Eagle County, Colorado v. STB

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 intervenor-
respondents 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 low-
sulfur 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 two-
lane 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 Board-
defined 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 Co-
op. 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 procedural-
rights 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 [Railway-
induced] [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, miles-
long 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, Badger-
Two 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 Board-
imposed 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.