The U.S. Ninth Circuit Court of Appeals on Oct. 1 put a stay on a U.S. Surface Transportation Board approval of a new coal-hauling rail line in Alaska while establishing an expedited oral argument process to begin in November.
Three environmental groups on Jan. 20 appealed to the court a November 2011 decision from the STB to approve a new, 35-mile segment planned by the Alaska Railroad Corp. (ARRC). The appeal was by Alaska Survival, the Sierra Club and Cook Inletkeeper. They said the board did so in violation of the Administrative Procedure Act and the nation’s environmental laws, including the National Environmental Policy Act.
The proposed rail line would provide freight services between Port MacKenzie and the interior of Alaska and would support the port’s continuing development as an intermodal and bulk material resources export and import facility. ARRC is a regional rail carrier that provides freight and passenger service over a 470-mile main line to communities from the Gulf of Alaska to the greater Fairbanks area in the interior of the state.
The proposed Port MacKenzie Rail Extension would connect the Port MacKenzie District in the Matanuska-Susitna Borough to a point on the existing ARRC main line between Wasilla and just north of Willow. It would be a single-track rail line with a 200-foot-wide right-of-way. The port is the closest deepwater port to the interior of Alaska.
The Port of Anchorage, the nearest other port in the area, is 35 highway/rail miles farther from interior Alaska than Port MacKenzie. According to ARRC, Port MacKenzie’s potential new market includes bulk commodities (such as wood chips, saw logs and coal), iron or steel materials (such as scrap metal), vehicles and heavy equipment, and mobile or modular buildings.
The appeals court on Oct. 1 agreed to an emergency stay on the STB approval pending full review of the board decision by the court. “The court finds that there is a ‘serious question’ regarding whether the Surface Transportation Board complied with the National Environmental Policy Act (NEPA) in determining the ‘purpose and need’ of the Port MacKenzie railroad extension project, as stated in the Final Environmental Impact Statement,” the stay order said. “The court further finds that the balance of hardships tips sharply in petitioners’ favor, that petitioners are likely to suffer irreparable harm in the absence of a stay, and that a stay is in the public interest.”
The court has moved to expedite oral argument and the case will be calendared for the week of Nov. 5 in San Francisco.
Railroad says any harm from this project not imminent
In arguing against a stay, ARRC said in a Sept. 25 brief: “Petitioners are unable to make a threshold showing that irreparable harms are in fact likely to occur. The Surface Transportation Board order at issue in this case imposes 100 mandatory mitigation measures on the construction and operation of the proposed rail line extension, 30 of which are specifically directed at impacts to water resources. Numerous other state and federal agencies, including the Alaska Department of Fish and Game and the National Marine Fisheries Service, are cooperating in the implementation of these mitigation measures. There is every reason to believe that, with these measures in place, any imminent environmental impacts of the project will not be irreparable.”
ARRC noted that it is in various stages of permitting and development work on the eight segments that make up this rail line extension project. There has been a construction contract awarded for only one of them, Segment 1. Segment 1 is the Port MacKenzie end of the rail extension, is generally within the Port District and will be 4.7 miles in length.
Coal mining came up as an issue during the STB proceeding. Environmental groups claimed that there was no analysis in the board’s environmental impact statement for the project of the reasonably foreseeable impacts of additional coal mining and other resource extraction in Alaska and subsequent increases in domestic and international coal burning that would result from the proposed line.
“The Sierra Club notes that all of these activities would serve as significant sources of greenhouse gas emissions,” the board decision said. “The Sierra Club also notes that Alaska possesses half the known coal resources in the United States and that increased mining of this coal would not be inconsequential and should have been analyzed in the EIS.”
ARRC does generally expect the new rail segment to encourage development of new resources, including coal. “However, neither ARRC nor any other party has identified any reasonably foreseeable coal mining projects that would be caused by the construction and operation of this rail line or would result in reasonably foreseeable cumulative impacts,” said the board decision. “Therefore, we find no merit to the claims of the Sierra Club and [a coalition of environmental groups] that the proposed rail line would lead to substantial increases in future coal mining.”
Usibelli Coal Mine Inc., Alaska’s only current coal producer, already ships heavily into the coal export market and there are various ongoing efforts by other companies to develop new coal mines in the state.