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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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5th Circuit stays focused, defers to FWS analysis of proposed rail effects on warblers and invertebrates

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Medina County Environmental Action Association v. Surface Transportation Board, Case No. 09-60108 (5th. Cir., April 6, 2010)

ISSUE: Medina County Environmental Action Association (MCEAA) challenged an exemption given by the Surface Transportation Board (STB) allowing Southwest Gulf Railroad Co. to construct and operate a seven-mile rail line servicing a proposed limestone quarry in Medina County, Texas.  MCEAA challenges the U.S. Fish & Wildlife Service finding (reached during the Endangered Species Act's Section 7 consultation process) that the proposed rail and its cumulative effects were not likely to jeopardize the continued existence of the endangered golden-cheeked warbler and certain endangered karst invertebrates.

KEITHINKING: Sometimes, driven by their opposition to a project and its environmental harms, advocates lose sight of the big picture.  In this case, the 5th Circuit refused to get caught up in the environmental issues, focusing strictly on its standards of review, and the precise legal question before it.  In an Environmental Impact Statement, the STB had concluded that Vulcan Construction Materials (the quarry developer) could (and would) transport the limestone by truck if the rail line were not built.  That single fact determined the outcome of this case.

"These findings... which MCEAA does not seriously contest, highlight an important point that is easily lost in the technical and regulatory complexities of this case: Because the STB’s approval was not required for any other action associated with the proposed quarry, because no other aspect of the proposed quarry required approval under § 7, and because the quarry would go forward with or without the proposed rail, the implications of the STB’s decision were relatively narrow. The STB could grant the exemption, in which case development of the quarry would proceed with rail service; or deny the exemption, in which case quarry development would still proceed with service by truck—an alternative that all parties agree would be more environmentally invasive. This court’s sole task in evaluating the MCEAA’s petition is to determine whether the choice that STB made was arbitrary and capricious. 5 U.S.C. § 706(2)(A)."

Once the 5th Circuit established the limited nature of its review, deference was inevitable:

The complexities of the regulatory arguments on this issue also obscure a fundamental point: The STB has no authority to stop development of the quarry, which the evidence shows could and would be developed regardless of whether the rail line were built. The STB had two choices: Grant the exemption and allow the rail line—the environmentally preferable alternative—to go forward, or deny the exemption, in which case quarry development would progress, serviced by a more environmentally disruptive fleet of trucks. We cannot say that the STB abused its discretion in choosing the former.

Despite the important factual issues above, the 5th Circuit opinion is useful as precedent on three additional procedural points, including:
  • Granting deference, pursuant to U.S. v. Mead, to the FWS’s Endangered Species Consultation Handbook as persuasive, and accepting FWS's definition of an “interrelated action” and “reasonably certain to occur.”  See, Sierra Club. v. Marsh, 816 F.2d 1376, 1387 (9th Cir. 1987) (“The test for interrelatedness . . . is ‘but for’ causation: but for the roposed action these activities would not occur.”) citing 51 Fed. Reg. at 19,932; see also Gulf Restoration Network v. United States Department of Transportation, 452 F.3d 362 (5th Cir. 2006)(until final approval was granted on an application, there was “insufficient certainty about the facilities’ future construction and environmental consequences to include them in the cumulative impact calculus.”)
  • Accepting an imperfect administrative record and (ironically) citing 9th Circuit case law in support:
"Even if the STB could have done more analysis—and the record does not show that more was required—MCEAA has not shown that the noise and vibration analysis rendered the Decision arbitrary and capricious. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996) (deferring to agency judgment despite “gaps and imperfections” in the administrative record)."
  • Narrowly construing administrative record review, and refusing to supplement the administrative record, citing D.C. Circuit case law:
Supplementation of the administrative record is not allowed unless the moving party demonstrates “unusual circumstances justifying a departure” from the general presumption that review is limited to the record compiled by the agency. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008). Supplementation may be permitted when: (1) the agency deliberately or negligently excluded documents that may have been adverse to its decision, . . . (2) the district court needed to supplement the record with “background information” in order to determine whether the agency considered all of the relevant factors, or (3) the agency failed to explain administrative action so as to frustrate judicial review.

MedinaRockRail.jpg
Photo (and other descriptive information about the project) from Medina Rock and Rail.  EDITOR'S NOTE: Photo above is from a local competitor's similar project, see comment by Scoop below.