*********************************
May 6, 2009
SNAPSHOT: The Legal Appeal Process on the STB Decision Approving CN’s Acquisition of the EJ&E
Now that CN is running its freight trains on the EJ&E, it is crucial that concerned residents of the region understand the legal appeals process that is taking place. By its very nature, the legal efforts do not lend themselves to public involvement, so it is easy for people to come to the erroneous conclusion that there is nothing left for us to do but accept an untenable level of freight traffic on the EJ&E. This is NOT the case and that is why TRAC communities are contributing to a legal defense fund that will enable us to have our “day in court.”
The Legal Timeline & “Win Scenario”:
On or about February 23 (60 days after the December 24 STB decision to approve the transaction) all the parties that wished to appeal the decision had to file either a petition for review with the United States Court of Appeals for the D.C. Circuit or a petition to intervene in one of the current cases. Those wishing to appeal filed something called a “docketing statement” that simply allowed the Court to categorize the type of case that is before it and has no bearing on the merits. Both TRAC and CN have appealed but on different issues.
By now, we had hoped that the Court of Appeals would have established a briefing schedule to govern the filing of all legal documents before the Court. This has not been done because there is a pending appeal on the Decision by the Illinois Commerce Commission (ICC) before the Surface Transporation Board. Until that regulatory appeal is resolved, the Court has decided to hold off on taking further action. Since the STB is currently operating with just two Board members, we don't expect that the Board will act on the ICC appeal until President Obama has appointed a third Board member. We are urging the Administration to prioritize making this appointment.
Once the Court action begins again, it will set a schedule to establish the date on which the Petitioners (including the TRAC communities) will be required to file their opening brief. The schedule will likely require the STB and the CN, known as Respondents, to file their brief in response thirty days after the Petitioners file their opening brief. Petitioners will then be able to file their Reply briefs. The briefs, which contain the legal arguments that support the positions of the parties, are limited in length by the Federal Rules of Appellate Procedure. After all briefs have been filed, the Court will set a date for oral argument. After hearing argument and reviewing the briefs, the Court will issue its written decision.
Right now, the TRAC communities as a group (and in some cases individually) have some of the best rail and environmental attorneys in the nation working daily to represent us in this process and provide us with the compelling legal arguments that can lead to success in the Appeals Court.
In seeking judicial review, we are hopeful that at the very least, the Court will agree with TRAC that the STB failed to impose adequate conditions and that it will remand (return) the proceeding to the STB for further review and the imposition of meaningful conditions. If that were to be done, CN, instead of the communities, would be required to pay its fair share of the cost of mitigating the environmental harms that will flow from the STB's approval of the transaction.
Throughout the legal process, we will keep you posted on what is occurring by sending out e-blasts to people who have signed up on the www.fightrailcongestion.com website as well as posting the information and relevant documents here. The TRAC communities know that we are representing you in this matter, so we will do everything possible to help you understand how your interests are being defended. So, stay tuned because we are not yet at the “end of the line,” but just into the next phase of the marathon race to defeat a transaction that is toxic for our region!
The Regional
Answer to Canadian National