• "The issue, for purposes of determining whether proposed development of the entire tract was an interrelated action, is whether, but for the proposed rail, development of the tract as a quarry would occur. If development of the tract would not depend on the proposed rail, then the tract does not qualify as an interrelated action. The STB specifically found, after considering detailed submissions by SGR, that Vulcan feasibly could operate the quarry without a rail, using trucks to remove the limestone. The STB also found that Vulcan likely would take this course if the rail exemption were not granted. The respondents' refusal to consider the proposed development of the entire tract as an 'interrelated action' did not render the Decision arbitrary and capricious."

Consideration of "Cumulative Effects" in a BA.  The plaintiffs argued that the proposed development of the entire limestone quarry should be considered as a "cumulative effect" even if it is not considered as an "interrelated action."  The court rejected this argument as well, because it found that the development of the entire tract is not "reasonably certain to occur."

• "The ESA regulations define 'cumulative effects' as 'those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.'"
• "Our circuit has not interpreted the term 'reasonably certain to occur,' but it has interpreted the 'reasonably foreseeable' standard for assessing cumulative impacts under NEPA, a standard that applies in a broader set of circumstances but encompasses the 'cumulative effects standard under the ESA -- [that is,] actions 'reasonably certain to occur' are also 'reasonably foreseeable.'  ...  Our case law shows that even the broader 'reasonably foreseeable' standard requires a substantial degree of certainty before a cumulative impacts analysis will be required."
• "In Gulf Restoration Network v. United States Department of Transportation, 452 F.3d 362 (5th Cir.2006), for example, we concluded that the federal agency's decision was not arbitrary and capricious when the agency had refused to consider, as part of its cumulative impacts analysis for a liquefied underwater natural gas facility, three similar facilities that were proposed to be built in the same area. Applications for federal regulatory approval of these facilities had been filed, and we acknowledged that these applications contained substantial detail about the potential scope of the projects. We nevertheless deferred to the agency's conclusion that until final approval was granted on those applications, there was 'insufficient certainty about the [facilities'] future construction and environmental consequences to include [them] in the cumulative impact calculus.' Id. at 369.  We noted that the applications could ultimately be denied or approved contingent upon substantial modifications, and that even if approved, the projects might not go forward because of financing issues. Id. at 371-72."
• "[T]he fact of the long-term leases [for the limestone quarry] is not tantamount to a reasonable certainty that financial incentives will exist in the future to develop the land-certainly not in any way sufficiently specific for the respondents to conduct a meaningful scientific assessment of the development's effects."
• "The STB's and FWS's refusal to consider the proposed development of the entire tract as a 'cumulative effect' of the proposed rail did not render the Decision arbitrary and capricious. As in Gulf Restoration, MCEAA has not shown that the future phases of the quarry are free from regulatory and financial contingencies such that their occurrence would be reasonably foreseeable, much less reasonably certain.  We are persuaded that the respondents' refusal to consider the proposed development of the entire tract as a 'cumulative effect' of the proposed rail did not render the Decision arbitrary and capricious."

Consideration of "Indirect Effects" in a BA.  The plaintiffs also argued that development of the entire tract should have been considered as an "indirect effect" in the BA - that is, an effect that is caused by the project and is later in time but is still reasonably certain to occur.  The court rejected this argument as well, because it found that the development of the remaining phases of the quarry was not "reasonably certain to occur."

NEPA

Cumulative Impacts - Level of Detail.  The plaintiffs argued that the cumulative impacts analysis in the EIS was insufficient under NEPA, because it did not contain enough detail on the potential effects of noise and vibration from quarry operations on listed species.  They also argued that the cumulative impacts analysis in the EIS should have considered the effect that lighting from the quarry's projected round-the-clock operation would have on listed species, and that the EIS should have contained more detail on karst impacts.  The court held that the cumulative impacts analysis was sufficient under NEPA:

• "The noise and vibration analysis, far from being conclusory, is detailed and methodical, projecting decibel and vibration levels for each of the proposed actions, assessing which residences and other structures would be affected, and proposing extensive mitigation measures. As for the absence of analysis specific to listed species, all of the survey evidence available to the STB and FWS showed that no listed species were present in the areas where the noise and vibrations were to occur-rendering analysis of effects of noise, vibration, and light on those species superfluous, if not impossible. Furthermore, the STB found, and MCEAA does not dispute, that whatever adverse noise and vibration effects the proposed rail posed, the effects from the no-action alternative would be worse. 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."
• "As MCEAA has acknowledged in other parts of its briefing, Vulcan produced detailed surveys and maps of the karst features on the entire tract as part of its WPAP. The STB found, after conducting a biological analysis of the proposed rail and Phase One areas, that the mitigation measures required ... as a condition of approval of the WPAP would adequately address any danger that these activities might pose to groundwater and karst features, or to the listed karst invertebrates that rely on them. In addition, one mandatory condition of the Decision was that [the project sponsor] consult with a 'karst feature specialist' and 'implement appropriate mitigation measures' if it discovered any additional karst features during rail construction. MCEAA's critique of the STB's analysis of the effects on karst invertebrates lacks support in the record and does not show that the Decision was arbitrary and capricious."

Litigation Procedure

Motion to Supplement the Administrative Record.  The plaintiffs filed a motion asking the court to consider two documents outside the STB's administrative record.  Both documents were publicly available reports, prepared by other federal agencies, for projects that had potential impacts to the same endangered species (the golden-cheeked warbler).  The court rejected this argument because "documents with which MCEAA proposes to supplement the administrative record do not contain information potentially adverse to the Decision and do not set out additional factors that the STB and FWS failed to consider."

• Medina County Envtl Action v STB - 04-06-2010.pdf (112 kb)