• Fifth Circuit Holds Rail Line is Less Disruptive to Environment than Highway
  • April 26, 2010
  • Law Firm: Balch & Bingham LLP - Birmingham Office
  • Last week, the U.S. Court of Appeals for the Fifth Circuit dismissed an environmental group's challenge to a rail line for a Texas limestone quarry, holding the rail line would cause less harm to endangered species than a highway.

    The Medina County Environmental Action Association sought review of a decision by the Surface Transportation Board (STB) granting an exemption under 49 U.S.C. § 10502 that allowed the Southwest Gulf Railroad Co. to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas.  At issue was whether the STB and the U.S. Fish and Wildlife Service (FWS) complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was “not likely to jeopardize the continued existence of any endangered species” before approving the exemption.

    The environmental group argued that the agencies should have considered the quarry and rail line as interrelated and should have provided a cumulative analysis of the phased development.  They were particularly concerned about the endangered golden-cheeked warbler and invertebrates living in karst limestone formations.

    The quarry owner, Vulcan Materials, had looked voluntarily for warblers starting in 2000, finding a single warbler calling near the site in 2003.  It also tracked the presence of karst cave insects.  FWS concluded that little suitable warbler habitat remained, since the area had previously been cleared for agriculture.  Also, allthough some karst features were in the project area, none of the cave insects was discovered there.

    The court denied the environmental group's request for review, finding that quarry development could occur regardless of the railway, so the two were not interrelated.  Because full development through all phases of the project was not certain, Chief Judge Carolyn Dineen King wrote, no cumulative analysis was required.  The court observed, "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."

    The court was also persuaded by the fact that Vulcan provided adequate mitigation measures, including a planned buffer zone and a promise that it would not clear land during warbler breeding season.