PORTLAND, Ore. (CN) - A 9th Circuit panel seemed skeptical that the Surface Transportation Board had properly studied the environmental impacts of a railroad project in Montana's Tongue River Valley.
The 9th Circuit heard arguments in Portland on Monday on the Surface Transportation Board's denial of a request to stop construction of 130-mile project. The Tongue River III project would help transport coal from Montana to Midwestern power plants.
In July 2010, the conservation group Northern Plains Resource Center and rancher Mark Fix petitioned the STB, a federal agency, to stop construction, claiming there had not been sufficient studies on the environmental impacts of coal trains.
In his testimony, Fix said the railroad "would turn the Tongue River Valley into an industrial zone."
The STB denied the request, saying the Northern Plains Resource Center (NPRC) and Fix did not prove that further environmental studies were necessary.
Arguing for the NPRC, attorney Gordon MacDougall said that "public convenience and necessity" was the most important statutory issue.
There is no single test to determine that issue, MacDougall said, but the STB imposed a three-part test to approve the Tongue River Railroad project.
"And that's new," MacDougall said.
"They declined to issue any specific criteria. ... It was the [STB's] environmental staff that came up with this cockeyed scheme. ...
"They informally decided, 'We know engineering better."
MacDougall asked the three-judge panel to send the decision back to the STB, with directions to use the old criteria or explain the three-part criteria.
Environmental law professor Jack Tuholske also argued for the petitioners.
He said the railroad threatened ranches and farms with condemnation, and that the environmental analysis by the STB was deficient.
Judge Milan Smith asked Tuholske what his best environmental point was.
Tuholske said the agencies that deserve the most deference from the court are the Montana Department Fish, Wildlife and Parks, the Army Corps of Engineers and the U.S. Fish and Wildlife Service, which had said there was not enough data to make a reasonable decision.
"They know about fish; the Transportation Board knows about trains," Tuholske said.
Rather than conducting tests, Tuholske said the agencies "put it off as mitigation" to study after the railroad had been built, which he called "backwards."
"You have to look before you leap, and they haven't looked here."
Tuholske also outlined concerns about the "cumulative impacts of coal bed methane development."
He said a 2002 environmental impact statement by the Bureau of Land Management found it was "reasonably foreseeable" that construction of new coal bed methane natural gas wells in the Tongue River Valley would have an impact on the environment, but the STB refused to perform any more analysis.
"The agencies, time and time again, when faced with the opportunity to address the environmental impacts ... looked the other way," Tuholske said.
Arguing for the Surface Transportation Board, attorney Virginia Strasser said the board did an extensive environmental review of each application for a railroad permit.
Judge Smith questioned the data that was collected. "I know the [STB] has real expertise in terms of railroads, but I don't know who did this environmental stuff," the judge said.
"It seems like in almost every instance the Board says, 'We don't have the information now, but we're going to get it later.'"
The judge asked Strasser to prove him wrong, and appeared skeptical that the STB had done extensive studies on fish and wildlife in the Tongue River Valley.
Strasser said the agency did the studies required by the National Environmental Policy Act, and went beyond it.
"A habitat study can serve as a proxy for a population count," Strasser said. The agency, she said, put its findings of impacts into mitigation.
Strasser said the STB repeatedly asked federal agencies for input on the proposed railroad, and that the STB deferred to the agencies' expertise in finding that the railroad was in the public interest.
"Transporting coal by trucking is not a good option. From an environmental point of view it is certainly preferable to transport coal by rail," Strasser said.
Attorney David Coburn then argued for the Tongue River Railroad Co., saying the STB had "ample data" about the environment gathered from ground and aerial surveys, as well as "a wealth of literature."
Noting that the railroad was a long-term project, Judge Smith grilled Coburn about the 5-year period the studies encompassed.
"If somebody wants to trim a forest, you look at what the long-term impact will be. And in this case you go for five years and then you say, 'We're not looking beyond that.' Does that really comply with our case law?" Judge Smith asked.
Coburn said there was no indication that the area's environment would change after 5 years.
"Let's say coal dust blows out of the bins, or something like that, and it has a deleterious effect on the river or the neighbor's cattle," Judge Smith said. "That could occur for 10 years, or 10 years, I don't know. ... It seems like the STB didn't analyze that."
Smith said he found the "arbitrary" 5-year baseline "troublesome."
During rebuttal, Tuholske said there was nothing in the record that shows the ranchers were asked by the railroad about environmental surveys. He said the STB's argument that "rough topography" prevented ground surveys was "ludicrous."
"We just see excuse after excuse, and this circuit's case law requires site-specific information," Tuholske said.
"The Tongue River Railroad Company is concerned that the sort of studies sought by the Fish, Wildlife and Parks agency could significantly delay its construction schedule. So rather than get the data, they said 'Well, we're going to collect it as mitigation.'
"Of course construction hasn't even commenced, and if they would have taken the time to do it, we may not be here today," Tuholske said.