A split Ninth Circuit Court of Appeals panel has issued a stay pending review of the Surface Transportation Board’s (STB’s) order allowing construction of approximately 35 miles of railroad spur to connect the Port MacKenzie District in south-central Alaska to the Alaska Railroad Corp.’s existing main line. Alaska Survival v. STB, No. 12-70218 (9th Cir. 10/1/12).
According to the dissent, petitioners challenged STB’s compliance with the National Environmental Policy Act (NEPA). Specifically, the dissent states that petitioners objected to STB’s alleged failure to fully consider in its environmental impact statement an alternative in which no access road for maintenance or repair would be constructed alongside the railroad spur. The majority concluded that (i) petitioners met all the requirements for obtaining a stay, having demonstrated a serious question as to whether STB complied with NEPA in determining the purpose of and need for the project; (ii) “the balance of hardships tips sharply in petitioners’ favor”; (iii) irreparable harm is likely in the absence of a stay; and (iv) the stay was in the public interest.