A federal appeals court has sided with the Interstate Commerce Commission and approved Burlington Northern Railroad's new 17-mile rail line to a Missouri power plant.
Turning aside arguments that the new line would harm a natural habitat, the U.S. Court of Appeals for the 8th Circuit in St. Louis denied a request to review the ICC's March 1992 grant to BN of an exemption from the National Environmental Policy Act of 1969.The case marked the first environmental challenge to a construction exemption, said Evelyn Kitay, an ICC trial attorney who defended the
commission's position. "This case called into question our entire environmental review process," she said.
The ICC exemption was granted so that BN could build a 9.87-mile spur between Bevier and Binkley, Mo., connecting BN's mainline at Bevier over the former Bevier & Southern Railroad right-of-way. BN purchased the route from Associated Electric Cooperative Inc.
"Both the ICC's environmental procedures and their general use of the exemption process was affirmed by the 8th Circuit," said John H. LeSeur, an attorney with the Washington law firm of Slover & Loftus, who represented AECI.
Observers doubted that the court would overrule the ICC, especially with the line now built and in operation.
The big Western carrier is moving coal from Wyoming's Powder River Basin to the Thomas Hill Energy Center near Moberly, Mo.
AECI owns Thomas Hill, which burned high-sulfur coal from local AECI mines but in 1992 switched to out-of-state, low-sulfur coal to meet federal guidelines on sulfur-dioxide emissions.
After considering six routes to haul 2.4 million to 3.6 million tons of coal needed at Thomas Hill each year, AECI selected BN because of its direct, single-line route from the Powder River Basin.
But opposition came from Missouri Mining Inc. and its parent BXB Corp., as well as the Missouri & Iowa Railway Co. which argued that the new spur would harm 123 acres of a wildlife habitat. They also wanted to preserve an alternate line owned by the Norfolk & Western Railway.
A local landowner also objected, claiming BN's route would harm his property. All asked for a review of the ICC exemption. The 8th Circuit initially blocked construction with a stay in December, but lifted it in January.
The spur's opponents also contended that the ICC should have considered N& W's line between Moberly and Moulton, Iowa, which, combined with a spur
from Excello, Mo., connects with Thomas Hill.
M&I wants to acquire this line, which the ICC permitted N&W to abandon in 1993. Missouri condemned the line, but M&I and N&W have been locked in a court fight over the line's value, said David A. Masters, a Macon, Mo., attorney who represents M&I.
MMI operates local coal mines and has spent over $2 million to develop a 55-acre landfill in Julesburg, Mo. The company hopes to receive carloads of solid waste when the fight over the N&W line is over.