STB orders BNSF to transport coal for NTEC

The Surface Transportation Board last week issued a preliminary injunction requiring BNSF Railway Co. to transport 4.2 million tons of coal from Navajo Transitional Energy Co.’s (NTEC) Spring Creek mine in Montana to the Westshore Terminals export facility in British Columbia during 2023.

The board is also requiring BNSF to transport an additional 1 million tons this year as train sets and crews become available, STB officials said in a press release.

Effective immediately, the order requires BNSF to move 23 trains per month of NTEC’s coal, and an additional six trains per month when more train sets and crew become available. The STB ordered BNSF and NTEC to report every week the number of trains moved, BNSF’s efforts to obtain additional crews and both parties’ efforts to obtain more train sets.

On April 14, NTEC asked the STB for an emergency service order to direct BNSF to restore and maintain adequate coal transportation service from the company’s Spring Creek mine to Westshore Terminals. In a separate docket, NTEC filed a complaint and petition for declaratory order, which alleged that BNSF breached its common carrier obligation; failed to provide adequate car service; and engaged in unreasonable practices with respect to the transportation issue.

In its decision, the STB found that NTEC was highly likely to succeed on its claim that BNSF violated its common carrier obligation to transport NTEC’s coal. Furthermore, the board determined that NTEC’s service request was reasonable and that BNSF has the capacity to provide the minimum service as requested.

In addition, the STB found:

• NTEC’s reputation as a dependable supplier in the global coal market was likely to suffer;
• BNSF could comply with the injunction and still meet the needs of other shippers; and
• an injunction serves the public interest because NTEC has shown it plays a critical role in the Navajo Nation’s economy.

“The common carrier obligation is a core tenet of the board’s regulation of the freight railroad industry and is a pillar of the railroads’ responsibility to our country’s economy,” STB Chairman Martin Oberman noted. “[This] decision reflects the majority’s finding that the common carrier obligation requires a railroad to provide service on a customer’s request that is within the railroad’s capacity to provide.”

Oberman also noted: “The common carrier duty reflects the well-established principle that railroads ‘are held to a higher standard of responsibility than most private enterprises.’”

STB members Patrick Fuchs and Michelle Schultz dissented with separate expressions. The board’s decision can be read here.