May 22, 2018
Petition for Review of an Order of the Surface Transportation
Board. STB Finance Docket No. 35087.
Flaum and Ripple, Circuit Judges, and Gettleman, District
2007, Canadian National Railway Company ("CN")
sought approval from the Surface Transportation Board (the
"Board") of its acquisition of control of the
Elgin, Joliet, and Eastern Railway Company ("EJ &
E") rail line near Chicago. As part of its review, the
Board considered the impact of the acquisition on 112
railroad crossings throughout the Chicagoland area, including
the intersection at U.S. Highway 14 ("U.S. 14") in
the Village of Barrington (the "Village").
Crossings projected to be "substantially affected"
by the acquisition were eligible for mitigation measures
imposed by the Board as a condition to its approval, up to
and including grade separation between the roadway and rail
line. The Board approved CN's acquisition in 2008, but
determined that U.S. 14 would neither be substantially
affected nor warrant a grade separation. The Village
unsuccessfully petitioned the Board to reopen its decision in
2011 and 2014. It failed for a third time in 2017, and now
appeals the Board's most recent denial. Because the
Village does not present new evidence or substantially
changed circumstances that mandate a different result, we
deny the petition for review.
one of Canada's two major railroads, extending from
Halifax, Nova Scotia on the Atlantic coast to Vancouver and
Prince Rupert, British Columbia on the Pacific. Through its
Grand Trunk Corporation subsidiary, the company also controls
numerous rail carriers in the United States. Its American
railway system extends north/south from Chicago to the Gulf
Coast, and east/west from Pennsylvania to Minnesota.
& E West Company ("EJ & EW") is a wholly
owned, noncarrier subsidiary of EJ & E. The EJ & E
rail line, located in northeastern Illinois and northwestern
Indiana, encompasses a 120-mile arc of mainline track around
in the 1990s, the EJ & E line became a means for freight
moving through Chicago to avoid railway congestion in the
center of the city. Notably, Chicago is the only city in the
United States where all seven Class I railroads (railroads
with annual operating revenues of $250 million or more)
operate. According to the Board, "one third of all rail
freight in the United States moves to, from, or through
Chicago, " including more than 600 freight trains each
day. "Converging in the Chicago Terminal District-a 2,
800 mile rail network containing 70 train yards and
terminals-these freight trains compete for track and yard
space with each other and with over 750 commuter trains and
78 Amtrak trains per day, which together serve over 84
million passengers a year." Vill. of Barrington v.
STB, 636 F.3d 650, 652 (D.C. Cir. 2011) [hereinafter
Barrington I]. "The resulting congestion slows
freight traffic to a crawl." Id.
2007, CN sought acquisition of control of EJ & EW in
order to move a majority of its Chicago rail traffic to the
EJ & E line. At the time, CN's rail network
"converge[d] on the city like the spokes of a wheel
… meet[ing] in the heart of the Chicago Terminal
District." Id. As a result, trains passing
through the city were forced to "contend with the
city's congestion, " which often turned the
thirty-mile journey into a twenty-four hour endeavor.
Id. The EJ & E line, however, cut across
CN's existing rail lines, thus allowing trains the
opportunity to bypass the city center.
federal law, the Board "has authority to regulate the
construction, operation, and abandonment of most railroad
lines in the United States, " Caldwell v. United
States, 391 F.3d 1226, 1228 (Fed. Cir. 2004), including
the "[a]cquisition of control of a rail carrier by any
number of rail carriers." 49 U.S.C. §
11323(a)(3). The Board must approve and authorize any
transaction "consistent with the public interest, "
but may nonetheless "impose conditions governing the
transaction." Id. § 11324(c). CN applied
for Board approval on October 30, 2007.
roadways that intersect the EJ & E line are important to
regional mobility. At the time of the proposed acquisition,
"nearly 340, 000 people live[d] in close proximity to
the EJ & E line, " and "73% of road crossings
lack[ed] bridges over the tracks." Barrington
I, 636 F.3d at 653. Consequently, the Board conducted an
environmental review in accordance with the National
Environmental Policy Act ("NEPA"),  42 U.S.C.
§§ 4321-4370m-12. The Board's Office of
Environmental Analysis ("OEA") prepared an
Environmental Impact Statement ("EIS") examining
112 crossings along the EJ & E rail line, including the
intersection at U.S. 14 in Barrington. It "studied how
increased freight traffic would worsen traffic congestion,
increase the risk of collisions, slow emergency responders,
and increase the likelihood of hazardous material spills in
communities along the rail line." Barrington I,
636 F.3d at 668. In the course of preparing the EIS, OEA
"publish[ed] notices in the Federal Register and ads in
local newspapers, [held] twenty-two public meetings attended
by over 7200 people, consult[ed] with local, state, and
federal agencies and officials, publish[ed] for comment a
3500 page draft environmental impact statement, [and held] a
sixty day comment period on that draft, " during which
it received over 13, 500 comments. Id. at 653.
affected crossings were eligible for the imposition of
mitigation measures as a condition to the Board's
approval. Possible mitigation measures included: traffic
advisory signs that notified drivers to stay clear of
intersections; roadway modifications (such as widening); and,
most relevant here, grade separation between the roadway and
rail line. Critically, however, a substantially affected
crossing did not automatically warrant mitigation.
Rather, in determining what (if any) measures would be
appropriate, OEA considered "the individual
characteristics of each highway/rail atgrade crossing
site." These factors included, inter alia,
"the importance of the highway at the crossing to
regional traffic flows, existing congestion, existing
structures (such as mature trees and local roadways) near the
highway/rail at-grade intersection, and the cost of a grade
determine whether a crossing would be substantially affected
by the acquisition, OEA studied impacts on traffic congestion
by examining rail and vehicle projections for
2015. Specifically, OEA examined three data
"thresholds."The first was the crossing level of
service ("LOS"), a measure of how freely traffic
moves at a crossing. The LOS at a particular crossing was
characterized by a letter from A through F, with "LOS
A" indicating relatively free-flowing traffic and
"LOS F" indicating extreme congestion. A crossing
was declared substantially affected if it would be classified
as LOS E or F as a result of the acquisition. Second, OEA
examined effects on vehicle queue length, or how far traffic
backs up when a train passes. Crossings were deemed
substantially affected where acquisition-related queues were
projected to block a major thoroughfare that would not
otherwise be obstructed. Finally, OEA analyzed the total
length of delay for all vehicles stopped at a crossing.
Crossings expected to experience more than forty hours of
acquisition-related vehicle delay in a twenty-four hour
period were considered substantially affected.
draft EIS projected that if the acquisition were approved,
20.3 CN trains would travel across the Barrington segment of
the EJ & E line each day by 2015, with an average length
of 6, 829 feet and speed of 40 miles per hour. OEA further
concluded that U.S. 14 did not exceed any of the three
thresholds for substantially affected crossings. In
particular, it determined that, as a result of the
acquisition, the intersection would: (1) remain at LOS A; (2)
not experience queues that blocked a major thoroughfare
(although average queue lengths were expected to increase
from 558 to 1, 048 feet); and (3) encounter only 31.78 hours
of daily acquisition-related vehicle delay (compared to 2.49
hours if no CN trains were added).
response to the draft EIS, the Village conducted its own
independent "VISSIM" study using a different
methodology than the EIS. The Village claimed that its VISSIM
model calculated 135-249 hours of daily acquisition-related
vehicle delay at U.S. 14, an amount substantially higher than
the draft EIS forecast and above the forty-hour threshold
established for substantially affected crossings.
address the Village's study, the Board performed an
additional VISSIM traffic analysis specifically focused on
the Barrington area, referred to as the Village of Barrington
Traffic Operational Analysis (the "VOBTOA Study").
The VOBTOA Study concluded that during morning and evening
peak periods, overall vehicle delay in the Barrington region
would increase by 4% and 5%, respectively. It also found,
however, that "the major source of congestion" was
not the proposed acquisition, but rather "excess vehicle
demand at existing major thoroughfare intersections, "
which "backs up traffic into significant queues."
As a result, it determined that "construction of a grade
separation … at … [U.S. 14] … [was] not
a feasible way to address regional congestion, " and
"would only be beneficial if capacity improvements
[were] incorporated at the upstream and downstream signalized
final EIS published on December 5, 2008, OEA presented the
VOBTOA Study and recommended final mitigation conditions for
the proposed acquisition. The final EIS found that thirteen
crossings would be substantially affected. Of these, OEA
recommended mitigation for eight crossings (including two
grade separations); it determined that mitigation was not
needed for the remaining five. Once again, however, it
concluded that the U.S. 14 intersection did not meet the
criteria for a substantially affected crossing, much less a
importantly, the final EIS determined that even if a grade
separation at U.S. 14 were constructed, it "would have
minimal benefit to traffic flow" because "existing
traffic signals in proximity to one another, as well as the
[existence of a separate commuter rail line that intersects
with the EJ & E line in Barrington], would result in
substantial queuing along … U.S. 14." OEA stated
that as a result, "it [was] not the responsibility of
[CN] to mitigate for [this] existing traffic congestion in
the community by grade separating U.S. 14."
The Board's 2008 Decision
Board approved the acquisition on December 24, 2008, subject
to CN implementing the environmental mitigation conditions
discussed in the final EIS. See Canadian Nat'l Ry.
Co.-Control-EJ & E W. Co., STB Finance Docket No.
35087, 2008 WL 8139694 (Dec. 24, 2008). Although the Board
recognized that "numerous commenters requested grade
separations, " it ultimately agreed with OEA's
analysis "explaining why a grade separation …
would not be practical or warranted at those crossings."
Still, it imposed a "monitoring and oversight"
period, during which CN was required to submit regular
operational and environmental reports and the Board retained
the authority to impose additional mitigation
measures. CN completed its acquisition of the EJ
& E line on January 21, 2009, at a cost of $303 million.
the Board's decision, approximately a dozen governmental
entities, including the Village, filed petitions for review
in the D.C. Circuit Court of Appeals. See Barrington
I, 636 F.3d at 654. The Village argued that the Board
"failed to take the requisite 'hard look' at
traffic congestion and emergency responder delays in
Barrington" and "failed to adequately examine
strategies for mitigating those impacts." Id.
at 672. The D.C. Circuit denied the Village's petition on
March 15, 2011. Id. at 672-73.
The 2011 Petition to Reopen
October 14, 2011, the Village petitioned the Board to reopen
its 2008 decision and require CN to bear at least 84% of the
cost of a grade separation at U.S. 14. In relevant part, the
Village highlighted that the Illinois Department of
Transportation ("IDOT") had designated U.S. 14 a
Strategic Regional Arterial ("SRA"). It also
submitted an updated version of its 2008 VISSIM study. The
revised analysis projected 2015 traffic conditions by
examining actual post-acquisition CN operations in mid-2011
rather than the pre-acquisition estimates created in 2008.
This time, the Village's study predicted 98-100 hours of
acquisition-related vehicle delay at U.S. 14. As in 2008, the
Village argued that this projection satisfied one of the
criteria used by the Board in determining substantially
affected crossings. However, the Village's study also
indicated that, even if CN trains were not added to
the EJ & E line, vehicle delay in 2015 would increase by
260 hours compared to 2007 levels.
addition, the Village introduced evidence that in 2010, it
received a $2.8 million federal grant under the
Transportation Investment Generating Economic Recovery
("TIGER II") program to undertake preliminary
engineering studies for a grade separation at U.S. 14. It
argued that its receipt of the TIGER II grant showed that the
Board erred in not ordering a grade separation in 2008.
Finally, it cited a growing "industry trend" of
increased train lengths and slower train speeds, which it
argued the Board did not consider when developing its 2008
Board denied the Village's petition on November 8, 2012.
See Canadian Nat'l Ry. Co.-Control-EJ & E W.
Co., STB Finance Docket No. 35087, 2012 WL 5458828 (Nov.
8, 2012). It concluded that "SRA designation alone
… did not warrant a grade separation at a given
intersection, particularly in areas with preexisting roadway
capacity constraints." It further found that because the
Village's 2011 study projected less impact on
vehicle delay than its 2008 analysis, the Village had not
presented new evidence or changed circumstances that would
have materially altered its 2008 decision. It also noted that
the Village's study confirmed that "even if CN's
additional trains were to add 98-100 hours of increased
vehicle delay at U.S. 14 … existing capacity
constraints on U.S. 14 will contribute much more
significantly to the vehicle delays at that crossing than
will additional CN trains on the EJ & E line."
the Board reiterated that "exceeding the 40hour traffic
delay threshold did not automatically warrant … a
grade separation." As evidence, it pointed to the five
crossings deemed substantially affected in 2008 that
ultimately did not receive any mitigation measures.
Citing the VOBTOA Study and final EIS, the Board emphasized
that while the acquisition would increase delay at U.S. 14
"to some degree, " it "would not substantially
modify the basic nature of the traffic congestion that
motorists were already experiencing and would continue to
experience in Barrington due to preexisting roadway capacity
the TIGER II grant, the Board stated that the Village did not
cite "any statements relating to the awarding of the
grant that refute[d] the Board's decision in the 
Final Decision not to impose a grade separation." Last,
it found that the Village failed to show that its supposed
"industry trends" involving train length and speed
"appl[ied] to or reflect[ed] CN's operations on the
EJ & E rail line."
again, the Village filed a petition for review, which the
D.C. Circuit denied on July 18, 2014. Vill. of Barrington
v. STB, 758 F.3d 326 (D.C. Cir. 2014) [hereinafter
The 2014 Petition to Reopen
Village filed another petition with the Board on November 26,
2014, this time asking that CN be forced to contribute 79% of
the cost of a grade separation (equal to $47 million). The
Village referenced unexpected "energy-related market
developments on CN's rail network." Specifically, it
claimed that the acquisition, combined with an unexpected
rise in global energy prices, had "facilitated …
increased movement of energy commodity traffic (namely, crude
oil, ethanol, and frac sand shipments) and that these
unforeseen traffic volumes were not factored in the
projections relied upon by the Board in its 2008 Final
Decision." It asserted that "it necessarily
follow[ed] that CN's projections could not have allowed
the Board to weigh the profound long-term impact … on
Barrington." It also maintained that this energy-related
traffic resulted in "unanticipated movement of flammable
hazardous materials through Barrington [that] pose[d] a
threat to public safety not previously considered by the
the Village contended that the average length of CN trains
had significantly increased (from 5, 800 feet in 2011 to 8,
568 feet in 2014). It stated that this created greater
vehicles delays and threatened emergency medical response. It
also raised the prospect of "double-tracking, "
i.e., the addition of a second parallel track along the EJ
& E line. It claimed that, based upon the increase in
energy-related freight traffic, as well as emails sent by CN
personnel in 2013, "it [was] only a ...