United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2023 Decided August 18, 2023

No. 22-1019

EAGLE COUNTY, COLORADO,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND UNITED STATES OF 

AMERICA,

RESPONDENTS

SEVEN COUNTY INFRASTRUCTURE COALITION AND UINTA 

BASIN RAILWAY, LLC,

INTERVENORS

Consolidated with 22-1020

On Petitions for Review of Orders

of the Surface Transportation Board

Nathaniel H. Hunt argued the cause and filed the briefs for 

petitioner Eagle County, Colorado. Nicholas Clabbers entered 

an appearance.
2

Wendy Park argued the cause for petitioners Center for 

Biological Diversity, et al. With her on the briefs was Edward 

B. Zukoski. William J. Snape entered an appearance.

Matthew R. Arnold and William S. Eubanks II were on the 

brief for amici curiae City of Glenwood Springs, et al. in 

support of petitioners.

Barbara A. Miller, Attorney, Surface Transportation 

Board, argued the cause for respondent. With her on the brief 

were Craig M. Keats, General Counsel, and Theodore L. Hunt, 

Associate General Counsel.

Justin D. Heminger, Attorney, U.S. Department of Justice, 

argued the cause for respondent. With him on the brief were 

Todd Kim, Assistant Attorney General, and Andrew M. Bernie, 

Attorney.

Jay C. Johnson argued the cause for intervenorrespondents Seven County Infrastructure Coalition, et al. With 

him on the brief was Kathryn Kusske Floyd. Margaret K. 

Fawal entered an appearance.

Melissa A. Holyoak, Solicitor General, Office of the 

Attorney General for the State of Utah, was on the brief for 

amicus curiae State of Utah in support of respondents.

Before: MILLETT, PILLARD and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS. 

WILKINS, Circuit Judge: These consolidated petitions

concern an order of the Surface Transportation Board (“Board” 

or “STB”) authorizing the construction and operation of a new 

rail line in the Uinta Basin in Utah (“Railway”). The Board 
3

exercised its authority to exempt the Railway from the Board’s 

more extensive application requirements in a two-part process. 

The first addressed the “transportation benefits” of the 

Railway, and the second concerned the project’s environmental 

impacts. As part of its environmental process, the Board 

created an environmental impact statement (“EIS”) outlining 

the various environmental impacts associated with the 

Railway’s construction and operation. The EIS was informed 

by the Board’s consultation with the Fish and Wildlife Service 

(“Service”), which led to the development of a Biological 

Opinion (“BiOp”) concerning the Railway’s potential impacts 

on endangered species and critical habitats.

Petitioners include various environmental organizations 

and a Colorado county that alleges it will be impacted by the 

Railway even though it is located “downline” of the proposed 

rail line’s construction area. Petitioners raised numerous 

challenges at various stages in the proceedings, ranging from 

whether the Board properly exempted the Railway to whether 

its environmental analysis was flawed. In these petitions, they 

lodge various challenges to the validity of the Board order, the 

EIS, and the BiOp. 

For the following reasons, we grant the petitions in part, 

deny them in part, vacate the underlying order as well as the

EIS and the BiOp in part, and remand to the Board for further 

proceedings.

I.

A.

Congress gave jurisdiction over rail carriers to the Board 

after passing the ICC Termination Act of 1995, Pub. L. No. 

104–88, 109 Stat. 803 (“ICCT Act”), which abolished the 

Board’s predecessor, the Interstate Commerce Commission
4

(“ICC”). See Nat’l Ass’n of Reversionary Prop. Owners v. 

STB, 158 F.3d 135, 140 (D.C. Cir. 1998). The Board regulates, 

among other things, “the sale and transfer of rail lines under 

49 U.S.C. § 10901, [including] governing construction and 

operation of railroad lines.” Ass’n of Am. R.R.s v. STB, 161 

F.3d 58, 60 (D.C. Cir. 1998). 

There are two approaches a party can take to get approval 

from the Board for the construction or operation of a railroad 

line. The party may seek a certificate authorizing the project 

from the Board by “submit[ting] an application that provides 

information about itself and its proposed use of the line, 

including operational, financial, environmental, and energy 

data.” Snohomish Cnty. v. STB, 954 F.3d 290, 293 (D.C. Cir. 

2020). “Upon receiving the application and providing time for 

public comment, the Board issues the certificate, potentially 

with modifications or conditions, ‘unless the Board finds that 

such activities are inconsistent with the public convenience and 

necessity.’” Id. (quoting 49 U.S.C. §§ 10901(c), 10902(c)). 

Alternatively, the party may seek an exemption from the full

application requirements by petitioning the Board to find that 

“compliance with those provisions ‘is not necessary to carry 

out the transportation policy’ codified in 49 U.S.C. § 10101, 

and that either the ‘transaction or service is of limited scope’ or 

the ‘application in whole or in part of the provisions is not 

needed to protect shippers from the abuse of market power.’” 

Id. at 293–94 (quoting 49 U.S.C. § 10502(a)(1)–(2)).

In addition, the National Environmental Policy Act 

(“NEPA”), 42 U.S.C. § 4321 et seq., requires all federal 

agencies “to examine the environmental effects of proposed 

federal actions and to inform the public of the environmental 

concerns that were considered in the agency’s 

decisionmaking.” Citizens Against Rails-to-Trails v. STB, 267 

F.3d 1144, 1150 (D.C. Cir. 2001). This environmental review 
5

process requires federal agencies to “include a detailed 

environmental impact statement . . . ‘in every recommendation 

or report on . . . major Federal actions significantly affecting 

the quality of the human environment.’” Mayo v. Reynolds, 

875 F.3d 11, 15 (D.C. Cir. 2017) (quoting 42 U.S.C. 

§ 4332(2)(C)). Since “NEPA’s mandate is addressed to all 

federal agencies,” it applies also to the Board’s determinations 

regarding the construction or operation of rail lines that may 

affect the environment. Citizens Against Rails-to-Trails, 267 

F.3d at 1150. 

Federal agencies have additional environmental review 

obligations under the Endangered Species Act (“ESA”), 16 

U.S.C. § 1531 et seq., which Congress enacted “to provide a 

means whereby the ecosystems upon which endangered 

species and threatened species depend may be conserved,” id.

§ 1531(b). “The ESA requires every federal agency to ‘insure 

that any action authorized, funded, or carried out by such 

agency . . . is not likely to jeopardize the continued existence 

of any endangered species or threatened species or result in the 

destruction or adverse modification of habitat’ that the . . . 

Service[] ha[s] determined to be critical to those species.” Ctr. 

for Biological Diversity v. EPA (“Center II”), 56 F.4th 55, 62 

(D.C. Cir. 2022) (quoting 16 U.S.C. § 1536(a)(2)). To fulfill 

this statutory obligation, “action agencies,” “whose planned 

action may have such effect,” must consult with the Service,

which is tasked with, among other things, identifying 

“anticipated adverse effects on species” and critical habitats. 

Id. at 62–63 (citing 16 U.S.C. § 1536(a)–(d)).

Prior to approving “a project, activity, or program,” 54 

U.S.C. § 300320, federal agencies must also “take into account 

the effect of the undertaking on any historic property” under 

the National Historic Preservation Act (“NHPA”), id. at

§ 306108. The statute defines “historic property” broadly and 
6

includes “any prehistoric or historic district, site, building, 

structure, or object included on, or eligible for inclusion on, the 

National Register.” Id. § 300308. The NHPA mandates the 

creation of regulations to ensure that federal agencies consult 

with local governments “with respect to undertakings . . . that 

affect the local governments.” Id. § 304108(b). “In light of the 

substantial overlap between the NHPA and NEPA inquiries, an 

EIS ‘should include consideration of the . . . likely effects on 

historic properties.’” Oglala Sioux Tribe v. U.S. Nuclear 

Regul. Comm’n (“Oglala”), 45 F.4th 291, 296 (D.C. Cir. 2022)

(quoting 36 C.F.R. § 800.8(a)(1)). 

B.

Respondent-Intervenor Seven County Infrastructure 

Coalition (“Coalition”) “is an independent political subdivision 

of the State of Utah” composed of seven different member 

counties. J.A. 252. On May 29, 2020, the Coalition petitioned 

the Board to allow for the construction and operation of the 

Railway, see id. at 248, a more than 80-mile rail line in Utah 

that would connect “two termini in the Uinta Basin . . . to the 

national rail network at Kyune, Utah,” id. at 251. The Uinta 

Basin is an “approximately 12,000 square mile[]” geographic 

area spanning northeastern Utah and northwestern Colorado. 

Id. at 279. It “contains extensive deposits of valuable minerals, 

including” phosphate, “crude oil, natural gas, oil shale, oil 

sands, gilsonite, natural asphalt, aggregate materials, and lowsulfur coal.” Id. at 280. 

In its petition, the Coalition explained that “[c]urrently, 

trucking is the only mode of freight transportation in and out of 

the Basin” “primarily due to the geography of the Basin, which 

is bounded by high mountains or plateaus.” Id. Railway lines 

exist around the Basin but there are not even “freeways in and 

out of the Basin.” Id. Accordingly, “all goods produced or 
7

consumed in the Basin must be transported by trucks on twolane highways that cross high mountain passes.” Id. The 

Railway would “connect the Uinta Basin to the national rail 

network,” “giv[ing] shippers an additional option for freight 

transportation in and out of the Uinta Basin.” Id. at 285. The 

project would involve “construction of the rail line and 

associated earthwork” as well as “construction of access roads, 

tunnels, communications towers, road crossings, culverts, and 

stream crossings.” Id. at 255. Though the Railway could carry 

any goods produced or consumed in the Basin, the Coalition’s 

petition recognizes (and no one disputes) that the Railway’s 

predominant and expected primary purpose would be the 

transport of waxy crude oil produced in the Uinta Basin. See 

id. at 260–61.

In its petition, the Coalition also provided that it “entered 

into a preliminary Memorandum of Understanding” with two 

private companies—Drexel Hamilton Infrastructure Partners 

and Rio Grande Pacific Corporation—which would be 

responsible for “financing and commercialization of the 

Project” and “operations and maintenance of the Uinta Basin 

Railway,” respectively. Id. at 253. Though the Coalition did 

not intend to operate the Railway itself, it expected that it 

would “remain responsible for project planning, completion of 

the environmental review and permitting processes, and 

obtaining authority to construct the Railway.” Id. at 253–54. 

The May 2020 petition made two requests of the Board. 

First, the Coalition sought exemption from the Board’s formal 

application requirements. Second, the Coalition asked the 

Board to authorize the Railway in a two-part process. The 

Board would “conditionally approve” the exemption petition

based on the transportation merits of the Railway, subject to the 

condition that the project was found proper after the 
8

“completion of the environmental review process under the 

National Environmental Policy Act.” Id. at 273. 

The Coalition asserted that the “ongoing COVID-19 

pandemic and its economic impacts clearly create[d] unique 

and compelling circumstances that justif[ied] conditional 

approval.” Id. It described the impacts as including rising 

unemployment levels, closed businesses, and substantial 

decline in state and local tax revenues. Id. at 273–74. While 

noting that “these impacts should not persist in the long-term,” 

the Coalition asserted that completion of the “federal review 

and approval processes as efficiently as possible” would “have 

the potential to provide substantial economic stimulation,” 

which it described as “important to state and local economies.” 

Id. at 274. Finally, the Coalition asserted that the 

environmental review process was ongoing and “should not 

interfere with consideration of the transportation merits on a 

conditional basis.” Id.; see also id. at 265 (explaining that the 

Board released a final scope of study for preparation of an 

environmental impact statement on December 13, 2019). 

Several groups filed oppositions to the exemption petition,

urging the Board to require the Coalition to complete the full 

application process. See id. at 300, 329 (Center for Biological 

Diversity Response to Petition for Exemption); see also, e.g., 

J.A. 341–47 (Argyle Wilderness Preservation Alliance 

Response to Petition for Exemption); Opening Br. of Pet’r 

Eagle County 6 [hereinafter “Cnty. Br.”]. These oppositions 

questioned the Railway’s financial viability, purported 

benefits, and “impact to public health, safety, and the 

environment.” Cnty. Br. 5. The oppositions were 

unsuccessful. The Board published an order conditionally 

granting the exemption petition based on the “transportation 

merits” while deferring its “final” ruling on the petition to 

allow for the completion of the then-ongoing review of the 
9

Railway’s environmental impact. Seven Cnty. Infrastructure 

Coal.—Rail Constr. & Operation Exemption—in Utah, 

Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket

36284, 2021 WL 41926, at *10 (STB served Jan. 5, 2021)

[hereinafter “Preliminary Exemption Order”]. Petitioners 

sought reconsideration of the Preliminary Exemption Order, 

which the Board denied on September 30, 2021. See Seven 

Cnty. Infrastructure Coal.—Rail Constr. & Operation 

Exemption—in Utah, Carbon, Duchesne, & Uintah Cntys., 

S.T.B. Fin. Docket 36284, 2021 WL 4483773 (STB served 

Sept. 30, 2021). 

As noted above, the environmental review process for the 

Railway was ongoing at the time the Board requested 

conditional approval of its exemption petition. The Board’s 

Office of Environmental Analysis (“OEA”) had published a 

notice of intent to prepare an Environmental Impact Statement 

in June 2019 and issued a final scope of study for the EIS in the 

Federal Register in December 2019. See Seven Cnty.

Infrastructure Coal.—Rail Constr. & Operation—in Utah, 

Carbon, Duchesne, and Uintah Cntys., 84 Fed. Reg. 68,274 

(Dec. 13, 2019). On October 30, 2020, the Board published its

Draft EIS for review and comment. Public comment on the 

Draft EIS lasted until February 12, 2021, and included six 

public online meetings and the Board’s receipt of over 1,900 

comments. See J.A. 802. 

In the Draft EIS, “the Board determined that there were 

three reasonable Action Alternatives (the Indian Canyon 

Alternative, Wells Draw Alternative, Whitmore Park 

Alternative), with the Whitmore Park Alternative identified as 

the Preferred Alternative.” Br. of Resp’t Surface Transp. Bd.

11 [hereinafter “Board Br.”]; see also J.A. 445, 452. The 

Board issued the Final EIS in August 2021, determining that

“the Whitmore Park Alternative would result in the fewest 
10

significant impacts on the environment.” J.A. 874.

Supplemental comments were submitted to the Board, 

including objections by Petitioner Center for Biological 

Diversity (“Center”) and supporting statements from the Ute 

Indian Tribe and the State of Utah. See, e.g., J.A. 1321–22 

(Center for Biological Diversity Supplemental Comments); 

J.A. 1315–17 (Ute Indian Tribe Supplemental Comments); see 

also Board Br. 14.

The Board issued its final decision accepting the 

Coalition’s exemption petition and “authorizing construction 

and operation of the Whitmore Park Alternative subject to 

extensive environmental mitigation conditions” in December 

2021. See Board Br. 14; see also Seven Cnty. Infrastructure 

Coal.—Rail Constr. & Operation Exemption—in Utah, 

Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket 

36284, 2021 WL 5960905 (STB served Dec. 15, 2021) 

[hereinafter “Final Exemption Order”]. The Final Exemption 

Order incorporated the final EIS to weigh the project’s 

transportation merits against its environmental impacts. 

The Final Exemption Order relied on the BiOp the Service 

issued on September 20, 2021, which it based on the Boarddefined action area for considering the expected environmental 

impact of the project on protected species and their designated 

critical habitat. See Final Exemption Order, 2021 WL 

5960905, at *5, *10. That action area was limited to the project 

footprint, a 300-foot buffer around it, and “an area of the Upper 

Colorado River Basin affected by water depletions” from the 

project. J.A. 1660. The Board’s final decision stated that the 

construction and operation of the Railway could have “major 

impacts” on water resources, air quality, special status species 

like the greater sage-grouse, land use and recreation, local 

economies, cultural resources, and the Ute Indian tribe, as well 

as “minor impacts” on vehicle safety and delay, rail operations 
11

safety, big game, fish and wildlife, vegetation, and geology in 

the Uinta Basin. Final Exemption Order, 2021 WL 5960905, 

at *7–13. The Board also conducted a geological analysis of 

the project area to evaluate the risk that construction and 

operation of the proposed rail line could cause landslides or 

other geologic movements. 

As for climate effects, the Board noted that, “[t]o the extent 

that the crude oil would be refined into fuels that would be 

combusted to produce energy, emissions from the combustion 

of the fuels would produce [greenhouse gas] emissions that 

would contribute to global warming and climate change,” 

which, under a “high oil production scenario could represent 

up to approximately 0.8% of nationwide [greenhouse gas] 

emissions and 0.1% of global [greenhouse gas] emissions.” Id. 

at *17. 

The Board’s order also considered whether to disclose 

“impacts from rail operations along existing rail lines 

segments” from “[t]rains originating or terminating on the 

proposed rail line,” id. at *11, known as “downline impacts,” 

see id. at *18–20; J.A. 1230 (defining “downline impacts”). Its 

environmental analysis found that the majority of trains 

originating or terminating on the Railway would travel on the 

Union Pacific Railroad Company (“Union Pacific”) rail line

heading east to Denver, Colorado. See Final Exemption Order, 

2021 WL 5960905, at *20. But the Board determined that it 

need not consider various downline effects—on vehicle safety 

and delay, rail safety, noise and vibration, and air quality and 

greenhouse gases—on the ground that “minimal increases in 

train traffic on existing rail lines over which trains already 

operate are unlikely to cause significant impacts.” Id. at *18. 

The Board also did not disclose other environmental 

effects. It omitted the effects of increased crude oil refining on 
12

Gulf Coast communities in Louisiana and Texas already 

overburdened by pollution from refining. Id. at *19. It omitted 

upline impacts on vegetation or special status species of 

increased drilling in the Uinta Basin. See id. at *15–18. And it 

omitted downline effects of projected increases in spills and 

accidents from additional oil trains traveling the existing Union 

Pacific rail line alongside the Colorado River—including 

effects on water, special status species or habitats, and 

recreation and land use. See id. at *13. Finally, the Board did 

not disclose potential effects of the project on historic sites or 

structures along the Union Pacific line in Eagle County that the 

County’s brief asserted might be eligible for inclusion on the 

National Register of Historic Places. See id. at *21.

Petitioner Eagle County (“County”) filed a petition in our 

Court for review of the Board’s Preliminary Exemption Order 

and Final Exemption Order on February 10, 2022, and the 

Center filed a separate petition for review of the Final 

Exemption Order and the Service’s BiOp on February 11, 

2022. This Court consolidated the two petitions on 

February 11, 2022. 

Petitioners assert violations of several interrelated statutes 

and various procedural requirements enacted to ensure 

agencies consider the possible adverse impacts associated with 

the approval of projects like the Railway. Petitioners both

argue that the Board failed to take a hard look at the Railway’s 

environmental impacts in violation of NEPA. The County 

claims the Board violated the NHPA by failing to consult the 

County on the Railway and to evaluate the impact of the project

on historic properties downline. The Center raises separate 

challenges under the ESA regarding the Board’s reliance on the 

Service’s BiOp, which adopted the proposed action area as 

defined by the Board’s Office of Environmental Analysis, and 

the validity of the BiOp itself. Finally, Petitioners both assert
13

that the Board erred in exempting the Railway from the ICCT 

Act’s full application process.

II.

We begin, as we must, with questions of our jurisdiction. 

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–96 

(1998). We find that Petitioners have demonstrated Article III 

standing for each of the challenges raised and established 

statutory jurisdiction under the Hobbs Act.

A.

“[S]tanding has three parts: injury in fact, causation, and 

redressability.” Util. Workers Union of Am. Loc. 464 v. FERC, 

896 F.3d 573, 577 (D.C. Cir. 2018). “Standing is not dispensed 

in gross,” Davis v. FEC, 554 U.S. 724, 734 (2008) (quoting 

Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)), so Petitioners 

must prove standing “for each claim [they] seek[] to press,” id.

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

(2006)). Petitioners both claim that the Final Exemption Order

violates the ICCT Act and NEPA. The County separately 

argues that the order violates the NHPA, and the Center asserts 

a separate ESA challenge regarding the BiOp. 

Given our “duty to assure ourselves of our jurisdiction,” 

we will begin with the ICCT Act and NEPA claims, which are

raised by both Petitioners, and then address the NHPA claims

as raised by the County before turning to the Center’s ESA 

claim. Kaplan v. Cent. Bank of the Islamic Republic of Iran, 

896 F.3d 501, 509 (D.C. Cir. 2018).

1.

The County alleges a procedural injury—namely, that the 

Board should not have engaged in a two-step approval process, 
14

should have considered additional Rail Policies under the ICCT 

Act and environmental risks under NEPA, and should have 

consulted with the County on potential impacts to downline 

historic properties. Accordingly, the County must demonstrate

that the Board’s decision to disregard these procedural 

requirements “impair[ed] a separate concrete interest of [the 

County].” City of Dania Beach v. FAA, 485 F.3d 1181, 1185 

(D.C. Cir. 2007) (quoting Lujan v. Defs. of Wildlife, 

504 U.S. 555, 572 (1992)).

“The two things are not one and the same. [The County] 

must show both (1) that [its] procedural right has been violated, 

and (2) that the violation of that right has resulted in an 

invasion of [its] concrete and particularized interest.” Ctr. for 

L. & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1159 (D.C. Cir. 

2005) (emphasis in original). “[I]n cases in which a party ‘has 

been accorded a procedural right to protect his concrete 

interests,’ the primary focus of the standing inquiry is not the 

imminence or redressability of the injury to the plaintiff, but 

whether a plaintiff who has suffered personal and 

particularized injury has sued a defendant who has caused that 

injury.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 

(D.C. Cir. 1996) (en banc) (quoting Lujan, 504 U.S. at 572 n.7). 

For purposes of the standing analysis, the Court “must 

assume that [the County] will prevail on the merits of [its] 

claims.” City of Jersey City v. Consol. Rail Corp., 668 F.3d 

741, 744 (D.C. Cir. 2012). The County contends that the Board

departed from its prior precedent and therefore violated the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), in 

granting the Coalition’s request for preliminary exemption 

contingent upon a later determination of the environmental 

impacts of the Railway. See Cnty. Br. 18. It also argues that 

the Board failed to consider “all pertinent Rail Policies” in 

granting the exemption, id. at 19, and “arbitrarily applied” the 
15

Rail Policies it did consider, id. at 24. As to its NEPA 

challenges, the County asserts that the Board failed seriously

to consider numerous adverse effects of the Railway downline, 

including the increased risk of wildfires and impacts on water 

resources and other biological resources due to concededly 

increased rail traffic. The County also states that the Board did 

not consult with it or otherwise consider impacts on historic 

properties downline as required by the NHPA. Taking these 

allegations as fact, the County has demonstrated that the 

Board’s Preliminary and Final Exemption Orders constitute “a 

violation of the procedural requirements” of the ICCT Act, 

NEPA, and NHPA. City of Dania Beach, 485 F.3d at 1185. 

Turning to the second requirement to demonstrate a 

procedural injury, we have previously recognized that 

“financial harm alleged by [a] [t]own and the infringement of 

its property interests” can substantiate standing. City of Bos. 

Delegation v. FERC, 897 F.3d 241, 250 (D.C. Cir. 2018). 

Similarly, the Court has found that a town has a concrete 

interest in avoiding “increased traffic, noise, and disruption of 

businesses” and has held that “the presence of a continuing 

safety hazard caused by the nearby installation of a natural gas 

pipeline can establish an injury in fact.” Id. (quotation marks 

omitted). The County asserts that property in the County could 

be destroyed should the Railway lead to a “wildfire in Eagle 

County due to both an increased number of trains and highly 

flammable cargo.” Shroll Decl. 9 ¶ 22, Cnty. Br. Ex. 1. It also 

notes that “the significant increase in rail traffic caused by the 

Railway” may impact historic sites with adverse “noise, 

vibrations, and visual effects.” Id. at 10 ¶ 23. This is sufficient 

to establish that the Board’s alleged disregard for the relevant 

procedural requirements caused an injury to the County’s 

“concrete and particularized interest[s].” Ctr. for L. & Educ., 

396 F.3d at 1159. 
16

To establish causation, the County must demonstrate “two 

causal links: ‘one connecting the omitted procedural step to 

some substantive government decision that may have been 

wrongly decided because of the lack of that procedural 

requirement and one connecting that substantive decision to the 

plaintiff’s particularized injury.’” Ctr. for Biological Diversity 

v. EPA (“Center I”), 861 F.3d 174, 184 (D.C. Cir. 2017)

(quoting Fla. Audubon Soc’y, 94 F.3d at 668). Regarding the 

first link, the County does not need to show “that but for the 

alleged procedural deficiency the agency would have reached 

a different substantive result,” id., but, instead, “[a]ll that is 

necessary is to show that the procedural step was connected to 

the substantive result.” Id. (quoting Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002)). 

As to the second link, the County need not “establish the merits 

of its case, i.e., that [its injury] has in fact resulted from the 

[Board’s] procedural failures,” but rather the County must 

“demonstrate that there is a ‘substantial probability’” that the 

agency’s action will cause the injury. Id. (quoting Am. 

Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (per 

curiam)). 

The County demonstrates both causal links. The Board’s 

alleged failure to follow the procedural requirements of the 

ICCT Act, NEPA, and NHPA are “plainly ‘connected to’ its”

“substantive government decision” to exempt the Railway. Id.

If we take the County’s allegations as true, the Board granted 

the exemption without considering various environmental 

impacts and effects on historic properties downline and, partly 

as a result of those procedural omissions, the Board failed to 

properly consider the relevant Rail Policies of the ICCT Act. 

Accordingly, the first causal link is established. The County’s 

declaration also explains that the Railway will increase the 

number of trains that travel downline. See Shroll Decl. 7–8,

¶ 19. The County therefore demonstrates the second causal 
17

link, because there is a substantial probability that this 

“significant increase in rail traffic,” id. at 9 ¶ 22, will increase 

the risk of train derailments, oil spills, wildfires, and the related 

adverse effects on resources and historic properties downline. 

The redressability requirement is relaxed for proceduralrights plaintiffs like the County. Center I, 861 F.3d at 185. The 

County must only show that the Board “could reach a different 

conclusion” if it revisited the order, id. (emphasis in original),

and it has met this relatively low burden. Even if there were a 

“serious possibility . . . that the [Final Exemption Order] would 

remain unchanged following” the Board’s revisiting of its 

determination process, “there remains at least the possibility 

that it could reach a different conclusion—say, by modifying 

the [Final Exemption Order].” Id. (quotation marks omitted).

Accordingly, the County has demonstrated standing to 

challenge the Board’s orders under the ICCT Act, NEPA, and 

the NHPA, and so we need not consider the Center’s standing 

to bring those same claims. See Env’t Action v. FERC, 996 

F.2d 401, 406 (D.C. Cir. 1993) (“[O]nce one petitioner has 

demonstrated standing[,] [the Court] may permit the 

participation of others[.]”).

2.

The Center must separately demonstrate that it has 

standing to challenge the BiOp and the Board’s reliance upon 

it. It asserts that it satisfies the test for associational standing, 

which requires the Center to establish that “(1) at least one of 

its members would have standing to sue in his own right; (2) 

the interest it seeks to protect is germane to its purpose; and (3) 

neither the claim asserted nor the relief requested requires the 
18

member to participate in the lawsuit.” Center I, 861 F.3d at

182 (quotation marks omitted).

The Center’s alleged injury arises from the Service’s 

“procedural omissions,” namely “its failure to make an effects 

determination” as to endangered fish in the Colorado River and 

its tributaries whose existence might be jeopardized, or critical 

habitat modified, by the Railway since it is expected to increase 

rail traffic on the river-adjacent Union Pacific Line. Id. at 183. 

As a “procedural-rights plaintiff,” the Center must demonstrate 

“that the failure to make an effects determination . . . affects its 

members’ concrete aesthetic and recreational interests.” Id. 

As the Center provides, one of its members, John 

Weisheit, is an avid rafter of the affected waterways that are 

the “critical habitat for the four Colorado River endangered 

fish” at issue: the Colorado pikeminnow, razorback sucker, 

humpback chub, and bonytail chub. See Addendum to Center

Br. 103. He also notes that he “derive[s] great enjoyment from 

viewing rare species in their natural environment and [is] 

constantly on the lookout for . . . federally listed endangered 

and threatened species.” Id. at 97. Weisheit states that “[i]t 

breaks [his] heart and angers and depresses [him] to see the 

fish” who have died or otherwise been exposed to pollution, 

noting that he “feel[s] spiritual harm when [he] see[s] dead fish 

on the water.” Id. at 108–09. His declaration establishes he 

has a “plan to use the allegedly degraded environmental area in 

question” and that he will suffer “aesthetic injuries” from 

“viewing the despoliation of animals.” Animal Legal Def. 

Fund, Inc. v. Glickman, 154 F.3d 426, 435 (D.C. Cir. 1998) 

(en banc) (quoting Humane Soc’y of the U.S. v. Hodel, 840 F.2d 

45, 52 (D.C. Cir. 1988)). This is sufficient to establish an 

injury-in-fact for standing purposes.
19

The Center also demonstrates the two required causal links 

to establish causation. 

The Center demonstrates the first causal link because “the 

[Service’s] failure to make an effects determination . . . is 

plainly ‘connected to’ its” conclusion in the BiOp, Center I, 

861 F.3d at 184, that the Railway “is not likely to jeopardize 

the continued existence of Colorado River fishes or result in 

destruction or adverse modification of designated critical 

habitat,” J.A. 1696. This “omitted procedural step” is also 

directly connected to the Board’s “substantive government 

decision” to exempt the Railway since its orders relied on the 

BiOp. Center I, 861 F.3d at 184. 

As to the second link, the Center points to both record 

evidence and a supplemental affidavit to show that there is 

“substantial probability” that the Railway will adversely affect 

local conditions and harm its members’ interests. Id. The 

BiOp notes that “[o]peration of the rail line may release 

pollutants that negatively affect ESA-listed plant species,” 

J.A. 1687, which the Center explains “will not suddenly cease 

once oil trains transfer to the national rail network downline of 

the Railway,” Ctr. Reply Br. 20. The Center also references 

the EIS’s explanation that there would be an increased risk of

train accidents in the downline area given the increased traffic, 

with the potential of causing “loaded oil trains derailing” 

resulting in an oil spill “[r]oughly once every four years.” Id.

at 20 (citing J.A. 899, 1201). As the Center provides, these 

leaks could occur on rail lines that parallel “roughly 233 miles” 

of the Colorado River. Id. at 21. 

In Center I, the Court noted that the EPA’s belief that an 

insecticide it authorized would “provide significant benefits to 

growers” “ma[de] it likely—that is, [gave] rise to a substantial 

probability—that the EPA’s registration of the pesticide 
20

[would] in fact create a demonstrable risk to the Center 

members’ interests” since the growers’ crops overlapped with 

the habitat of a protected species. 861 F.3d at 185 (quotation 

marks and citation omitted). Similarly, here, the Board 

believes that the Railway’s “construction and operation” would 

lead to “substantial transportation and economic benefits” 

given opportunities for transporting more oil out of the Basin. 

Final Exemption Order, 2021 WL 5960905, at *23. Under the 

logic of Center I, it follows that there is “substantial 

probability” that endangered fish in the Colorado River parallel 

to the downline rail line would be impacted by the Railway 

given the recognized risk of oil leaks and spills associated with 

the increased operation of trains carrying oil products. This 

would harm the aesthetic interests of the Center’s members and 

is sufficient to demonstrate the second causal link necessary to 

establish causation. 

The relaxed redressability requirement is also met, as the 

Board or Service may modify the Final Exemption Order or 

BiOp, respectively, after revisiting the effects determination. 

Center I, 861 F.3d at 185. Since the Center has established 

standing for at least one of its members, and support for the 

remaining requirements is readily apparent, the Center also has 

standing to challenge the BiOp in this petition. 

B.

The Court has jurisdiction to review final orders of the 

Board “under the Hobbs Act, which allows ‘any party 

aggrieved by a final order’ to, ‘within 60 days after its entry, 

file a petition to review the order in the court of appeals 

wherein venue lies.’” Snohomish Cnty., 954 F.3d at 298 (citing 

28 U.S.C §§ 2321(a), 2342(5), and 2344). The Final 

Exemption Order was issued on December 15, 2021, making 

Petitioners’ February 10, 2022, and February 11, 2022, 
21

petitions for review of that order timely. As discussed above, 

both the Center and the County have standing so they “ha[ve] 

met the statutory requirement of aggrievement,” so the 

remaining question is if they can be considered “part[ies].” 

Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1193 (D.C. Cir. 

1987). 

To achieve party status under the Hobbs Act, one must 

“have participated in the proceeding before the [Board].” Id.

at 1192. “The degree of participation necessary to achieve 

party status varies according to the formality with which the 

proceeding was conducted.” Id. Accordingly, “[w]hen 

intervention in agency adjudication or rulemaking is

prerequisite to participation therein,” only those who sought to 

intervene will have standing under the Hobbs Act. Id. In more 

informal administrative proceedings, “party status has been 

found when the petitioner has made a full presentation of views 

to the agency.” Id. at 1193. For example, in Water Transport 

Association, this Court held that in a proceeding in which the 

agency “did not call for formal intervention” and “instead . . . 

solicited general protests of its [action],” the petitioners’ 

submission of a protest was sufficient to be conferred party 

status. Id. 

Here, the administrative proceedings were informal. 

While the Board did set a deadline for reply comments on the 

exemption petition and requested public comment as part of the 

EIS process, it never required interested parties to intervene in 

the exemption proceedings or take any action of similar 

formality. See J.A. 293, 802. The Center, along with others, 

replied to the exemption petition, actively participated in the 

EIS proceedings, and submitted a petition for rehearing of the 

Final Exemption Order. The County also provided comments 

in the EIS proceedings and submitted a petition for rehearing 

of the Board’s order. The participation of both the County and 
22

the Center was sufficient for each to be considered a party 

under the Hobbs Act. 

The parties agree that the Court also has jurisdiction to 

review the BiOp since it was “incorporated” into, or at least 

relied on in, the Final Exemption Order. Board Br. 1–2 (citing 

City of Tacoma v. FERC (“Tacoma II”), 460 F.3d 53, 76 (D.C. 

Cir. 2006)); see also Opening Br. of Pet’rs Ctr. for Biological 

Diversity, et al. 1–2 [hereinafter “Center Br.”] (citing Tacoma 

II, 460 F.3d at 76). While we have not yet specifically 

addressed whether we may directly review a biological opinion 

prepared during a Surface Transportation Board proceeding, it 

follows from our precedent involving other agencies that we 

have jurisdiction to review a biological opinion where, as here, 

that opinion was prepared during a proceeding over which this 

court has exclusive appellate jurisdiction. See Tacoma II, 460 

F.3d at 76; In re Pub. Emps. for Env’t. Responsibility, 957 F.3d 

267, 272 (D.C. Cir. 2020).

In several cases concerning challenges to licensing orders

by the Federal Energy Regulatory Commission (“FERC”), we 

have found that “when a BiOp is prepared in the course of a 

FERC licensing proceeding, the only means of challenging the 

substantive validity of the BiOp is on review of FERC’s 

decision in the court of appeals.” Tacoma II, 460 F.3d at 76; 

see also Shafer & Freeman Lakes Env’t Conservation Corp. v. 

FERC, 992 F.3d 1071, 1087 (D.C. Cir. 2021); Am. Rivers v. 

FERC, 895 F.3d 32, 45 (D.C. Cir. 2018). This approach stems

from the “well-established” rule that “when two jurisdictional 

statutes draw different routes of appeal” courts “apply only the 

more specific legislation.” Center I, 861 F.3d at 186 (quoting 

Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1089 (9th 

Cir. 2017)). As this Court has recognized, “when jurisdiction 

to review administrative determinations is vested in the courts 

of appeals these specific, exclusive jurisdiction provisions 
23

preempt district court jurisdiction over related issues under 

other statutes.” Media Access Project v. FCC, 883 F.2d 1063, 

1067–68 (D.C. Cir. 1989) (quoting Connors v. Amax Coal Co., 

858 F.2d 1226, 1231 (7th Cir. 1988)). This decreases “[t]he 

likelihood of duplication and inconsistency” that may occur if 

the BiOp was reviewed separately by the District Court while 

the primary agency order was reviewed under the exclusive 

jurisdiction of the appeals court. City of Rochester v. Bond, 

603 F.2d 927, 936 (D.C. Cir. 1979). 

Here, as with our review of FERC’s licensing orders, see 

16 U.S.C. § 825l(b), the Hobbs Act limits review of the Board’s 

exemption orders to the court of appeals, see 28 U.S.C. 

§ 2321(a) (“Except as otherwise provided by an Act of 

Congress, a proceeding to enjoin or suspend, in whole or in 

part, a rule, regulation, or order of the Surface Transportation 

Board shall be brought in the court of appeals[.]”). 

Accordingly, “the specific provisions of the [Hobbs Act] that 

govern review of disputes concerning the [Board’s orders] 

must preempt the general procedures for ESA and APA claims 

brought under general federal question jurisdiction.” City of 

Tacoma v. Nat’l Marine Fisheries Serv. (“Tacoma I”), 383 F. 

Supp. 2d 89, 92 (D.D.C. 2005) (citing Media Access Project, 

883 F.2d at 1067; Cal. Save Our Streams Council, Inc. v. 

Yeutter, 887 F.2d 908, 911 (9th Cir. 1989); City of Rochester, 

603 F.2d at 936). Since the Board relied upon the BiOp in 

making its determination to exempt the Railway, this Court 

“has jurisdiction to review not only the [Board’s] order 

[exempting the Railway], but also the Service’s Biological 

Opinion that was prepared in the course of the [Board’s] 

[exemption] proceeding.” Shafer, 992 F.3d at 1087.
24

III.

We review the orders of the Surface Transportation Board

exempting proposed rail projects from the Board’s full 

application process “under the Administrative Procedure Act, 

examining whether the agency’s action was ‘arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law.’” Snohomish Cnty., 954 F.3d at 301

(quoting 5 U.S.C. § 706(2)(A)). The same standard applies to 

the review of the EIS, the challenges brought under NHPA, and

our review of the BiOp. See United Keetoowah Band of 

Cherokee Indians in Okla. v. FCC, 933 F.3d 728, 738 (D.C. 

Cir. 2019); see also Tacoma II, 460 F.3d at 75–76.

We begin with Petitioners’ challenges to the 

environmental review process and end with the objections to 

the Board’s exemption order itself since the Board relied in 

large part on the review process in making its final 

determination. 

A.

Petitioners raise numerous objections under NEPA 

regarding the Board’s environmental review of the Railway. 

To fulfill their obligations under NEPA, “agencies must take a 

‘hard look’ at the environmental consequences of their actions, 

and provide for broad dissemination of relevant environmental 

information.” Pub. Emps. for Env’t Resp. v. Hopper 

(“PEER”), 827 F.3d 1077, 1082 (D.C. Cir. 2016) (cleaned up)

(quoting Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 350 (1989)). Here, the Board assessed the 

environmental impacts of the Railway under pre-2020 

regulations promulgated by the Council on Environmental 

Quality (“CEQ”), a division within the Executive Office of the 

President that was “established by NEPA with authority to 
25

issue regulations interpreting it.” Dep’t of Transp. v. Pub. 

Citizen, 541 U.S. 752, 757 (2004). 

The CEQ “regulations require an agency to evaluate 

cumulative impacts along with the direct and indirect impacts 

of a proposed action.” TOMAC, Taxpayers of Mich. Against 

Casinos v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006)

(quotation marks omitted). Cumulative impacts are “the 

impact[s] on the environment which result[] from the 

incremental impact of the action when added to other past, 

present, and reasonably foreseeable future actions regardless of 

what agency (Federal or non-Federal) or person undertakes 

such other actions.” 40 C.F.R. § 1508.7 (2019). Indirect 

impacts “are caused by the action and are later in time or farther 

removed in distance, but are still reasonably foreseeable.” Id.

§ 1508.8(b) (2019). Direct impacts “are caused by the action 

and occur at the same time and place.” Id. § 1508.8(a).

While we disagree with many of Petitioners’ objections, 

we ultimately find that the EIS failed to demonstrate that the 

Board took the requisite “hard look” at all of the environmental 

impacts of the Railway. With this background, we address 

each of Petitioners’ NEPA challenges in turn. 

1.

Many of Petitioners’ arguments challenge the Board’s 

cumulative impacts analysis. For that analysis, the “OEA 

identified 27 relevant projects” that it “conclude[d] . . . in 

combination with the impacts of construction and operation of 

the [Railway] could result in cumulative adverse impacts on 

water resources, biological resources, paleontological 

resources, land use and recreation, visual resources, and 

socioeconomics.” Final Exemption Order, 2021 WL 5960905,

at *15. Separate from those 27 projects, “OEA’s cumulative 

impacts assessment also include[d] an analysis of potential 
26

future oil and gas development in the Basin and the potential 

future construction and operation of new rail terminal facilities 

near Myton and Leland Bench, Utah,” id. at *16, including the 

effects that oil production in the Basin could have on road 

traffic and vehicle safety, air quality near oil-producing wells, 

greenhouse gas emissions from the eventual combustion of 

crude oil transported on the Railway, and long-term 

employment and commercial activity, id. at *16–18.

The Board concluded that increased oil drilling in the 

Basin and the construction of new railway terminals could 

worsen local roadway congestion but would not meaningfully 

increase the risk of traffic accidents. Id. It disclosed the 

potential for air pollutant emissions from the construction, 

operation, and maintenance of oil wells in the Basin to affect 

local air quality. Id. Under the heading of cumulative impacts, 

the Board also discussed the “[d]ownstream end use emissions 

associated with the combustion of the crude oil that could be 

transported on the Line” and the potential for Uinta Basin oil 

production “to generate long-term employment, labor income, 

and spending on goods and services in the cumulative impacts 

study area.” Id. at *17. 

i.

Petitioners’ first argument is unpersuasive. While the 

Center concedes that the Final EIS “acknowledged that 

increased oil production in the Basin . . . could have profound 

consequences for the Basin’s environment (upstream) and 

climate change (downstream),” Center Br. 19, it argues that the 

Board mischaracterized these effects “as ‘cumulative effects’ 

that would occur independent of the Railway’s construction 

and/or operational impacts, instead of as ‘indirect effects’ 

caused by the construction and operation of the railroad,” id. at

20 (emphasis omitted). 
27

The Center explains, for example, that the Final EIS 

attributes an additional “131,169 tons per year” in greenhouse 

gas emissions to the Railway. Id. at 21. However, the Center 

claims that total number would have been closer to 

“56,078,436 tons annually [or] 427 times the amount the Board 

attributed to the Railway” if it had included “emissions 

generated from oil and gas operations and from combustion of 

the oil transported by the Railway, plus operations along the 

downline route between the Railway’s Kyune terminal and 

Denver.” Id. at 21–22 (internal citations and emphasis 

omitted). The Center describes this “mischaracterization” as 

“minimizing” the Railway’s consequences in contravention of 

NEPA’s hard look requirement as well as “skewing the 

weighing of environmental costs and projects benefits” the 

Board must undertake under the ICCT Act. Id. at 23. 

The Center’s argument is unavailing because it fails to 

demonstrate prejudice from the alleged mischaracterization. 

See Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 

2006). Even if the Board erroneously characterized the impacts 

related to increased oil production as cumulative impacts, 

Petitioners identify no way in which this decision materially 

affected the Board’s analysis under NEPA. The Center fails to 

highlight any actual omission in the Board’s emissions 

analysis. In its final order, the Board acknowledged the impact 

of increased oil extraction in the Basin and explained “[t]he 

impacts and the analysis of those impacts would be the same 

no matter which label is used.” Final Exemption Order, 2021 

WL 5960905, at *18 & n.15. The Center fails to show any

indication in the final order or the administrative record that the 

Board did not consider these impacts in its analysis. Further, 

the Final EIS quantified potential carbon emissions from 

downstream refining of Uinta Basin oil and concluded that 

emissions associated with the combustion of fuels produced 

from crude oil transported on the Railway could constitute 
28

nearly one percent of total U.S. emissions under its “high oil 

production scenario.” J.A. 1139. 

Such disclosures, even if under the rubric of “cumulative 

impacts,” can hardly be said “to undermine informed public 

comment and informed decisionmaking.” Sierra Club v. FERC

(Sabal Trail), 867 F.3d 1357, 1368 (D.C. Cir. 2017). 

ii.

Next, the Center contends that the Final EIS ignored 

certain upstream and downstream impacts of the Railway. We 

agree.

The Center notes that the Final EIS “failed to disclose the 

downstream environmental impacts of increased crude oil 

refining along the Gulf Coast.” Center Br. 24. The Center

explains that the Final EIS predicted “half the oil production 

increase—up to 175,000 barrels/day—would be delivered to 

Houston and/or Port Arthur, Texas, and another 35 percent to 

the Louisiana Gulf Coast.” Id. (citing J.A. 1231). Accordingly, 

the Center provides, “the EIS was required to analyze the 

potential for tens of thousands of additional barrels of oil 

shipments daily and their processing in these locales to further 

worsen pollution burdens,” locales with known, 

disproportionate exposure to pollution already. Id. at 25–26. 

Further, the Center argues that the Board arbitrarily limited its 

cumulative impact analysis regarding effects on vegetation and 

“special-status species” to the area adjacent to the proposed rail 

line and “within several hundred feet of the rail line.” J.A. 

1126–27. The Center contends this geographic limitation 

resulted in the exclusion of impacts on “a vast area in which 

well and road construction, drilling, and truck traffic could 

destroy and degrade habitat.” Center Br. 27.
29

In response, the Board makes two primary arguments.

First, the Board argues that “upstream and downstream impacts 

from oil development in the Uinta Basin are not reasonably 

foreseeable impacts.” Board Br. 35 (cleaned up). Second, it 

contends that it was not required to consider the environmental 

effects of downline oil refining on Gulf Coast communities or 

on greenhouse gases from oil combustion because the Board 

“cannot regulate or mitigate impacts caused by [downline train] 

operations.” Final Exemption Order, 2021 WL 5960905, at 

*19.

As to upstream impacts, the Board claims that “any oil 

development in the Uinta Basin occurring as a result of the 

[Railway] will be done in the future as part of as yet unknown 

and unplanned independent projects that would occur on as yet 

unidentified private, state, tribal, or federal land.” Board Br.

35–36. In addition, any development would be undertaken “by 

as yet unknown entities and licensed or permitted by other 

federal agencies, state and local governments, or the Ute Tribe, 

depending on the location of the development.” Id. at 36. The 

Board asserts that estimates provided by the Coalition on 

“upstream wells based on estimates of the amount of oil 

anticipated to be transported on the [Railway]” are merely 

estimates and otherwise the actual numbers are “simply 

unknown and unknowable.” Id. at 36. 

For downstream emissions, the Board explains that the 

“destinations and combustion of Uinta Basin oil is unknown 

and unknowable at this stage” since it will depend on many 

factors such as “oil developers, market forces, refinery 

capacity, [etc.]” Id. at 37. While the Board concedes that it 

“identified five general geographic regions where the oil could 

go to be refined,” it claims that it is impossible to predict which 

of the known “31 refineries” in those areas “would receive 

Uinta Basin oil.” Id. at 37–38. Accordingly, the Board 
30

contends “there is no way to predict or assess impacts to 

specific nearby communities from refining that oil.” Id. at 38. 

In effect, the Board justifies “declining to consider 

greenhouse-gas emissions and other environmental impacts” 

related to oil development both upstream and downstream 

“based on its lack of information about the” location of future 

oil production sites in the Uinta Basin and the “destination and 

end use of the [oil] in question.” Birckhead v. FERC, 925 F.3d 

510, 519 (D.C. Cir. 2019) (per curiam). 

We have previously considered when an agency may draw 

the line and find that it cannot engage in reasonable forecasting 

to determine certain environmental effects. We explained in 

Birckhead v. FERC, that impacts from upstream gas production

and “downstream gas combustion are” not always as a 

categorical matter a reasonably foreseeable effect of a project 

that will facilitate the transport of gas. Id. The analysis is 

necessarily contextual. “In determining what effects are 

‘reasonably foreseeable,’ an agency must engage in 

‘reasonable forecasting and speculation,’ with reasonable

being the operative word.” Sierra Club v. Dep’t of Energy

(Freeport), 867 F.3d 189, 198 (D.C. Cir. 2017) (citation 

omitted). “The agency ‘need not foresee the unforeseeable, but 

by the same token neither can it avoid drafting an impact 

statement,’” or including relevant effects in such statement, 

“‘simply because describing the environmental effects of and 

alternatives to particular agency action involves some degree 

of forecasting.’” Id. (quoting Scientists’ Inst. for Pub. Info., 

Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 

1973)).

The Center primarily points to Sabal Trail, in which FERC 

argued that “it [was] impossible to know exactly what quantity 

of greenhouse gases [would] be emitted as a result of [a gas 
31

pipeline project] being approved” as part of its effects analysis. 

867 F.3d at 1373–74. We rejected that argument because the 

pipeline developers in that case had identified the specific 

power plants in Florida that would be the recipients of the gas, 

see id. at 1372, and “FERC ha[d] already estimated how much 

gas the pipelines [would] transport,” id. at 1374. Accordingly, 

the Court found that the related EIS “should have either given 

a quantitative estimate of the downstream greenhouse 

emissions that [would] result from burning the natural gas that 

the pipelines [would] transport or explained more specifically 

why it could not have done so.” Id. 

The Board, on the other hand, highlights Delaware 

Riverkeeper Network, in which the Court cited Sabal Trail as 

support for its holding that “[g]reenhouse gas emissions are 

reasonably foreseeable effects of a pipeline project when the 

project is known to transport natural gas to particular power 

plants.” Del. Riverkeeper Network v. FERC, 45 F.4th 104, 109 

(D.C. Cir. 2022). In Delaware Riverkeeper Network, however, 

the Court found that the agency did not have to estimate certain 

downstream greenhouse gas emission because, as FERC 

reasoned, “natural gas would be delivered for further 

transportation on the interstate grid to an unknown destination 

and for an unknown end use.” Id. at 110. 

Neither Sabal Trail nor Delaware Riverkeeper Network

are perfectly analogous, but the Final EIS’s analysis makes this 

case more akin to Sabal Trail. In the Final EIS, the OEA 

developed different scenarios for the expected increase in rail 

traffic on the Railway and resulting increase in oil production. 

See J.A. 1106–07. As part of its cumulative impact analysis, 

the “OEA estimated the number of oil wells that would need to 

be constructed and operated [in the Basin] to satisfy the 

expected increased oil production volume scenarios.” Id. at 

1107. The EIS described its “estimates of future oil 
32

production” as “a reasonably foreseeable development 

scenario based on historical data about the Basin and 

consultation with [the Utah Geological Survey].” Id. at 1109. 

While the Board lacks “direct parameters” about the oil wells 

that would need to be drilled, this Court has found that “some 

educated assumptions are inevitable in the NEPA process.” 

Sabal Trail, 867 F.3d at 1374. 

The Board provides no reason why it could not quantify 

the environmental impacts of the wells it reasonably expects in 

this already identified region. Further, the Board’s cursory 

assertion that it could confine the upstream impacts of oil 

development on vegetation and wildlife to areas where oil 

development and railroad construction would overlap lacks any 

reasoned explanation and is unsupported in the record. See J.A. 

1123. At a minimum, the Board “must either quantify and 

consider the project’s [upstream impacts] or explain in more 

detail why it cannot do so.” Sabal Trail, 867 F.3d at 1375. 

Similarly, while the Board argues it cannot identify 

specific refineries that will receive and process the oil that it 

expects will be developed, the EIS identifies specific regions 

that will receive the oil based on expected train traffic, see J.A. 

1191–92, and a limited number of refineries in those regions 

that would have the available capacity to process and refine the 

Uinta Basin’s waxy crude oil, id. at 1189. The Board fails to 

explain why it cannot take the next step and estimate the 

emissions or other environmental impacts it expects in its 

impacts analysis since it has “identif[ied] where the [Railwayinduced] [oil and] gas production [is expected to] occur.” 

Freeport, 867 F.3d at 201 (emphasis in original). This is not a 

case in which the location of where the oil will be delivered or 

its end use is unknown, as in Delaware Riverkeeper Network. 

Indeed, the Board has identified the refineries that likely would

be the recipients of the oil resulting from the Railway’s 
33

operation, see J.A. 1189, and explained that the oil will be 

refined for combustion, see id. at 1138. 

While great “deference [is] owed to [the Board’s]

technical judgments,” it still must provide a reasoned 

explanation for its rulings. Del. Riverkeeper Network, 45 F.4th 

at 111. The Board fails to adequately explain why it could not 

employ “some degree of forecasting” to identify the 

aforementioned upstream and downstream impacts in light of 

the Board’s extensive analysis and estimations related to 

increased oil production. Scientists’ Inst., 481 F.2d at 1092.

1

 

1 After the hearing on these petitions, the Coalition brought to our 

attention a recent case of our Court that it urges us to find supports

its position that downstream impacts on the Gulf Coast were not 

reasonably foreseeable, Center for Biological Diversity v. FERC, 67 

F.4th 1176 (D.C. Cir. 2023). However, this recent case adds nothing 

new to our analysis. There, the petitioners argued that FERC was 

required “to consider the indirect effects of Alaska-bound gas,” id. at 

1185–86, given its acknowledgement that the corporation requesting 

authorization to build the proposed liquefied natural gas facility 

“plan[ned] to install at least three taps along the Project’s pipeline 

and to divert some natural gas for sale and use in Alaska,” id. at 

1185. However, the Court noted numerous uncertainties made any 

related emissions not reasonably foreseeable, specifically that “the 

Corporation would have to contract with prospective customers and 

secure regulatory approval from Alaska, and various subsidiary 

pipelines (none of which had been proposed) would have to be built.” 

Id. In this case, there are no such uncertainties. The Board made 

clear that it expected a certain amount of oil to be transported to 

specific regions with a limited set of refineries. See J.A. 1189. The

Board expects the crude oil would then be refined for combustion. 

See id. at 1189, 1139. This recent case merely reiterates this Court’s 

precedent that “indirect emissions are not reasonably foreseeable if 

the Commission cannot identify the end users of the gas,” but that is 

not what we have here. Ctr. for Biological Diversity, 67 F.4th at 
34

The Board, like any agency, is not allowed “to shirk [its] 

responsibilities under NEPA by labeling” these reasonably 

foreseeable upstream and downstream “environmental effects 

as ‘crystal ball inquiry.’” Id. (quoting Nat. Res. Def. Council, 

Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972)).

The Board also cannot avoid its responsibility under 

NEPA to identify and describe the environmental effects of 

increased oil drilling and refining on the ground that it lacks 

authority to prevent, control, or mitigate those developments. 

See Final Exemption Order, 2021 WL 5960905, at *19 (Board 

order citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 

768-770 (2004)). 

The undisputed purpose of the railway is to expand oil 

production in the Uinta Basin, by enabling it to be brought to 

market via the proposed rail line connecting the Basin to 

existing lines that run to Gulf Coast refineries. The Board 

concededly has exclusive jurisdiction over the construction and 

operation of the railway, including authority to deny the 

exemption petition if the environmental harm caused by the 

railway outweighs its transportation benefits. See 49 U.S.C. §§ 

10501(c), 10901(b); Alaska R.R.—Constr. & Operation 

Exemption—Rail Line Between Eielson Air Force Base & Fort 

Greely, Alaska (Alaska Railroad), S.T.B. Fin. Docket 34658, 

2007 WL 2875687, at *1 (STB served Oct. 4, 2007). The 

Board is authorized to license railroad construction and 

operation based on the “public convenience and necessity,” 

which encompasses reasonably foreseeable environmental 

harms. Sabal Trail, 867 F.3d at 1373. And, given that the 

Board has authority to deny an exemption to a railway project 

on the ground that the railway’s anticipated environmental and 

1185 (citing Del. Riverkeeper Network v. FERC, 45 F.4th 104, 110 

(D.C. Cir. 2022)). 
35

other costs outweigh its expected benefits, the Board’s 

argument that it need not consider effects it cannot prevent is 

simply inapplicable. See id. 

Just as was the case with the gas pipeline at issue in 

Birkhead v. FERC, the agency is “not excused” from 

considering the environmental impacts of a railway it approves 

“even where it lacks jurisdiction over the producer or 

distributor of the [oil] transported by” that railway. 925 F.3d 

at 519 (quotation marks omitted).

iii.

The County contends the Board failed to consider the 

cumulative impacts associated with the reactivation of the 

Tennessee Pass Line and the Railway. Cnty. Br. 37. As noted 

above, agencies “need not foresee the unforeseeable.” 

Freeport, 867 F.3d at 198 (quoting Scientists’ Inst., 481 F.2d 

at 1092). Here, the reactivation of the Tennessee Pass Line was

much too unlikely for the Board to have included among the 

potential impacts it considered. 

The Tennessee Pass Line is an approximately 163-mile 

railway running between Sage and Parkdale, Colorado that 

“has been out of service for many years.” J.A. 1241. The 

County argues that the “reactivation of the Tennessee Pass Line 

is reasonably foreseeable” since “reactivation of the 

[Tennessee Pass] Line has been sought in two separate Board 

proceedings.” Cnty. Br. 37 (citing J.A. 550–51). It notes that 

the Tennessee Pass Line and Union Pacific Line “converge in 

Eagle County near Dotsero and the Colorado River,” which—

assuming reactivation of the Tennessee Pass Line and 

increased rail traffic on the Union Pacific Line—“would 

present environmental impacts to the same area of Eagle 

County that would experience the Railway’s rail traffic.” Id. at 

38. The County concedes that “the Board rejected requests to 
36

consider the impact of the Railway’s oil trains using the 

Tennessee Pass Line as a reasonably foreseeable impact of the 

Railway,” but argues that the Board’s determination did not 

excuse it from “tak[ing] a hard look at the cumulative effect of 

the significant increase in traffic on the Union Pacific Line and 

a reactivated Tennessee Pass Line.” Id. (emphasis in original).

The Board explains that “neither reactivation nor use of 

the Tennessee Pass Line for trains transporting Uinta Basin oil 

is reasonably foreseeable.” Board Br. 55. It notes that since it 

denied a 2020 request to lease and operate the line, there have 

been “no pending or reasonably foreseeable requests to 

reactivate the Tennessee Pass Line.” Id. Further, it points to 

its “rail traffic model” and provides that it did not forecast any 

trains travelling over the Tennessee Pass Line, especially since 

the line has higher grades—meaning “train[s] would have to 

use more locomotives and consume more fuel to use that route 

compared to the [Union Pacific] mainline,” J.A. 1241—which

the OEA found “make[s] [the Tennessee Pass Line] an 

impractical and unlikely route for Uinta Basin trains.” Board 

Br. 56. Finally, the Board noted that the Coalition “submitted 

a verified statement explaining that the planned operators of the 

[Railway] have no plans to transport Uinta Basin oil on the 

Tennessee Pass Line and that it would not be practical or 

economical to do so.” Id.

Given the information available to the Board, it properly 

found it was not reasonably foreseeable that the Tennessee Pass 

Line would be reactivated. Such “baseless speculation is 

unhelpful,” and the Board had no obligation to consider the 

cumulative impacts of such a remote possibility. Freeport, 867 

F.3d at 198. 
37

2.

Petitioners’ next set of NEPA challenges concern the 

Board’s assessment of “indirect or down-line impacts” of the 

Railway. 49 C.F.R. § 1105.7. In this context, “[d]ownline 

impacts are impacts that could occur along existing rail lines as 

a result of increased rail traffic due to the addition of new trains 

originating or terminating on the proposed rail line.” J.A. 1230. 

Using thresholds outlined in the Board’s regulations, the Final 

EIS “identified existing rail lines that could experience an 

increase in rail traffic of three trains per day or more for areas 

in nonattainment under the Clean Air Act or eight trains per 

day or more in attainment areas.” Id. at 1231 (citing 49 C.F.R. 

§ 1105.7(e)(5)). The Final EIS discussed what impact the 

Railway could have downline on, among other things, rail 

accident risk, wildfire risk, water and biological resources, and 

land use and recreation. 

Again, we find Petitioners’ various objections successful 

in part. 

i. 

Petitioners contend that the Board failed to take a “hard 

look” at the increased risk of rail accidents downline given the 

increased rail traffic resulting from the Railway. This first 

argument is persuasive. 

The Final EIS determined that the new Railway would lead 

to increased downline rail traffic, ranging from 0.4 to 9.5 trains 

per day. J.A. 888. This increase “would have the greatest 

impact on the segment of the existing [Union Pacific Line] 

between Kyune and Denver,” id. at 899, which could 

experience between 3.3 and 9.5 additional trains per day, see 

id. at 886. Using national data for train accident rates, see id.

at 1197, the Final EIS modeled two scenarios, one with high 
38

rail traffic and one with low traffic for both loaded and 

unloaded trains, id. at 899–90. The OEA found that the Union 

Pacific line segment “would experience more than two times 

the risk of an accident than under baseline (existing) 

conditions” and an increase of “about 40 percent from the 

baseline risk” in the low rail traffic scenario. Id. at 899. 

Numerically, this comes out to 0.89 additional predicted 

accidents per year in the high rail traffic scenario and 0.31 

additional accidents annually in the low scenario. Id. 

The Final EIS noted that the Union Pacific Line segment 

“currently has a low volume of rail traffic relative to the 

predicted traffic” on the Railway, which contributes to the 

magnitude of difference in accident risk under the status quo.

Id. The OEA also explained that an accident would not always 

involve a loaded crude oil train. See id. at 897–98. On the 

Railway, OEA estimated that “an accident involving a loaded 

oil train would occur approximately once every 3 to 10 years.” 

Id. at 897. On the Union Pacific Line segment, the OEA 

predicted that “accidents involving a loaded crude oil train 

would occur slightly less than once per year under the high rail 

traffic scenario.” Id. at 900. 

The County challenges the Board’s use of national data for 

train accident rates. It contends the Board ignored record 

evidence undermining its assumption “that the likelihood of 

derailment for long trains carrying oil through the Mountain 

West would be the same as any other train in any other locale 

in America.” Cnty. Br. 39. The County also asserts that the 

Board arbitrarily assumed “that accident rates for loaded trains 

would be the same as those for empty trains.” Id. (citing J.A. 

898) (emphasis omitted). While the County recognizes that the 

Board acknowledged there was limited data on accident rates 

for this geographic area, it argues that NEPA regulations, see 

40 C.F.R. § 1502.22 (2019), required the Board to explain 
39

“why the information was unavailable and what actions the 

agency took to address that unavailability.” Cnty. Br. 41 

(quoting Oglala, 45 F.4th at 300).

“The regulation appears applicable on its face.” Vecinos 

para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 

1321, 1329 (D.C. Cir. 2021). In response to a comment 

asserting that the Draft EIS “fail[ed] to consider the unique 

derailment risks posed by heavy, long unit trains that would 

exclusively transport crude oil,” OEA responded that 

“insufficient data exist on accident rates for unit trains carrying 

crude oil in general, or trains carrying waxy crude oil in 

particular, to allow OEA to calculate commodity-specific 

accident rates.” J.A. 1245. Accordingly, under the CEQ 

regulations, the Board could only “satisfy NEPA by explaining 

in the EIS why the information was unavailable and what 

actions the agency took to address that unavailability.” Oglala, 

45 F.4th at 300 (citing 40 C.F.R. § 1502.22(b) (2020)). 

Here, the Board does not contend that it followed the 

regulations with regards to its accident data. Instead, it 

concededly relied on national freight train accident rates 

without explanation and assumed that loaded freight trains 

were as likely to derail as unloaded trains. See J.A. 900, 

1197–98. Further, the County identifies specific record 

evidence noting that there is increased risk from loaded, mileslong oil trains traveling through difficult mountainous terrain, 

see Cnty. Br. 39 (citing J.A. 618), evidence the OEA 

effectively ignored in the Final EIS. “Because the [Board] 

failed to respond to significant opposing viewpoints 

concerning the adequacy of its analyses of [rail accidents], [the 

Court] [must] find its analyses deficient under NEPA and the 

APA.” Vecinos, 6 F.4th at 1329.
40

ii.

The County also contends the Board violated NEPA by 

“fail[ing] to take a hard look at the risk and impact of wildfires 

presented by the Railway” given the expected increased traffic 

on the Union Pacific Line. Cnty. Br. 33. We agree.

After receiving comments on the Draft EIS, “OEA 

considered impacts from rail operations along existing rail line 

segments downline . . . including impacts related to wildfires.” 

J.A. 992. It found that “the downline wildfire impact of the 

proposed rail line would not be significant” for three reasons. 

Id. First, the OEA noted that the “construction and operation 

of the [Railway] would not introduce a new ignition source for 

wildfires along the downline segments” since the rail lines are 

“active rail lines that have been in operation for many years.” 

Id. Second, the OEA explained that “the probability that a train 

would trigger a wildfire is very low.” Id. The OEA provides 

that, among other things, “improvements in locomotive 

technology and the fact that trains make up a small percentage 

of fire starts” results in a low “probability of train-induced 

wildfire.” Id. at 991. Finally, the OEA references the U.S. 

Forest Service’s Wildfire Hazard Potential map, which was 

“created . . . to help inform evaluations of wildfire risk or 

prioritization of fuel-management needs across very large 

landscapes.” Id. at 965. “The [Wildfire Hazard Potential] map 

displays those areas within the continental United States that 

have very different levels of fire potential, categorized by five 

[Wildfire Hazard Potential] classes (very low, low, moderate, 

high, and very high) and two non-[Wildfire Hazard Potential] 

classes (non-burnable and water).” Id. The Final EIS provides

that the Wildfire Hazard Potential map demonstrates that 

“nearly 90 percent of the area along the downline segments 

consists of very low, low, nonburnable, and water [Wildfire 

Hazard Potential] classes.” Id. at 992. Accordingly, the OEA 
41

explained, the Railway would not result in significant increased 

risk of wildfires downline. See id.

The County derides the Board’s “conclusion that wildfire 

risks posed by the Railway would be low” because the 

increased train traffic would not be a “new ignition source” in 

the downline area, arguing that “[m]ore trains mean more 

ignition sources.” Cnty. Br. 34. The County points to record 

evidence and “substantial concerns . . . submitted to the Board 

regarding the elevated risk of wildfire posed by the increase in 

rail traffic and accidents through the Colorado mountains 

carrying the highly flammable crude oil.” Id. (citing J.A. 761–

65). The County also faults the Board’s reliance on the 

Wildfire Hazard Potential map. It claims that “the Forest 

Service cautioned that its [Wildfire Hazard Potential] map is 

‘not an explicit map of wildfire threat or risk’” and that its 

primary purpose was “not to determine wildfire impacts.” Id.

at 36 (quoting U.S. Dep’t of Agric., Forest Serv., Wildfire 

Hazard Potential for the United States, MISSOULA FIRE SCIS.

LAB’Y (2020), https://perma.cc/DV59-XFC8). In the 

alternative, the County states that the Board’s reliance on the 

map cannot excuse it failing to “evaluate the approximately 

4,000 acres of high to very high Wildfire Hazard Potential

classes along the Union Pacific Line or the increased risk of 

wildfire posed by the rail traffic and accidents on the [Union 

Pacific] Line.” Id.

The County does not refute that it failed to raise its 

objections to the Board’s reliance on the Wildfire Hazard 

Potential map during the administrative proceedings. 

Accordingly, “it has waived the argument by failing to raise it 

at the administrative level.” Nevada, 457 F.3d at 88. Its 

remaining arguments, however, are persuasive. 
42

While we recognize that the Board relied on additional 

factors in analyzing downline wildfire risks—such as 

technological improvements in the rail industry and historic 

data on train-induced wildfires—its assertion that an increase 

in rail traffic of up to 9.5 new trains a day would not result in a 

significant wildfire risk because it would not be a qualitatively 

“new ignition source” is utterly unreasoned. J.A. 992. A 

significant increase in the frequency of which existing ignition 

sources travel this route equally poses an increased risk of fire. 

It follows that the historic data relied upon purportedly

showing that train-induced wildfire has a low probability is not 

dispositive, especially given the concededly “low volume of 

rail traffic” on the Union Pacific Line currently. Id. at 899. 

Further, because the Board appears to have underestimated the 

accident risk for downline trains as noted in the prior section, 

it necessarily underestimated the wildfire risk from downline 

derailments. 

This is not the “hard look” that NEPA requires. PEER, 

827 F.3d at 1082. 

iii.

Next, the County urges that the EIS failed to evaluate 

certain adverse impacts on downline resources, including on: 

(1) “water resources” especially since the “sensitive” Colorado 

River parallels the Union Pacific Line; (2) “biological 

resources . . . including impacts to wildlife, endangered species, 

habitat degradation, and the impact of more trains on species’ 

survival”; (3) “land use and recreation . . . which includes 

hundreds of thousands of acres of public lands, national forests, 

recreational areas, and mountain communities in Eagle 

County”; and (4) “noise and vibrations on the [Union Pacific]

Line.” Cnty. Br. 31–33. 
43

The County acknowledges that the Board responded in the 

Final Exemption Order and EIS to comments challenging the 

EIS’s impact on biological resources on the Union Pacific Line. 

Id. at 31–32 (“[T]he Final EIS . . . ‘considered impacts of rail 

operations along existing rail line segments downline’ on 

‘some biological resources, including impacts on ESA-listed 

species’ and determined that ‘the addition of up to 9.5 trains 

per day, on average, would not substantially change the 

severity of those impacts.’”) (quoting J.A. 995–96). The 

County also concedes that “the Board purported to evaluate 

noise and vibrations” on the Union Pacific Line, Cnty. Br. 33, 

but claims that the Board’s analysis was inadequate since it 

merely “identif[ied] how loud trains would be or the amount of 

land negatively impacted by the trains’ noise and vibrations.” 

Id. The County contends that the Board “was required to 

describe the ‘actual environmental effects’ of the Railway on 

the environment, historic properties, and communities along 

the Union Pacific Line.” Id. (emphasis omitted) (quoting Ctr. 

For Biological Diversity v. Nat’l Highway Traffic Safety 

Admin., 538 F.3d 1172, 1216 (9th Cir. 2008)).

Despite its assurance that the EIS’s analysis of impacts on 

water resources considered the impacts on the Colorado River, 

the Board offers no citations that explicitly reference possible 

impacts to the relevant downline water resources or explains 

why, as it says, “the impacts are the same and apply to both.” 

Board Br. 52. Merely “[s]tating that a factor was considered 

. . . is not a substitute for considering it,” Getty v. Fed. Sav. & 

Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986), and 

there is no evidence here that the Board even considered the 

potential impacts on water resources downline of running up to 

9.5 loaded oil trains a day on the Union Pacific Line—about 

50% of which abuts the Colorado River, see Ctr. Reply Br. 21. 

The Board concededly fails altogether to mention the Colorado 

River in the Final EIS’s discussion of impacts on water 
44

resources. See Board Br. 51–52 (“The EIS analyzed the 

impacts of a spill and other releases on all water resources and, 

while it did not explicitly say so, that analysis applied equally 

to water resources adjacent to the [Railway] as well as 

operations in the downline study area. . . .”) (emphasis added). 

This was not a “hard look” under NEPA.

We cannot reach the merits of the County’s other 

arguments concerning downline impacts on biological 

resources, land use and recreation, and noise-related 

disturbance, because it failed to raise them before the Board. 

Longstanding precedent mandates that “persons challenging an 

agency’s compliance with NEPA must structure their 

participation so that it . . . alerts the agency to the parties’ 

position and contentions, in order to allow the agency to give 

the issue meaningful consideration.” Nevada, 457 F.3d at 88 

(cleaned up). While the County claims that “hundreds of 

comments” put the Board on notice of its positions, see County 

Reply Br. 7, 8, the record citations it provides are vague and 

“bare” references that “d[o] not touch on what [the County] 

argues here,” Nevada, 457 F.3d at 88–89. 

The County cites, for example, a letter from a nonprofit 

river conservation organization, noting that its comments were 

specifically provided to address “the direct impacts to river 

recreation in the Uinta Basin and to the reasonably foreseeable 

impacts associated with potential crude oil transport over the 

Tennessee Pass Line in Colorado.” J.A. 597. Notably, while 

this letter does request that the Board assess certain recreation 

concerns in the Uinta Basin, it does not make the same request 

for downline resources. Further, the letter discusses the 

reactivation of the Tennessee Pass Line, which we have already 

found was not reasonably foreseeable. The County also cites

one vague comment, which asserted that “the small 

communities of Colorado are too often the ones to pay the price 
45

for external business ventures such as the [Railway].” Id. at

546. 

These comments in no way alert the Board to the County’s 

specific challenges relating to downline impacts on biological 

resources, land use and recreation, or even impacts related to 

increased noise. The Board did not act arbitrarily in declining 

to address these “cryptic and obscure reference[s]” in the Final 

EIS. Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. 

Council, Inc., 435 U.S. 519, 554 (1978). 

3.

Finally, the Center argues that the Board’s direct effects 

analysis failed to take a hard look at the geological risk of 

landslides attributable to the Railway. Ultimately, this 

argument is unpersuasive. 

As part of its analysis of direct impacts, the Board 

“determine[d] the potential impacts related to geology, soils, 

and seismic hazards that could result from construction and 

operation” of the three Action Alternatives. J.A. 1014. The 

OEA conducted a baseline analysis of the “geological and 

seismic characteristics of the study area” and then identified 

“unstable geologic units for each alternative and the correlating 

risk of mass movement.” Board Br. 63.

The analysis was based on, among other things, “maps of 

unstable geological units[,] maps of areas with steep slopes 

which present higher landslide risk,” and maps depicting

landslide risks. Id. at 66. The Board concedes that the 

landslide maps it employed were “incomplete and likely 

understated the areas affected by mass movement and that there 

could be unmapped abandoned mines,” as acknowledged in the 

Final EIS. Id. at 65. Regardless, the Board recognized that all 

three Action Alternatives posed an increased risk of landslides 
46

based on the data it had available but found that mitigation 

measures could be imposed such that “the impacts would not 

be significant.” Id. at 63 (citing J.A. 1031).

The Center’s primary objection is a simple one: the 

“landslide hazards throughout the bulk of the study area are 

unknown.” Center Br. 35 (citing J.A. 1019–20). In addition, 

the Center objects to the Board’s reliance on mitigation 

measures that include “post-approval surveys” to be conducted 

by the Coalition after the Railway is approved. Id. at 35–36 

(citing J.A. 1024). The Center complains that the Board cannot 

assume insignificant impact when “the EIS neither identified 

nor analyzed site-specific hazards [such that] the nature and 

extent of the problem are unknown.” Id. at 37–38. Without a 

more fulsome understanding of the landslide risk across the 

three Action Alternatives, the Center asserts, the Board could 

not say it took a “hard look” at which of the alternatives had 

the least risk of landslide hazards. Moreover, it could not pawn 

off its NEPA responsibilities to take a hard look at potential 

landslide risk to the Coalition, who the Board assumes will 

conduct the necessary geological surveys once construction 

begins. 

As in its analysis of accident risk, the Board lacked data 

regarding landslide risk in the relevant area but pressed 

forward. Here, however, the Board actually met its burden 

under 40 C.F.R. § 1502.22 (2019). 

The Board evaluated the available information, disclosed 

that information relevant to its environmental impact analysis 

was incomplete or unavailable, summarized “existing credible 

scientific evidence” relevant to those impacts, and evaluated 

the environmental impacts of its actions based on “generally 

accepted” research methods, theoretical approaches, and 

credible evidence. See id. § 1502.22(b). The Board relied upon
47

information beyond the “incomplete” mapping datasets, 

including “other data sets that were complete,” and “concluded 

that the available information was sufficient to compare the 

Action Alternatives and assess the potential impacts of each.” 

Board Br. 65–66 (citing J.A. 1266); see also J.A. 1019. Since 

the Board “explain[ed] in the EIS why the information was 

unavailable and what actions the agency took to address that 

unavailability,” it was not a violation of NEPA for the Board 

to reach its determination that landslide risk would not be 

significant absent suggestions from parties as to better 

available data. Oglala, 45 F.4th at 300 (citing 40 C.F.R. 

§ 1502.22(b) (2020)). 

B.

1.

The Center also raises objections related to the Biological 

Opinion, which was developed by the Service after the Board, 

as the action agency, sought formal consultation under the 

ESA. 

The Board began the consultation process by conducting 

“a threshold biological assessment.” Center II, 56 F.4th at 62.

The purpose of a biological assessment is determining both 

“the species, habitats, and geographic areas that may be 

present” and “setting forth an empirically based judgment 

whether the proposed action may affect a listed species or 

critical habitat.” Id. The relevant geographic area, or “action 

area,” used in the biological assessment is defined “as all areas 

to be affected directly or indirectly by the proposed project and 

not merely the area immediately adjacent to the action.” J.A. 

1756; see also 50 C.F.R. § 402.02. 

The Biological Assessment identified that certain 

protected species of fish in the upper Colorado River Basin 
48

may be affected by the Railway. J.A. 1727. These included 

the Colorado pikeminnow, razorback sucker, humpback chub, 

and bonytail chub. Id. Accordingly, the action area for 

protected fish species was defined, in part, as not only 

including “streams and other surface waters in the project 

footprint and a limited distance upstream and downstream of 

the [Railway],” but also the area “concurrent with the Upper 

Colorado River Basin” affected by water depletion that may 

arise from the construction and operation of the Railway. Id.

at 1757. 

The Board then sought formal consultation of the Service. 

For a formal consultation, the Service “write[s] a biological 

opinion using information in the biological assessment and the 

best scientific and commercial data available to determine 

whether the agency action is likely to jeopardize the continued 

existence of listed species or result in the destruction or adverse 

modification of critical habitat.” Center II, 56 F.4th at 62–63. 

(quotation marks and citations omitted). The Service will also 

“include[] an evaluation of the basis for [its] findings.” Id. at 

63. Here, the Service adopted the Board’s proposed action 

area, defining it as: “(1) the entire project footprint, (2) a 300-

foot buffer around the project footprint, and (3) the area of the 

Upper Colorado River Basin affected by water depletions.” Br.

of Resp’t U.S. Fish and Wildlife Serv. 11 [hereinafter “Serv.

Br.”] (citing J.A. 1660). In the BiOp, “the Service concluded 

that the proposed project is not likely to jeopardize the 

continued existence of the [four federally listed fish species in 

the affected area of the Upper Colorado River Basin] or result 

in destruction or adverse modification of designated critical 

habitat.” Id. at 8 (citing J.A. 1696). 
49

2.

The Center objects to the Board’s determination of the 

relevant action area and the Service’s adoption of that action 

area in the BiOp. By considering only the possible effects of 

water depletion—as the Center argues—the Board ignored 

comments that increased rail traffic may lead to “contamination 

from spills and leaks” along the Union Pacific Line where it 

intersects with the Colorado River, which may pose harm to the 

protected fish and their critical habitat. Center Br. 43. For this 

reason, the Center urges the Court to find that the BiOp and 

Board’s Final Exemption Order, which relied upon the BiOp, 

are arbitrary and capricious. Id.

Both the Service and the Board contend that the decision 

was supported by a “rational and sufficient” explanation. Serv.

Br. 11–12; see also Board Br. 53–54. While recognizing that 

“any active rail line” would expose adjacent water resources to 

“minor leaks or drips of fuel or lubricants” from train traffic or 

a larger spill from a derailment, the Board reasoned that the 

Railway “would not introduce a new potential source of 

pollution along the existing [Union Pacific] rail line” since 

trains have traveled the Union Pacific Line for many years. 

J.A. 1845. The Board notes that “an effect must be ‘reasonably 

certain to occur’ to be an effect of the proposed action,” and 

states that the Board reasonably concluded and explained “that 

the risk of a large spill is so low as to not be reasonably 

foreseeable and that adding project-related trains would not 

substantially change the severity of impacts that already exist.” 

Board Br. 53 (citing J.A. 996). The Service contends that both 

agencies are owed deference regarding how they defined the 

action area, see Serv. Br. 9, and asserts that even though the 

BiOp “does not repeat the analysis the Board already 

conducted,” the “Service reasonably relied on the Board’s 

analysis when issuing the [BiOp],” id. at 13.
50

The Board’s reasoning for narrowly defining the action 

area to not include waterways downline near the Union Pacific 

Line is unreasoned and fails to demonstrate a “rational 

connection between the facts found and the choice made.” 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington 

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

Though it is obvious that the increased traffic on the Union 

Pacific Line “would not introduce a new potential source of 

pollution,” J.A. 1845 (emphasis added), it is entirely unclear

from the record why the Board determined that the additional 

train traffic—with the attendant increase in “leaks or drips of 

fuel or lubricants”—“would not substantially change the 

severity of impacts” on the protected species near the Union 

Pacific Line, id.

This reasoning is especially flawed given the Board’s 

recognition that the Union Pacific Line segment “currently has 

a low volume of rail traffic relative to the predicted traffic” due 

to the Railway and the likely flawed analysis of accident risk, 

as discussed above. Id. at 899. Though we accord deference 

“on matters relating to their areas of technical expertise[,] [w]e 

do not . . . simply accept whatever conclusion an agency 

proffers merely because the conclusion reflects the agency’s 

judgment.” Tripoli Rocketry Ass’n, Inc. v. Bureau of Alcohol, 

Tobacco, Firearms, & Explosives, 437 F.3d 75, 77 (D.C. Cir. 

2006). Here, the Board failed to adequately explain its 

reasoning given the record evidence. 

The Service’s adoption of the Board’s proposed action 

area causes the BiOp itself to be flawed as a result. While the 

Board was required to provide “[a] map or description” of the 

action area in its initiation of formal consultation with the 

Service, 50 C.F.R. § 402.14(c)(1)(ii), the Service had an 

independent duty to determine the proper scope of ESA review, 
51

id. § 402.14(g). The relevant regulations even require a review 

of the “relevant information provided by the [action] agency”

that “may include an on-site inspection of the action area.” Id.

§ 402.14(g)(1). The formal consultation process “ensures that 

[government action] likely to jeopardize any species protected 

by the ESA either not be taken without consideration of those 

risks or yield to safer alternatives.” Center II, 56 F.4th at 63

(citing 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.15). Here, the 

Service never considered possible risks to protected species 

downline based on the Board’s faulty reasoning and therefore 

did not fulfill its important function under the ESA. That is not 

how ESA consultation by an action agency with the expert 

Services is supposed to work.

The Board arbitrarily narrowed the scope of ESA review, 

and the Service adopted that flawed determination without 

interrogation. Where, as here, an agency determination is not 

supported by reasoned decisionmaking, “the agency’s decision 

cannot withstand judicial review.” Tripoli, 437 F.3d at 77. 

Both the BiOp and the Board’s Final Exemption Order, to the 

extent it relies upon the BiOp, are arbitrary and capricious. Not 

only is this violative of the ESA, but the Board also cannot 

satisfy its NEPA requirements by pointing to the Biological 

Opinion.

C.

The County contends that the Board erred in two ways 

with regards to the NHPA. 

First, it urges us to find that the Board failed to “consult 

with Eagle County regarding the effects of the Railway’s 

operations on historic properties in Eagle County,” Cnty. Br. 

41, as required under the NHPA, 54 U.S.C. § 304108, and 

related regulations, see 36 C.F.R. § 800.2(c)(3) (“A 

representative of a local government with jurisdiction over the 
52

area in which the effects of an undertaking may occur is entitled 

to participate as a consulting party.”). This process is known 

as the “Section 106 consultation,” Cnty. Br. 42, and the County 

argues the Board “arbitrarily restricted consultation with local 

governments to Utah counties near the rail line proposed to be 

constructed” despite the known increase in rail traffic and train 

noise downline, id. at 43. 

Second, the County identifies “properties included on the 

National Register and located close to the Union Pacific Line, 

including historic cabins, prehistoric rock art, and the segment 

of the [Union Pacific] Line running through the County” that it 

says will be impacted by the increased rail traffic downline. Id. 

at 44. It notes that the Board’s limitation of the NHPA 

evaluation to the area adjacent to the Railway arbitrarily failed 

to evaluate historic properties downline that would be impacted 

by “engine emissions” and “long-term railroad noise and 

vibration.” Id. at 44–45.

“[S]ection 106 of the Historic Preservation Act is a ‘stop, 

look, and listen’ provision; it requires federal agencies to take 

into account the effect of their actions on structures eligible for 

inclusion in the National Register of Historic Places.” Illinois 

Com. Comm’n v. ICC, 848 F.2d 1246, 1260–61 (D.C. Cir. 

1988) (per curiam). “In fulfilling this obligation, agencies must 

consult with certain stakeholders in the potentially affected 

areas, including representatives of local governments.” City of 

Phoenix v. Huerta, 869 F.3d 963, 971 (D.C. Cir. 2017), opinion 

amended on reh’g, 881 F.3d 932 (D.C. Cir. 2018) (Mem.). 

Regulations define “consultation” as “the process of seeking, 

discussing, and considering the views of other participants, 

and, where feasible, seeking agreement with them regarding 

matters arising in the section 106 process.” 36 C.F.R. §

800.16(f). 
53

We have little precedent concerning what standards the 

agencies must use to comply with their NHPA consultation 

obligations. See generally Kathryn Sears Ore, Form and 

Substance: The National Historic Preservation Act, BadgerTwo Medicine, and Meaningful Consultation, 38 PUB. LAND &

RES. L. REV. 205, 223 (2017) (describing the “lack of 

specificity” in consultation requirements). However, it is 

undisputed that the Board contacted numerous Colorado 

entities, including the Colorado State Historic Preservation 

Office, and invited the public to provide feedback throughout 

the EIS process. The Board’s “process of seeking, discussing, 

and considering the views of other[s],” 36 C.F.R. § 800.16(f),

through its EIS process was sufficient here, especially since the 

County participated and could have raised its concerns. 

The County’s argument that the Board arbitrarily ignored 

alleged impacts to historic resources along the Union Pacific 

Line is also unavailing. It is a bedrock principle of 

administrative law that objections must be first made to the 

agency during the administrative proceedings, so it has the 

opportunity to change course. See Maryland v. EPA, 958 F.3d 

1185, 1210 (D.C. Cir. 2020) (per curiam) (collecting cases)

(“[G]eneral administrative-law principles require timely 

preservation of issues before the agency.”). Here, the County 

had ample opportunity to raise any concerns related to historic 

resources downline given its active participation in the EIS 

process. Yet, the County effectively concedes that it failed to 

name any historic resources during those proceedings or notify 

the Board of potential impacts to those resources. See County 

Reply Br. 15–16. Under this record, we find no violation of 

the NHPA. 
54

D.

Finally, Petitioners contend that the Final Exemption 

Order is arbitrary and capricious under the ICCT Act. We 

agree.

1.

In granting an exemption from the ICCT Act’s full 

application requirements, the rail transportation policy

provided in 49 U.S.C. § 10101 “must guide the [Board] in all 

its decisions.” Illinois Com. Comm’n v. ICC, 787 F.2d 616, 

627 (D.C. Cir. 1986) (quoting Coal Exporters Ass’n of U.S., 

Inc. v. United States, 745 F.2d 76, 94 n.22 (D.C. Cir. 1984)). 

While the Board does not necessarily have to “address each and 

every one of the policy’s fifteen components,” it “must 

consider all aspects of the policy bearing on the propriety of the 

exemption and must supply an acceptable rationale therefor.” 

Illinois Com. Comm’n, 787 F.2d at 627. “All that is necessary 

is that the essential basis of the [Board’s] rationale be clear 

enough so that a court can satisfy itself that the [Board] has 

performed its function.” Coal Exporters Ass’n, 745 F.2d at 94 

n.22 (quoting Alamo Exp., Inc. v. ICC, 673 F.2d 852, 860 (5th 

Cir. 1982)). 

Here, the Board identified several different components of 

the rail transportation policy as relevant to the Coalition’s

exemption petition. 

The first set were discussed in the Preliminary Exemption 

Order, which concerned the Railway’s transportation benefits. 

These components can be described as “economic” and 

“regulatory” policies. They include the policies of “ensur[ing] 

the development and continuation of a sound rail transportation 

system with effective competition among rail carriers and with 

other modes, to meet the needs of the public and the national 
55

defense,” 49 U.S.C. § 10101(4); “ensur[ing] effective 

competition and coordination between rail carriers and other 

modes,” id. § 10101(5); “minimiz[ing] the need for Federal 

regulatory control over the rail transportation system,” id.

§ 10101(2); and “reduc[ing] regulatory barriers to entry into 

and exit from the industry,” id. § 10101(7). 

The Preliminary Exemption Order provided that the 

Railway “would provide shippers in the Basin the opportunity 

to enter markets they currently cannot access due to cost 

constraints and the ability to import materials into the Basin at 

a more economical cost.” Preliminary Exemption Order, 2021 

WL 41926, at *9. Further, the Board asserted that the Railway 

“would enhance competition by providing shippers in the area 

with a freight rail option that does not currently exist and foster 

sound economic conditions in transportation.” Id. It explained 

that the exemption would meet the remaining policies related 

to minimizing federal regulatory control and reducing 

regulatory barriers “by minimizing the time and administrative 

expense associated with the construction and commencement 

of operations.” Id. In the Final Exemption Order, the Board 

reiterated these points and added that it “c[ould] grant the 

Coalition’s request for authority even if all issues involving 

financing [were] not yet resolved because the grant of authority 

is permissive, not mandatory, and the ultimate decision on 

whether to proceed will be in the hands of the Coalition and the 

marketplace, not the Board.” Final Exemption Order, 2021 

WL 5960905, at *23. With this assessment, the Board 

ultimately found that “the transportation merits of the project 

outweigh[ed] the environmental impacts.” Id. at *24. 

The second set of Rail Policies were addressed in the Final 

Exemption Order and could be described as “environmental”

policies. These include “operat[ing] transportation facilities 

and equipment without detriment to the public health and 
56

safety,” 49 U.S.C. § 10101(8), and “encourag[ing] . . . safe and 

suitable working conditions in the railroad industry,” 

id. § 10101(11). The Board “consider[ed] and weigh[ed] the 

information collected during the NEPA process to inform [the] 

agency’s” consideration of these policies. Board Br. 75. In 

addition, the Final Exemption Order recognized objections 

made during the administrative proceedings related to the 

environmental policies, specifically “potential safety risks 

related to wildfires and increased truck traffic.” Id. at 72. The 

Board provided that the “OEA . . . demonstrated in its Final 

EIS that there only would be a small risk of forest fire,” Final 

Exemption Order, 2021 WL 5960905, at *24, and “included 

extensive examination of potential increases in safety risks 

related to wildfires and increased vehicular traffic,” Board Br. 

74 (citing J.A. 875–93, 963–65, 991–92). The Board contends 

that it “reasonably found that §§ 10101(8) & (11) did not 

warrant denying the exemption, as the increased wildfire and 

truck traffic risks were small and would be lessened by Boardimposed mitigation.” Id. (citing Final Exemption Order, 2021 

WL 5960905, *22–24). 

In sum, the Board determined that “the construction and 

operation of [the Railway] will have substantial transportation 

and economic benefits” that outweigh the environmental 

impacts. Final Exemption Order, 2021 WL 5960905, at *23. It 

described the environmental impacts as “unavoidable” “as with 

most other rail construction Projects” but subject to extensive 

mitigation that would “minimize those impacts to the extent 

practicable.” Id. at *23. 

Petitioners lodge several objections. 

First, the County claims that the Board departed from its 

prior precedent in granting the Coalition’s request for 

preliminary exemption contingent upon a later determination 
57

of the environmental issues. It notes that the Board’s precedent 

requires a showing of “unique or compelling” circumstances in 

order to issue a preliminary decision on the transportation 

merits of a petition prior to completing its environmental 

review, but here the Board only offered “vague, unsupported 

references to the ‘economic circumstances’ or the ‘pandemic.’” 

Cnty. Br. 18. 

The County also contends that the Board failed to consider 

all of the relevant environmental Rail Policies, including the 

policy of “encourag[ing] and promot[ing] energy 

conservation,” 49 U.S.C § 10101(14), and arbitrarily relied on 

the ones it did consider. Among other things, the County 

asserts that the Board ignored “substantial record evidence 

demonstrating that the Railway is economically unsound,”

highlighting “the Coalition’s own redacted study that 

questioned the stability of oil markets, the market for Uinta oil, 

and investor appetite for the Railway.” Cnty. Br. 25. 

Finally, the Center states that the Board’s reliance on the 

flawed EIS and BiOp resulted in a “skewed weighing of harms 

and benefits,” Center Br. 47, noting that Board’s significant 

discussion of the Railway’s “speculative economic benefits” 

effectively glossed over the fact that the “benefits from 

expanded oil production” necessarily result in significant 

environmental harms, id. at 45. 

2.

Regardless of the merit of the County’s argument that the 

Board departed from its prior precedent in allowing conditional 

grant of exemption on the transportation merits, we will not 

address the Preliminary Exemption Order in its own right. 

Petitioners’ varied objections as to the conditional grant 

process apply in any event to the ultimate weighing employed 

in the Final Exemption Order. We will instead review the 
58

Board’s transportation merits analysis and the challenges to it 

as incorporated into and reflected in its final determination.

The Board’s fundamental task here was to “properly 

consider[] and appl[y]” the relevant Rail Policies in its 

determination on the Coalition’s exemption petition. Coal 

Exporters Ass’n, 745 F.2d at 94 n.22. It is clear from the Final 

Exemption Order that the Board failed at every juncture.

First, the Board did not provide “adequate attention” to 

comments questioning the financial viability of the Railway

and therefore did not properly consider the relevant economic

and regulatory policies. Illinois Com. Comm’n, 787 F.2d at 

630. As the County highlights, the Coalition asked a third 

party, R.L. Banks, “to prepare a detailed 2018 feasibility study 

addressing the viability of the [Railway]” “prior to seeking 

authority from the Board.” Preliminary Exemption Order, 

2021 WL 41926, at *6. The Center obtained a redacted copy 

of the feasibility study that it provided to the Board. See id.

The redacted copy apparently called into question “the demand 

for the type of oil extracted from the Uinta Basin” and the 

financial viability of the Railway overall. Id. at *15 (Oberman,

Bd. Mbr., dissenting). 

The Board did not address the Center’s objection that the 

redacted material from the study was needed to gauge the 

economic viability of the Railway. Instead, the Board 

explained that “nothing in the language of § 10502 . . . 

suggest[s] that an exemption proceeding is inappropriate if the 

viability of the proposed rail line is questioned.” Preliminary 

Exemption Order, 2021 WL 41926, at *6 (citing Alaska 

Survival v. STB, 705 F.3d 1073, 1082 (9th Cir. 2013) 

(“[N]either § 10502 nor the STB’s implementing regulations 

indicate that an exemption proceeding is improper when the 

project’s financial viability is questioned.”)). It also provided 
59

“that the ultimate decision to go forward with an approved 

project is in the hands of the applicant and the financial 

marketplace, not the agency.” Id. (citing Mid States Coal. for

Progress v. STB, 345 F.3d 520, 552 (8th Cir. 2003)). For these 

reasons, the Board determined that it “[did] not need the 

material currently redacted in the R.L. Banks 2018 feasibility 

study obtained by the Center, despite the Center’s claim to the 

contrary.” Id. at *7 n.8.

The Board’s argument is essentially that the financial 

viability of a project, specifically whether it can get upfront and 

ongoing financing, does not implicate the Rail Policies, so the 

Board does not need to address project viability or respond to 

comments challenging it. This interpretation, however, runs

counter to the fourth and fifth Rail Policies relied on in the 

Preliminary and Final Exemption Orders. As was raised in the 

Center’s reply to the Coalition’s petition for exemption, it 

would not “ensure the development and continuation of a 

sound rail transportation system . . . to meet the needs of the 

public,” 49 U.S.C.A. § 10101(4), “if the applicant were to start 

construction but not be able to complete the project and provide 

the proposed service” due to lack of financing, J.A. 300 

(quoting Great Lakes Basin Transp., Inc.—Rail Const. &

Operation—In Rock Cnty., Wisc., Winnebago, Ogle, Lee, 

Lasalle, Grundy, And Kankakee Cntys., Ill., and Lake, Porter, 

and Laporte Cntys., Ind., S.T.B. Fin. Docket 35952, 2017 WL 

3835978, at *4 (STB served Aug. 31, 2017)). The STB 

decision referenced by the Center did not deal with an 

exemption petition but rather a full application under 49 U.S.C. 

§ 10901, but this reasoning still has force when considering the 

language of the fourth and fifth Rail Policies. 

Despite its protestations to the contrary, the Board cannot 

ignore and, in the past, has not ignored serious concerns about 

financial viability in determining the transportation merits of a 
60

project. See, e.g., Texas Cent. R.R. & Infrastructure, Inc. & 

Texas Cent. R.R., LLC-Petition for Exemption-Passenger Rail 

Line Between Dallas & Houston, Tex., S.T.B. Fin. Docket 

36025, 2020 WL 4036897, at *12 (STB served July 16, 2020). 

In Texas Central Railroad, the Board required the full 

application process after “significant questions had been 

raised” about the financial viability of a project where the 

estimated costs increased “from over $10 billion to over $20 

billion (with one estimate over $30 billion).” Preliminary 

Exemption Order, 2021 WL 41926, at *7. The Board 

explained that the discrepancy was not adequately addressed 

and there were “conflicting statements” on the “extent of 

nonmarket funding sources.” Id.

The Board attempts to distinguish the Railway from Texas 

Central and other matters in which it found the full application 

process was necessary. It reiterates its categorical rule that “the 

ultimate test of financial fitness is in the hands of the applicant 

and marketplace” so uncertainty about financial viability is not 

relevant to its determination. Id. at 7 n.10; see also Board Br.

77–78. In the Preliminary Exemption Order, the Board also

articulates a separate test of sorts to establish when an 

exemption petition should be denied in light of a project’s 

financial viability. It provides that when two factors—an 

“increase in project costs or uncertainty about funding”—“are 

both substantial and inadequately or inconsistently addressed, 

combined with other relevant factors, including the extent to 

which the marketplace will assess financial fitness, additional 

scrutiny may be warranted.” Preliminary Exemption Order, 

2021 WL 41926, at 7 n.10. But the Board insists that the there 

was only “some uncertainty” as to the financing of the Railway, 

so a full application process was unnecessary. Id. at *7–8. 

The Board’s reasoning is unavailing. These tests are

nothing more than the adoption of a new rule without real 
61

explanation for its “changing position.” Baltimore Gas & Elec. 

Co. v. FERC, 954 F.3d 279, 286 (D.C. Cir. 2020). At bottom, 

a project that is in doubt of ever materializing or continuing to 

operate cannot accomplish any of the transportation merits 

identified by the Board. And, the Board has applied that 

reasoning in prior cases in which “[c]ommenters . . . have 

raised significant questions surrounding the financial 

feasibility of [a] proposed rail project.” Texas Cent., 2020 WL 

4036897, at *12. Given the record evidence identified by 

Petitioners—including the 2018 feasibility study—there is 

similar reason to doubt the financial viability of the Railway. 

Of course, our Court “may permit agency action to stand 

without elaborate explanation where distinctions between the 

case under review and the asserted precedent are so plain that 

no inconsistency appears.” Bush-Quayle ‘92 Primary Comm., 

Inc. v. FEC, 104 F.3d 448, 454 (D.C. Cir. 1997). Here, 

however, the Board fails to explain how the financial 

uncertainty unearthed by Petitioners is meaningfully distinct 

from the Board’s prior precedent. In both, significant questions 

regarding the financial viability of the proposed project were 

raised. Yet, in this latter case, the Board has elected to ignore 

these concerns despite their application to the relevant Rail 

Policies. Accordingly, the Board’s adoption of this new rule of 

washing its hands of any concern for financial viability is “an 

inexcusable departure from the essential requirement of 

reasoned decision making.” Ramaprakash v. FAA, 346 F.3d 

1121, 1125 (D.C. Cir. 2003) (quoting Columbia Broad. Sys., 

Inc. v. FCC, 454 F.2d 1018, 1027 (D.C. Cir. 1971)). 

Second, with respect to its consideration of the

environmental policies, the Board relies solely on its EIS. See

Final Exemption Order, 2021 WL 5960905, at *22. As we 

have held, the EIS is arbitrary and capricious, so those errors 

infect the final determination as well. Even so, the Board’s 

discussion of the environmental policies in the Final 
62

Exemption Order separately demonstrate that the Board did not 

adequately consider the incredibly significant environmental 

effects identified in the EIS in weighing those impacts against 

the uncertain transportation benefits of the Railway. The 

“cumulative” effects within the Uinta Basin of a major 

expansion of oil drilling there, on Gulf Coast communities of 

refining the oil, and the climate effects of the combustion of the 

fuel intended to be extracted are foreseeable environmental 

effects of the project. These are effects the Board ultimately 

has the authority to prevent. The Board was required not only 

to identify those effects under NEPA, as discussed above, but 

also to weigh them in its ICCT Act analysis. Its failure to do 

so contributes to our conclusion that the Board’s order is 

arbitrary and capricious.

As an initial matter, the Center has failed here, just as it 

failed under NEPA, to show that consideration of downstream 

emissions as cumulative versus indirect effects itself skewed 

the Board’s analysis in any material way under the ICCT Act. 

In its final order, the Board acknowledged these impacts and 

explained “that its analysis of these impacts would be the same 

whether they were labeled cumulative or indirect.” Final 

Exemption Order, 2021 WL 5960905, at *18 n.15. Taking the 

Board at its word that its treatment of downstream emissions in 

its Final Determination is no different due to their 

categorization as “cumulative effects” instead of “indirect 

effects,” the Board was required to weigh them as cumulative 

effects just as it would weigh any indirect effect of the project.

The Board largely concedes in its briefing that it did not 

evaluate the energy conservation policy, providing that it 

“addressed numerous energy-related issues throughout” but 

not this particular policy. Board Br. 77.2 The Court, however, 

2 The Board claims that the County did not timely raise its objection 

related to the Board’s failure to consider the energy conservation 
63

can only uphold the agency’s action “on the basis articulated 

by the agency itself,” State Farm, 463 U.S. at 50, and “may 

not substitute [its] judgment for that of the [Board],” Dep’t of 

Com. v. New York, 139 S. Ct. 2551, 2569 (2019). This, 

however, is exactly what the Board asks of the Court. Based 

on its nebulous references in the record to “potential issues 

related to energy,” Board Br. 77, we should apparently create 

from whole cloth a reasoned consideration of the energy 

conservation policy. This we cannot do. 

The limited weighing of the other environmental policies

the Board did undertake fails to demonstrate any serious 

grappling with the significant potential for environmental harm 

stemming from the project. The Final Exemption Order 

completely glossed over the objection that “the project’s many 

significant environmental impacts” necessitated additional 

scrutiny and “more extensive proceedings.” Final Exemption 

Order, 2021 WL 5960905, at *23. Instead, its “weighing” of 

environmental impacts and transportation merits only directly 

references the EIS to claim that “there only would be a small 

policy. See Board Br. 75–77. Generally, “reviewing courts . . . will 

not consider an argument that was not raised before the agency ‘at 

the time appropriate under its practice.’” Riffin v. STB, 733 F.3d 340, 

343 (D.C. Cir. 2013) (citing United States v. L. A. Tucker Truck 

Lines, Inc., 344 U.S. 33, 37 (1952)). While the County did not raise 

this issue in a formal objection to the Coalition’s exemption petition, 

it did provide this specific objection in response to the Draft EIS,

specifically asserting that the Railway’s “consequences will likely 

also detract rather than encourage and promote energy 

conservation.” J.A. 760. Raising this objection when the Board said 

it would consider environmental impacts is a “time appropriate under 

[the Board’s] practice.” Riffin, 733 F.3d at 343. Since the Board had 

the “opportunity for correction,” the County did not forfeit this 

objection and this issue can be considered “reviewable by the 

[C]ourt[].” Id. (citing L. A. Tucker, 344 U.S. at 37). 
64

risk of forest fire” and “truck traffic would not significantly 

increase on major roads as a result of construction and 

operation of the [Railway].” Id. at *24. Otherwise, the Board 

hurriedly disposed of Petitioners’ environmental objections 

with assertions that the mitigation discussed in the Final EIS 

was sufficient and that the Board modified certain mitigation 

measures to ensure clarity. Id. at *24–25. With this paltry 

discussion, the Board determined that “the transportation 

merits of the project outweigh[ed] the environmental impacts.” 

Id. at *24.

The Board is required to compare both sides of the ledger, 

not just acknowledge that both sides exist. And it may not

completely ignore a “policy bearing on the propriety of the 

exemption” as it did here with the energy conservation policy. 

Illinois Com. Comm’n, 787 F.2d at 627. As the Board 

identified, on one side of the scale the Railway could result in 

nearly one percent of total U.S. greenhouse gas emissions and 

the increased rail traffic downline could cause amplified risk of 

wildfires, the potential of derailed trains on an annual basis, and 

crude oil spills in critical habitats and sensitive water resources 

that are home to endangered species. On the other side, the 

Railway may open up new markets for crude oil transportation, 

assuming the project is financially viable—an assumption that 

is not clear from this record. The Board’s consideration of 

these impacts and benefits was cursory at best, leaving little 

question that the ICCT Act necessitated a more fulsome 

explanation for the Board’s conclusion that the Railway’s 

transportation benefits outweighed the project’s environmental 

impacts. 

It is not our job to decide whether the Board ultimately

arrived at the right outcome in light of its findings. See State 

Farm, 463 U.S. at 43 (“The scope of review under the ‘arbitrary 

and capricious’ standard is narrow and a court is not to 
65

substitute its judgment for that of the agency.”). However, it is 

clear that the Board failed to adequately consider the Rail 

Policies and “articulate a satisfactory explanation for its action 

including a rational connection between the facts found and the 

choice made.” Id. (quotation marks omitted). The Board’s 

protestations at argument that it is just a “transportation 

agency” and therefore cannot allow the reasonably foreseeable

environmental impacts of a proposed rail line to influence its 

ultimate determination, see Oral Arg. Tr. 84:19–20; 85:20, 

ignore Congress’s command that it make expert and reasoned 

judgments that “properly consider[] and appl[y]” the relevant 

Rail Policies prior to granting an exemption from its full 

application requirements, Coal Exporters Ass’n, 745 F.2d at 94

n.22. Here, those Rail Policies include the environmental 

impacts of the Railway, and the Board failed to fulfill its 

obligation under the ICCT Act to consider them alongside any 

potential economic benefits. 

The Board failed to “supply an acceptable rationale” as to 

its consideration of the relevant Rail Policies and therefore the

Final Exemption Order was issued in violation of the ICCT 

Act. Illinois Com. Comm’n, 787 F.2d at 627.

IV.

We are left to consider the remedy. “The decision to 

vacate depends on two factors: the likelihood that 

‘deficiencies’ in an order can be redressed on remand, even if 

the agency reaches the same result, and the ‘disruptive 

consequences’ of vacatur.” Black Oak Energy, LLC v. FERC, 

725 F.3d 230, 244 (D.C. Cir. 2013) (quoting Allied-Signal, Inc. 

v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. 

Cir. 1993)).

The deficiencies here are significant. We have found 

numerous NEPA violations arising from the EIS, including the 
66

failures to: (1) quantify reasonably foreseeable upstream and 

downstream impacts on vegetation and special-status species 

of increased drilling in the Uinta Basin and increased oil-train 

traffic along the Union Pacific Line, as well as the effects of oil 

refining on environmental justice communities the Gulf Coast;

(2) take a hard look at wildfire risk as well as impacts on water 

resources downline; and (3) explain the lack of available 

information on local accident risk in accordance with 40 C.F.R. 

§ 1502.22(b) (2020). The EIS is further called into question 

since the BiOp failed to assess impacts on the Colorado River 

fishes downline. 

The poor environmental review alone renders arbitrary the 

Board’s consideration of the relevant Rail Policies and the final 

order’s exemption of the Railway. Yet, the Board also failed 

to conduct a reasoned application of the appropriate Rail 

Policies as required under the ICCT Act. The Board failed to 

weigh the Project’s uncertain financial viability and the full 

potential for environmental harm against the transportation 

benefits it identified.

“‘[V]acatur is the normal remedy’ when a rule is found 

unlawful,” and we see no reason to depart from our normal 

practice here given the lack of argument from the Board, 

Service, or the Coalition, that vacatur would be disruptive. Am. 

Pub. Gas Ass’n v. Dep’t of Energy, 22 F.4th 1018, 1030 (D.C. 

Cir. 2022) (quoting Allina Health Servs. v. Sebelius, 746 F.3d 

1102, 1110 (D.C. Cir. 2014)). 

Accordingly, we grant the petitions in part and vacate the 

Final Exemption Order as arbitrary and capricious. Further, we 

vacate the EIS and BiOp in part for the reasons described 

above. This matter is remanded to the Board for further 

proceedings in accordance with this opinion.

So ordered.