[00:00:00] Speaker 00:
Case number 23-1165, coalition to stop CPKC petitioner versus surface transportation board and United States of America.

[00:00:11] Speaker 00:
Mr. Wilcox for the petitioner, Mr. Vandenover for the respondents, Mr. Wall for the intervener.

[00:00:18] Speaker 04:
All right, Mr. Wilcox, good morning.

[00:00:22] Speaker 06:
Good morning, Judge Henderson, Judge Garcia, Judge Rao.

[00:00:28] Speaker 06:
First, I'd like to point out we have several officials and first responders here from the Chicago affected Chicago cities here this morning.

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Secondly, I'd like to raise a few initial points, but primarily I want to try to answer your questions while I'm up here.

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So Chicago, one of the busiest railroad hubs in the world.

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The critical segment of the Merge Railroad runs through the coalition communities.

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These communities have already had mile to two mile long freight trains running through their communities, three per day.

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They've already dealt with the, they deal with the impacts of these.

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Mostly at night, right?

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Excuse me?

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Mostly at night, the freight trains.

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Well, they're supposed to, but there is evidence in the record that sometimes they don't, that they do run during the commuter hours.

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But they're supposed to, yes, pursuant to their agreement.

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So, because of the transaction, there's going to be

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Eight trains in addition, 11 total.

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Currently they're up to six since the merger was implemented.

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So even if one was to accept the decision's numbers, if the average train is 6,817 feet, 11 trains that size is over 14 miles of trains every day through these communities that have 30 road crossings, 24 pedestrian crossings.

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And yet the NEPA analysis of the board concluded that the impacts on road crossing delays and other such impacts would be quote unquote, quote, negligible, minor, and or temporary.

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Mr. Wilcox, why are traffic impacts part of NEPA analysis?

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So NEPA requires agencies to think about the environmental effects on the human environment.

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So there are some instances in which maybe traffic is connected to pollution or some type of environmental harm.

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But here, I take it the coalition's position is just sort of the traffic in itself, the nuisance from the traffic.

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There's not really any connection between traffic and environmental harms.

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I mean, why is that even something that should be a part of NEPA analysis?

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And here the agency did, it might not be impermissible for the agency to consider traffic, but I mean, maybe they don't even have to look at traffic.

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in conducting an environmental impact.

[00:03:13] Speaker 06:
Well, yes.

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And I was interested to see CPKC.

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I was wondering, they were appealing to that part of the board's decision.

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But that is, historically has been the STB's treatment of NEPA in all of their mergers, rail construction projects.

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And I think it comes down to societal impacts, safety,

[00:03:41] Speaker 03:
Sure, so it's part of the public interest inquiry, but maybe not the NEPA inquiry.

[00:03:46] Speaker 06:
Well, it's an environmental, it's the social environment, the overall community environment.

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So yes, I agree that it has more of a social component, but that is how the board, I guess the critical issue here is that's how the board handled it.

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They said,

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If you have instances from crossings, delays, other safety issues, OEA is the place to bring those through the EIS process.

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So there's three key points I wanted to raise.

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First, the board refused to incorporate

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any of the baseline data, the existing delays, the existing road crossing delays, the type of data that already the coalition was, coalition communities were experiencing from the three trades came through daily.

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And then the second thing is they completely, they underestimated the future delays by assuming the way the problem

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Instead of measuring the impact of crossings on eight additional trains of 7,000 to 10,000 feet, they created this weighted average train, a hypothetical train of 1,960 feet long.

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And then they assumed speed, maximum available speeds or the maximum desired speed or determine different ways in the EIS.

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And the result of those two components, because as the general calculation for crossing delays is the length of the train, the speed it's going, and then how long it takes the gate to go up and down.

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And their study didn't include stop trains in terms of the delay study.

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Now, they later had a stop train component when they were looking at, they did a special study, not a special study, but they did an additional

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analysis for first responders in the EIS.

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But they did not use stop trains in the delay analysis.

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And so the result was an EIS that showed, substantially understated the crossing delays.

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And that flowed through the rest of the analysis in terms of crossing safety, wide zones.

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They had concluded that

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The eight additional trains would not have an impact because based on the weighted average, they would just flow through the crossings in a matter of seconds.

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And finally- Mr. Wilcox, I mean, I understand that the coalition has a number of objections to how the STB conducted its analysis here, but how do these arguments go beyond fly-specking?

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Or you did a very comprehensive study, and perhaps it's not perfect, but the point of NEPA is to have an informed decision.

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And they took a very close look at everything.

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So what about your argument goes beyond fly-specking the agency's work?

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Well, the analysis has to be based in reality.

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It has to be reasoned.

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match with what the reality is on the ground.

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And so, particularly the delay analysis with the short trades moving really fast, that's just not rational.

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And yes, they have a lot of explanation and responses, but the response was,

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this is how we're doing it.

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And so it's the irrationality carried forward.

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And that's the coalition's point, is that the analysis should have been more thorough.

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And instead of weighting the average against all the passenger trains that should have measured the impact of the eight and then total 11 freight trains up to two miles long, there's a vast difference.

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What about the delays caused by the freight train isn't captured in a weighted average?

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I would think that is, as it suggests, capturing the impact of the average length of a train that's coming through.

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Obviously, a two-mile long freight train is going to cause a greater delay.

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But in terms of just looking at the aggregate impact that this transaction is going to have, I'm struggling to see why the average is inappropriate.

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Well, the average is inappropriate because that's not how the trains come through.

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They don't come through on the average, you know, 24 hours as Judge Henderson pointed out, you know, they come out, come at different times.

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And so a 10,000 foot train

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by itself has a huge impact.

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And if you have a weighted average spread out, a 10,000-foot train doesn't come through in 1,960-foot increments over a period of time that you can all add up, and they maybe match the first, or the 10,000-foot train.

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But nevertheless, a 10,000-foot train slowly moving through a crossing or stopped at a crossing

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is a huge impact.

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And when you almost quadruple the current impact, it's a very large impact.

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And so our view is the weighted average just assumes it away or spreads it out, hides the real impact of the trains.

[00:10:08] Speaker 07:
So one way to make this more concrete maybe would be, you think they should have grappled with the idea that there could be an ambulance stuck on the other side of the track when it needs to be on the other side for five to 10 minutes, and that's obscured by a weighted average?

[00:10:24] Speaker 07:
That is obscured by the weighted average.

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Is that the most important impact that you have in mind here?

[00:10:30] Speaker 06:
Yes, that's obscured by the weighted average.

[00:10:35] Speaker 06:
Yes.

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And I see I'm like minus 10.

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Should I stop talking?

[00:10:40] Speaker 04:
We'll give you a couple of minutes in reply.

[00:10:43] Speaker 06:
OK.

[00:10:43] Speaker 06:
Thank you.

[00:10:46] Speaker 04:
We'll give you a couple of minutes in reply.

[00:10:48] Speaker 04:
OK.

[00:10:49] Speaker 04:
Thank you.

[00:11:12] Speaker 01:
Good morning, Your Honors.

[00:11:12] Speaker 01:
May it please the Court.

[00:11:14] Speaker 01:
The EIS in this case was reasonable and represents far more than a hard look crossing the leg.

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On top of an already massive EIS, the Board spent dozens of pages addressing the coalition area specifically and specifically responding to the coalition's comment.

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Nothing the coalition said was ignored and nothing the Board did was arbitrary.

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The board used well-sourced data that was specific to every intersection that it studied, and it used established, well-known formulas that the coalition does not even attack.

[00:11:44] Speaker 01:
I don't see, frankly, any air in what the board did, but even what we're talking about in this case is really fiddling at the margins at fly-specking.

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Fundamentally, this was a close look, a hard look, at crossing the light and other issues in this case.

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So the petition for review should be denied.

[00:12:01] Speaker 01:
Just to pick up on a couple of topics that were discussed earlier, I think, Judge Henderson, you're absolutely correct that the trains are generally not going to be scheduled to run during rush hour, which is when, of course, most of the delays to vehicles are going to occur.

[00:12:15] Speaker 05:
What about Mr. Wilcox saying it doesn't work that way?

[00:12:19] Speaker 05:
That's at least what I heard his answer.

[00:12:24] Speaker 01:
I think the evidence in this record suggests that it generally does work that way.

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There's a contractual commitment that the CPKC has made with Metra, that they will not interfere with Metra trains during rush hour, and CPKC has committed on the record that the new trains will not be scheduled during rush hour.

[00:12:41] Speaker 01:
There is some evidence that some small percentage of trains historically

[00:12:45] Speaker 01:
have technically entered the line during peak metro hours, but that's generally going to be something like a tail end of a train over on the end of the line at Bensonville Yard, which is a rail yard to the east of the coalition area that's used for a lot of different other tracks.

[00:13:01] Speaker 01:
So that might be a train moving north of the coalition line, technically moves onto that part, but it's not going to be traversing the entire length or interfering with any metro trains or causing any block crossing delays.

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As to the emergency responders, Judge Garcia, the board did consider what it looks like to be in an ambulance when a train is going by.

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That's displayed in table H.22, where the board disclosed specifically by train type how long an average delay is going to be.

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So if you're...

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If you arrive at the beginning of a 10,000 foot train moving by on average, you're going to be waiting 3.4 minutes.

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That is disclosed.

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But of course, the trains on average are not going to be that long.

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They're going to be substantially shorter.

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And the board took that into account.

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And I think that it was reasonable for the board to conclude that in aggregate, these delays are relatively minor.

[00:13:55] Speaker 03:
Jennifer, I'm interested in why does the Surface Transportation Board take into account traffic

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in its NEPA analysis?

[00:14:06] Speaker 03:
It seems like it would certainly be part of a public interest analysis, balancing the effects on the community before taking a merger or something like that.

[00:14:14] Speaker 03:
But why is it part of the NEPA analysis?

[00:14:16] Speaker 01:
So I don't think that the board has ever been squarely confronted with that question.

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I can't point you to any board statement where they explain why they do it or take a position on whether it is required by NEPA.

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I can tell you that historically the board has done a crossing delay analysis in merger cases and construction cases where it's required.

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They have treated it as part of the EIS, but I don't know whether or not, I don't know what the board would say if it was like squarely in front of them, like whether they actually absolutely need to.

[00:14:46] Speaker 03:
It typically does consider.

[00:14:49] Speaker 01:
It typically does.

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And of course, it did in this case.

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And it also considered it for the delay element of it, but also it was relevant to safety in terms of first responders.

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And of course, under the CEQ regulations that were in effect at the time of this decision, safety was considered a NEPA harm.

[00:15:09] Speaker 07:
One of the other things Mr. Wilcox says is that the assumption that these trains, with some exceptions, are going to be moving at maximum speed is just unrealistic.

[00:15:19] Speaker 07:
What's your response to that?

[00:15:20] Speaker 07:
Is it based on actual train speed data?

[00:15:25] Speaker 07:
And was there some accounting for, I think, the obvious fact that occasionally trains are stopped?

[00:15:32] Speaker 01:
So I'll take the second part of that question first.

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There was an accounting for the fact that sometimes trains are stopped.

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The board acknowledged that that can happen, although it is unpredictable and rare.

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But because of that possibility, the board assessed for a good like hundreds of these crossings, all of I think 20 crossings in the coalition area of what would happen if a train came to a complete stop.

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What is the shortest distance around the train and two miles in either direction?

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Of course, there are no four mile long trains, but that's to account for the possibility that

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What if the front of the train blocks the crossing versus what if the rear of the train?

[00:16:06] Speaker 01:
And the EIS disclosed what the shortest distance was in all of those cases.

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On the coalition area, I think the longest, there was one where it's a 7.5 mile detour.

[00:16:15] Speaker 01:
In other cases, it was shorter.

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And that was something that the board took into account in its analysis.

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I don't understand the coalition to actually have any substantive criticism of that aspect of what the board did.

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In terms of the speeds themselves, I would submit that timetable data is data.

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It's not historical.

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like empirical data in the same way.

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But it does tell us how fast we expect the trains to go.

[00:16:38] Speaker 01:
The coalition's argument on this point, it speaks very much in generalities.

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They want us to infer that the Chicago area in general is very crowded.

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So therefore, this line must be very crowded.

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But that's just not what the evidence in this case suggests.

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You can see on the map on page A500 that this particular line is actually far less crowded in other parts of Chicago.

[00:17:02] Speaker 01:
two railroads run here and one of the metro is very much confined just these two rush hour windows outside of those windows they run at most one train per hour in either direction and you know basically no trains at night so that leaves a lot of room for cpkc freight trains to go in those hour-long slots between the metro trains or again at night it's possible for

[00:17:25] Speaker 01:
you know as many as 30 trains to run on this line the port uh this discuss on page j 115 without even really encountering a petro train so there's no reason to expect that these trains wouldn't be moving at the speed that the railroads desire them to operate at there's there's not really an idea like bumper to bumper traffic that you might be picturing like with cars that doesn't really happen in the train world right trains take a while to get moving and then they move but generally at that speed especially when there's not

[00:17:54] Speaker 01:
more than one train on the line.

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And when there are double tracks, so they can move past each other.

[00:17:59] Speaker 01:
It's a very fluid network.

[00:18:01] Speaker 01:
There's no reason to expect that these timetable speeds wouldn't be a reasonable approximation of how fast the trains are actually going.

[00:18:10] Speaker 05:
Let me ask you about the village of Barrington.

[00:18:13] Speaker 05:
It seemed to have a lot more extensive Chicago-specific meetings and traffic studies.

[00:18:19] Speaker 01:
So I see my time's expired.

[00:18:22] Speaker 01:
But it's true that there were more meetings specifically in Chicago.

[00:18:26] Speaker 01:
But I think that that's just a function of the fact that only the Chicago area was at issue.

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This was a, geographically speaking, much larger merger.

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And frankly, the technology had developed in the intervening time where video meetings were just more common and possible.

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So I don't think there's any allegation that the public wasn't able to participate in an effective way in this case.

[00:18:49] Speaker 01:
In terms of the actual substantive analysis, in general, the board applied the exact same approach.

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It used the same level of service type model in the EJ&E case as it did here.

[00:19:02] Speaker 01:
In that case, it revealed some great delays.

[00:19:05] Speaker 01:
I mean, here, every level of service was an A in either of the scenarios.

[00:19:09] Speaker 01:
In that other case from 2008, I mean, there were some crossings that I think it was like going from Cs to Ds or even less.

[00:19:16] Speaker 01:
And we're talking about tracks that had 10 or more trains initially, and we're adding 20 trains to it.

[00:19:21] Speaker 01:
It's just like a different magnitude.

[00:19:24] Speaker 01:
So we did that exact same study.

[00:19:26] Speaker 01:
In that case, we did an additional study on top of that when a party asked for it.

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But in this case, there was no need for that study because there was no demonstrated harm.

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And most importantly, no party asked for it.

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I mean, this is not something that anyone, including the coalition, described in the comment on the draft EIS.

[00:19:45] Speaker 01:
So that would be forfeited either way.

[00:19:50] Speaker 05:
Thank you.

[00:19:51] Speaker 01:
Thank you.

[00:19:59] Speaker 02:
Judge Henderson and may it please the court.

[00:20:02] Speaker 02:
All parties now agree that this court should not attempt to unwind this merger.

[00:20:07] Speaker 02:
The only question is whether the board needs to say more about the merger's environmental effects on a 20-mile segment of a more than 8,000-mile track.

[00:20:16] Speaker 02:
The board studied the effects on that coalition line exhaustively and reached the reasonable, indeed correct, conclusion that the merger would not unduly delay drivers or Metro trains in the coalition communities.

[00:20:30] Speaker 02:
board therefore approved a transaction that has had a host of public benefits and that has not caused any apparent issues in the coalition communities.

[00:20:38] Speaker 02:
The court should deny their petition.

[00:20:39] Speaker 02:
I welcome the court's questions.

[00:20:42] Speaker 05:
I have a question that doesn't have to do with the marriage but and I think you're covered in your brief but in the red brief on page 8

[00:20:55] Speaker 05:
The STB notes that the coalition line freight trains have decreased where the volume of freight trains on most other lines have increased.

[00:21:08] Speaker 02:
What caused that?

[00:21:13] Speaker 02:
I think what they're talking about there is the delays on the line and the delays have gone down because of some of the improvements that were made in Bensonville Yard and on the Marquette subdivision.

[00:21:26] Speaker 02:
And so the board was making a predictive judgment that I want to, there are not great delays going in.

[00:21:32] Speaker 02:
Pre-merger, we're talking about one out of a hundred Metro trains, it gets delayed by more than six minutes by a freight train.

[00:21:39] Speaker 02:
Basically, the board said, we think that's actually going to be better because of the improvements that are going to result around this merger.

[00:21:45] Speaker 02:
And the numbers have actually shown that that's right.

[00:21:47] Speaker 02:
We didn't rely on that, by the way, for our merits arguments.

[00:21:50] Speaker 02:
We did rely on it for the remedy, because I do think it's very important that the court understand that it does not, even if it sees some problem with the board's analysis, which I don't, this looks like A level agency work to me, not even B or C, A level.

[00:22:04] Speaker 02:
But if the court sees any problem with what the board did,

[00:22:08] Speaker 02:
It's important that it not vacate the approval of the merger and disrupt a company that's been operating as a merged entity for two years, given that even petitioner recognizes that the board could fairly easily fix any error it finds by just saying more about the environmental effects.

[00:22:29] Speaker 03:
I was interested in the suggestion

[00:22:34] Speaker 03:
In CP Casey's brief about whether traffic is properly considered part of NEPA, but I am wondering if that issue is one we can even reach, given that it was only raised by the intervener brief.

[00:22:44] Speaker 02:
So we're a party here.

[00:22:46] Speaker 02:
I think the court could reach it.

[00:22:48] Speaker 02:
I don't think the court needs to because if the court concludes, which it should in our view, that the various effects here were properly considered, then even if the board didn't have to consider them, no harm, no foul.

[00:23:00] Speaker 02:
It's just an over-inclusive opinion.

[00:23:02] Speaker 02:
I think the court would only reach it if it thought the board didn't do a good job in considering the grade crossing delays or the risk to safety.

[00:23:09] Speaker 02:
Obviously, Judge Rao, I do think there are questions about whether everybody's been reading NEPA the right way.

[00:23:14] Speaker 02:
It's all based, as far as I can tell, on this early 1972nd surrogate case.

[00:23:19] Speaker 02:
And in the interim, you have the Metropolitan Edison opinion from the Supreme Court, which says, at pages 772 and 773, it says physical environment, not once, not twice, but three times.

[00:23:30] Speaker 02:
And indeed rejects what I think is basically an argument there that you can consider this broader sort of social or human environment.

[00:23:37] Speaker 02:
And the court says, no, we look at physical environment.

[00:23:40] Speaker 02:
That's what it says three times.

[00:23:42] Speaker 02:
So I do think that we are in a very odd situation where we're not considering for NEPA purposes like the delay to commuter trains, but we are considering the delays to motorists.

[00:23:53] Speaker 02:
I understand that in a world where you're saying that all those motorists are sitting there so long that they're contributing emissions to the environment or something like that.

[00:24:00] Speaker 02:
But that wasn't the argument here.

[00:24:02] Speaker 02:
It's never been the argument.

[00:24:03] Speaker 02:
So I don't think that properly understood the board needs to be looking at all of this under NEPA.

[00:24:08] Speaker 02:
For public interest purposes, under the ICCTA, yes.

[00:24:11] Speaker 02:
Before it approves the transaction, absolutely.

[00:24:14] Speaker 02:
For NEPA purposes, no.

[00:24:16] Speaker 02:
But I don't think the court needs to reach it here if it agrees with all of it.

[00:24:22] Speaker 04:
Thank you.

[00:24:22] Speaker 02:
Thank you.

[00:24:36] Speaker 06:
Just very quick.

[00:24:38] Speaker 06:
I want to address the table issue that respondents mentioned.

[00:24:46] Speaker 06:
Table H22, that's the one where the first responders, you mentioned the longer trains and the

[00:24:52] Speaker 06:
time for their first responders to go around.

[00:24:55] Speaker 06:
Again, that table was dropped into the EIS.

[00:25:00] Speaker 06:
It's not part of the draft EIS.

[00:25:03] Speaker 06:
And the longer trains that they used to determine this alternative route was never applied to the delay study that they based their decision on.

[00:25:17] Speaker 06:
There was no impact.

[00:25:19] Speaker 06:
The table H24, which is at JA870, reverts back to the weighted average trains.

[00:25:30] Speaker 06:
And in terms of the stop trains, the board mentions stop trains at JA813 and JA859, saying that yes, trains stop and they say it's rare, but they never asked anybody how often that happens.

[00:25:48] Speaker 06:
And then the stopped trains, which they used to determine if a train is this long, how long as it takes to drive around it, they never factored into the delay analysis what that stopped train did to the analysis.

[00:26:05] Speaker 06:
Because their analysis determined or was based on the fact that trains were always moving.

[00:26:11] Speaker 06:
And so it gets the first responders

[00:26:18] Speaker 06:
analysis it adds but if that analysis also based on short trains moving it or actually longer trains okay for that particularly now but they are also moving at top speed.

[00:26:36] Speaker 06:
In terms of the meetings I thought it was interesting

[00:26:39] Speaker 06:
See, my time is red.

[00:26:41] Speaker 06:
Finish.

[00:26:43] Speaker 06:
Finish yourself.

[00:26:44] Speaker 06:
That the video conferences, and it's the new thing.

[00:26:48] Speaker 06:
But you had several board members go all the way to Houston, Texas to talk to the local community there and officials there about congestion in Texas.

[00:26:58] Speaker 06:
And so this whole proceeding in the coalition from the very start was

[00:27:06] Speaker 06:
you know, waving their hands and saying, come to Chicago, do some additional analysis, do some, you know, don't use these general models, you know, come in and do specific because it's a critical part of the merger.

[00:27:24] Speaker 06:
And it didn't happen and that's result in our view is an irrational conclusion from the EIS.

[00:27:31] Speaker 06:
Thank you.

[00:27:34] Speaker 06:
Thanks very much.