On April 30, 2018, the United States Supreme Court denied the petition for writ of certiorari filed in North Coast Railroad Authority v. Friends of the Eel River, U.S. Supreme Ct. Case No. 17-915, which presented this issue: “Whether citizen suits that seek to enforce state environmental approval requirements against a state-owned railroad by enjoining activities subject to the [Surface Transportation Board]’s exclusive jurisdiction are categorically preempted by [the Interstate Commerce Commission Termination Act of 1995].” The high court’s denial of review left undisturbed the California Supreme Court’s novel decision holding state public entity NCRA’s railroad project on its own line was subject to CEQA (and also onerous and delay-producing CEQA litigation) as an act of “self-governance”, whereas private rail carriers are exempt from these “regulatory” burdens by virtue of federal preemption under ICCTA. (My post on the California Supreme Court’s decision can be found here.)
As should be apparent from Justice Kruger’s concurrence, in eschewing a “bright line” rule that federal law categorically preempts CEQA in the area of railroad operations as an impermissible “environmental preclearance” requirement, the decision leaves complex issues of partial and “as applied” preemption – arising from particular CEQA compliance issues, mitigation measures and litigation remedies – to be hashed out through future litigation on a case-by-case basis. And, indeed, Friends of the Eel River (FOER) is already spawning interesting “partial CEQA preemption” progeny in cognate contexts. See, Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708 (relying on FOER in holding EIR for proposed private refinery modification project erroneously concluded federal law preempted CEQA review, analysis and disclosure of certain of the project’s reasonably foreseeable indirect environmental impacts from off-site, mainline rail activities); my post on this recent California appellate court decision can be found here.
These CEQA developments bring to mind a memorable scene from the classic comedy movie “Caddyshack” in which Rodney Dangerfield, portraying nouveau riche real estate developer Al Czervik, snidely remarks upon meeting the local judge’s ill-mannered nephew: “Now I know why tigers eat their young!” And while the thought of that happening to a tiger’s helpless cub is abhorrent, Petitioner NCRA might understandably be feeling similarly victimized by its governmental “parent” here – i.e., the State of California, acting through its Supreme Court.
As Justice Corrigan, the only member of the Cal Supremes who believed categorical preemption of CEQA by ICCTA should apply in this context, observed in her dissenting opinion, “neither NCRA nor any of the other state agencies involved in this case subscribed to the self-governance theory[,] … [which] forces the state to undertake a burden no private railroad owner must bear.” It seems to me the U.S. Supremes might well have agreed, and stepped into this “familial” fray to hold that Federal law preempts and thus spares our State’s own “young” – railroad entities like NCRA and, more importantly, the California High-Speed Rail Authority – from potentially being “devoured” by the burdensome “self-government” judicially imposed by their “parent” state. But one can just as easily imagine the SCOTUS justices sitting back in their chairs when voting to deny review, bemusedly pondering the California Supreme Court’s decision (and perhaps CEQA generally), and thinking to themselves, “Let the tiger eat its young!”