Environmental Advocacy Clinic
Victory! April 6, 2016: the Surface Transportation Board dismisses Tongue River Railroad's application to build a railroad to serve proposed coal mines in Montana. Read more below . . . .
In conjunction with Professor Jack Tuholske, the Clinic represented the Northern Plains Resource Council and others in an ongoing effort to prevent harmful development of coal resources in Montana's Powder River Basin. Previously, the Clinic participated in challenging the State of Montana's granting of the Otter Creek coal lease to a subsidiary of Arch Coal, Inc., the second largest coal producer in the United States.
Most recently, the Clinic successfully challenged efforts to construct and operate a railroad that would serve the Otter Creek mine and other proposed coal mines near Ashland, Montana. Arch Coal, BNSF Railway Company, and billionaire Forrest Mars were major investors in the railroad, which was a critical link for Arch to transport sub-bituminous coal out of the Powder River Basin to an existing BNSF line that connects with northwest shipping terminals. In April 2013, the Clinic helped draft and file comments with the Surface Transportation Board opposing the proposed railroad. In the comments to the STB, the Clinic argued that the railroad's application is legally flawed and showed that there is essentially no domestic or foreign demand for coal that would be transported by the railroad.
The Clinic also sought discovery from Tongue River Railroad Company and its owners Arch Coal and BNSF. Although it is rare in these kinds of proceedings, the STB granted the Clinic's request for discovery. However, after receiving documents and interrogatory answers from TRRC and its owners, the Clinic determined the responses were inadequate and filed a motion to compel additional discovery responses. Months later, the STB largely granted the Clinic's Motion and additional discovery ensued. In early 2015, the Montana Coal team travelled to St. Louis, Missouri and Fort Worth, Texas for depositions of Arch Coal and BNSF executives. The Clinic filed final comments on the TRRC railroad project on March 27, 2015.
The STB granted the Clinic's second motion to compel on August 15, 2015, this time requiring TRRC to supplement its earlier discovery. On November 25, 2015, TRRC petitioned the Board to hold the proceeding in abeyance indefinitely, arguing for the first time that STB should wait to make a final decision until Arch Coal received a judicially affirmed mining permit for its proposed mine. The Clinic responded by asking the STB to dismiss TRRC's application, noting that its abeyance petition was misleading because it failed to mention Arch Coal's looming bankruptcy.
On April 16, 2016, the STB dismissed TRRC's application, noting that "there appears to be little prospect that Otter Creek Coal's mine permit will be secured in the foreseeable future" and that keeping the docket open "would serve no purpose."
Comments to Surface Transportation Board (April 2013)
STB Order Granting Discovery (August 2013)
Motion to Compel (January 2014)
Sur-Reply in Support of Motion to Compel (February 2014)
STB Order on Motion to Compel (September 2014)
Comments to Surface Transportation Board (March 2015)
Motion to Dismiss Railroad Application (December 2015)
Response to TRRC's Petition for Abeyance (March 2016)
STB Order Dismissing Railroad Application (April 2016)