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4/13/2010
Rail News: Rail Industry Trends
CN, Chicago-area community coalition issue court briefs in 'J' appeal
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Last week, CN and The Regional Answer to Canadian National (TRAC) filed opening briefs with the U.S. Court of Appeals for the District of Columbia Circuit that outline their arguments for an appeal regarding the Surface Transportation Board's (STB) approval of the Class I’s acquisition of the Elgin, Joliet & Eastern Railway (EJ&E) last year.
Both parties are appealing portions of the board’s decision on different grounds. CN is asking the court to strike from the STB’s decision the requirement that the railroad partially fund grade separations in Aurora and Lynwood, Ill., which the Class I estimates will cost more than $65 million.
CN officials believe the STB only had the authority to approve the transaction and could only impose mitigation measures that guide the Class I in adopting voluntary mitigation agreements with communities. Anything beyond voluntary mitigation requirements is unlawful and should be overturned by the court, CN officials claim in their brief.
Meanwhile, TRAC is basing its appeal on what it claims are four errors made by the STB during the transaction review process. The coalition of Chicago-area communities opposed to CN’s takeover of the EJ&E believes the STB:
• “unquestioningly adopted” the railroad’s purpose of and need for the transaction;
• “impermissibly restricted” an analysis of alternatives;
• enabled CN to avoid financial responsibility for grade separations in Aurora and Lynwood if construction is delayed beyond 2015 by factors that can’t be controlled by communities and state agencies; and
• erred throughout the environmental review process, such as by failing to select and supervise a third-party contractor to handle the process, and consider the transaction’s direct, indirect and cumulative effects, TRAC officials claim in a prepared statement.
“We realize that we are facing an uphill battle to prevail in the court, but we believe that we have made an excellent case that the court will consider,” said TRAC Co-Chairman and Barrington Village President Karen Darch. “TRAC has no choice but to pursue the legal challenge given the severity of the impacts on the region."
Both parties are appealing portions of the board’s decision on different grounds. CN is asking the court to strike from the STB’s decision the requirement that the railroad partially fund grade separations in Aurora and Lynwood, Ill., which the Class I estimates will cost more than $65 million.
CN officials believe the STB only had the authority to approve the transaction and could only impose mitigation measures that guide the Class I in adopting voluntary mitigation agreements with communities. Anything beyond voluntary mitigation requirements is unlawful and should be overturned by the court, CN officials claim in their brief.
Meanwhile, TRAC is basing its appeal on what it claims are four errors made by the STB during the transaction review process. The coalition of Chicago-area communities opposed to CN’s takeover of the EJ&E believes the STB:
• “unquestioningly adopted” the railroad’s purpose of and need for the transaction;
• “impermissibly restricted” an analysis of alternatives;
• enabled CN to avoid financial responsibility for grade separations in Aurora and Lynwood if construction is delayed beyond 2015 by factors that can’t be controlled by communities and state agencies; and
• erred throughout the environmental review process, such as by failing to select and supervise a third-party contractor to handle the process, and consider the transaction’s direct, indirect and cumulative effects, TRAC officials claim in a prepared statement.
“We realize that we are facing an uphill battle to prevail in the court, but we believe that we have made an excellent case that the court will consider,” said TRAC Co-Chairman and Barrington Village President Karen Darch. “TRAC has no choice but to pursue the legal challenge given the severity of the impacts on the region."
