminating on the Railway would travel on the Union Pacific Railroad Company (“Union Pacific”) rail line

heading east to Denver, Colorado. See Final Exemption Order, 2021 WL 5960905, at *20. But the Board

determined that it need not consider various downline

effects—on vehicle safety and delay, rail safety, noise

and vibration, and air quality and greenhouse gases—

on the ground that “minimal increases in train traffic

on existing rail lines over which trains already operate are unlikely to cause significant impacts.” Id. at

*18.

The Board also did not disclose other environmental effects. It omitted the effects of increased crude oil

refining on Gulf Coast communities in Louisiana and

Texas already overburdened by pollution from refining. Id. at *19. It omitted upline impacts on vegetation or special status species of increased drilling in

the Uinta Basin. See id. at *15–18. And it omitted

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downline effects of projected increases in spills and

accidents from additional oil trains traveling the existing Union Pacific rail line alongside the Colorado

River—including effects on water, special status species or habitats, and recreation and land use. See id.

at *13. Finally, the Board did not disclose potential

effects of the project on historic sites or structures

along the Union Pacific line in Eagle County that the

County’s brief asserted might be eligible for inclusion

on the National Register of Historic Places. See id. at

*21.

Petitioner Eagle County (“County”) filed a petition

in our Court for review of the Board’s Preliminary Exemption Order and Final Exemption Order on February 10, 2022, and the Center filed a separate petition

for review of the Final Exemption Order and the Service’s BiOp on February 11, 2022. This Court consolidated the two petitions on February 11, 2022.

Petitioners assert violations of several interrelated

statutes and various procedural requirements enacted to ensure agencies consider the possible adverse

impacts associated with the approval of projects like

the Railway. Petitioners both argue that the Board

failed to take a hard look at the Railway’s environmental impacts in violation of NEPA. The County claims

the Board violated the NHPA by failing to consult the

County on the Railway and to evaluate the impact of

the project on historic properties downline. The Center raises separate challenges under the ESA regarding the Board’s reliance on the Service’s BiOp, which

adopted the proposed action area as defined by the

Board’s Office of Environmental Analysis, and the validity of the BiOp itself. Finally, Petitioners both assert that the Board erred in exempting the Railway

from the ICCT Act’s full application process.

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II.

We begin, as we must, with questions of our jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 93–96 (1998). We find that Petitioners have

demonstrated Article III standing for each of the challenges raised and established statutory jurisdiction

under the Hobbs Act.

A.

“[S]tanding has three parts: injury in fact, causation, and redressability.” Util. Workers Union of Am.

Loc. 464 v. FERC, 896 F.3d 573, 577 (D.C. Cir. 2018).

“Standing is not dispensed in gross,” Davis v. FEC,

554 U.S. 724, 734 (2008) (quoting Lewis v. Casey, 518

U.S. 343, 358 n.6 (1996)), so Petitioners must prove

standing “for each claim [they] seek[] to press,” id.

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,

352 (2006)). Petitioners both claim that the Final Exemption Order violates the ICCT Act and NEPA. The

County separately argues that the order violates the

NHPA, and the Center asserts a separate ESA challenge regarding the BiOp.

Given our “duty to assure ourselves of our jurisdiction,” we will begin with the ICCT Act and NEPA

claims, which are raised by both Petitioners, and then

address the NHPA claims as raised by the County before turning to the Center’s ESA claim. Kaplan v.

Cent. Bank of the Islamic Republic of Iran, 896 F.3d

501, 509 (D.C. Cir. 2018).

1.

The County alleges a procedural injury—namely,

that the Board should not have engaged in a two-step

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approval process, should have considered additional

Rail Policies under the ICCT Act and environmental

risks under NEPA, and should have consulted with

the County on potential impacts to downline historic

properties. Accordingly, the County must demonstrate

that the Board’s decision to disregard these procedural requirements “impair[ed] a separate concrete

interest of [the County].” City of Dania Beach v. FAA,

485 F.3d 1181, 1185 (D.C. Cir. 2007) (quoting Lujan

v. Defs. of Wildlife, 504 U.S. 555, 572 (1992)).

“The two things are not one and the same. [The

County] must show both (1) that [its] procedural right

has been violated, and (2) that the violation of that

right has resulted in an invasion of [its] concrete and

particularized interest.” Ctr. For L. & Educ. v. Dep’t

of Educ., 396 F.3d 1152, 1159 (D.C. Cir. 2005) (emphasis in original). “[I]n cases in which a party ‘has been

accorded a procedural right to protect his concrete interests,’ the primary focus of the standing inquiry is

not the imminence or redressability of the injury to

the plaintiff, but whether a plaintiff who has suffered

personal and particularized injury has sued a defendant who has caused that injury.” Fla. Audubon Soc’y

v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc)

(quoting Lujan, 504 U.S. at 572 n.7).

For purposes of the standing analysis, the Court

“must assume that [the County] will prevail on the

merits of [its] claims.” City of Jersey City v. Consol.

Rail Corp., 668 F.3d 741, 744 (D.C. Cir. 2012). The

County contends that the Board departed from its

prior precedent and therefore violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), in

granting the Coalition’s request for preliminary exemption contingent upon a later determination of the

environmental impacts of the Railway. See Cnty. Br.

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18. It also argues that the Board failed to consider “all

pertinent Rail Policies” in granting the exemption, id.

at 19, and “arbitrarily applied” the Rail Policies it did

consider, id. at 24. As to its NEPA challenges, the

County asserts that the Board failed seriously to consider numerous adverse effects of the Railway downline, including the increased risk of wildfires and impacts on water resources and other biological resources due to concededly increased rail traffic. The

County also states that the Board did not consult with

it or otherwise consider impacts on historic properties

downline as required by the NHPA. Taking these allegations as fact, the County has demonstrated that

the Board’s Preliminary and Final Exemption Orders

constitute “a violation of the procedural requirements” of the ICCT Act, NEPA, and NHPA. City of

Dania Beach, 485 F.3d at 1185.

Turning to the second requirement to demonstrate

a procedural injury, we have previously recognized

that “financial harm alleged by [a] [t]own and the infringement of its property interests” can substantiate

standing. City of Bos. Delegation v. FERC, 897 F.3d

241, 250 (D.C. Cir. 2018).

Similarly, the Court has found that a town has a

concrete interest in avoiding “increased traffic, noise,

and disruption of businesses” and has held that “the

presence of a continuing safety hazard caused by the

nearby installation of a natural gas pipeline can establish an injury in fact.” Id. (quotation marks omitted).

The County asserts that property in the County could

be destroyed should the Railway lead to a “wildfire in

Eagle County due to both an increased number of

trains and highly flammable cargo.” Shroll Decl. 9 ¶

22, Cnty. Br. Ex. 1. It also notes that “the significant

increase in rail traffic caused by the Railway” may

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impact historic sites with adverse “noise, vibrations,

and visual effects.” Id. at 10 ¶ 23. This is sufficient to

establish that the Board’s alleged disregard for the

relevant procedural requirements caused an injury to

the County’s “concrete and particularized interest[s].”

Ctr. for L. & Educ., 396 F.3d at 1159. To establish

causation, the County must demonstrate “two causal

links: ‘one connecting the omitted procedural step to

some substantive government decision that may have

been wrongly decided because of the lack of that procedural requirement and one connecting that substantive decision to the plaintiff’s particularized injury.’”

Ctr. for Biological Diversity v. EPA (“Center I”), 861

F.3d 174, 184 (D.C. Cir. 2017) (quoting Fla. Audubon Soc’y, 94 F.3d at 668). Regarding the first link,

the County does not need to show “that but for the alleged procedural deficiency the agency would have

reached a different substantive result,” id., but, instead, “[a]ll that is necessary is to show that the procedural step was connected to the substantive result.”

Id. (quoting Sugar Cane Growers Co- op. of Fla. v.

Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002)). As to

the second link, the County need not “establish the

merits of its case, i.e., that [its injury] has in fact resulted from the [Board’s] procedural failures,” but rather the County must “demonstrate that there is a

‘substantial probability’” that the agency’s action will

cause the injury. Id. (quoting Am. Petroleum Inst. v.

EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (per curiam)).

The County demonstrates both causal links. The

Board’s alleged failure to follow the procedural requirements of the ICCT Act, NEPA, and NHPA are

“plainly ‘connected to’ its” “substantive government

decision” to exempt the Railway. Id. If we take the

County’s allegations as true, the Board granted the

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exemption without considering various environmental impacts and effects on historic properties downline

and, partly as a result of those procedural omissions,

the Board failed to properly consider the relevant Rail

Policies of the ICCT Act. Accordingly, the first causal

link is established. The County’s declaration also explains that the Railway will increase the number of

trains that travel downline. See Shroll Decl. 7–8, 19.

The County therefore demonstrates the second

causal link, because there is a substantial probability

that this “significant increase in rail traffic,” id. at 9 ¶

22, will increase the risk of train derailments, oil spills,

wildfires, and the related adverse effects on resources

and historic properties downline.

The redressability requirement is relaxed for procedural- rights plaintiffs like the County. Center I, 861

F.3d at 185. The County must only show that the

Board “could reach a different conclusion” if it revisited the order, id. (emphasis in original), and it has

met this relatively low burden. Even if there were a

“serious possibility . . . that the [Final Exemption Order] would remain unchanged following” the Board’s

revisiting of its determination process, “there remains

at least the possibility that it could reach a different

conclusion—say, by modifying the [Final Exemption

Order].” Id. (quotation marks omitted).

Accordingly, the County has demonstrated standing to challenge the Board’s orders under the ICCT

Act, NEPA, and the NHPA, and so we need not consider the Center’s standing to bring those same

claims. See Env’t Action v. FERC, 996 F.2d 401, 406

(D.C. Cir. 1993) (“[O]nce one petitioner has demonstrated standing[,] [the Court] may permit the participation of others[.]”).

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2.

The Center must separately demonstrate that it

has standing to challenge the BiOp and the Board’s

reliance upon it. It asserts that it satisfies the test for

associational standing, which requires the Center to

establish that “(1) at least one of its members would

have standing to sue in his own right; (2) the interest

it seeks to protect is germane to its purpose; and (3)

neither the claim asserted nor the relief requested requires the member to participate in the lawsuit.” Center I, 861 F.3d at 182 (quotation marks omitted).

The Center’s alleged injury arises from the Service’s “procedural omissions,” namely “its failure to

make an effects determination” as to endangered fish

in the Colorado River and its tributaries whose existence might be jeopardized, or critical habitat modified,

by the Railway since it is expected to increase rail traffic on the river-adjacent Union Pacific Line. Id. at 183.

As a “procedural-rights plaintiff,” the Center must

demonstrate “that the failure to make an effects determination . . . affects its members’ concrete aesthetic

and recreational interests.” Id.

As the Center provides, one of its members, John

Weisheit, is an avid rafter of the affected waterways

that are the “critical habitat for the four Colorado

River endangered fish” at issue: the Colorado

pikeminnow, razorback sucker, humpback chub, and

bonytail chub. See Addendum to Center Br. 103. He

also notes that he “derive[s] great enjoyment from

viewing rare species in their natural environment and

[is] constantly on the lookout for . . . federally listed

endangered and threatened species.” Id. at 97.

Weisheit states that “[i]t breaks [his] heart and angers and depresses [him] to see the fish” who have

20a

died or otherwise been exposed to pollution, noting

that he “feel[s] spiritual harm when [he] see[s] dead

fish on the water.” Id. at 108–09. His declaration establishes he has a “plan to use the allegedly degraded

environmental area in question” and that he will suffer “aesthetic injuries” from “viewing the despoliation

of animals.” Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 435 (D.C. Cir. 1998) (en banc)

(quoting Humane Soc’y of the U.S. v. Hodel, 840 F.2d

45, 52 (D.C. Cir. 1988)). This is sufficient to establish

an injury-in-fact for standing purposes. The Center

also demonstrates the two required causal links to establish causation.

The Center demonstrates the first causal link because “the [Service’s] failure to make an effects determination . . . is plainly ‘connected to’ its” conclusion in

the BiOp, Center I, 861 F.3d at 184, that the Railway

“is not likely to jeopardize the continued existence of

Colorado River fishes or result in destruction or adverse modification of designated critical habitat,” J.A.

1696. This “omitted procedural step” is also directly

connected to the Board’s “substantive government decision” to exempt the Railway since its orders relied

on the BiOp. Center I, 861 F.3d at 184.

As to the second link, the Center points to both record evidence and a supplemental affidavit to show

that there is “substantial probability” that the Railway will adversely affect local conditions and harm its

members’ interests. Id. The BiOp notes that “[o]peration of the rail line may release pollutants that negatively affect ESA-listed plant species,”J.A. 1687,

which the Center explains “will not suddenly cease

once oil trains transfer to the national rail network

downline of the Railway,” Ctr. Reply Br. 20. The Center also references the EIS’s explanation that there

21a

would be an increased risk of train accidents in the

downline area given the increased traffic, with the potential of causing “loaded oil trains derailing” resulting in an oil spill “[r]oughly once every four years.” Id.

at 20 (citing J.A. 899, 1201). As the Center provides,

these leaks could occur on rail lines that parallel

“roughly 233 miles” of the Colorado River. Id. at 21.

In Center I, the Court noted that the EPA’s belief

that an insecticide it authorized would “provide significant benefits to growers” “ma[de] it likely—that is,

[gave] rise to a substantial probability—that the

EPA’s registration of the pesticide [would] in fact

create a demonstrable risk to the Center members’ interests” since the growers’ crops overlapped with the

habitat of a protected species. 861 F.3d at 185 (quotation marks and citation omitted). Similarly, here, the

Board believes that the Railway’s “construction and

operation” would lead to “substantial transportation

and economic benefits” given opportunities for transporting more oil out of the Basin. Final Exemption Order, 2021 WL 5960905, at *23. Under the logic of Center I, it follows that there is “substantial probability”

that endangered fish in the Colorado River parallel to

the downline rail line would be impacted by the Railway given the recognized risk of oil leaks and spills associated with the increased operation of trains carrying oil products. This would harm the aesthetic interests of the Center’s members and is sufficient to

demonstrate the second causal link necessary to establish causation.

The relaxed redressability requirement is also met,

as the Board or Service may modify the Final Exemption Order or BiOp, respectively, after revisiting the

effects determination. Center I, 861 F.3d at 185. Since

the Center has established standing for at least one of

22a

its members, and support for the remaining requirements is readily apparent, the Center also has standing to challenge the BiOp in this petition.

B.

The Court has jurisdiction to review final orders of

the Board “under the Hobbs Act, which allows ‘any

party aggrieved by a final order’ to, ‘within 60 days

after its entry, file a petition to review the order in the

court of appeals wherein venue lies.’” Snohomish

Cnty., 954 F.3d at 298 (citing 28 U.S.C §§ 2321(a),

2342(5), and 2344).

The Final Exemption Order

was issued on December 15, 2021, making Petitioners’

February 10, 2022, and February 11, 2022, petitions for review of that order timely. As discussed

above, both the Center and the County have standing

so they “ha[ve] met the statutory requirement of aggrievement,” so the remaining question is if they can

be considered “part[ies].” Water Transp. Ass’n v. ICC,

819 F.2d 1189, 1193 (D.C. Cir. 1987).

To achieve party status under the Hobbs Act, one

must “have participated in the proceeding before the

[Board].” Id. at 1192. “The degree of participation necessary to achieve party status varies according to the

formality with which the proceeding was conducted.”

Id. Accordingly, “[w]hen intervention in agency adjudication or rulemaking is prerequisite to participation

therein,” only those who sought to intervene will have

standing under the Hobbs Act. Id. In more informal

administrative proceedings, “party status has been

found when the petitioner has made a full presentation

of views to the agency.” Id. at 1193. For example, in

Water Transport Association, this Court held that in a

proceeding in which the agency “did not call for formal

intervention” and “instead . . . solicited general

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protests of its [action],” the petitioners’ submission of

a protest was sufficient to be conferred party status.

Id.

Here, the administrative proceedings were informal. While the Board did set a deadline for reply comments on the exemption petition and requested public

comment as part of the EIS process, it never required

interested parties to intervene in the exemption proceedings or take any action of similar formality. See

J.A. 293, 802. The Center, along with others, replied

to the exemption petition, actively participated in the

EIS proceedings, and submitted a petition for rehearing of the Final Exemption Order. The County also

provided comments in the EIS proceedings and submitted a petition for rehearing of the Board’s order.

The participation of both the County and the Center

was sufficient for each to be considered a party under

the Hobbs Act.

The parties agree that the Court also has jurisdiction to review the BiOp since it was “incorporated”

into, or at least relied on in, the Final Exemption Order. Board Br. 1–2 (citing City of Tacoma v. FERC

(“Tacoma II”), 460 F.3d 53, 76 (D.C. Cir. 2006)); see

also Opening Br. of Pet’rs Ctr. for Biological Diversity,

et al. 1–2 [hereinafter “Center Br.”] (citing Tacoma II,

460 F.3d at 76). While we have not yet specifically addressed whether we may directly review a biological

opinion prepared during a Surface Transportation

Board proceeding, it follows from our precedent involving other agencies that we have jurisdiction to review a biological opinion where, as here, that opinion

was prepared during a proceeding over which this

court has exclusive appellate jurisdiction. See Tacoma

II, 460 F.3d at 76; In re Pub. Emps. for Env’t. Responsibility, 957 F.3d 267, 272 (D.C. Cir. 2020).

24a

In several cases concerning challenges to licensing

orders by the Federal Energy Regulatory Commission

(“FERC”), we have found that “when a BiOp is prepared in the course of a FERC licensing proceeding,

the only means of challenging the substantive validity

of the BiOp is on review of FERC’s decision in the

court of appeals.” Tacoma II, 460 F.3d at 76; see also

Shafer & Freeman Lakes Env’t Conservation Corp. v.

FERC, 992 F.3d 1071, 1087 (D.C. Cir. 2021); Am.

Rivers v. FERC, 895 F.3d 32, 45 (D.C. Cir. 2018). This

approach stems from the “well-established” rule that

“when two jurisdictional statutes draw different

routes of appeal” courts “apply only the more specific

legislation.” Center I, 861 F.3d at 186 (quoting Ctr. for

Biological Diversity v. EPA, 847 F.3d 1075, 1089 (9th

Cir. 2017)). As this Court has recognized, “when jurisdiction to review administrative determinations is

vested in the courts of appeals these specific, exclusive jurisdiction provisions preempt district court jurisdiction over related issues under other statutes.”

Media Access Project v. FCC, 883 F.2d 1063, 1067–68

(D.C. Cir. 1989) (quoting Connors v. Amax Coal Co.,

858 F.2d 1226, 1231 (7th Cir. 1988)). This decreases

“[t]he likelihood of duplication and inconsistency” that

may occur if the BiOp was reviewed separately by the

District Court while the primary agency order was reviewed under the exclusive jurisdiction of the appeals

court. City of Rochester v. Bond, 603 F.2d 927, 936

(D.C. Cir. 1979).

Here, as with our review of FERC’s licensing orders, see 16 U.S.C. § 825l(b), the Hobbs Act limits review of the Board’s exemption orders to the court of

appeals, see 28 U.S.C.§ 2321(a) (“Except as otherwise provided by an Act of Congress, a proceeding to

enjoin or suspend, in whole or in part, a rule,

25a

regulation, or order of the Surface Transportation

Board shall be brought in the court of appeals[.]”). Accordingly, “the specific provisions of the [Hobbs Act]

that govern review of disputes concerning the [Board’s

orders] must preempt the general procedures for ESA

and APA claims brought under general federal question jurisdiction.” City of Tacoma v. Nat’l Marine

Fisheries Serv. (“Tacoma I”), 383 F. Supp. 2d 89, 92

(D.D.C. 2005) (citing Media Access Project, 883 F.2d at

1067; Cal. Save Our Streams Council, Inc. v. Yeutter,

887 F.2d 908, 911 (9th Cir. 1989); City of Rochester,

603 F.2d at 936). Since the Board relied upon the

BiOp in making its determination to exempt the Railway, this Court “has jurisdiction to review not only the

[Board’s] order [exempting the Railway], but also the

Service’s Biological Opinion that was prepared in the

course of the [Board’s] [exemption] proceeding.”

Shafer, 992 F.3d at 1087.

III.

We review the orders of the Surface Transportation

Board exempting proposed rail projects from the

Board’s full application process “under the Administrative Procedure Act, examining whether the

agency’s action was ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’”

Snohomish Cnty., 954 F.3d at 301 (quoting 5 U.S.C. §

706(2)(A)). The same standard applies to the review

of the EIS, the challenges brought under NHPA, and

our review of the BiOp. See United Keetoowah Band

of Cherokee Indians in Okla. v. FCC, 933 F.3d 728, 738

(D.C. Cir. 2019); see also Tacoma II, 460 F.3d at 75–

76.

We begin with Petitioners’ challenges to the environmental review process and end with the objections

26a

to the Board’s exemption order itself since the Board

relied in large part on the review process in making

its final determination.

A.

Petitioners raise numerous objections under NEPA

regarding the Board’s environmental review of the

Railway. To fulfill their obligations under NEPA,

“agencies must take a ‘hard look’ at the environmental

consequences of their actions, and provide for broad

dissemination of relevant environmental information.” Pub. Emps. for Env’t Resp. v. Hopper

(“PEER”), 827 F.3d 1077, 1082 (D.C. Cir. 2016)

(cleaned up) (quoting Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989)). Here, the

Board assessed the environmental impacts of the

Railway under pre-2020 regulations promulgated by

the Council on Environmental Quality (“CEQ”), a division within the Executive Office of the President

that was “established by NEPA with authority to

issue regulations interpreting it.” Dep’t of Transp. v.

Pub. Citizen, 541 U.S. 752, 757 (2004).

The CEQ “regulations require an agency to evaluate cumulative impacts along with the direct and indirect impacts of a proposed action.” TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d

852, 864 (D.C. Cir. 2006) (quotation marks omitted).

Cumulative impacts are “the impact[s] on the environment which result[] from the incremental impact of

the action when added to other past, present, and reasonably foreseeable future actions regardless of what

agency (Federal or non-Federal) or person undertakes

such other actions.” 40 C.F.R. § 1508.7 (2019). Indirect impacts “are caused by the action and are later in

time or farther removed in distance, but are still

27a

reasonably foreseeable.” Id. § 1508.8(b) (2019). Direct

impacts “are caused by the action and occur at the

same time and place.” Id. § 1508.8(a).

While we disagree with many of Petitioners’ objections, we ultimately find that the EIS failed to demonstrate that the Board took the requisite “hard look” at

all of the environmental impacts of the Railway. With

this background, we address each of Petitioners’

NEPA challenges in turn.

1.

Many of Petitioners’ arguments challenge the

Board’s cumulative impacts analysis. For that analysis, the “OEA identified 27 relevant projects” that it

“conclude[d] . . . in combination with the impacts of

construction and operation of the [Railway] could result in cumulative adverse impacts on water resources, biological resources, paleontological resources, land use and recreation, visual resources, and

socioeconomics.” Final Exemption Order, 2021 WL

5960905, at *15. Separate from those 27 projects,

“OEA’s cumulative impacts assessment also include[d] an analysis of potential future oil and gas

development in the Basin and the potential future

construction and operation of new rail terminal facilities near Myton and Leland Bench, Utah,” id. at *16,

including the effects that oil production in the Basin

could have on road traffic and vehicle safety, air quality near oil-producing wells, greenhouse gas emissions

from the eventual combustion of crude oil transported

on the Railway, and long-term employment and commercial activity, id. at *16–18.

The Board concluded that increased oil drilling in

the Basin and the construction of new railway

28a

terminals could worsen local roadway congestion but

would not meaningfully increase the risk of traffic accidents. Id. It disclosed the potential for air pollutant

emissions from the construction, operation, and

maintenance of oil wells in the Basin to affect local air

quality. Id. Under the heading of cumulative impacts,

the Board also discussed the “[d]ownstream end use

emissions associated with the combustion of the crude

oil that could be transported on the Line” and the potential for Uinta Basin oil production “to generate

long-term employment, labor income, and spending on

goods and services in the cumulative impacts study

area.” Id. at *17.

i.

Petitioners’ first argument is unpersuasive. While

the Center concedes that the Final EIS “acknowledged

that increased oil production in the Basin . . . could

have profound consequences for the Basin’s environment (upstream) and climate change (downstream),”

Center Br. 19, it argues that the Board mischaracterized these effects “as ‘cumulative effects’ that would

occur independent of the Railway’s construction

and/or operational impacts, instead of as ‘indirect effects’ caused by the construction and operation of the

railroad,” id. at 20 (emphasis omitted).

The Center explains, for example, that the Final

EIS attributes an additional “131,169 tons per year”

in greenhouse gas emissions to the Railway. Id. at 21.

However, the Center claims that total number would

have been closer to “56,078,436 tons annually [or] 427

times the amount the Board attributed to the Railway”

if it had included “emissions generated from oil and

gas operations and from combustion of the oil transported by the Railway, plus operations along the

29a

downline route between the Railway’s Kyune terminal and Denver.” Id. at 21–22 (internal citations and

emphasis omitted). The Center describes this “mischaracterization” as “minimizing” the Railway’s consequences in contravention of NEPA’s hard look requirement as well as “skewing the weighing of environmental costs and projects benefits” the Board must

undertake under the ICCT Act. Id. at 23.

The Center’s argument is unavailing because it

fails to demonstrate prejudice from the alleged mischaracterization. See Nevada v. Dep’t of Energy, 457

F.3d 78, 90 (D.C. Cir. 2006). Even if the Board erroneously characterized the impacts related to increased

oil production as cumulative impacts, Petitioners

identify no way in which this decision materially affected the Board’s analysis under NEPA. The Center

fails to highlight any actual omission in the Board’s

emissions analysis. In its final order, the Board

acknowledged the impact of increased oil extraction in

the Basin and explained “[t]he impacts and the analysis of those impacts would be the same no matter

which label is used.” Final Exemption Order, 2021 WL

5960905, at *18 & n.15. The Center fails to show any

indication in the final order or the administrative record that the Board did not consider these impacts in

its analysis. Further, the Final EIS quantified potential carbon emissions from downstream refining of

Uinta Basin oil and concluded that emissions associated with the combustion of fuels produced from

crude oil transported on the Railway could constitute nearly one percent of total U.S. emissions under

its “high oil production scenario.” J.A. 1139.

Such disclosures, even if under the rubric of “cumulative impacts,” can hardly be said “to undermine informed

public

comment

and

informed

30a

decisionmaking.” Sierra Club v. FERC (Sabal Trail),

867 F.3d 1357, 1368 (D.C. Cir. 2017).

ii.

Next, the Center contends that the Final EIS ignored certain upstream and downstream impacts of

the Railway. We agree.

The Center notes that the Final EIS “failed to disclose the downstream environmental impacts of increased crude oil refining along the Gulf Coast.” Center Br. 24. The Center explains that the Final EIS

predicted “half the oil production increase—up to

175,000 barrels/day—would be delivered to Houston

and/or Port Arthur, Texas, and another 35 percent to

the Louisiana Gulf Coast.” Id. (citing J.A. 1231). Accordingly, the Center provides, “the EIS was required

to analyze the potential for tens of thousands of additional barrels of oil shipments daily and their processing in these locales to further worsen pollution

burdens,” locales with known, disproportionate exposure to pollution already. Id. at 25–26. Further, the

Center argues that the Board arbitrarily limited its

cumulative impact analysis regarding effects on vegetation and “special-status species” to the area adjacent

to the proposed rail line and “within several hundred

feet of the rail line.” J.A. 1126–27. The Center contends this geographic limitation resulted in the exclusion of impacts on “a vast area in which well and road

construction, drilling, and truck traffic could destroy

and degrade habitat.” Center Br. 27.

In response, the Board makes two primary arguments. First, the Board argues that “upstream and

downstream impacts from oil development in the

Uinta Basin are not reasonably foreseeable impacts.”

31a

Board Br. 35 (cleaned up). Second, it contends that it

was not required to consider the environmental effects

of downline oil refining on Gulf Coast communities or

on greenhouse gases from oil combustion because the

Board “cannot regulate or mitigate impacts caused by

[downline train] operations.” Final Exemption Order,

2021 WL 5960905, at *19.

As to upstream impacts, the Board claims that “any

oil development in the Uinta Basin occurring as a result of the [Railway] will be done in the future as part

of as yet unknown and unplanned independent projects that would occur on as yet unidentified private,

state, tribal, or federal land.” Board Br. 35–36. In addition, any development would be undertaken “by as

yet unknown entities and licensed or permitted by

other federal agencies, state and local governments, or

the Ute Tribe, depending on the location of the development.” Id. at 36. The Board asserts that estimates

provided by the Coalition on “upstream wells based on

estimates of the amount of oil anticipated to be transported on the [Railway]” are merely estimates and

otherwise the actual numbers are “simply unknown

and unknowable.” Id. at 36.

For downstream emissions, the Board explains that

the “destinations and combustion of Uinta Basin oil is

unknown and unknowable at this stage” since it will

depend on many factors such as “oil developers, market forces, refinery capacity, [etc.]” Id. at 37. While

the Board concedes that it “identified five general geographic regions where the oil could go to be refined,”

it claims that it is impossible to predict which of the

known “31 refineries” in those areas “would receive

Uinta Basin oil.” Id. at 37–38. Accordingly, the

Board contends “there is no way to predict or assess

32a

impacts to specific nearby communities from refining

that oil.” Id. at 38.

In effect, the Board justifies “declining to consider

greenhouse-gas emissions and other environmental

impacts” related to oil development both upstream

and downstream “based on its lack of information

about the” location of future oil production sites in the

Uinta Basin and the “destination and end use of the

[oil] in question.” Birckhead v. FERC, 925 F.3d 510,

519 (D.C. Cir. 2019) (per curiam).

We have previously considered when an agency may

draw the line and find that it cannot engage in reasonable forecasting to determine certain environmental

effects. We explained in Birckhead v. FERC, that impacts from upstream gas production and “downstream

gas combustion are” not always as a categorical matter a reasonably foreseeable effect of a project that will

facilitate the transport of gas. Id. The analysis is necessarily contextual. “In determining what effects are

‘reasonably foreseeable,’ an agency must engage in

‘reasonable forecasting and speculation,’ with reasonable being the operative word.” Sierra Club v. Dep’t of

Energy (Freeport), 867 F.3d 189, 198 (D.C. Cir. 2017)

(citation omitted). “The agency ‘need not foresee the

unforeseeable, but by the same token neither can it

avoid drafting an impact statement,’” or including relevant effects in such statement, “‘simply because describing the environmental effects of and alternatives

to particular agency action involves some degree of

forecasting.’” Id. (quoting Scientists’ Inst. for Pub.

Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079,

1092 (D.C. Cir. 1973)).

The Center primarily points to Sabal Trail, in which

FERC argued that “it [was] impossible to know exactly

what quantity of greenhouse gases [would] be

33a

emitted as a result of [a gas pipeline project] being

approved” as part of its effects analysis. 867 F.3d at

1373–74. We rejected that argument because the

pipeline developers in that case had identified the specific power plants in Florida that would be the recipients of the gas, see id. at 1372, and “FERC ha[d] already estimated how much gas the pipelines [would]

transport,” id. at 1374. Accordingly, the Court found

that the related EIS “should have either given a quantitative estimate of the downstream greenhouse emissions that [would] result from burning the natural gas

that the pipelines [would] transport or explained more

specifically why it could not have done so.” Id.

The Board, on the other hand, highlights Delaware

Riverkeeper Network, in which the Court cited Sabal

Trail as support for its holding that “[g]reenhouse gas

emissions are reasonably foreseeable effects of a pipeline project when the project is known to transport

natural gas to particular power plants.” Del. Riverkeeper Network v. FERC, 45 F.4th 104, 109 (D.C. Cir.

2022). In Delaware Riverkeeper Network, however, the

Court found that the agency did not have to estimate

certain downstream greenhouse gas emission because, as FERC reasoned, “natural gas would be delivered for further transportation on the interstate

grid to an unknown destination and for an unknown

end use.” Id. at 110.

Neither Sabal Trail nor Delaware Riverkeeper Network are perfectly analogous, but the Final EIS’s analysis makes this case more akin to Sabal Trail. In the

Final EIS, the OEA developed different scenarios for

the expected increase in rail traffic on the Railway and

resulting increase in oil production. See J.A. 1106–07.

As part of its cumulative impact analysis, the “OEA

estimated the number of oil wells that would need to

34a

be constructed and operated [in the Basin] to satisfy

the expected increased oil production volume scenarios.” Id. at 1107.

The EIS described its “estimates of future oil production” as “a reasonably

foreseeable development scenario based on historical

data about the Basin and consultation with [the Utah

Geological Survey].” Id. at 1109. While the Board

lacks “direct parameters” about the oil wells that

would need to be drilled, this Court has found that

“some educated assumptions are inevitable in the

NEPA process.” Sabal Trail, 867 F.3d at 1374.

The Board provides no reason why it could not

quantify the environmental impacts of the wells it reasonably expects in this already identified region. Further, the Board’s cursory assertion that it could confine the upstream impacts of oil development on vegetation and wildlife to areas where oil development

and railroad construction would overlap lacks any reasoned explanation and is unsupported in the record.

See J.A. 1123. At a minimum, the Board “must either

quantify and consider the project’s [upstream impacts] or explain in more detail why it cannot do so.”

Sabal Trail, 867 F.3d at 1375.

Similarly, while the Board argues it cannot identify

specific refineries that will receive and process the oil

that it expects will be developed, the EIS identifies

specific regions that will receive the oil based on expected train traffic, see J.A. 1191–92, and a limited

number of refineries in those regions that would have

the available capacity to process and refine the Uinta

Basin’s waxy crude oil, id. at 1189. The Board fails to

explain why it cannot take the next step and estimate

the emissions or other environmental impacts it expects in its impacts analysis since it has “identif[ied]

where the [Railway- induced] [oil and] gas production

35a

[is expected to] occur.” Freeport, 867 F.3d at 201 (emphasis in original). This is not a case in which the location of where the oil will be delivered or its end use

is unknown, as in Delaware Riverkeeper Network. Indeed, the Board has identified the refineries that likely

would be the recipients of the oil resulting from

the Railway’s operation, see J.A. 1189, and explained

that the oil will be refined for combustion, see id. at

1138.

While great “deference [is] owed to [the Board’s]

technical judgments,” it still must provide a reasoned

explanation for its rulings. Del. Riverkeeper Network,

45 F.4th at 111. The Board fails to adequately explain

why it could not employ “some degree of forecasting”

to identify the aforementioned upstream and downstream impacts in light of the Board’s extensive analysis and estimations related to increased oil production. Scientists’ Inst., 481 F.2d at 1092.1

1 After the hearing on these petitions, the Coalition brought to

our attention a recent case of our Court that it urges us to find

supports its position that downstream impacts on the Gulf Coast

were not reasonably foreseeable, Center for Biological Diversity

v. FERC, 67 F.4th 1176 (D.C. Cir. 2023). However, this recent

case adds nothing new to our analysis. There, the petitioners argued that FERC was required “to consider the indirect effects of

Alaska-bound gas,” id. at 1185–86, given its acknowledgement

that the corporation requesting authorization to build the proposed liquefied natural gas facility “plan[ned] to install at least

three taps along the Project’s pipeline and to divert some natural

gas for sale and use in Alaska,” id. at 1185. However, the Court

noted numerous uncertainties made any related emissions not

reasonably foreseeable, specifically that “the Corporation would

have to contract with prospective customers and secure regulatory approval from Alaska, and various subsidiary pipelines

(none of which had been proposed) would have to be built.” Id. In

this case, there are no such uncertainties. The Board made clear

36a

The Board, like any agency, is not allowed “to shirk

[its] responsibilities under NEPA by labeling” these

reasonably foreseeable upstream and downstream

“environmental effects as ‘crystal ball inquiry.’” Id.

(quoting Nat. Res. Def. Council, Inc. v. Morton, 458

F.2d 827, 837 (D.C. Cir. 1972)).

The Board also cannot avoid its responsibility under NEPA to identify and describe the environmental

effects of increased oil drilling and refining on the

ground that it lacks authority to prevent, control, or

mitigate those developments. See Final Exemption

Order, 2021 WL 5960905, at *19 (Board order citing

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768-770

(2004)).

The undisputed purpose of the railway is to expand

oil production in the Uinta Basin, by enabling it to be

brought to market via the proposed rail line connecting the Basin to existing lines that run to Gulf Coast

refineries. The Board concededly has exclusive jurisdiction over the construction and operation of the railway, including authority to deny the exemption petition if the environmental harm caused by the railway

outweighs its transportation benefits. See 49 U.S.C. §§

10501(c), 10901(b); Alaska R.R.—Constr. & Operation

that it expected a certain amount of oil to be transported to specific regions with a limited set of refineries. See J.A. 1189. The

Board expects the crude oil would then be refined for combustion.

See id. at 1189, 1139. This recent case merely reiterates this

Court’s precedent that “indirect emissions are not reasonably

foreseeable if the Commission cannot identify the end users of

the gas,” but that is not what we have here. Ctr. for Biological

Diversity, 67 F.4th at 1185 (citing Del. Riverkeeper Network v.

FERC, 45 F.4th 104, 110

(D.C. Cir. 2022)).

37a

Exemption—Rail Line Between Eielson Air Force Base

& Fort Greely, Alaska (Alaska Railroad), S.T.B. Fin.

Docket 34658, 2007 WL 2875687, at *1 (STB served

Oct. 4, 2007). The Board is authorized to license railroad construction and operation based on the “public

convenience and necessity,” which encompasses reasonably foreseeable environmental harms. Sabal

Trail, 867 F.3d at 1373. And, given that the Board has

authority to deny an exemption to a railway project on

the ground that the railway’s anticipated environmental and other costs outweigh its expected benefits, the

Board’s argument that it need not consider effects it

cannot prevent is simply inapplicable. See id.

Just as was the case with the gas pipeline at issue

in Birkhead v. FERC, the agency is “not excused” from

considering the environmental impacts of a railway it

approves “even where it lacks jurisdiction over the

producer or distributor of the [oil] transported by” that

railway. 925 F.3d at 519 (quotation marks omitted).

iii.

The County contends the Board failed to consider

the cumulative impacts associated with the reactivation of the Tennessee Pass Line and the Railway.

Cnty. Br. 37. As noted above, agencies “need not foresee the unforeseeable.” Freeport, 867 F.3d at 198

(quoting Scientists’ Inst., 481 F.2d at 1092). Here, the

reactivation of the Tennessee Pass Line was much too

unlikely for the Board to have included among the potential impacts it considered.

The Tennessee Pass Line is an approximately 163mile railway running between Sage and Parkdale,

Colorado that “has been out of service for many years.”

J.A. 1241. The County argues that the “reactivation of

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the Tennessee Pass Line is reasonably foreseeable”

since “reactivation of the [Tennessee Pass] Line has

been sought in two separate Board proceedings.”

Cnty. Br. 37 (citing J.A. 550–51). It notes that the

Tennessee Pass Line and Union Pacific Line “converge in Eagle County near Dotsero and the Colorado

River,” which— assuming reactivation of the Tennessee Pass Line and increased rail traffic on the Union

Pacific Line—“would present environmental impacts

to the same area of Eagle County that would experience the Railway’s rail traffic.” Id. at 38. The County

concedes that “the Board rejected requests to consider

the impact of the Railway’s oil trains using the Tennessee Pass Line as a reasonably foreseeable impact

of the Railway,” but argues that the Board’s determination did not excuse it from “tak[ing] a hard look at

the cumulative effect of the significant increase in traffic on the Union Pacific Line and a reactivated Tennessee Pass Line.” Id. (emphasis in original).

The Board explains that “neither reactivation nor

use of the Tennessee Pass Line for trains transporting

Uinta Basin oil is reasonably foreseeable.” Board Br.

55. It notes that since it denied a 2020 request to lease

and operate the line, there have been “no pending or

reasonably foreseeable requests to reactivate the Tennessee Pass Line.” Id. Further, it points to its “rail

traffic model” and provides that it did not forecast any

trains travelling over the Tennessee Pass Line, especially since the line has higher grades—meaning

“train[s] would have to use more locomotives and consume more fuel to use that route compared to the [Union Pacific] mainline,” J.A. 1241—which the OEA

found “make[s] [the Tennessee Pass Line] an impractical and unlikely route for Uinta Basin trains.” Board

Br. 56. Finally, the Board noted that the Coalition

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“submitted a verified statement explaining that the

planned operators of the [Railway] have no plans to

transport Uinta Basin oil on the Tennessee Pass Line

and that it would not be practical or economical to do

so.” Id.

Given the information available to the Board, it

properly found it was not reasonably foreseeable that

the Tennessee Pass Line would be reactivated. Such

“baseless speculation is unhelpful,” and the Board had

no obligation to consider the cumulative impacts of

such a remote possibility. Freeport, 867 F.3d at 198.

2.

Petitioners’ next set of NEPA challenges concern

the Board’s assessment of “indirect or down-line impacts” of the Railway. 49 C.F.R. § 1105.7. In this context, “[d]ownline impacts are impacts that could occur

along existing rail lines as a result of increased rail

traffic due to the addition of new trains originating or

terminating on the proposed rail line.” J.A. 1230. Using thresholds outlined in the Board’s regulations, the

Final EIS “identified existing rail lines that could experience an increase in rail traffic of three trains per

day or more for areas in nonattainment under the

Clean Air Act or eight trains per day or more in attainment areas.” Id. at 1231 (citing 49 C.F.R. §

1105.7(e)(5)). The Final EIS discussed what impact

the Railway could have downline on, among other

things, rail accident risk, wildfire risk, water and biological resources, and land use and recreation.

Again, we find Petitioners’ various objections successful in part.

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i.

Petitioners contend that the Board failed to take a

“hard look” at the increased risk of rail accidents

downline given the increased rail traffic resulting

from the Railway. This first argument is persuasive.

The Final EIS determined that the new Railway

would lead to increased downline rail traffic, ranging

from 0.4 to 9.5 trains per day. J.A. 888. This increase

“would have the greatest impact on the segment of the

existing [Union Pacific Line] between Kyune and Denver,” id. at 899, which could experience between 3.3

and 9.5 additional trains per day, see id. at 886. Using

national data for train accident rates, see id. at 1197,

the Final EIS modeled two scenarios, one with high

rail traffic and one with low traffic for both loaded and

unloaded trains, id. at 899–90. The OEA found that

the Union Pacific line segment “would experience

more than two times the risk of an accident than under baseline (existing) conditions” and an increase of

“about 40 percent from the baseline risk” in the low

rail traffic scenario. Id. at 899. Numerically, this

comes out to 0.89 additional predicted accidents per

year in the high rail traffic scenario and 0.31 additional accidents annually in the low scenario. Id.

The Final EIS noted that the Union Pacific Line

segment “currently has a low volume of rail traffic relative to the predicted traffic” on the Railway, which

contributes to the magnitude of difference in accident

risk under the status quo. Id. The OEA also explained

that an accident would not always involve a loaded

crude oil train. See id. at 897–98. On the Railway,

OEA estimated that “an accident involving a loaded

oil train would occur approximately once every 3 to 10

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years.” Id. at 897. On the Union Pacific Line segment,

the OEA predicted that “accidents involving a loaded

crude oil train would occur slightly less than once per

year under the high rail traffic scenario.” Id. at 900.

The County challenges the Board’s use of national

data for train accident rates. It contends the Board

ignored record evidence undermining its assumption

“that the likelihood of derailment for long trains carrying oil through the Mountain West would be the

same as any other train in any other locale in America.” Cnty. Br. 39. The County also asserts that the

Board arbitrarily assumed “that accident rates for

loaded trains would be the same as those for empty

trains.” Id. (citing J.A. 898) (emphasis omitted). While

the County recognizes that the Board acknowledged

there was limited data on accident rates for this geographic area, it argues that NEPA regulations, see 40

C.F.R. § 1502.22 (2019), required the Board to explain “why the information was unavailable and what

actions the agency took to address that unavailability.” Cnty. Br. 41 (quoting Oglala, 45 F.4th at 300).

“The regulation appears applicable on its face.”

Vecinos para el Bienestar de la Comunidad Costera v.

FERC, 6 F.4th 1321, 1329 (D.C. Cir. 2021). In response to a comment asserting that the Draft EIS

“fail[ed] to consider the unique derailment risks posed

by heavy, long unit trains that would exclusively

transport crude oil,” OEA responded that “insufficient

data exist on accident rates for unit trains carrying

crude oil in general, or trains carrying waxy crude oil

in particular, to allow OEA to calculate commodityspecific accident rates.” J.A. 1245. Accordingly, under

the CEQ regulations, the Board could only “satisfy

NEPA by explaining in the EIS why the information

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was unavailable and what actions the agency took to

address that unavailability.” Oglala, 45 F.4th at 300

(citing 40 C.F.R. § 1502.22(b) (2020)).

Here, the Board does not contend that it followed

the regulations with regards to its accident data. Instead, it concededly relied on national freight train accident rates without explanation and assumed that

loaded freight trains were as likely to derail as unloaded trains. See J.A. 900, 1197–98. Further, the

County identifies specific record evidence noting that

there is increased risk from loaded, miles- long oil

trains traveling through difficult mountainous terrain, see Cnty. Br. 39 (citing J.A. 618), evidence the

OEA effectively ignored in the Final EIS. “Because

the [Board] failed to respond to significant opposing

viewpoints concerning the adequacy of its analyses of

[rail accidents], [the Court] [must] find its analyses

deficient under NEPA and the APA.” Vecinos, 6 F.4th

at 1329.

ii.

The County also contends the Board violated NEPA

by “fail[ing] to take a hard look at the risk and impact

of wildfires presented by the Railway” given the expected increased traffic on the Union Pacific Line.

Cnty. Br. 33. We agree.

After receiving comments on the Draft EIS, “OEA

considered impacts from rail operations along existing

rail line segments downline . . . including impacts related to wildfires.” J.A. 992. It found that “the downline wildfire impact of the proposed rail line would not

be significant” for three reasons. Id. First, the OEA

noted that the “construction and operation of the

[Railway] would not introduce a new ignition source

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for wildfires along the downline segments” since the

rail lines are “active rail lines that have been in operation for many years.” Id. Second, the OEA explained

that “the probability that a train would trigger a wildfire is very low.” Id. The OEA provides that, among

other things, “improvements in locomotive technology

and the fact that trains make up a small percentage of

fire starts” results in a low “probability of train-induced wildfire.” Id. at 991. Finally, the OEA references the U.S. Forest Service’s Wildfire Hazard Potential map, which was “created . . . to help inform evaluations of wildfire risk or prioritization of fuel-management needs across very large landscapes.” Id. at

965. “The [Wildfire Hazard Potential] map displays

those areas within the continental United States that

have very different levels of fire potential, categorized

by five [Wildfire Hazard Potential] classes (very low,

low, moderate, high, and very high) and two non[Wildfire Hazard Potential] classes (non-burnable and

water).” Id. The Final EIS provides that the Wildfire

Hazard Potential map demonstrates that “nearly 90

percent of the area along the downline segments consists of very low, low, nonburnable, and water [Wildfire Hazard Potential] classes.” Id. at 992. Accordingly, the OEA explained, the Railway would not result in significant increased risk of wildfires downline.

See id.

The County derides the Board’s “conclusion that

wildfire risks posed by the Railway would be low” because the increased train traffic would not be a “new

ignition source” in the downline area, arguing that

“[m]ore trains mean more ignition sources.” Cnty. Br.

34. The County points to record evidence and “substantial concerns . . . submitted to the Board regarding

the elevated risk of wildfire posed by the increase in

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rail traffic and accidents through the Colorado mountains carrying the highly flammable crude oil.” Id. (citing J.A. 761– 65). The County also faults the Board’s

reliance on the Wildfire Hazard Potential map. It

claims that “the Forest Service cautioned that its

[Wildfire Hazard Potential] map is ‘not an explicit

map of wildfire threat or risk’” and that its primary

purpose was “not to determine wildfire impacts.” Id.

at 36 (quoting U.S. Dep’t of Agric., Forest Serv., Wildfire Hazard Potential for the United States, MISSOULA

FIRE

SCIS.

LAB’Y

(2020),

https://perma.cc/DV59-XFC8). In the alternative, the

County states that the Board’s reliance on the map

cannot excuse it failing to “evaluate the approximately 4,000 acres of high to very high Wildfire Hazard Potential classes along the Union Pacific Line or

the increased risk of wildfire posed by the rail traffic

and accidents on the [Union Pacific] Line.” Id.

The County does not refute that it failed to raise its

objections to the Board’s reliance on the Wildfire Hazard Potential map during the administrative proceedings. Accordingly, “it has waived the argument by failing to raise it at the administrative level.” Nevada,

457 F.3d at 88. Its remaining arguments, however,

are persuasive.

While we recognize that the Board relied on additional factors in analyzing downline wildfire risks—

such as technological improvements in the rail industry and historic data on train-induced wildfires—its

assertion that an increase in rail traffic of up to 9.5

new trains a day would not result in a significant wildfire risk because it would not be a qualitatively “new

ignition source” is utterly unreasoned. J.A. 992. A significant increase in the frequency of which existing ignition sources travel this route equally poses an

45a

increased risk of fire. It follows that the historic data

relied upon purportedly showing that train-induced

wildfire has a low probability is not dispositive, especially given the concededly “low volume of rail traffic”

on the Union Pacific Line currently. Id. at 899. Further, because the Board appears to have underestimated the accident risk for downline trains as noted

in the prior section, it necessarily underestimated the

wildfire risk from downline derailments.

This is not the “hard look” that NEPA requires.

PEER, 827 F.3d at 1082.

iii.

Next, the County urges that the EIS failed to evaluate certain adverse impacts on downline resources,

including on: (1) “water resources” especially since the

“sensitive” Colorado River parallels the Union Pacific

Line; (2) “biological resources . . . including impacts to

wildlife, endangered species, habitat degradation, and

the impact of more trains on species’ survival”; (3)

“land use and recreation . . . which includes hundreds

of thousands of acres of public lands, national forests,

recreational areas, and mountain communities in Eagle County”; and (4) “noise and vibrations on the [Union Pacific] Line.” Cnty. Br. 31–33.

The County acknowledges that the Board responded in the Final Exemption Order and EIS to

comments challenging the EIS’s impact on biological

resources on the Union Pacific Line. Id. at 31–32

(“[T]he Final EIS . . . ‘considered impacts of rail operations along existing rail line segments downline’ on

‘some biological resources, including impacts on ESAlisted species’ and determined that ‘the addition of up

to 9.5 trains per day, on average, would not

46a

substantially change the severity of those impacts.’”)

(quoting J.A. 995–96). The County also concedes that

“the Board purported to evaluate noise and vibrations” on the Union Pacific Line, Cnty. Br. 33, but

claims that the Board’s analysis was inadequate since

it merely “identif[ied] how loud trains would be or the

amount of land negatively impacted by the trains’

noise and vibrations.” Id. The County contends that

the Board “was required to describe the ‘actual environmental effects’ of the Railway on the environment,

historic properties, and communities along the Union

Pacific Line.” Id. (emphasis omitted) (quoting Ctr. For

Biological Diversity v. Nat’l Highway Traffic Safety

Admin., 538 F.3d 1172, 1216 (9th Cir. 2008)).

Despite its assurance that the EIS’s analysis of impacts on water resources considered the impacts on

the Colorado River, the Board offers no citations that

explicitly reference possible impacts to the relevant

downline water resources or explains why, as it says,

“the impacts are the same and apply to both.” Board

Br. 52. Merely “[s]tating that a factor was considered

. . . is not a substitute for considering it,” Getty v. Fed.

Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C.

Cir. 1986), and there is no evidence here that the

Board even considered the potential impacts on water

resources downline of running up to 9.5 loaded oil

trains a day on the Union Pacific Line—about 50% of

which abuts the Colorado River, see Ctr. Reply Br. 21.

The Board concededly fails altogether to mention the

Colorado River in the Final EIS’s discussion of

impacts on water resources. See Board Br. 51–52

(“The EIS analyzed the impacts of a spill and other releases on all water resources and, while it did not explicitly say so, that analysis applied equally to water

resources adjacent to the [Railway] as well as

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operations in the downline study area

added).

”) (emphasis

This was not a “hard look” under NEPA.

We cannot reach the merits of the County’s other

arguments concerning downline impacts on biological

resources, land use and recreation, and noise-related

disturbance, because it failed to raise them before the

Board. Longstanding precedent mandates that “persons challenging an agency’s compliance with NEPA

must structure their participation so that it . . . alerts

the agency to the parties’ position and contentions, in

order to allow the agency to give the issue meaningful

consideration.” Nevada, 457 F.3d at 88 (cleaned up).

While the County claims that “hundreds of comments”

put the Board on notice of its positions, see County Reply Br. 7, 8, the record citations it provides are vague

and “bare” references that “d[o] not touch on what [the

County] argues here,” Nevada, 457 F.3d at 88–89.

The County cites, for example, a letter from a nonprofit river conservation organization, noting that its

comments were specifically provided to address “the

direct impacts to river recreation in the Uinta Basin

and to the reasonably foreseeable impacts associated

with potential crude oil transport over the Tennessee

Pass Line in Colorado.” J.A. 597. Notably, while this

letter does request that the Board assess certain recreation concerns in the Uinta Basin, it does not make

the same request for downline resources. Further, the

letter discusses the reactivation of the Tennessee Pass

Line, which we have already found was not reasonably

foreseeable. The County also cites one vague comment, which asserted that “the small communities of

Colorado are too often the ones to pay the price for external business ventures such as the [Railway].” Id.

at 546.

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These comments in no way alert the Board to the

County’s specific challenges relating to downline impacts on biological resources, land use and recreation,

or even impacts related to increased noise. The Board

did not act arbitrarily in declining to address these

“cryptic and obscure reference[s]” in the Final EIS.

Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def.

Council, Inc., 435 U.S. 519, 554 (1978).

3.

Finally, the Center argues that the Board’s direct

effects analysis failed to take a hard look at the geological risk of landslides attributable to the Railway.

Ultimately, this argument is unpersuasive.

As part of its analysis of direct impacts, the Board

“determine[d] the potential impacts related to geology, soils, and seismic hazards that could result from

construction and operation” of the three Action Alternatives. J.A. 1014. The OEA conducted a baseline

analysis of the “geological and seismic characteristics

of the study area” and then identified “unstable geologic units for each alternative and the correlating risk

of mass movement.” Board Br. 63.

The analysis was based on, among other things,

“maps of unstable geological units[,] maps of areas

with steep slopes which present higher landslide

risk,” and maps depicting landslide risks. Id. at 66.

The Board concedes that the landslide maps it employed were “incomplete and likely understated the

areas affected by mass movement and that there could

be unmapped abandoned mines,” as acknowledged in

the Final EIS. Id. at 65. Regardless, the Board recognized that all three Action Alternatives posed an increased risk of landslides based on the data it had

49a

available but found that mitigation measures could be

imposed such that “the impacts would not be significant.” Id. at 63 (citing J.A. 1031).

The Center’s primary objection is a simple one: the

“landslide hazards throughout the bulk of the study

area are unknown.” Center Br. 35 (citing J.A. 1019–

20). In addition, the Center objects to the Board’s reliance on mitigation measures that include “post-approval surveys” to be conducted by the Coalition after

the Railway is approved. Id. at 35–36 (citing J.A.

1024). The Center complains that the Board cannot assume insignificant impact when “the EIS neither

identified nor analyzed site-specific hazards [such

that] the nature and extent of the problem are unknown.” Id. at 37–38. Without a more fulsome understanding of the landslide risk across the three Action

Alternatives, the Center asserts, the Board could not

say it took a “hard look” at which of the alternatives

had the least risk of landslide hazards. Moreover, it

could not pawn off its NEPA responsibilities to take a

hard look at potential landslide risk to the Coalition,

who the Board assumes will conduct the necessary geological surveys once construction begins.

As in its analysis of accident risk, the Board lacked

data regarding landslide risk in the relevant area but

pressed forward. Here, however, the Board actually

met its burden under 40 C.F.R. § 1502.22 (2019).

The Board evaluated the available information, disclosed that information relevant to its environmental

impact analysis was incomplete or unavailable, summarized “existing credible scientific evidence” relevant to those impacts, and evaluated the environmental impacts of its actions based on “generally accepted”

research methods, theoretical approaches, and credible evidence. See id. § 1502.22(b). The Board relied

50a

upon information beyond the “incomplete” mapping

datasets, including “other data sets that were complete,” and “concluded that the available information

was sufficient to compare the Action Alternatives and

assess the potential impacts of each.” Board Br. 65–66

(citing J.A. 1266); see also J.A. 1019. Since the Board

“explain[ed] in the EIS why the information was unavailable and what actions the agency took to address

that unavailability,” it was not a violation of NEPA for

the Board to reach its determination that landslide

risk would not be significant absent suggestions from

parties as to better available data. Oglala, 45 F.4th

at 300 (citing 40 C.F.R. § 1502.22(b) (2020)).

B.

1.

The Center also raises objections related to the Biological Opinion, which was developed by the Service

after the Board, as the action agency, sought formal

consultation under the ESA.

The Board began the consultation process by conducting “a threshold biological assessment.” Center II,

56 F.4th at 62. The purpose of a biological assessment

is determining both “the species, habitats, and geographic areas that may be present” and “setting forth

an empirically based judgment whether the proposed

action may affect a listed species or critical habitat.”

Id. The relevant geographic area, or “action area,”

used in the biological assessment is defined “as all areas to be affected directly or indirectly by the proposed

project and not merely the area immediately adjacent

to the action.” J.A. 1756; see also 50 C.F.R. § 402.02.

51a

The Biological Assessment identified that certain

protected species of fish in the upper Colorado River

Basin may be affected by the Railway. J.A. 1727.

These included the Colorado pikeminnow, razorback

sucker, humpback chub, and bonytail chub. Id. Accordingly, the action area for protected fish species

was defined, in part, as not only including “streams

and other surface waters in the project footprint and

a limited distance upstream and downstream of the

[Railway],” but also the area “concurrent with the Upper Colorado River Basin” affected by water depletion

that may arise from the construction and operation of

the Railway. Id. at 1757.

The Board then sought formal consultation of the

Service. For a formal consultation, the Service

“write[s] a biological opinion using information in the

biological assessment and the best scientific and commercial data available to determine whether the

agency action is likely to jeopardize the continued existence of listed species or result in the destruction or

adverse modification of critical habitat.” Center II, 56

F.4th at 62–63. (quotation marks and citations omitted). The Service will also “include[] an evaluation of

the basis for [its] findings.” Id. at 63. Here, the Service adopted the Board’s proposed action area, defining it as: “(1) the entire project footprint, (2) a 300- foot

buffer around the project footprint, and (3) the area of

the Upper Colorado River Basin affected by water depletions.” Br. of Resp’t U.S. Fish and Wildlife Serv. 11

[hereinafter “Serv. Br.”] (citing J.A. 1660). In the

BiOp, “the Service concluded that the proposed project

is not likely to jeopardize the continued existence of

the [four federally listed fish species in the affected

area of the Upper Colorado River Basin] or result in

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destruction or adverse modification of designated critical habitat.” Id. at 8 (citing J.A. 1696).

2.

The Center objects to the Board’s determination of

the relevant action area and the Service’s adoption of

that action area in the BiOp. By considering only the

possible effects of water depletion—as the Center argues—the Board ignored comments that increased rail

traffic may lead to “contamination from spills and

leaks” along the Union Pacific Line where it intersects

with the Colorado River, which may pose harm to the

protected fish and their critical habitat. Center Br. 43.

For this reason, the Center urges the Court to find

that the BiOp and Board’s Final Exemption Order,

which relied upon the BiOp, are arbitrary and capricious. Id.

Both the Service and the Board contend that the

decision was supported by a “rational and sufficient”

explanation. Serv. Br. 11–12; see also Board Br. 53–

54. While recognizing that “any active rail line” would

expose adjacent water resources to “minor leaks or

drips of fuel or lubricants” from train traffic or a larger

spill from a derailment, the Board reasoned that the

Railway “would not introduce a new potential source

of pollution along the existing [Union Pacific] rail line”

since trains have traveled the Union Pacific Line for

many years. J.A. 1845. The Board notes that “an effect

must be ‘reasonably certain to occur’ to be an effect of

the proposed action,” and states that the Board reasonably concluded and explained “that the risk of a

large spill is so low as to not be reasonably foreseeable

and that adding project-related trains would not substantially change the severity of impacts that already

exist.” Board Br. 53 (citing J.A. 996). The Service

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contends that both agencies are owed deference regarding how they defined the action area, see Serv. Br.

9, and asserts that even though the BiOp “does not

repeat the analysis the Board already conducted,” the

“Service reasonably relied on the Board’s analysis

when issuing the [BiOp],” id. at 13.

The Board’s reasoning for narrowly defining the action area to not include waterways downline near the

Union Pacific Line is unreasoned and fails to demonstrate a “rational connection between the facts found

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

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

29, 43 (1983) (quoting Burlington Truck Lines, Inc.

v. United States, 371 U.S. 156, 168 (1962)). Though it

is obvious that the increased traffic on the Union Pacific Line “would not introduce a new potential source

of pollution,” J.A. 1845 (emphasis added), it is entirely

unclear from the record why the Board determined

that the additional train traffic—with the attendant

increase in “leaks or drips of fuel or lubricants”—

“would not substantially change the severity of impacts” on the protected species near the Union Pacific

Line, id.

This reasoning is especially flawed given the

Board’s recognition that the Union Pacific Line segment “currently has a low volume of rail traffic relative

to the predicted traffic” due to the Railway and the

likely flawed analysis of accident risk, as discussed

above. Id. at 899. Though we accord deference “on

matters relating to their areas of technical expertise[,]

[w]e do not . . . simply accept whatever conclusion an

agency proffers merely because the conclusion reflects

the agency’s judgment.” Tripoli Rocketry Ass’n, Inc. v.

Bureau of Alcohol, Tobacco, Firearms, & Explosives,

437 F.3d 75, 77 (D.C. Cir. 2006). Here, the Board

54a

failed to adequately explain its reasoning given the

record evidence.

The Service’s adoption of the Board’s proposed action area causes the BiOp itself to be flawed as a result. While the Board was required to provide “[a]

map or description” of the action area in its initiation

of formal consultation with the Service, 50 C.F.R. §

402.14(c)(1)(ii), the Service had an independent duty

to determine the proper scope of ESA review, id. §

402.14(g). The relevant regulations even require a review of the “relevant information provided by the [action] agency” that “may include an on-site inspection

of the action area.” Id. § 402.14(g)(1). The formal consultation process “ensures that [government action]

likely to jeopardize any species protected by the ESA

either not be taken without consideration of those

risks or yield to safer alternatives.” Center II, 56 F.4th

at 63 (citing 16 U.S.C. § 1536(b)(4); 50 C.F.R. §

402.15). Here, the Service never considered possible

risks to protected species downline based on the

Board’s faulty reasoning and therefore did not fulfill

its important function under the ESA. That is not how

ESA consultation by an action agency with the expert

Services is supposed to work.

The Board arbitrarily narrowed the scope of ESA

review, and the Service adopted that flawed determination without interrogation. Where, as here, an

agency determination is not supported by reasoned decisionmaking, “the agency’s decision cannot withstand

judicial review.” Tripoli, 437 F.3d at 77. Both the

BiOp and the Board’s Final Exemption Order, to the

extent it relies upon the BiOp, are arbitrary and capricious. Not only is this violative of the ESA, but the

Board also cannot satisfy its NEPA requirements by

pointing to the Biological Opinion.

55a

C.

The County contends that the Board erred in two

ways with regards to the NHPA.

First, it urges us to find that the Board failed to

“consult with Eagle County regarding the effects of

the Railway’s operations on historic properties in Eagle County,” Cnty. Br. 41, as required under the

NHPA, 54 U.S.C. § 304108, and related regulations,

see 36 C.F.R. § 800.2(c)(3) (“A representative of a local

government with jurisdiction over the area in which

the effects of an undertaking may occur is entitled to

participate as a consulting party.”). This process is

known as the “Section 106 consultation,” Cnty. Br. 42,

and the County argues the Board “arbitrarily restricted consultation with local governments to Utah

counties near the rail line proposed to be constructed”

despite the known increase in rail traffic and train

noise downline, id. at 43.

Second, the County identifies “properties included

on the National Register and located close to the Union Pacific Line, including historic cabins, prehistoric

rock art, and the segment of the [Union Pacific] Line

running through the County” that it says will be impacted by the increased rail traffic downline. Id. at 44.

It notes that the Board’s limitation of the NHPA evaluation to the area adjacent to the Railway arbitrarily

failed to evaluate historic properties downline that

would be impacted by “engine emissions” and “longterm railroad noise and vibration.” Id. at 44–45.

“[S]ection 106 of the Historic Preservation Act is a

‘stop, look, and listen’ provision; it requires federal

agencies to take into account the effect of their actions

on structures eligible for inclusion in the National

Register of Historic Places.” Illinois Com. Comm’n v.

56a

ICC, 848 F.2d 1246, 1260–61 (D.C. Cir. 1988) (per

curiam). “In fulfilling this obligation, agencies must

consult with certain stakeholders in the potentially affected areas, including representatives of local governments.” City of Phoenix v. Huerta, 869 F.3d 963, 971

(D.C. Cir. 2017), opinion amended on reh’g, 881 F.3d

932 (D.C. Cir. 2018) (Mem.). Regulations define “consultation” as “the process of seeking, discussing, and

considering the views of other participants, and,

where feasible, seeking agreement with them regarding matters arising in the section 106 process.” 36

C.F.R. § 800.16(f). We have little precedent concerning

what standards the agencies must use to comply with

their NHPA consultation obligations. See generally

Kathryn Sears Ore, Form and Substance: The National Historic Preservation Act, Badger- Two Medicine, and Meaningful Consultation, 38 PUB. LAND &

RES. L. REV. 205, 223 (2017) (describing the “lack of

specificity” in consultation requirements). However,

it is undisputed that the Board contacted numerous

Colorado entities, including the Colorado State Historic Preservation Office, and invited the public to provide feedback throughout the EIS process. The

Board’s “process of seeking, discussing, and considering the views of other[s],” 36 C.F.R. § 800.16(f),

through its EIS process was sufficient here, especially

since the County participated and could have raised

its concerns.

The County’s argument that the Board arbitrarily

ignored alleged impacts to historic resources along the

Union Pacific Line is also unavailing. It is a bedrock

principle of administrative law that objections must

be first made to the agency during the administrative

proceedings, so it has the opportunity to change

course. See Maryland v. EPA, 958 F.3d 1185, 1210

57a

(D.C. Cir. 2020) (per curiam) (collecting cases) (“[G]eneral administrative-law principles require timely

preservation of issues before the agency.”). Here, the

County had ample opportunity to raise any concerns

related to historic resources downline given its active

participation in the EIS process. Yet, the County effectively concedes that it failed to name any historic

resources during those proceedings or notify the Board

of potential impacts to those resources. See County

Reply Br. 15–16. Under this record, we find no violation of the NHPA.

D.

Finally, Petitioners contend that the Final Exemption Order is arbitrary and capricious under the ICCT

Act. We agree.

1.

In granting an exemption from the ICCT Act’s full

application requirements, the rail transportation policy provided in 49 U.S.C. § 10101 “must guide the

[Board] in all its decisions.” Illinois Com. Comm’n v.

ICC, 787 F.2d 616, 627 (D.C. Cir. 1986) (quoting Coal

Exporters Ass’n of U.S., Inc. v. United States, 745 F.2d

76, 94 n.22 (D.C. Cir. 1984)). While the Board does not

necessarily have to “address each and every one of the

policy’s fifteen components,” it “must consider all aspects of the policy bearing on the propriety of the exemption and must supply an acceptable rationale

therefor.” Illinois Com. Comm’n, 787 F.2d at 627. “All

that is necessary is that the essential basis of the

[Board’s] rationale be clear enough so that a court can

satisfy itself that the [Board] has performed its function.” Coal Exporters Ass’n, 745 F.2d at 94 n.22

58a

(quoting Alamo Exp., Inc. v. ICC, 673 F.2d 852, 860

(5th Cir. 1982)).

Here, the Board identified several different components of the rail transportation policy as relevant to

the Coalition’s exemption petition.

The first set were discussed in the Preliminary Exemption Order, which concerned the Railway’s transportation benefits. These components can be described as “economic” and “regulatory” policies. They

include the policies of “ensur[ing] the development and

continuation of a sound rail transportation system

with effective competition among rail carriers and

with other modes, to meet the needs of the public and

the national defense,” 49 U.S.C. § 10101(4); “ensur[ing] effective competition and coordination between rail carriers and other modes,” id. § 10101(5);

“minimiz[ing] the need for Federal regulatory control

over the rail transportation system,” id. § 10101(2);

and “reduc[ing] regulatory barriers to entry into and

exit from the industry,” id. § 10101(7).

The Preliminary Exemption Order provided that

the Railway “would provide shippers in the Basin the

opportunity to enter markets they currently cannot

access due to cost constraints and the ability to import

materials into the Basin at a more economical cost.”

Preliminary Exemption Order, 2021 WL 41926, at *9.

Further, the Board asserted that the Railway “would

enhance competition by providing shippers in the area

with a freight rail option that does not currently exist

and foster sound economic conditions in transportation.” Id. It explained that the exemption would meet

the remaining policies related to minimizing federal

regulatory control and reducing regulatory barriers

“by minimizing the time and administrative expense

associated with the construction and commencement

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of operations.” Id. In the Final Exemption Order, the

Board reiterated these points and added that it

“c[ould] grant the Coalition’s request for authority

even if all issues involving financing [were] not yet resolved because the grant of authority is permissive,

not mandatory, and the ultimate decision on whether

to proceed will be in the hands of the Coalition and the

marketplace, not the Board.” Final Exemption Order,

2021 WL 5960905, at *23. With this assessment, the

Board ultimately found that “the transportation merits of the project outweigh[ed] the environmental impacts.” Id. at *24.

The second set of Rail Policies were addressed in the

Final Exemption Order and could be described as “environmental” policies. These include “operat[ing]

transportation facilities and equipment without detriment to the public health and safety,” 49 U.S.C. §

10101(8), and “encourag[ing] . . . safe and suitable

working conditions in the railroad industry,” id.

§ 10101(11). The Board “consider[ed] and weigh[ed]

the information collected during the NEPA process to

inform [the] agency’s” consideration of these policies.

Board Br. 75. In addition, the Final Exemption Order

recognized objections made during the administrative

proceedings related to the environmental policies,

specifically “potential safety risks related to wildfires

and increased truck traffic.” Id. at 72. The Board provided that the “OEA . . . demonstrated in its Final EIS

that there only would be a small risk of forest fire,”

Final Exemption Order, 2021 WL 5960905, at *24,

and “included extensive examination of potential increases in safety risks related to wildfires and increased vehicular traffic,” Board Br. 74 (citing J.A.

875–93, 963–65, 991–92). The Board contends that it

“reasonably found that §§ 10101(8) & (11) did not

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warrant denying the exemption, as the increased

wildfire and truck traffic risks were small and would

be lessened by Board- imposed mitigation.” Id. (citing

Final Exemption Order, 2021 WL 5960905, *22–24).

In sum, the Board determined that “the construction and operation of [the Railway] will have substantial transportation and economic benefits” that outweigh the environmental impacts. Final Exemption

Order, 2021 WL 5960905, at *23. It described the environmental impacts as “unavoidable” “as with most

other rail construction Projects” but subject to extensive mitigation that would “minimize those impacts to

the extent practicable.” Id. at *23.

Petitioners lodge several objections.

First, the County claims that the Board departed

from its prior precedent in granting the Coalition’s request for preliminary exemption contingent upon a

later determination of the environmental issues. It

notes that the Board’s precedent requires a showing of

“unique or compelling” circumstances in order to issue

a preliminary decision on the transportation merits of

a petition prior to completing its environmental review, but here the Board only offered “vague, unsupported references to the ‘economic circumstances’ or

the ‘pandemic.’” Cnty. Br. 18.

The County also contends that the Board failed to

consider all of the relevant environmental Rail Policies, including the policy of “encourag[ing] and promot[ing] energy conservation,” 49 U.S.C § 10101(14),

and arbitrarily relied on the ones it did consider.

Among other things, the County asserts that the

Board ignored “substantial record evidence demonstrating that the Railway is economically unsound,”

highlighting “the Coalition’s own redacted study that

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questioned the stability of oil markets, the market for

Uinta oil, and investor appetite for the Railway.”

Cnty. Br. 25.

Finally, the Center states that the Board’s reliance

on the flawed EIS and BiOp resulted in a “skewed

weighing of harms and benefits,” Center Br. 47, noting

that Board’s significant discussion of the Railway’s

“speculative economic benefits” effectively glossed

over the fact that the “benefits from expanded oil production” necessarily result in significant environmental harms, id. at 45.

2.

Regardless of the merit of the County’s argument

that the Board departed from its prior precedent in allowing conditional grant of exemption on the transportation merits, we will not address the Preliminary Exemption Order in its own right. Petitioners’ varied objections as to the conditional grant process apply in

any event to the ultimate weighing employed in the

Final Exemption Order. We will instead review the

Board’s transportation merits analysis and the challenges to it as incorporated into and reflected in its

final determination.

The Board’s fundamental task here was to

“properly consider[] and appl[y]” the relevant Rail Policies in its determination on the Coalition’s exemption

petition. Coal Exporters Ass’n, 745 F.2d at 94 n.22. It

is clear from the Final Exemption Order that the

Board failed at every juncture.

First, the Board did not provide “adequate attention” to comments questioning the financial viability

of the Railway and therefore did not properly consider

the relevant economic and regulatory policies. Illinois

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Com. Comm’n, 787 F.2d at 630. As the County highlights, the Coalition asked a third party, R.L. Banks,

“to prepare a detailed 2018 feasibility study addressing the viability of the [Railway]” “prior to seeking authority from the Board.” Preliminary Exemption Order, 2021 WL 41926, at *6. The Center obtained a redacted copy of the feasibility study that it provided to

the Board. See id. The redacted copy apparently called

into question “the demand for the type of oil extracted

from the Uinta Basin” and the financial viability of the

Railway overall. Id. at *15 (Oberman, Bd. Mbr., dissenting).

The Board did not address the Center’s objection

that the redacted material from the study was needed

to gauge the economic viability of the Railway. Instead, the Board explained that “nothing in the language of § 10502 . . . suggest[s] that an exemption proceeding is inappropriate if the viability of the proposed

rail line is questioned.” Preliminary Exemption Order,

2021 WL 41926, at *6 (citing Alaska Survival v. STB,

705 F.3d 1073, 1082 (9th Cir. 2013) (“[N]either §

10502 nor the STB’s implementing regulations indicate that an exemption proceeding is improper when

the project’s financial viability is questioned.”)). It

also provided “that the ultimate decision to go forward

with an approved project is in the hands of the applicant and the financial marketplace, not the agency.”

Id. (citing Mid States Coal. for Progress v. STB, 345

F.3d 520, 552 (8th Cir. 2003)). For these reasons, the

Board determined that it “[did] not need the material

currently redacted in the R.L. Banks 2018 feasibility

study obtained by the Center, despite the Center’s

claim to the contrary.” Id. at *7 n.8.

The Board’s argument is essentially that the financial viability of a project, specifically whether it can get

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upfront and ongoing financing, does not implicate the

Rail Policies, so the Board does not need to address

project viability or respond to comments challenging

it. This interpretation, however, runs counter to the

fourth and fifth Rail Policies relied on in the Preliminary and Final Exemption Orders. As was raised in

the Center’s reply to the Coalition’s petition for exemption, it would not “ensure the development and

continuation of a sound rail transportation system . .

. to meet the needs of the public,” 49 U.S.C.A. §

10101(4), “if the applicant were to start construction

but not be able to complete the project and provide the

proposed service” due to lack of financing, J.A. 300

(quoting Great Lakes Basin Transp., Inc.—Rail Const.

& Operation—In Rock Cnty., Wisc., Winnebago, Ogle,

Lee, Lasalle, Grundy, And Kankakee Cntys., Ill., and

Lake, Porter, and Laporte Cntys., Ind., S.T.B. Fin.

Docket 35952, 2017 WL 3835978, at *4 (STB served

Aug. 31, 2017)). The STB decision referenced by the

Center did not deal with an exemption petition but rather a full application under 49 U.S.C. § 10901, but this

reasoning still has force when considering the language of the fourth and fifth Rail Policies.

Despite its protestations to the contrary, the Board

cannot ignore and, in the past, has not ignored serious

concerns about financial viability in determining the

transportation merits of a project. See, e.g., Texas

Cent. R.R. & Infrastructure, Inc. & Texas Cent. R.R.,

LLC-Petition for Exemption-Passenger Rail Line Between Dallas & Houston, Tex., S.T.B. Fin. Docket

36025, 2020 WL 4036897, at *12 (STB served July 16,

2020).

In Texas Central Railroad, the Board required the

full application process after “significant questions

had been raised” about the financial viability of a

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project where the estimated costs increased “from over

$10 billion to over $20 billion (with one estimate over

$30 billion).” Preliminary Exemption Order, 2021 WL

41926, at *7. The Board explained that the discrepancy was not adequately addressed and there were

“conflicting statements” on the “extent of nonmarket

funding sources.” Id.

The Board attempts to distinguish the Railway from

Texas Central and other matters in which it found the

full application process was necessary. It reiterates its

categorical rule that “the ultimate test of financial fitness is in the hands of the applicant and marketplace”

so uncertainty about financial viability is not relevant

to its determination. Id. at 7 n.10; see also Board Br.

77–78. In the Preliminary Exemption Order, the

Board also articulates a separate test of sorts to establish when an exemption petition should be denied in

light of a project’s financial viability. It provides that

when two factors—an “increase in project costs or uncertainty about funding”—“are both substantial and

inadequately or inconsistently addressed, combined

with other relevant factors, including the extent to

which the marketplace will assess financial fitness,

additional scrutiny may be warranted.” Preliminary

Exemption Order, 2021 WL 41926, at 7 n.10. But the

Board insists that the there was only “some uncertainty” as to the financing of the Railway, so a full application process was unnecessary. Id. at *7–8.

The Board’s reasoning is unavailing. These tests

are nothing more than the adoption of a new rule

without real explanation for its “changing position.”

Baltimore Gas & Elec. Co. v. FERC, 954 F.3d 279, 286

(D.C. Cir. 2020). At bottom, a project that is in doubt

of ever materializing or continuing to operate cannot

accomplish any of the transportation merits identified

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by the Board. And, the Board has applied that reasoning in prior cases in which “[c]ommenters . . . have

raised significant questions surrounding the financial

feasibility of [a] proposed rail project.” Texas Cent.,

2020 WL 4036897, at *12. Given the record evidence

identified by Petitioners—including the 2018 feasibility study—there is similar reason to doubt the financial viability of the Railway. Of course, our Court “may

permit agency action to stand without elaborate explanation where distinctions between the case under

review and the asserted precedent are so plain that no

inconsistency appears.” Bush-Quayle ‘92 Primary

Comm., Inc. v. FEC, 104 F.3d 448, 454 (D.C. Cir.

1997). Here, however, the Board fails to explain how

the financial uncertainty unearthed by Petitioners is

meaningfully distinct from the Board’s prior precedent. In both, significant questions regarding the financial viability of the proposed project were raised.

Yet, in this latter case, the Board has elected to ignore

these concerns despite their application to the relevant Rail Policies. Accordingly, the Board’s adoption

of this new rule of washing its hands of any concern for

financial viability is “an inexcusable departure from

the essential requirement of reasoned decision making.” Ramaprakash v. FAA, 346 F.3d 1121, 1125 (D.C.

Cir. 2003) (quoting Columbia Broad. Sys., Inc. v.

FCC, 454 F.2d 1018, 1027 (D.C. Cir. 1971)).

Second, with respect to its consideration of the environmental policies, the Board relies solely on its

EIS. See Final Exemption Order, 2021 WL 5960905,

at *22. As we have held, the EIS is arbitrary and capricious, so those errors infect the final determination

as well. Even so, the Board’s discussion of the environmental policies in the Final Exemption Order separately demonstrate that the Board did not

66a

adequately consider the incredibly significant environmental effects identified in the EIS in weighing

those impacts against the uncertain transportation

benefits of the Railway. The “cumulative” effects

within the Uinta Basin of a major expansion of oil

drilling there, on Gulf Coast communities of refining

the oil, and the climate effects of the combustion of the

fuel intended to be extracted are foreseeable environmental effects of the project. These are effects the

Board ultimately has the authority to prevent. The

Board was required not only to identify those effects

under NEPA, as discussed above, but also to weigh

them in its ICCT Act analysis. Its failure to do so contributes to our conclusion that the Board’s order is arbitrary and capricious.

As an initial matter, the Center has failed here, just

as it failed under NEPA, to show that consideration of

downstream emissions as cumulative versus indirect

effects itself skewed the Board’s analysis in any material way under the ICCT Act. In its final order, the

Board acknowledged these impacts and explained

“that its analysis of these impacts would be the same

whether they were labeled cumulative or indirect.” Final Exemption Order, 2021 WL 5960905, at *18 n.15.

Taking the Board at its word that its treatment of

downstream emissions in its Final Determination is

no different due to their categorization as “cumulative

effects” instead of “indirect effects,” the Board was required to weigh them as cumulative effects just as it

would weigh any indirect effect of the project.

The Board largely concedes in its briefing that it did

not evaluate the energy conservation policy, providing

that it “addressed numerous energy-related issues

throughout” but not this particular policy. Board Br.

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77.2 The Court, however, can only uphold the agency’s

action “on the basis articulated by the agency itself,”

State Farm, 463 U.S. at 50, and “may not substitute

[its] judgment for that of the [Board],” Dep’t of Com.

v. New York, 139 S. Ct. 2551, 2569 (2019). This,

however, is exactly what the Board asks of the Court.

Based on its nebulous references in the record to “potential issues related to energy,” Board Br. 77, we

should apparently create from whole cloth a reasoned

consideration of the energy conservation policy. This

we cannot do.

The limited weighing of the other environmental

policies the Board did undertake fails to demonstrate

any serious grappling with the significant potential for

environmental harm stemming from the project. The

Final Exemption Order completely glossed over the

objection that “the project’s many significant environmental impacts” necessitated additional scrutiny and

“more extensive proceedings.” Final Exemption

2 The Board claims that the County did not timely raise its objec-

tion related to the Board’s failure to consider the energy conservation policy. See Board Br. 75–77. Generally, “reviewing

courts . . . will not consider an argument that was not raised before

the agency ‘at the time appropriate under its practice.’” Riffin v.

STB, 733 F.3d 340, 343 (D.C. Cir. 2013) (citing United States v. L.

A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)). While the

County did not raise this issue in a formal objection to the Coalition’s exemption petition, it did provide this specific objection in

response to the Draft EIS, specifically asserting that the Railway’s

“consequences will likely also detract rather than encourage and

promote energy conservation.” J.A. 760. Raising this objection

when the Board said it would consider environmental impacts is a

“time appropriate under [the Board’s] practice.” Riffin, 733 F.3d at

343. Since the Board had the “opportunity for correction,” the

County did not forfeit this objection and this issue can be considered “reviewable by the [C]ourt[].” Id. (citing L. A. Tucker, 344 U.S.

at 37).

68a

Order, 2021 WL 5960905, at *23. Instead, its “weighing” of environmental impacts and transportation

merits only directly references the EIS to claim that

“there only would be a small risk of forest fire” and

“truck traffic would not significantly increase on major roads as a result of construction and operation of

the [Railway].” Id. at *24. Otherwise, the Board hurriedly disposed of Petitioners’ environmental objections with assertions that the mitigation discussed in

the Final EIS was sufficient and that the Board modified certain mitigation measures to ensure clarity. Id.

at *24–25. With this paltry discussion, the Board determined that “the transportation merits of the project

outweigh[ed] the environmental impacts.” Id. at *24.

The Board is required to compare both sides of the

ledger, not just acknowledge that both sides exist.

And it may not completely ignore a “policy bearing on

the propriety of the exemption” as it did here with the

energy conservation policy. Illinois Com. Comm’n, 787

F.2d at 627. As the Board identified, on one side of the

scale the Railway could result in nearly one percent of

total U.S. greenhouse gas emissions and the increased

rail traffic downline could cause amplified risk of wildfires, the potential of derailed trains on an annual basis, and crude oil spills in critical habitats and sensitive water resources that are home to endangered species. On the other side, the Railway may open up new

markets for crude oil transportation, assuming the

project is financially viable—an assumption that is

not clear from this record. The Board’s consideration

of these impacts and benefits was cursory at best,

leaving little question that the ICCT Act necessitated

a more fulsome explanation for the Board’s conclusion

that the Railway’s transportation benefits outweighed

the project’s environmental impacts.

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It is not our job to decide whether the Board ultimately arrived at the right outcome in light of its findings. See State Farm, 463 U.S. at 43 (“The scope of review under the ‘arbitrary and capricious’ standard is

narrow and a court is not to substitute its judgment

for that of the agency.”). However, it is clear that the

Board failed to adequately consider the Rail Policies

and “articulate a satisfactory explanation for its action

including a rational connection between the facts

found and the choice made.” Id. (quotation marks

omitted). The Board’s protestations at argument that

it is just a “transportation agency” and therefore cannot allow the reasonably foreseeable environmental

impacts of a proposed rail line to influence its ultimate

determination, see Oral Arg. Tr. 84:19–20; 85:20, ignore Congress’s command that it make expert and

reasoned judgments that “properly consider[] and

appl[y]” the relevant Rail Policies prior to granting an

exemption from its full application requirements, Coal

Exporters Ass’n, 745 F.2d at 94 n.22. Here, those Rail

Policies include the environmental impacts of the

Railway, and the Board failed to fulfill its obligation

under the ICCT Act to consider them alongside any

potential economic benefits.

The Board failed to “supply an acceptable rationale”

as to its consideration of the relevant Rail Policies and

therefore the Final Exemption Order was issued in violation of the ICCT Act. Illinois Com. Comm’n, 787

F.2d at 627.

IV.

We are left to consider the remedy. “The decision to

vacate depends on two factors: the likelihood that ‘deficiencies’ in an order can be redressed on remand,

even if the agency reaches the same result, and the

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‘disruptive consequences’ of vacatur.” Black Oak Energy, LLC v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013)

(quoting Allied-Signal, Inc. v. U.S. Nuclear Regul.

Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)).

The deficiencies here are significant. We have

found numerous NEPA violations arising from the

EIS, including the failures to: (1) quantify reasonably

foreseeable upstream and downstream impacts on

vegetation and special-status species of increased

drilling in the Uinta Basin and increased oil-train

traffic along the Union Pacific Line, as well as the effects of oil refining on environmental justice communities the Gulf Coast; (2) take a hard look at wildfire risk

as well as impacts on water resources downline; and

(3) explain the lack of available information on local

accident risk in accordance with 40 C.F.R. § 1502.22(b)

(2020). The EIS is further called into question since

the BiOp failed to assess impacts on the Colorado

River fishes downline.

The poor environmental review alone renders arbitrary the Board’s consideration of the relevant Rail

Policies and the final order’s exemption of the Railway. Yet, the Board also failed to conduct a reasoned

application of the appropriate Rail Policies as required under the ICCT Act. The Board failed to weigh

the Project’s uncertain financial viability and the full

potential for environmental harm against the transportation benefits it identified.

“‘[V]acatur is the normal remedy’ when a rule is

found unlawful,” and we see no reason to depart from

our normal practice here given the lack of argument

from the Board, Service, or the Coalition, that vacatur

would be disruptive. Am. Pub. Gas Ass’n v. Dep’t of

Energy, 22 F.4th 1018, 1030 (D.C. Cir. 2022) (quoting

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Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110

(D.C. Cir. 2014)).

Accordingly, we grant the petitions in part and vacate the Final Exemption Order as arbitrary and capricious. Further, we vacate the EIS and BiOp in part for

the reasons described above. This matter is remanded

to the Board for further proceedings in accordance

with this opinion.

So ordered.

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_________________

APPENDIX B

_________________

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________

No. 22-1019

September Term, 2023

STB-FD36284

Filed On: December 4, 2023

Eagle County, Colorado,

Petitioner

v.

Surface Transportation Board and

United States of America,

Respondents

----------------------------Seven County Infrastructure Coalition and Uinta

Basin Railway, LLC,

Intervenors

----------------------------Consolidated with 22-1020

BEFORE:

Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins, Katsas, Rao,

Walker, Childs, Pan, and Garcia, Circuit

Judges

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ORDER

Upon consideration of intervenor-respondents

Seven County Infrastructure Coalition and Uinta

Basin Railway, LLC’s petition for rehearing en banc,

the responses thereto, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

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_______________

APPENDIX C

_________________

51032 SERVICE DATE – DECEMBER 15, 2021

EB

SURFACE TRANSPORTATION BOARD

DECISION

Docket No. FD 36284

SEVEN COUNTY INFRASTRUCTURE

COALITION—RAIL CONSTRUCTION &

OPERATION EXEMPTION—IN UTAH, CARBON,

DUCHESNE, AND UINTAH COUNTIES, UTAH

Digest:1 This decision grants final approval for an

exemption sought by the Seven County Infrastructure

Coalition to construct and operate a new line of railroad in Utah, subject to certain environmental mitigation conditions.

Decided: December 15, 2021

In 2020, the Seven County Infrastructure Coalition

(Coalition) filed a petition for exemption under 49

1 The digest constitutes no part of the decision of the Board but

has been prepared for the convenience of the reader. It may not

be cited to or relied upon as precedent. See Pol’y Statement on

Plain Language Digs. in Decisions, EP 696 (STB served Sept. 2,

2010).

75a

U.S.C. § 10502 from the prior approval requirements

of 49 U.S.C. § 10901 for authorization to construct and

operate an approximately 85-mile rail line connecting

two termini in the Uinta Basin (Basin) near South

Myton Bench, Utah, and Leland Bench, Utah, to the

national rail network at Kyune, Utah (the Line). According to the Coalition, the Line would provide shippers in the Basin with a viable alternative to trucking,

which is currently the only available transportation

option. (Pet. for Exemption 13-15.)

On January 5, 2021, the Board issued a decision assessing the transportation merits of the proposed

transaction and preliminarily concluding, subject to

completion of the ongoing environmental review, that

the proposal meets the statutory standard for an exemption on the transportation merits. Seven Cnty. Infrastructure Coal.—Rail Constr. & Operation Exemption— in Utah, Carbon, Duchesne, & Uintah Cntys.,

Utah (January 5 Decision), FD 36284, slip op. at 8- 10

(STB served Jan. 5, 2021) (86 Fed. Reg. 1564) (with

Board Member Oberman dissenting). The Board

noted that it was not granting the exemption or allowing construction to begin and that after the Board has

considered the potential environmental impacts associated with this proposal and weighed those potential

impacts with the transportation merits, it would issue

a final decision either granting the exemption, with

conditions, if appropriate, or denying it. Id. at 2. The

Board received petitions for reconsideration of the

January 5 Decision and denied those requests in a decision served on September 30, 2021. Seven Cnty. Infrastructure Coal.— Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Cntys.,

Utah (September 30 Decision), FD 36284 (STB served

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Sept. 30, 2021) (with Board Member Oberman dissenting).

The Board’s Office of Environmental Analysis

(OEA), in cooperation with stakeholders, tribes, and

federal, state, and local agencies, has completed a

thorough environmental analysis that reviewed the

potential environmental impacts that could result

from the proposed project, culminating in a Final Environmental Impact Statement (Final EIS) served on

August 6, 2021. OEA reviewed a number of build alternatives and a No-Action (or No-Build) Alternative

to take a “hard look” at potential environmental impacts as required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370m-12.

The environmental review process has included extensive opportunity for public participation as well as input from agencies and other interested parties. Based

on this analysis, OEA identifies the Whitmore Park

Alternative as its Environmentally Preferable Alternative for the Line because it would avoid or minimize

major environmental impacts compared to the two

other build alternatives, as discussed in more detail

below. OEA also recommends environmental conditions (including both voluntary mitigation proposed

by the Coalition and additional mitigation developed

by OEA) to avoid, minimize, or mitigate the transaction’s potential environmental impacts.

In this decision, the Board will grant final approval

for a construction and operation exemption for the

Whitmore Park Alternative, subject to OEA’s final

recommended environmental mitigation measures,

with minor changes. The environmental mitigation is

set forth in Appendix B to this decision.

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BACKGROUND

On May 29, 2020, the Coalition filed a petition for

exemption from the prior approval requirements of 49

U.S.C. § 10901 under 49 U.S.C. § 10502 to construct

and operate the Line, which will connect with Union

Pacific Railroad Company (UP) at Kyune, Utah. The

Coalition notes that it is an independent political subdivision of the State of Utah, whose member counties

include Carbon, Daggett, Duchesne, Emery, San

Juan, Sevier, and Uintah Counties. (Pet. for Exemption 5.) It was formed to, among other things, identify

and develop infrastructure projects that will promote

resource utilization and development. (Id.)

The Coalition asserts that goods produced or consumed in the Basin now can be transported only by

truck and that the proposed project would give shippers an additional freight transportation option, eliminating longstanding transportation constraints. (Id.

at 13-15.) It explains that adding a rail transportation

option would provide local industries the opportunity

to access new markets and increase their competitiveness in the national marketplace, and that the removal of transportation constraints would benefit oil

producers, mining companies, ranchers, farmers, and

other local industries. (Id. at 15.)

The Coalition argues that regulation of the construction and operation of the proposed line under §

10901 is not needed to carry out the rail transportation policy (RTP) at 49 U.S.C.

§ 10101, that the project would promote several

provisions of the RTP, and that an application under

§ 10901 is not required to protect shippers from an

abuse of market power. (Pet. for Exemption 21-22.) In

considering the petition, the Coalition asked that the

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Board follow a two- step approach, addressing the

transportation aspects of the project in advance of the

environmental issues. (Id. at 26-28.)

The Board received filings both supporting and opposing the petition for exemption. Several government officials filed comments in support of the petition

for exemption. January 5 Decision, FD 36284, slip op.

at 3.2 The opponents included the Center for Biological Diversity (CBD), the Argyle Wilderness Preservation Alliance (Argyle), and numerous individuals. Id.

at 1.

In its January 5 Decision, the Board addressed the

substantive comments, concluded that an application

was not necessary, and found the requested approach

of issuing a preliminary decision on the transportation merits appropriate. The Board preliminarily concluded, subject to completion of the ongoing environmental and historic review, that the proposed transaction meets the statutory standards for exemption

under § 10502. January 5 Decision, FD 36284, slip op.

at 1. As noted above, the Board stated that it was not

granting the exemption or allowing construction to

begin and that after the Board has considered the potential environmental impacts associated with this

proposal and weighed those potential impacts with

2 To date, the Board has received letters supporting the project

from the Ute Indian Tribe of the Uintah and Ouray Reservation

(Ute Indian Tribe), U.S. Senators Mitt Romney and Mike Lee

and U.S. Representatives Rob Bishop, Chris Stewart, John Curtis, Burges Owens, and Blake Moore. The Board also received

letters supporting the project from state officials, including

Utah’s former Governor Gary R. Herbert, its current Governor

Spencer J. Cox, Lieutenant Governor Deidre M. Henderson,

State Senate President J. Stuart Adams, and State House

Speaker Brad Wilson.

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the transportation merits, it would issue a final decision either granting the exemption, with conditions, if

appropriate, or denying it. Id. at 2.

The Board received petitions for reconsideration of

the January 5 Decision from Eagle County, Colo., on

January 25, 2021, and CBD on January 26, 2021. The

agency denied those requests in its September 30 Decision, where among other things, the Board rejected

arguments that an application was required because

of concerns related to potential reactivation of the

Tennessee Pass Line in Colorado and that the Board’s

consideration of the statutory standards for exemption in the January 5 Decision was inadequate. September 30 Decision, FD 36284, slip op. at 3, 5-7.

During this time, OEA was conducting its environmental review of potential impacts from constructing

and operating the Line. As part of this process, OEA

issued a Notice of Intent to Prepare an EIS on June

19, 2019, a Final Scope of Study for the EIS on December 13, 2019, and a Draft EIS on October 30, 2020.

The Draft EIS analyzed three Action Alternatives for

the proposed Line, as well as the No-Action Alternative. The three alternatives examined were the Indian

Canyon Alternative, Wells Draw Alternative, and

Whitmore Park Alternative. (Draft EIS S-5.) Each of

the Action Alternatives would extend from two terminus points in the Basin near Myton, Utah, and Leland

Bench to a proposed connection with UP’s existing

Provo Subdivision near Kyune. (Id. at S-7.). A map of

the Action Alternatives is found at Appendix A of this

decision. The Indian Canyon Alternative, Wells Draw

Alternative, and Whitmore Park Alternative would be

approximately 81 miles, 103 miles, and 88 miles in

length, respectively. (Draft EIS S-7.) In its request

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for authority, the Coalition identified the Whitmore

Park Alternative as its preferred route for the Line.

Based on the analysis in the Draft EIS, OEA concluded that construction and operation of any of the

Action Alternatives would result in environmental impacts, some of which would be significant. (Id. at S-7

to 13.) OEA preliminarily concluded, however, that,

among the three Action Alternatives, the Whitmore

Park Alternative would result in the fewest significant impacts on the environment. (Id. at S-12.)

OEA invited agency and public comment on the

Draft EIS, including its preliminary conclusion on the

Whitmore Park Alternative and the conditions OEA

preliminarily recommended to mitigate the impacts of

constructing and operating any of the Action Alternatives. OEA established a comment period, which it

agreed to extend several times upon request, until

February 12, 2021. OEA also conducted six online

public meetings during the comment period. In total,

OEA received 1,934 comment submissions on the

Draft EIS, including both written and oral comments.

(Final EIS S-5.)

In the Final EIS, OEA includes all of the comments

received on the Draft EIS and OEA’s responses to substantive comments, as well as all changes to the analysis that resulted from the comments. OEA concludes

that the Whitmore Park Alternative is indeed the Environmentally Preferable Alternative, and that if the

Board decides to permit construction and operation of

a rail line, the Board should authorize that alternative

to minimize impacts of construction and operation on

the environment. (Final EIS 2-48.) OEA also provides

its final recommendations for environmental mitigation to minimize potential environmental impacts.

(Id. at Chapter 4.)

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On August 25, 2021, the State of Utah (State) filed

in support of the Coalition’s project but asked that

OEA modify several mitigation measures that OEA

recommends in the Final EIS. In addition, the U.S.

Environmental Protection Agency (USEPA) filed comments on the Final EIS on September 2, 2021, recommending certain changes to an air emissions dispersion model that OEA ran as part of the environmental

review process. On October 1, 2021, the Ute Indian

Tribe filed a comment in response to the Final EIS

stating that it supports the rail construction project.

CBD filed a comment on October 18, 2021, and supplemental exhibits on November 8, 2021, raising objections to the exemption sought by the Coalition, the

Final EIS, and a related Biological Opinion (BO) issued by the U.S. Fish and Wildlife Service (USFWS)

on September 20, 2021.3

DISCUSSION AND CONCLUSIONS

The construction and operation of new railroad

lines requires prior Board authorization, through either a certificate under 49 U.S.C. § 10901 or, as requested here, an exemption under 49 U.S.C. § 10502

from the prior approval requirements of § 10901. Section 10901(c) is a permissive licensing standard that

directs the Board to grant rail line construction

3 CBD simultaneously filed a petition asking that the Board ac-

cept its comment into the record. It claims that the Board has a

compelling interest in accepting the filing, partly to allow the

agency to fully consider the impacts of the project. (CBD Comment 1, Oct. 18, 2021.) The Coalition filed in opposition to CBD’s

request on October 22, 2021. In the interest of a complete record,

CBD’s filing as well as the other filings commenting on the Final

EIS will be accepted into the record. See Alaska R.R.—Constr.

& Operation Exemption—Rail Line Between N. Pole & Delta

Jct., Alaska, FD 34658, slip op. at 6 (STB served Jan. 6, 2010).

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proposals unless the agency finds the proposal “inconsistent with the public convenience and necessity.”

Thus, Congress has established a presumption that

rail construction projects are in the public interest and

should be approved unless shown otherwise. See

Alaska R.R.—Constr. & Operation Exemption—Rail

Line Extension to Port MacKenzie, Alaska, FD 35095

(STB served Nov. 21, 2011), aff’d sub nom. Alaska

Survival v. STB, 705 F.3d 1073 (9th Cir. 2013).

Under § 10502(a), the Board must exempt a proposed rail line construction from the prior approval requirements of § 10901 when the Board finds that: (1)

application of those procedures is not necessary to

carry out the RTP of 49 U.S.C. § 10101; and (2) either

(a) the proposal is of limited scope, or (b) the full application procedures are not necessary to protect shippers from an abuse of market power.

In the January 5 Decision, the Board determined

that the Line would enhance competition by providing

shippers in the area with a freight rail option that

does not currently exist and that the Line would foster

sound economic conditions in transportation, consistent with § 10101(4) and (5). January 5 Decision,

FD 36284, slip op. at 9. Additionally, the Board found

that § 10101(2) and § 10101(7) would be furthered by

an exemption because it would minimize the need for

federal regulatory control over the rail transportation

system and reduce regulatory barriers to entry by

minimizing the time and administrative expense associated with the construction and commencement of

operations. January 5 Decision, FD 36284, slip op. at

9.

The Board also discussed Argyle’s claims that §

10101(8), concerning public safety, and § 10101(11),

concerning safe working conditions, would be

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undermined by the project because rail traffic could

cause forest fires and substantial truck traffic. Id. at

8. The Board noted that it takes these concerns seriously and that they would be examined as part of

OEA’s environmental review and further examined by

the Board in its final decision. Id. at 9.

Nothing in the environmental record calls into

question the Board’s determination in the January 5

Decision that § 10101(2), (4), (5), and (7) would be furthered by the rail construction project. Moreover, as

discussed below and in the Final EIS, nothing in the

environmental record raises significant concerns regarding § 10101(8) and (11). The Board therefore reaffirms its analysis here and now turns to consideration of the environmental aspects of the proposed project.

Environmental Analysis

1. The Requirements of NEPA

NEPA requires federal agencies to examine the environmental impacts of proposed major federal actions

and to inform the public concerning those effects. See

Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462

U.S. 87, 97 (1983). Under NEPA and related environmental laws, the Board must consider significant potential environmental impacts in deciding whether to

authorize a railroad construction as proposed, deny

the proposal, or grant it with conditions (including environmental mitigation conditions). The purpose of

NEPA is to focus the attention of the government and

the public on the likely environmental consequences

of a proposed action before it is implemented to minimize or avoid potential adverse environmental impacts. See Marsh v. Or. Nat. Res. Council, 490 U.S.

84a

360, 371 (1989). While NEPA prescribes the process

that must be followed, it does not mandate a particular result. See Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989). Thus, once the adverse environmental effects have been adequately

identified and evaluated, the Board may conclude that

other values outweigh the environmental costs. Id. at

350-51.

The Board has assessed the Action Alternatives,

OEA’s final recommended environmental mitigation,

and OEA’s conclusions regarding the environmental

impacts associated with this construction proposal.

The Board has also fully considered the entire environmental record, including the Draft EIS, public

comments, the Final EIS, and the comments received

following issuance of the Final EIS from the State,

CBD, USEPA, and the Ute Indian Tribe. CBD, generally, argues that the Final EIS fails to sufficiently analyze and disclose environmental impacts or recommend appropriate mitigation. (CBD Comment 2-6,

Oct. 18, 2021.) Most of these objections, however, are

objections CBD already had raised when commenting

on the Draft EIS. Below, the Board briefly discusses

OEA’s analysis of several major issues previously

raised in comments on the Draft EIS and then responds to the major issues raised following issuance

of the Final EIS by CBD and the State as well as

USEPA’s request to modify some of the recommended

environmental mitigation in the Final EIS. The Draft

EIS and Final EIS discuss many issues beyond what

the Board addresses in this decision; however, the

Board adopts OEA’s analysis and conclusions in those

documents, even if specific issues are not addressed

here.

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In the Final EIS, OEA identifies the major environmental impacts that could result from construction

and operation of the Line. These major impacts include impacts on water resources, impacts on special

status species, impacts from wayside noise during rail

operations, impacts related to land use and recreation, socioeconomic impacts, and issues of concern to

the Ute Indian Tribe, including impacts on cultural

resources. During the EIS process, OEA also analyzed

other types of environmental impacts that OEA concluded would not be significant if the Coalition’s voluntary mitigation measures and OEA’s recommended

mitigation measures were implemented. These minor

impacts include impacts on vehicle safety and delay,

impacts related to rail operations safety, impacts on

big game, impacts on fish and wildlife, impacts on vegetation, impacts related to geology and soils, impacts

on hazardous waste sites, impacts from constructionrelated noise, vibration impacts, impacts related to

energy resources, impacts on paleontological resources, and visual impacts.

2. Range of Alternatives

NEPA requires that federal agencies consider reasonable alternatives to the proposed action. Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 19596 (D.C. Cir. 1991). To be considered, an alternative

must be “‘reasonable [and] feasible’ in light of the ultimate purpose of the project.” Protect Our Cmtys.

Found. v. Jewell, 825 F.3d 571, 580-81 (9th Cir. 2016)

(quoting City of Carmel-by-the-Sea v. U.S. Dep’t of

Transp., 123 F.3d 1142, 1155 (9th Cir. 1997)); see also

Busey, 938 F.2d at 195 (“rule of reason” applies to the

selection and discussion of alternatives). Here, the

three Action Alternatives were developed as part of a

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years-long review of routes by the Utah Department

of Transportation (UDOT) and the Coalition, and finally OEA. (Final EIS Sec. 2.2.) OEA determined the

range of reasonable alternatives by first looking at potential conceptual routes. (Id.) In evaluating these

conceptual routes, OEA looked at many factors, including logistical constraints, the potential for disproportionately significant environmental impacts, and

construction and operations costs. (Id.) As explained

in detail in Chapter 2 of the Final EIS, the primary

reasons certain identified conceptual routes were not

moved forward for analysis in the EIS were because

they were infeasible due to the prevailing topography

surrounding the Basin and because they would require substantial cut-and-fill and large or numerous

bridges, as well as numerous large tunnels to pass

through mountains. For these reasons and after extensive analysis, OEA determined that there were

three reasonable Action Alternatives, one of which

was the Environmentally Preferable Whitmore Park

Alternative. (Id. at Chapter 2.)

CBD contends that the Final EIS does not consider

a reasonable range of alternatives. (CBD Comment

70-71, Oct. 18, 2021.) CBD, however, does not identify

any alternative routes that OEA did not analyze that

CBD contends are reasonable. Nor does CBD provide

any evidence that conceptual routes not moved forward for analysis as alternatives in the EIS are in fact

reasonable. CBD asserts that OEA should have considered electrified rail or another “solutionary alternative.” (Id. at 71.) Electrified rail, however, would

not satisfy the proposed project’s purpose and need because of the capital costs associated with electrification. (Final EIS App. T-83-84.) Those costs, including

installing power generating stations and overhead

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powerlines for the entire length of the approximately

85-mile rail line, would render the Line infeasible.4 As

a result, OEA’s determination as to the range of reasonable alternatives is consistent with NEPA and the

“rule of reason” applicable to every environmental

analysis. See Busey, 938 F.2d at 195-96; Jewell, 825

F.3d at 581 (any potential alternative must be viewed

in the context of its feasibility and consistency with

agency goals); Env’t Def. Fund, Inc. v. Andrus, 619

F.2d 1368, 1375 (10th Cir. 1980). The Board adopts

OEA’s analysis and concludes that the Final EIS’s selection of alternatives, along with the extensive discussion in the Final EIS regarding why numerous theoretical alternatives were not feasible or did not otherwise meet the project’s purpose and need, was reasonable and in compliance with NEPA.

3. Special Status Species

Special status species include species that are listed

or proposed to be listed as threatened or endangered

under the Endangered Species Act (ESA); candidate

species for ESA listing; bald and golden eagles; and

sensitive species listed by the U.S. Bureau of Land

Management (BLM), the U.S. Forest Service (Forest

Service), the State, or the Ute Indian Tribe. (Final EIS

Sec. 3.4.1.) Any of the Action Alternatives would impact special status species. For example, the Action

Alternatives would all cross suitable habitat for

4 Additionally, there is a significant possibility that the infra-

structure required for an electrified rail line itself could adversely affect biological resources, including the greater sagegrouse. (See, e.g., Final EIS 3.4-33 (discussing potential adverse

effects on wildlife caused by power distribution lines, communications towers, and fences), 3.15-27 (discussing potential adverse

effects on greater sage-grouse caused by power lines).)

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several plant species that are listed as threatened or

endangered under the ESA, including Pariette cactus,

Uinta Basin hookless cactus, Barneby ridge-cress, and

Ute ladies’-tresses.5 (Id. at S-8.)

The Coalition has presented voluntary mitigation

measures to lessen the impacts to special status

5 CBD criticizes the Final EIS for not conducting field surveys

of all of the Action Alternatives to establish a baseline population

for each of the threatened or endangered plants species and, instead, planning to conduct those surveys after the EIS process is

completed. (CBD Comment 62-64, Oct. 18, 2021.) While field surveys were conducted to establish the presence and extent of suitable habitat for each threatened or endangered plant species

along each of the Action Alternatives, OEA appropriately did not

conduct clearance surveys that would establish baseline populations for those species as part of the EIS process. Per USFWS

guidelines, clearance surveys are only valid for one year and, if

construction is authorized, it is anticipated that construction

would last two to three years and start no earlier than 2022. See

USFWS’s Utah Field Office Guidelines for Conducting and Reporting Botanical Inventories and Monitoring of Federally

Listed, Proposed and Candidate Plants (USFWS 2011) at

https://www.fws.gov/utahfieldoffice/Documents/Plants/USFWS%20UtahFO%20Plant%2

0Survey%20Guidelines%20Final.pdf. Therefore, any clearance surveys conducted during the EIS phase would be outdated at the

time of construction and would not provide useful information

about the locations of individual plants at the time that impacts

on those plants would occur. (Final EIS T-198-99.) Although

OEA did not conduct clearance surveys to establish baseline populations, OEA, in consultation with USFWS, used a combination

of suitable habitat field surveys and USFWS mapping data as

the best available data to assess impacts on threatened and endangered plant species, while also providing for clearance surveys to be conducted after the EIS process so that those clearance

surveys will be in compliance with USFWS guidelines and will

provide accurate data about the locations of individual plants at

the relevant time.

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species. Additionally, OEA has consulted with

USFWS and other appropriate agencies to develop appropriate measures for further avoiding, minimizing,

or mitigating impacts on those species. (Id. at S-8.)

For example, pursuant to VM-39 and one of OEA’s

mitigation measures, BIO-MM-9, the Coalition must

comply with the terms and conditions of USFWS’s BO,

which specifies that the Coalition shall, as appropriate and possible, fund the permanent protection of

habitat for ESA-listed plant species as compensatory

mitigation for the loss of occupied habitat for those

plants. (BO 64-71.) The Board is satisfied that, if implemented, the Coalition’s voluntary mitigation

measures and OEA’s additional recommended mitigation measures related to biological resources would

lessen impacts of construction and operation on animal and plant species, including ESA-listed species

and any potential permanent loss of existing habitat

in the rail-line footprint. (Final EIS 3.4-63.)

Any of the Action Alternatives would also cross

habitat for the greater sage-grouse, a bird species that

is managed by BLM and the State. (Id. at S-8.) The

Action Alternatives would each pass near one or more

greater sage-grouse leks, which are areas where male

grouse perform mating displays and where breeding

and nesting occur. (Id.) Depending on the Action Alternative, several of those leks could experience significant increases in noise during construction and

rail operations, which would disturb the birds and potentially cause them to abandon the leks. (Id.) OEA

has determined that the Whitmore Park Alternative

would avoid or minimize impacts on greater sagegrouse that would result under the other Action Alternatives because the Whitmore Park Alternative would

be located the furthest distance away from the

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greatest number of leks and associated summer brood

rearing habitat.6 (Final EIS S-8.) To lessen impacts

on the greater sage-grouse, the Coalition also volunteered a number of mitigation measures. OEA recommends additional mitigation measures in the Final

EIS. With both OEA’s final recommended mitigation,

and the Coalition’s voluntary mitigation, all of which

the Board will impose, the EIS properly finds that,

particularly under the Whitmore Park Alternative,

the impacts on greater sage-grouse would not be significant.7 (Id.)

In its comments on the Final EIS, the State asks

that OEA remove BIO-MM-20, a Final EIS mitigation

measure prohibiting construction during greater

sage-grouse mating and nesting season. The State explains that eliminating the condition will help the

Utah Division of Wildlife Resources and the Coalition

6 Reduction in impacts, including those on greater sage-grouse,

is, in fact, one of the primary reasons that the Whitmore Park

Alternative was developed. (Draft EIS 2-25.)

7 CBD criticizes the data and methodology OEA used in its analysis of impacts on the greater sage-grouse, including the locations of the baseline ambient noise level measurements, the noise

levels deemed to cause disturbance of greater sage-grouse, and a

claimed failure to account for declining population levels. (CBD

Comment 48-56, Oct. 18, 2021.) The Final EIS thoroughly explains why these criticisms are misplaced and how the data and

methodologies used by OEA in the EIS are supported by the record. (See Final EIS 3.4-45 to 46, 3.4-48 to 49, 3.4-58 to 62; App.

T-184, T-203-05, T-208-09.) Moreover, determining the best data

and methodology upon which to rely is a determination that falls

well within the agency’s discretion. Jewell, 825 F.3d at 583-85

(upholding agency’s discretionary decision not to conduct nocturnal migratory bird survey because agency’s determination was a

discretionary one and “founded on reasonable inferences from

scientific data”).

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negotiate a final mitigation agreement concerning the

greater

sage-grouse (State Comment 3, Aug. 25, 2021.) The

State later filed this agreement on September 27,

2021, and the document provides significant additional mitigation to further lessen impacts on the

greater sage-grouse. (State Filing 5-6, Sept. 27, 2021.)

Among the mitigation in the final mitigation agreement are steps to lessen noise during construction and

operation, including, to the greatest degree practicable, limiting railroad operational noise to no more

than 10 decibels above the ambient level at the edge

of the lek during breeding season (March 1 to May 15)

and limiting use of horns to emergency situations.8

(State Filing 6, Sept. 27, 2021.) CBD asks that the

8 CBD asserts that the mitigation proposed for the greater sage-

grouse, as well as for numerous other resources and impacts,

such as threatened and endangered plants, big game, geological

hazards, revegetation of temporarily disturbed construction areas, and recreational resources, is insufficient because it includes

plans to continue developing specific mitigation actions as the

project progresses or as based on continuing consultation with

other agencies and the Ute Indian Tribe. (CBD Comment 72-79,

Oct. 18, 2021.) However, explicit concrete detail and definitive

actions not subject to further evaluation or refinement are not

required in an agency’s discussion and development of appropriate mitigation. Rather, what is required under both NEPA and

the NEPA-implementing regulations of the Council on Environmental Quality is “a reasonably complete discussion of possible

mitigation measures.” Busey, 938 F.2d at 206 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989));

see also Theodore Roosevelt Conservation P’ship v. Salazar, 616

F.3d 497, 516-17 (D.C. Cir. 2010) (upholding an adaptive management plan because NEPA does not require “agencies to make

detailed, unchangeable mitigation plans for long-term development projects”). The Final EIS’s discussion of mitigation is reasonably complete and therefore complies with NEPA.

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Board prohibit train operations during greater sagegrouse mating season between 6:00 a.m. and 9:00 a.m.

(CBD Comment 56, Oct. 18, 2021.) The Board generally does not restrict how railroads choose to conduct

their operations. In any event, it is not necessary to

consider CBD’s request as the final mitigation agreement provides more protection for the greater sagegrouse than the mitigation recommended in the Final

EIS, including limits on train noise and hours of operation. (Compare Final EIS Sec. 4-7 with State Filing

5-6, Sept. 27, 2021.) Therefore, the Board will not

adopt CBD’s request to limit operations. However, as

discussed below in the Board Mitigation section, the

Board will grant the State’s request to remove BIOMM-20 recommended in the Final EIS and instead

will impose the measures in the final mitigation

agreement.

As part of the NEPA process for this project and

pursuant to Section 7 of the ESA, on September 20,

2021, USFWS issued its BO evaluating the effects of

the project on endangered and threatened species.

The BO presents USFWS’s conclusions regarding

likely impacts on ESA-listed species and details the

data and information on which it bases those conclusions. The BO concludes that the proposed project is

not likely to jeopardize the continued existence of the

ESA-listed plants or fish or result in the adverse modification of the endangered fishes’ habitat. (BO 47-49.)

CBD makes a generalized claim that the BO is flawed

and asserts, among other things, that the BO does not

rely on current data, arbitrarily limits the area of

study, and fails to consider the effects of oil and gas

development that would be spurred by the Line on

listed plant species. (CBD Comment 6, Oct. 18, 2021.)

However, the BO is a USFWS document that neither

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OEA nor the Board have the authority to revise.

Moreover, CBD previously raised these claims of flaws

in its comments on OEA’s draft Biological Assessment

(BA), which was appended to the Draft EIS.

OEA addressed comments on the draft BA in the

Final EIS and revised the BA in response to comments, as appropriate, before submitting the BA to

USFWS to begin formal consultation with USFWS.

(Final EIS T-203.) Thus, CBD’s concerns do not lead

the Board to conclude that it should not rely on the

BO.

4. Wildfires

OEA’s analysis also thoroughly addresses the possibility of trains sparking wildfires along the routes of

the Action Alternatives. OEA notes that the Forest

Service has created a Wildfire Hazard Potential

(WHP) map. (Final EIS 3.4-16.) According to the map,

approximately 90% of the study areas for the Indian

Canyon Alternative and Whitmore Park Alternative,

and approximately 87.4% of the study area for the

Wells Draw Alternative, are associated with very low,

low, or moderate wildfire hazard potential. (Id.) The

Final EIS further determined that the “very high”

WHP is not present in the study areas for any Action

Alternative. (Id.) Moreover, the Final EIS concludes

that the probability of a train-induced forest fire is

very low because trains only cause a small percentage

of fires (id. at Table 3.4-7) and improvements in locomotive technology further lessen the risk. (Id. at 3.442.)

Nonetheless, to further reduce the risk of wildfires,

OEA recommends mitigation requiring the Coalition

to develop and implement a wildfire management plan

in consultation with appropriate state and local

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agencies, including local fire departments (BIO-MM7). Further, OEA recommends that the plan incorporate specific information about operations, equipment, and personnel on the Line that might be of use

in case a fire occurs and should evaluate and include,

as appropriate, site-specific techniques for fire prevention and suppression. OEA reasonably concludes that,

if its recommended mitigation is implemented, the impacts of wildfire on vegetation would not be significant. (Id. at 3.4-42 to 43.)

In response to comments received on the Draft EIS,

OEA also considered impacts from rail operations

along existing rail line segments downline of the proposed rail line for some biological resources, including

impacts related to wildfires. (Id. at 3.4-43.) Trains

originating or terminating on the proposed rail line

could be an ignition source for wildfires along existing

rail lines outside of the study area. However, because

those existing rail lines are active rail lines that have

been in operation for many years, construction and operation of the Line would not introduce a new ignition

source for wildfires along the downline segments. (Id.)

Moreover, for the reasons discussed above, the probability that a train would trigger a wildfire is very low,

and nearly 90% of the area along the downline segments has no WHP or has a very low or low WHP. (Id.

at Table 3.4-9.) OEA therefore concludes that the

downline wildfire impact of the proposed rail line

would not be significant. (Id. at 3.4-43.) The Board

adopts OEA’s reasonable analysis concerning wildfires and will impose OEA’s final recommended mitigation regarding a wildfire management plan.

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5. Land Use and Recreation

Most of the area surrounding any of the Action Alternatives is rural and sparsely populated. The Indian Canyon Alternative and Whitmore Park Alternative both have five residences in their respective study

areas, and nine residences are located in the study

area of the Wells Draw Alternative. (Id. at 3.11-4.)

However, all of the Action Alternatives could significantly affect land uses on public, private, or tribal

lands. (Id. at S-9.) The Indian Canyon Alternative

and Whitmore Park Alternative would each cross inventoried roadless areas within Ashley National Forest and Tribal trust land within the Ute Indian Tribe’s

reservation. (Id.) The Wells Draw Alternative would

cross the Lears Canyon Area of Critical Environmental Concern and Lands with Wilderness Characteristics on BLM-administered lands. Noise and visual impacts would disturb recreational activities on those

public lands, such as camping, hiking, and hunting, as

well as recrea

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