Comment EI-5395
Received or sent (printed as 2/14/2008)
FRED MILLAR 915 S. BUCHANAN ST. APT. 29 ARLINGTON VA 22204 TEL: 703-979-9191 e-mail: fmillar@erols.com SURFACE TRANSPORATION BOARD SUBMITTED FEBRUARY 14, 2008 FINANCE DOCKET NO. 35087 SUPPLEMENTAL ENVIRONMENTAL COMMENTS OF FRIENDS OF THE EARTH AND ILLINOIS PUBLIC INTEREST RESEARCH GROUP I. INTRODUCTION These comments, submitted on behalf of Friends of the Earth and Illinois Public Interest Research Group, respond to the Surface Transportation Board’s (“Board’s” or “STB’s”) decision No 2, dated November 23, 2007 (served November 26) and STB’s soliciting of environmental comments regarding the application (hereinafter “Application”) by Canadian National Railway Co. et al.. for STB approval of the proposed purchase of the Elgin, Joliet and Eastern (“EJ&E”) Railway for freight operations in the Chicago area. The Board has already announced it will conduct a full EIS review of the Application, and these supplemental comments [our previous comments were submitted January 30, 2008] are to suggest for the record additional factors which the scope of that review must include. These factors include the expansive and cumulative impacts anticipated from actions related to the proposed CN purchase throughout the whole CN network in North America, as have been publicly outlined by CN and commented on by CN and others in transportation trade press articles, such as those cited and appended in Gordon P. MacDougall’s comments on behalf of the United Transportation Union (January 28, 2008), p. 3 and appended also here. II. NEPA’S “CUMULATIVE IMPACTS RULE” REQUIRES THAT SIGNIFICANT IMPACTS RELATED TO THE PROPOSED ACTION ALSO BE CONSIDERED . Under the NEPA regulations of the President’s Council on Environmental Quality, in preparation of an environmental impact statement (hereinafter “EIS”) , the STB must consider “other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. 40 C.F.R. 1508.27(7). The regulations stress that cumulative impact "is the impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions". 40 C.F.R. '1508.7 (emphasis added). See generally Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001); Soc'y Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 180 (3d Cir. 2000) ("If the cumulative impact of a given project and other planned projects is significant, an applicant can not simply prepare an EA for its project, issue a FONSI, and ignore the overall impact of the project ..."). A large increase of rail freight of various cargoes over the entire, expanded CN network is clearly both “foreseeable” and “planned,” as is clear in CN’s own statements and in trade press publications widely known in the industry. Indeed, the proposed purchase of the EJ&E must also be viewed cumulatively with the impacts of the recent construction and operation of a large receiving port at Port of Prince Rupert, the ongoing enhancement and linkage of an expanded CN network throughout North America, and anticipated increases of rail and truck freight, of various kinds, resulting from those developments. Under NEPA, these actions must be viewed collectively. CEQ’s regulations call for unified NEPA evaluation of: (2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement. 40 C.F.R. ' 1508.25(a)(2). See generally, Native Ecosystems Council v. Dombeck, 304 F. 3d 886 (9th Cir. 2002); Western North Carolina Alliance v. North Carolina Dept. of Transp., 312 F. Supp. 2d 765 (E.D.N.C. 2002) (both interpreting NEPA to require a unified analysis of all actions that a part of an overall plan). The proposed EJ&E purchase will help CN build new and enhanced infrastructure for hauling undetermined increased quantities of hazardous materials, including Security Sensitive cargoes, throughout North America along the newly linked and expanded CN rail network. At STB hearings local Chicago area community residents and officials have already voiced concerns about the additional risks from these cargoes. Accordingly, foreseeable increases across the CN network in shipments of all types must be considered by the STB when judging the cumulative effects of the proposed purchase, which are clearly “significant” under NEPA. III. NEPA REQUIRES EVALUATION OF EXTRATERRITORIAL IMPACTS The STB must consider the environmental impacts of the proposed purchase and related CN network-related actions within Canada as well as the United States. The cases defining NEPA’s “extraterritorial reach” suggest that if the environmental impacts of a proposed action fall exclusively within a foreign jurisdiction or in an area over which the United States has no legislative control, NEPA does not apply. In Natural Resources Defense Council v. NRC, the Court of Appeals for the D.C. Circuit found that NEPA does not "impose[] an . . . EIS requirement . . . with respect to impacts falling exclusively within foreign jurisdictions." Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm'n, 208 U.S. App. D.C. 216, 647 F.2d 1345, 1347-48 (D.C. Cir. 1981). In Basel Action Network v. Maritime Admin., the district court determined NEPA did not apply to agency action occurring on the high seas because the United States does not have "legislative control over the high seas." Basel Action Network v. Maritime Admin., 370 F. Supp. 2d 57, 71-72 (D.D.C. 2005). However, if the agency action occurs within the United States and its impact will be felt in the United States as a result of actions occurring extraterritorially, courts have held that NEPA applies. See, e.g., Greenpeace USA v. Stone, where the district court stated NEPA "may require a federal agency to prepare an EIS for action taken abroad, especially where United States agency action abroad has direct environmental impacts within this country..." Greenpeace USA v. Stone, 748 F. Supp. 749, 758 (D. Haw. 1990). Without doubt the proposed purchase and related actions on the CN network portend significant shifts in freight patterns and increases in rail freight shipments of hazardous cargoes and various other materials, some Security Sensitive, over the expanded CN rail network – both in this country and in Canada. These impacts must be considered by the Board in fixing the scope of the EIS that is required by law. IV. THE STB MUST COMPLY WITH THE NATIONAL HISTORIC PRESERVATION ACT Under the National Historic Preservation Act, (“NHPA”), the STB must assess the likely impact of the proposed purchase and related actions on historic structures in the US that lie along the route of the CN and EJ&E rail networks, as well as on rail bridges along the tracks. Section 106 of the NHPA requires federal agencies to "take into account the effect" a federal undertaking will have on "any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register" and to "afford the Advisory Counsel on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking." 16 U.S.C. 470(f). See also 36 C.F.R. ' 800.2(a)(3). STB must similarly consider the implications of bridge upgrades that will be necessitated along the expanded CN network. Additionally, where historic buildings are located near the tracks, a “constructive use” can occur because of the increased noise and vibration associated with the movement of unit trains. Such impacts must be evaluated under section 106. V. THE STB MUST INITIATE “CONSULTATION” WITH THE U.S. FISH & WILDLIFE SERVICE (“FWS”) UNDER THE ENDANGERED SPECIES ACT Section 7 of the Endangered Species Act (“ESA”) requires each federal agency to engage in “consultation” to "insure that any action authorized, funded, or carried out by [the 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 of such species which is determined . . . to be critical." 16 U.S.C. ' 1536(a)(2). In Tennessee Valley Authority v. Hill, 437 U.S. 153, 173 (1978), the Supreme Court observed that the ESA commands that section 7 applies to "all . . . actions authorized, funded, or carried out" by federal agencies and that "this language admits of no exception." The consultation required in the context of this proceeding must have a large geographic reach, given the geographic expansiveness of the proposed expanded CN network. The large geographic scope of the required inquiry is significant in several respects, not the least of which is that given the thousands of rail miles that must be considered, many species of plants and animals are likely to be implicated. The first step in the consultation process is statutorily prescribed: “To facilitate compliance with the requirements of subsection (a)(2), each Federal agency shall ... request of [FWS] information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. Once FWS and the STB have agreed on the list of species that may be affected by the proposed merger, the consultation may proceed.” See generally 50 C.F.R. ' 402. The timeliness of this consultation is critical to the integrity of the process. FWS’s regulations go to great lengths to ensure that if any significant changes are made to the scope of the project, the “action agency” must return to FWS to “reinitiate consultation.” The expansive geographic scope of the proposed new CN rail network compels a geographically-expansive environmental review under the ESA. Federal law provides that where an agency narrows the scope of the consultation process so that it addresses only part of an overall action, it is legally deficient. Respectfully submitted, Fred Millar Dated: February 14, 2008"
Submitted by: Fred Millar · Friends of the Earth and Illinois PIRG · Arlington, VA
The Board publishes this comment in its environmental-comment table for this proceeding. It is quoted here as printed; nothing is inferred from it, and it states the commenter's own position in their own words, not this record's.
The text Chi EJ&E STB comment by UTU opposed 8 pp 1 28 08.pdf ↓ Chicago EJE CN announces purch 9 26 07 US$300 million.mht ↓
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