9th Circuit Expands on Support of Rail Project

     (CN) – Approval of an Alaskan railroad project did not violate federal environmental regulations, the 9th Circuit ruled Wednesday, expanding on a previous order.
     The federal Surface Transportation Board approved the approximately 35-mile rail project in 2011.
     Project supporters include the Matanuska-Susitna Borough and Alaska, which argue that connecting the Port MacKenzie region with a larger rail line near Wasilla will increase economic activity.
     The Sierra Club, Cook Inletkeeper and Alaska Survival oppose the project, saying that it will disturb “the untrammeled wildlife habitat and wetlands ecosystems” of the nearby Susitna Lowland.
     Though the 9th Circuit first halted the project in the face of these objections, the court lifted its stay in late November, citing economic concerns.
     The three-judge panel in San Francisco gave credence to supporters’ claims that continuation of the stay would delay employment opportunities and cost about $10 million.
     “Because this project is funded largely with taxpayer dollars, these increased costs of construction … will burden the public upon continued delay,” the panel said.
     The same order denied the petition for review, promising that an “opinion on the merits of denial of the petition for review will follow in due course.”
     Among other things, the environmental groups argued that the Surface Transportation Board used too permissive a statute in approving the project.
     They said that the railway should have been considered a “public convenience and necessity,” and thus subject to more stringent licensing procedures. The groups further claimed that the board violated federal environmental law when it approved “an unreasonable purpose and need statement” about the project. One dissenting board member characterized that statement as unduly “aspirational.”
     In the 9th Circuit’s final opinion, filed Wednesday, the panel rejected each legal contentions with special attention to the claim “that there is no real need for this project.”
     “This argument ignores the people of Port MacKenzie and Matanuska-Susitna Borough’s legitimate interest in a rail line connecting their side of the inlet to the main rail line, even if there are other ports in the area,” Judge Ronald Gould wrote for the unanimous panel. “Further, the statement’s aspirational quality does not mean that the rail line will not serve a purpose as a catalyst for economic development. We have a classic chicken-or-the-egg conundrum, and we are not convinced that the shippers must stand in line before there is sufficient need demonstrated for a rail line. It is not for us to decide which communities are entitled to important railroad development projects.”

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