In Alaska Survival v. Surface Transportation Board (2013) 43 ELR 20016, the Ninth Circuit Court of Appeals denies Alaska Survival’s NEPA challenge to the Surface Transportation Board’s (Board) decision authorizing Alaska Railroad Corporation (the Railroad) to construct thirty-five miles of new rail line.

Alaska Survival contended that the Board violated NEPA by (1) adopting an unreasonable purpose and need statement, (2) refusing to consider an alternative route without an access road, and (3) inadequately assessing the project’s adverse effect on wetlands.

In rejecting Alaska Survival’s challenge to the purpose and need, the court explained that a statement of purpose and need must only “briefly specify the underlying purpose and need to which the agency is responding and that the statement will only fail if it unreasonably narrows the agency’s consideration of alternatives.”  Here, the court concluded the statement complied with this standard.  Alaska Survival further argued that the Board erred when it adopted the Railroad’s asserted goals without considering the “public convenience necessity.”  The court rejected this argument stating that “public need can be interpreted broadly, and the Board has discretion to determine which public needs it will consider.”

Next, Alaska Survival contended that the Board acted arbitrarily and capriciously when it “thoughtlessly considered an impermissibly narrow range of alternatives,” and refused to consider an EPA-supported alternative rail design.  The court concluded that in order to prevail on its claim, Alaska Survival had a duty to show that the EPA-supported alternative was viable.  Because Alaska Survival failed to meet its burden, the court held the Board’s technical expertise regarding railroad construction alternatives.

Finally, Alaska Survival contended that the Board relied on improper methodology for its wetlands delineation, that the wetland analysis was too cursory to meet NEPA’s “hard look” requirement, and that the Board impermissibly referred to mitigation measures as “future prospects” to be handled by the Railroad.  The court held that it was not the role of the court to decide whether the EIS is based on the best scientific methodology available; all that is required is a thorough discussion. The court also found that Alaska Survival failed to meet its burden of demonstrating that alternative mitigation measures that it preferred were in fact feasible.  Lastly, the court concluded that NEPA does not require finalization or adoption of mitigation mandates but only mandates that the agency engage in a reasonably thorough discussion of mitigation. Because the EIS contained such a discussion, it complied with NEPA.

 Key Point:

In drafting an EIS, a federal agency may properly incorporate the applicant’s project objectives into the Statement of Purpose and Need for the project.  To satisfy NEPA’s “hard look” standard, the absence of “unanimity of opinion among agencies” is not determinative; all that NEPA requires is that the agency undertakes a “reasonably thorough discussion” of an issue.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (law clerk)
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