United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2010 Decided June 15, 2010
No. 08-1346
COMMUTER RAIL DIVISION OF THE REGIONAL
TRANSPORTATION AUTHORITY, METRA,
PETITIONER
v.
SURFACE TRANSPORTATION BOARD AND
UNITED STATES OF AMERICA,
RESPONDENTS
CANADIAN PACIFIC RAILWAY COMPANY ET AL.,
INTERVENORS
Consolidated with 08-1377
On Petitions for Review of a Final Order
of the Surface Transportation Board
Robert P. vom Eigen argued the cause for petitioner
Commuter Rail Division of the Regional Transportation
Authority. David T. Ralston Jr. was on brief. James B.
Dougherty was on brief for petitioner Sierra Club.
Theodore L. Hunt, Attorney, Surface Transportation Board,
argued the cause for the respondents. Robert B. Nicholson, John
P. Fonte and Brian C. Toth, Attorneys, United States
2
Department of Justice, Ellen D. Hanson, General Counsel,
Surface Transportation Board, Evelyn G. Kitay, Associate
General Counsel, and Anika S. Cooper, Attorney, were on brief.
Craig M. Keats, Deputy General Counsel, and Jeffrey D.
Komarow, Trial Attorney, Surface Transportation Board, entered
appearances.
Richard A. Allen, Terence M. Hynes and Noah A. Clements
were on brief for intervenors Canadian Pacific Railway
Company et al. in support of the respondents.
Before: GINSBURG, HENDERSON and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Canadian
Pacific Railway Corporation (CPR), along with its indirect
subsidiary Soo Line Holding Company (Soo Holding), and
Dakota, Minnesota & Eastern Railroad Corporation (DME),
along with its subsidiary Iowa, Chicago & Eastern Railroad
Corporation (ICE), (collectively Applicants) applied to the
Surface Transportation Board (STB or Board) for approval of a
merger in which Soo Holding (and indirectly CPR) was to
acquire DME and ICE. They filed the application under 49
U.S.C. § 11324, which authorizes the Board to initiate a
proceeding to approve various transactions within its
jurisdiction, including the acquisition of one or more railroads
by another railroad. See 49 U.S.C. §§ 11324(a), 11323. The
STB approved the acquisition. Canadian Pac. Ry.
Co.—Control—Dakota, Minn. & E. R.R. Corp., 2008 WL
4415850 (STB September 30, 2008) (DME Acquisition). Metra
and the Sierra Club1 seek review of the STB’s decision
1
Sierra Club is a non-profit conservation organization. Pet’rs’ Br.
at i. Metra provides commuter rail passenger service in the Chicago
metropolitan area over track it shares with freight railroads, and
3
approving the acquisition. Metra challenges the Board’s refusal
to attach “conditions” to the approval, pursuant to 49 U.S.C.
§ 11324(c), in order to protect Metra’s rights over its track line
running north from Chicago toward Wisconsin over which Soo
Holding has trackage rights and for which CPR is the dispatcher.
Sierra Club challenges the Board’s decision to defer preparation
of an environmental impact study (EIS) until CPR decides
whether to move forward with the construction of a line
connecting DME’s track in South Dakota to certain coal mines
located in Wyoming’s Powder River Basin (PRB). For the
reasons set out below, we dismiss Sierra Club’s petition for lack
of constitutional standing and deny Metra’s petition because the
Board’s approval of the merger was not an abuse of its
discretion.
I.
Metra operates two rail lines that are potentially affected by
CPR’s acquisition of DME/ICE: one line running west from
Chicago (West Line), on which DME and ICE also operate
trains, and one line running north (North Line) from Chicago, on
which Soo Holding runs trains. CPR is the train dispatcher for
both lines pursuant to separate trackage agreements first
negotiated in 1985 between CPR/Soo Holding and Metra’s
predecessor in interest.
In February 1998, DME filed an application with the STB
to construct and operate approximately 280 miles of track
connecting the PRB coal mines to track DME owned in South
Dakota and Minnesota. After an EIS was prepared, the Board
approved DME’s application in January 2002. DME Constr.
comprises both the Commuter Rail Division of the Regional
Transportation Authority, an Illinois special purpose unit of local
government, and the Northeast Illinois Regional Commuter Railroad
Corporation, an Illinois municipal corporation. Id.
4
into the Powder R. Basin, Finance Docket No. 33407, 2002 WL
121210 (STB Jan. 28, 2002). The Eighth Circuit vacated and
remanded the Board’s decision for a supplemental
environmental impact statement (SEIS). Mid States Coal. for
Progress v. STB, 345 F.3d 520 (8th Cir. 2003). In 2006, at the
conclusion of an 8-year proceeding, the Board again approved
DME’s application to construct and operate the PRB rail line
and the Eighth Circuit upheld the Board’s decision. Dakota,
Minn. & E. R.R. Corp. Constr. into the Powder R. Basin,
Finance Docket No. 33407, 2006 WL 383507 (STB Feb. 13,
2006), pet. for rev. denied, Mayo Found. v. STB, 472 F.3d 545
(8th Cir. 2006).
Shortly after the Board’s initial approval of the PRB track,
it approved an application by ICE to acquire I&M Rail Link
(IMRL), which owned track running through Illinois,
Minnesota, Missouri and Wisconsin that connected with Metra’s
West Line. See Ia., Chi. & E. R.R. Corp.—Acquisition &
Operation Exemption—Lines of I&M Rail Link, LLC, Finance
Docket No. 34177, 2002 WL 1609341 (STB July 22, 2002)
(IMRL Acquisition). Aware that DME sought to acquire ICE,
the Board deferred considering the “cumulative impacts” of the
two acquisitions (of IMRL by ICE and of ICE by DME) together
with DME’s proposed PRB track construction—because of “the
prospect of adding at least a portion of th[e] substantial traffic”
from the PRB coal mines to the traffic that already moved over
the IMRL lines ICE was acquiring—until such time as DME
“obtained authority to control IC[]E” and was “prepared to
exercise the construction authority that [the Board] issued” for
the PRB line. IMRL Acquisition at 16, 2002 WL 1609341, at *8.
Deferral was “appropriate,” the Board explained, “given the
current uncertainty as to whether the line approved in DME
Construction will be built and, if built, what portion of the
traffic to and from the new line would move over which IMRL
lines.” Id. at 16, 2002 WL 1609341, at *8. The Board
subsequently approved DME’s acquisition of ICE in 2003.
5
Dakota, Minn. & E. R.R. Corp.—Control—Ia., Chi. & E. R.R.
Corp., Finance Docket No. 34178, 2003 WL 221559 (STB Jan.
31. 2003).
While DME’s PRB track construction proceeding was
pending, Metra, concerned that DME might over-use ICE’s
trackage rights over Metra’s West Line—in particular, for PRB
coal traffic —used its right of prior approval over assignment of
trackage rights as leverage to negotiate two agreements among
Metra, CPR and ICE, which agreements, inter alia, limited the
level of daily traffic over the line and established fees for
exceeding the limit, required Metra’s consent before allowing
PRB coal traffic and established a procedure to reach consensus
on capital contributions and expenditures as necessary to handle
additional traffic.
In October 2007, the Applicants filed their application for
Board approval of the acquisition of DME/ICE by CPR
subsidiary Soo Holding. Application by Canadian Pac. R.R. Co.
for Approval of Control of Dakota, Minn. & E. R.R. Corp.,
Finance Docket No. 35081 (filed Oct. 5, 2007). In their
application, they advised the Board that, after conferring with
the Board’s Section of Environmental Analysis, they believed it
was “appropriate” to continue to defer preparing an EIS for
transporting PRB coal over ICE’s track, explaining it was not
“possible . . . to evaluate any potential environmental issues that
might be associated with the transportation of PRB coal traffic”
because DME had “not yet secured contracts with shippers for
the movement of PRB coal over the proposed new PRB line”
and CPR had “not yet made a decision to build it.” Id. at 24.
Sierra Club submitted comments on February 4, 2008,
asserting that the Applicants’ proposed “[b]ifurcation of its
environmental review into two phases would violate the STB’s
obligation to consider these matters cumulatively.” Envt’l
Comments of Sierra Club and Sierra Club of/du Can. at 2. The
Board agreed with the Applicants’ proposal, explaining (1) it
6
was “satisfied” that the DME acquisition “would not result in an
increase in train traffic or rail yard activity in excess of the
thresholds for environmental review contained in [its] rules, and
there is nothing in the available environmental information that
would indicate a potential for significant environmental impacts
resulting from the proposed change in corporate control itself”
and (2) “the preparation of environmental documentation on
routing DM[]E PRB coal traffic over the rail lines of IC[]E
and/or CPR[] . . . can and should be deferred until more
definitive information is available.” Canadian Pac. R.R.
Co.—Control—Dakota, Minn. & E. R.R. Corp., Finance Docket
No. 35081 at 5-6, 8, 2008 WL 906056, at *4, *6 (STB Apr. 3,
2008).
Metra filed comments on March 4, 2008, expressing its
concern that (1) CPR, as an interested party with regard to the
West Line because of its acquisition of DME/ICE, could no
longer be relied upon as a neutral enforcer of the 2003
agreements, (2) CPR might divert traffic from Metra’s West
Line (which was subject to the 2003 trackage agreement’s
limitations) to Metra’s North Line (which was not subject to
such limitations) and (3) construction of the PRB line (with its
additional traffic on Metra’s tracks) was more likely if the
merger went through. Metra Comments in Opposition to
Proposed Transaction & Request for Conditions at 7 (Metra
Comments). Accordingly, Metra asked that the STB impose
seven “conditions” on CPR’s acquisition of DME/ICE pursuant
to 49 U.S.C. § 11324(c), namely, that (1) CPR transfer to Metra
the right to dispatch trains over its North and West Lines; (2)
CPR refrain from operating PRB coal trains over either the West
or North Line until Metra upgraded both lines; (3) CPR bear the
expense of capacity improvements necessary for operating the
PRB coal trains; (4) CPR pay Metra excess traffic fees for the
North Line like those negotiated in the West Line agreements;
(5) all trains originating or terminating on DME/ICE track and
operating on either the West or North Line be considered ICE
7
trains for the purpose of any agreement Metra has with CPR,
DME or ICE; (6) CPR and its affiliates acknowledge that they
may not admit a third party carrier to either the West or North
Line; and (7) CPR negotiate with Metra appropriate agreements
to incorporate the preceding six conditions. Id. at 9-10.
The STB approved CPR’s acquisition of DME/ICE on
September 29, 2008. See DME Acquisition, supra. It first
determined that, because the acquisition “does not involve the
merger or control of two or more Class I railroads,”2 it is
governed by subsection (d) rather than subsection (b) of 49
U.S.C. § 11324, the latter of which by its terms applies to an
application for “merger or control of at least two Class I
railroads,” 49 U.S.C. § 11324(b) (emphasis added); DME
Acquisition at 8, 2008 WL 4415850, at *5. Subsection (d)
provides in relevant part:
In a proceeding under this section which does not
involve the merger or control of at least two Class I
railroads, as defined by the Board, the Board shall
approve such an application unless it finds that—
(1) as a result of the transaction, there is
likely to be substantial lessening of
competition, creation of a monopoly, or
restraint of trade in freight surface
transportation in any region of the United
States; and
2
A Class I carrier has annual carrier operating revenues of $250
million or more while a Class II carrier has annual carrier operating
revenues of less than $250 million but more than $20 million. 49
C.F.R. § 1201.1-1. Although CPR is a Class I railroad, DME and ICE
are both Class II railroads.
8
(2) the anticompetitive effects of the
transaction outweigh the public interest in
meeting significant transportation needs.
49 U.S.C. § 11324(d). Noting that the “primary focus” of
subsection (d) is “whether there would be adverse competitive
impacts that are both likely and substantial”—and, if so,
“whether the anticompetitive impacts would outweigh the
benefits or could be mitigated through conditions,” DME
Acquisition at 8, 2008 WL 4415850, at *5—the Board
concluded that “the public benefits of the transaction offset any
minimal decrease in geographic competition,” id. at 11, 2008
WL 4415850, at *7. The Board further denied Metra’s proposed
conditions because they “do[] not relate to competition, the
major focus of [a] section 11324(d) analysis” and because it
believed such conditions were better left to “commercial
negotiation,” given “the intricate details involved in
coordinating freight and passenger rail operations, capital
expenditures, and compensation.” Id. at 15, 2008 WL 4415850,
at *10. Citing CPR’s stated “commit[ment] to working
cooperatively with Metra,” the Board “strongly encourage[d]
both parties to work together to achieve a mutually acceptable
arrangement to govern joint operations.” Id. In addition, the
Board confirmed its intent to defer preparing an EIS, explaining
that it was “not ‘bifurcating’ [its] environmental process,” as
Sierra Club charged, but rather it “ha[d] determined that the
acquisition itself does not have sufficient potential to affect the
environment to require environmental documentation and that
a determination of what cumulative effect the Board’s approval
of DM[]E PRB Construction might have on the Board’s
approval of the proposed acquisition here is premature.” Id. at
25, 2008 WL 4415850, at *19. This was so because the Board
expressly forestalled such effects by “impos[ing] conditions
precluding applicants from carrying [PRB] traffic over IC[]E
and/or CPR[] lines until an EIS has been prepared.” Id.
9
Metra filed a timely petition for review on October 29, 2008
and Sierra Club followed suit on December 1, 2008.
II.
Sierra Club challenges the Board’s failure to prepare an EIS
before approving CPR’s acquisition of DME. Metra challenges
the Board’s approval of the acquisition without imposing
conditions on the North Line similar to those in place on the
West Line. We address, and reject, each challenge in turn.
A. Sierra Club
Sierra Club contends that the Board’s decision to defer the
EIS of the cumulative effects of the railroad acquisitions and the
PRB line construction violated the National Environmental
Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., which “requires
agencies to prepare an environmental evaluation for all
proposals for ‘major Federal actions significantly affecting the
quality of the human environment.’ ” Citizens Against
Rails-to-Trails v. STB, 267 F.3d 1144, 1150 (D.C. Cir. 2001)
(quoting 42 U.S.C. § 4332(2)(C)). The STB responds that Sierra
Club lacks standing under Article III of the United States
Constitution to challenge its decision. We agree.
Sierra Club claims Article III standing as the representative
of two of its members whose sworn declarations it has
submitted: Mark A. Snyder and Sam N. Clauson. An
organization has representational standing to litigate on behalf
of its members “if ‘(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’ ” Int’l Bhd.
of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134-35
(D.C. Cir. 2005) (quoting United Food & Commercial Workers
Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553
(1996)) (internal quotation omitted). Sierra Club fails the first
10
prong of this test because it has not shown that either of the two
members has standing in his own right.
“The ‘irreducible constitutional minimum of standing
contains three elements’: (1) injury-in-fact, (2) causation, and
(3) redressability.” Jackson County, N.C. v. FERC, 589 F.3d
1284, 1288 (D.C. Cir. 2009) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)) (internal quotation
omitted). Thus, to demonstrate standing, “a petitioner must
allege (1) a personal injury-in-fact that is (2) fairly traceable to
the defendant's conduct and (3) redressable by the relief
requested.” Int’l Bhd. of Teamsters, 429 F.3d at 1134 (internal
quotations omitted). Sierra Club has not made the required
showing because neither Snyder’s declaration nor Clauson’s
declaration alleges an injury that was caused by the Board’s
decision in this case.
Clauson, an “environmentalist” and “avid hunter” who lives
in Rapid City, South Dakota, claims he will be injured by the
STB’s decision approving the DME acquisition because (1) “the
proposed CP[R]/DM&E rail line . . . will drive away the deer
and antelope” that he hunts nearby and (2) the “coal train traffic
. . . will be a frequent source of noise and air pollution, and it
will disturb the natural tranquility of the wild places” he visits.
Sam N. Clauson ¶¶ 4-6 (dated Dec. 2, 2009). The claimed
injuries, however, will not be traceable to the Board’s decision
in this case; nor can they be redressed in this proceeding.
Construction of the proposed rail line of which Clauson
complains was finally authorized in 2006 and the Eighth Circuit
found the Board’s EIS and SEIS fully satisfied NEPA’s
requirements for that “major Federal action.” See Mid States
Coal. for Progress, 345 F.3d 520; Mayo Found., 472 F.3d 545.
The EIS the Board deferred in this proceeding is the EIS
required to assess the additional cumulative environmental
effects caused by “the possible future movement of DM[]E PRB
coal traffic over the IC[]E and CPR[] lines” attributable to the
11
subsequent corporate acquisitions (of IMRL by ICE, ICE by
DME and DME by CPR). DME Acquisition at 7-8 (emphasis
added). If the Board’s decision here is overturned, the
construction authorization would not be affected and no new
EIS would be required for the area Clauson visits and hunts.
Snyder, who lives in Minneapolis (a location not covered
by the STB’s 2006 PRB line construction authorization), alleges
as his injury that, “[i]f the Canadian Pacific Rail [CPR] system
is opened to large coal trains, it will create noise, dust, vibration
and adverse visual impacts, and have an adverse impact on [his]
quality of life” inasmuch as he can see and feel the vibration of
CPR trains in his neighborhood and he occasionally hikes on
trails close to the CPR track. Decl. of Mark A. Snyder ¶¶ 4-7
(dated Dec. 3, 2009). Again, the alleged injuries are not
traceable to the Board’s decision in DME Acquisition, which
expressly prohibits coal traffic on the subject track until after an
EIS is completed:
Approval of the [CPR/DME/ICE] control application
in STB Finance Docket No. 35081 is subject to the
condition that applicants may not transport over lines
currently operated by IC[]E and/or CPR[] unit trains of
coal originating on the new rail line approved for
construction in DM[]E PRB Construction, until the
Board has prepared an Environmental Impact
Statement, and has issued a final decision addressing
the environmental impacts of such coal operations and
allowed such operations to begin.
STB Decision 27 ¶ 3, 2008 WL 4415850, at *20. The alleged
injuries, should they ever occur, would result from the Board’s
contemplated “final decision addressing the environmental
impacts” and expressly authorizing coal traffic from the PRB
(via the yet-to-be-constructed PRB extension) to travel over
existing lines now operated by ICE or CPR. And under the
terms of the just quoted passage, such a decision will not issue
12
until after an EIS has been prepared, the very relief Sierra Club
seeks. Meanwhile, the Board’s approval of the DME acquisition
by itself—without the addition of coal traffic to the line—will
cause Snyder no injury. He remains free to live in and hike the
area undisturbed by PRB coal traffic.
Because Sierra Club has not shown, as it must, “a causal
connection between the government action that supposedly
required the disregarded procedure”—here, approval of the
DME acquisition— “and some reasonably increased risk of
injury to its particularized interest,” we dismiss its petition for
lack of standing. Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658,
664 (D.C. Cir. 1996) (en banc).
B. Metra
Metra challenges the STB’s refusal to impose the conditions
Metra requested pursuant to subsection (c) of 49 U.S.C.
§ 11324. Subsection (c) provides in relevant part: “The Board
shall approve and authorize a transaction under this section
when it finds the transaction is consistent with the public
interest. The Board may impose conditions governing the
transaction, including the divestiture of parallel tracks or
requiring the granting of trackage rights and access to other
facilities.” Under this provision, the Board “has extraordinarily
broad discretion in deciding whether to impose protective
conditions in the context of railroad consolidations.” Grainbelt
Corp. v. STB, 109 F.3d 794, 798-99 (D.C. Cir. 1997) (citing
predecessor provision 49 U.S.C. § 11344(c), applicable to STB’s
predecessor, the Interstate Commerce Commission) (internal
quotation omitted). “Affording ‘great deference’ to the [Board’s]
selection of such conditions,” we “will deny a petition for
review so long as the [Board’s] decision is supported by
substantial evidence in the record and was reached by reasoned
decision-making.” Id. at 798-99 (citing 5 U.S.C. § 706(2)(A) &
(E); Lamoille Valley R.R. v. ICC, 711 F.2d 295, 307 (D.C. Cir.
1983)). The Board’s decision satisfies this standard.
13
Metra argues first that the STB construed section 11324 too
narrowly to preclude—in a subsection (d) proceeding—
imposing subsection (c) conditions that are “not designed to
remedy a competitive problem”—contrary to the Board’s own
previous interpretations of subsection (c) as conferring “broad”
conditioning authority. Pet’rs’ Br. at 24-25 & n.22. We find
Metra’s reading of the Board’s decision too cramped.
It is true the Board observed that “Metra’s alleged harm
does not relate to competition, the major focus of [its] section
11324(d) analysis,” DME Acquisition at 15, 2008 WL 4415850,
at *10—and reasonably so. Subsection (d)’s primary focus is
indeed to preserve competition after a merger or acquisition and
Metra acknowledges the Board’s past practice has been to
“generally impose[] conditions on § 11324(d) transactions
designed only to mitigate anticompetitive impacts of such
transactions.” Pet’rs’ Br. at 24 n.22. But the Board did not stop
there—it also made an affirmative determination not to impose
the conditions Metra sought because they address contractual
issues the Board considered properly the subject of contract
negotiations, not Board directives:
Moreover, Metra seeks material changes to (or
extensions of) existing agreements, or to compel new
contractual commitments from CPR[] to protect Metra
from potential traffic increases that it might not have
considered during prior contractual negotiations. We
will not use our conditioning power here to compel
resolution of potential differences between CPR[] and
Metra with respect to operating, dispatching, and
compensation matters. Given the intricate details
involved in coordinating freight and passenger rail
operations, capital expenditures, and compensation,
commercial negotiation seems to be the better avenue
for resolving such issues. CPR[] has indicated that it
remains committed to working cooperatively with
14
Metra, and the Board strongly encourages both parties
to work together to achieve a mutually acceptable
arrangement to govern joint operations.
DME Acquisition at 15, 2008 WL 4415850, at *10. In short, the
Board declined to use its conditioning authority to alter (or
interpret) the existing contractual terms in Metra’s favor,
consistent with its past practice. See CSX Corp.—Control &
Operating Leases/Agreements—Conrail, Inc., 3 S.T.B. 196, 297
(1998) (“[T]hese parties seek material changes to, or extensions
of, existing contracts, or to compel new contractual
commitments or property sales . . . . We are reluctant to use our
conditioning power to compel resolution of differences between
freight railroads and passenger agencies with respect to
operating, dispatching, and compensation matters.”).
Metra also argues the STB abused its discretion under
subsection (c) in refusing to consider the merger’s impact on
Metra’s “commuter services” pursuant to the Board’s “essential
services regulations.” Pet’rs’ Br. at 31-32 (citing 49 C.F.R.
§ 1180.1(c)(2)(ii)). Contrary to Metra’s claim, however, the
Board did consider the impact on Metra’s essential passenger
services, DME Acquisition at 13-14, 2008 WL 4415850, at *9-
10, and concluded it was best addressed through contract
negotiations, as we discussed above. In so reasoning, the Board
did not abuse its discretion. Metra successfully negotiated
comparable conditions in the 2003 agreements governing the
West Line and we see no reason why it cannot attempt to do the
same now, as the Board urged, in light of CPR’s expressed
“commit[ment] to working cooperatively with Metra.” Id. at 15,
2008 WL 4415850, at *10. In any event, even under the 1985
trackage agreement governing the North Line, CPR is required
to “provide priority to Metra’s schedules and operations, and to
ensure that there be no material interference with that service.”
Metra Comments at 4. Accordingly, if negotiations fail and
CPR does not afford the unimpeded priority guaranteed under
15
the 1985 agreement, then, as the Board noted, “any contractual
disputes between Metra and CPR[] can be litigated by them in
an appropriate court.” DME Acquisition at 15 n.25, 2008 WL
4415850, at *10 n.25. As we have noted, this merger does not
involve two or more Class I railroads. We do not decide
whether the Board’s determination that negotiation or litigation
is the best avenue to address impacts on Metra’s services would
be reasonable in the context of a merger that does involve two
or more Class I railroads. In such mergers, the Board is
expressly required by statute to “consider,” inter alia, “the effect
of the proposed transaction on the adequacy of transportation to
the public.” 49 U.S.C. § 11324(b).
For the foregoing reasons, Sierra Club’s petition for review
is dismissed for lack of jurisdiction and Metra’s petition for
review is denied.
So ordered.