Rail lawsuit officially tossed

PALMER — The until-now unofficial ruling against Point MacKenzie rail opponents is now official.

The Ninth Circuit Court of Appeals, in a 32-page ruling issued last Wednesday, outlines exactly why it denied a challenge from a trio of environmental groups — Alaska Survival, the Sierra Club and Cook Inletkeeper.

The court had announced that would be the decision in a significantly shorter ruling in November 2012, which allowed construction on the project to resume.

“We hold that the procedures of the (Surface Transportation Board) under the (Interstate Commerce Commission Termination Act) were sufficient and were satisfied and that there was no error under (the National Environmental Policy Act) because the purpose and need statement was adequate; the agency considered all viable, reasonable alternatives; and the (project’s Environmental Impact Statement) contains a detailed, thorough and thoughtful discussion of the wetlands impacts and mitigation measures. Concluding that there was no violation of the ICCTA, NEPA or the (Administrative Procedures Act), we deny the petition for review,” the court says in its ruling.

What does that mean exactly?

Starting at the top, the environmental groups had claimed that the federal Surface Transportation Board broke the rules when it exempted the Point Mac rail extension from the full requirements of the licensing procedure laid out in the ICCTA.

The court ruled that it was well within the powers of the STB to make that decision and that the board did so after fully considering the impacts and arguments.

“It might be argued with some force that it is not the best practice to employ the exemption process for a contentious project, but that is for the agency and not us to decide,” the court writes.

As for the challenge under the NEPA, the groups claimed the STB violated NEPA in a number of ways. First, the STB didn’t show there was enough of a public need to justify the harm to the environment.

“‘Public need’ can be interpreted broadly,” the ruling says. “Here, the purpose and need statement noted the state of Alaska’s financial support of the project and Port MacKenzie’s interest in a rail line to provide more efficient and cost-effective transport services to Interior Alaska.”

This part of the decision deals pretty squarely with one of the persistent criticisms of the project — that it’s not likely to be used. Critics say that few if any companies have said they would use it. Project proponents say those shippers will come once the line is in.

“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,” the court says.

The environmental groups also contend that the STB didn’t give enough weight to alternative designs.

One such possible design would build the rails without an access road alongside.

“How could a railroad line effectively be built through rugged and undeveloped terrain without an access road for equipment and moving supplies and personnel? Would a temporary access road cause more environmental harm in the Susitna wetlands than a permanent one? Without evidence to the contrary, we defer to the STB’s technical expertise regarding railway construction.”

The board similarly dismissed the possibility of a railroad raised on bridges to cross streams. The STB said such a route would be so expensive as to be infeasible. The environmental groups, the court wrote, didn’t refute that claim with evidence.

“We cannot say failure to consider this alternative is improper without evidence showing the feasibility of the alternative.

The Mat-Su Borough, which owns the port the railroad would serve, seemed pleased with the ruling in a press release over the weekend.

“Thank goodness the 9th Circuit Court saw through this and is allowing construction to begin again. However, after losing in San Francisco, the Sierra Club and Cook Inlet Keeper are taking a second bite of the apple in an Alaska court. We hope the project prevails again,” Mat-Su Borough Mayor DeVilbiss says in the press release.

The mayor was referring to a lawsuit that is still ongoing in state court over a U.S. Army Corps of Engineers permit for the project.

The borough estimates that the project will create 200 jobs this summer as crews work to complete “up to four segments” of the project.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.