By: Barbara Lichman, PhD
In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000, et seq., to the 114 mile high-speed passenger rail line between Fresno and Bakersfield, California is preempted in its entirety by federal law. The Board’s decision is not only surprising in the context of prevailing legal authority, but also potentially important in the context of other modes of transportation.
The decision is surprising because it went far beyond the scope of the petition filed by the responsible State agency, the California High-Speed Rail Authority (“Authority”). The Authority asked only that the Board find that injunctive relief as a remedy under CEQA is foreclosed as preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), Pub.L. 104–88, 104th Congress, and is, thus, barred under 49 U.S.C. § 10501(b) which gives the Board jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,” 49 U.S.C. § 10501(b)(2). The Authority further argued that, as it had completed CEQA review in May 2014, the Board need not address whether CEQA is generally preempted, but need only address whether injunctive relief resulting in a work stoppage is available as a remedy in the lawsuits filed against the Authority.
Despite the Authority’s limited petition, the Board expanded its ruling to include a finding that § 10501(b) prevents the states and localities from intruding into matters that are “directly regulated by the Board (e.g., rail carrier rates, services, construction, and abandonment),” Docket, p. 8, and from “imposing requirements that, by their nature, could be used to deny a rail carrier’s ability to conduct rail operations.” Id. The Board employs the rationale that “Section 10501(b) [ ] is intended to prevent a patchwork of local regulation from unreasonably interfering with interstate commerce.” Id.
The Board recognizes, however, that “[n]ot all state and local regulations that affect rail carriers are preempted by § 10501(b).” Id. at p. 9. It acknowledges further that “State and local regulation is appropriate where it does not interfere with rail operations,” Id., and that “[l]ocalities retain their reserved police powers to protect the public health and safety so long as their actions do not unreasonably burden interstate commerce.” Id.
On that basis, and ignoring that “states and towns may exercise their traditional police powers . . . to the extent that the regulations ‘protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions,’” Id. citing Green Mountain v. Vermont, 404 F.3d 638, 643 (2nd Cir. 2005), the Board concluded that CEQA was categorically preempted as a “state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the Board has specifically authorized, thus impinging upon the Board’s exclusive jurisdiction over rail transportation,” Docket, p. 10, citing DesertXpress Enters., LLC-Pet. For Declaratory Order, slip op. at 5. The Board further found that CEQA lawsuits “can regulate rail transportation just as effectively as a state statute or regulation.” Id. at 14, citing, inter alia, Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) [explaining that common law suits constitute regulations].
The Board decision, however, appears to be based on two fundamental misconceptions.
First, from a substantive perspective, the Board’s decision erroneously designates CEQA as a “state . . . permitting or preclearance requirement[ ],” Docket, p. 12, that “attempts to regulate where, how, and under what conditions the Authority may construct the Line.” Id. However, the cases interpreting CEQA reject this view on the grounds that “a court’s decision to void the approval of a regulation, ordinance or program [as violative of CEQA] does not necessarily require the court to invalidate or suspend the operation of the regulation, ordinance or program.” See, Poet, LLC v. California Air Resources Board, 218 Cal.App.4th 681, 761 (2003). Thus, without the imposition of the injunctive remedy (which was the subject of the Authority’s limited petition in the first instance), the most that a finding of inadequacy under CEQA can accomplish is to require that the environmental review be repeated correctly, either procedurally or substantively, during which time the project, rail or otherwise, may proceed apace.
Moreover, from a procedural perspective, the Board’s decision is defective, because the case upon which the Board principally relies, Friends of the Eel River v. North Coast Railroad Authority, 178 Cal. Rptr. 3d 752 (2014) (for the proposition that “in the context of railroad operations, CEQA ‘is not simply a health and safety regulation imposing an incidental burden on interstate commerce,’” Id. at 767-71), was accepted for review by the California Supreme Court on December 10, 2014, and, thus, is not citable in support of the Board’s decision. While the Board claims that its analysis, based on Eel River, is merely offered “as the agency authorized by Congress to administer the Interstate Commerce Act, [and, thus,] ‘uniquely qualified’ to address whether § 10501(b) preempts state law,” Docket, p. 5, citing Town of Atherton v. California High-Speed Rail Authority, 175 Cal. Rptr. 3d 145, 161, n. 4 (2014), to the extent the Board’s decision is predicated on the opinion in Eel River, it is unsupported.
In summary, while the Board’s opinion appears limited to rail projects, its reverberations may be felt throughout numerous modes of transportation, such as aviation, in which the Federal Aviation Act, 49 U.S.C. § 40101, et seq., establishes a system of preemption over the design and operation of airports that is surprisingly similar to that applied by the Board to rail transportation. See, e.g., 49 U.S.C. § 47521(2).
From Aviation and Airport Law News Blog