In the Matter of Sierra Club, et al., Appellants,v.Village of Painted Post, et al., Respondents.BriefN.Y.October 13, 2015APL 2014-00266 Steuben County Clerk’s Index No. 2012-0810 Appellate Division–Fourth Department Docket No. CA-13-01558 Court of Appeals of the State of New York In the Matter of the Application of the SIERRA CLUB; PEOPLE FOR A HEALTHY ENVIRONMENT, INC.; COALITION TO PROTECT NEW YORK; JOHN MARVIN; THERESE FINNERAN; MICHAEL FINNERAN; VIRGINIA HAUFF; and JEAN WOSINSKI, Petitioners-Appellants, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – THE VILLAGE OF PAINTED POST; PAINTED POST DEVELOPMENT, LLC; SWEPI, LP; Respondents-Respondents, and the WELLSBORO AND CORNING RAILROAD, LLC, Respondent-Respondent. BRIEF OF AMICUS CURIAE HARTER SECREST & EMERY LLP Leslie M. Mauro, Esq. Jeffrey A. Wadsworth, Esq. John P. Bringewatt, Esq. 1600 Bausch & Lomb Place Rochester, New York 14604 Tel.: (585) 232-6500 Fax: (585) 232-2152 Counsel for Railroads of New York Date Completed: September 2, 2015 i Disclosure Statement Pursuant to Rule 500.1(f), Railroads of New York discloses that it is a not- for-profit trade association with no parents, subsidiaries, or affiliates. Its membership consists of four Class I railroads and 33 regional (Class II) and short line (Class III) railroads operating in New York State. ii Table of Contents INTEREST OF THE AMICUS CURIAE ................................................................. 1 INTRODUCTION ..................................................................................................... 2 FACTUAL AND PROCEDURAL SUMMARY ...................................................... 2 ARGUMENT ............................................................................................................. 4 I. ICCTA Preempts any Requirement Under SEQRA that a Municipality Evaluate Potential Noise Impacts Resulting from a Railroad Transloading Facility’s Construction and Operation Pursuant to a Lease Agreement Between the Municipality and Railroad. ................. 4 II. Petitioners Lack Standing Because ICCTA Preempts State or Local Regulation of Train Noise, Thereby Eliminating Train Noise from the “Zone of Interests” Protected by SEQRA. .......................................... 15 CONCLUSION ........................................................................................................ 18 iii TABLE OF AUTHORITIES Page(s) CASES Boston and Maine Corp. and Springfield Terminal Railroad Co – Petition for Declaratory Order, STB Finance Docket No. FD 35749, 2013 STB LEXIS 225 (July 19, 2013) ............................................. 11, 18 Brighton Residents Against Violence to Children, Inc. v. MW Props., LLC, 304 A.D.2d 53 (4th Dep’t 2003)................................................................ 16 City of Auburn v. United States, 154 F.3d 1025 (9th Cir. 1998) .............................................................................. 5 CSX Transp., Inc. v. George Public Service Comm’n, 944 F. Supp. 1573 (N.D. Ga. 1996) ...................................................................... 5 Erie Boulevard Hydropower, L.P. v. Stuyvesant Falls Hydro Corp. 30 A.D.3d 641, 816 N.Y.S.2d 224 (3d Dep’t 2006) ............................................. 8 Fourth Branch Assocs. v. Dep’t of Envtl. Conservation, 146 Misc. 2d 334, 550 N.Y.S.2d 769 (Albany County Sup. Ct. 1989) ..................................................................................................................... 8 Green Mountain Railroad Corp. v. State of Vermont, 404 F.3d 638 (2d Cir. 2005) ............................................................................. 6, 8 Guckenberg v. Wis. Cent. Ltd., 178 F. Supp. 2d 954 (E.D. Wis. 2001) ................................................................. 7 Joint Petition for Declaratory Order-- Boston & Maine Corp. and Town of Ayer, MA, STB Finance Docket No. 33971, 2001 STB LEXIS 435 (S.T.B Apr. 30, 2001). .......................................................................................... 5 New York Power Authority v. Williams 60 N.Y.2d 315, 457 N.E.2d 726 (1983)............................................................ 7-8 Norfolk Southern Rwy. Co. v. City of Alexandria, 608 F.3d 150 (4th Cir. 2010) .............................................................................. 11 Norfolk Southern Ry. Co.—Petition for Declaratory Order, STB Finance Docket No. 35701, 2013 STB LEXIS 338 (Nov. 4, 2013) ........... 6-7, 16 iv Rushing v. Kansas City So. Ry. Co., 194 F. Supp. 2d 493 (S.D. Miss. 2001) ................................................................ 7 Save the Pine Bush v. Common Council of the City of Albany, 13 N.Y.3d 297 (2009) ......................................................................................... 17 Sierra Club v. Vill. of Painted Post, 115 A.D.3d 1310, 983 N.Y.S.2d 380, reargument denied, 118 A.D.3d 1369, 987 N.Y.S.2d 590 (4th Dep’t 2014), leave to appeal granted, 24 N.Y.3d 908 (2014) ...................................................................... 3, 16 Soc’y of Plastic Indus. v. Cnty. of Suffolk, 77 N.Y.2d 761 (1991) ......................................................................................... 15 Village of Ridgefield Park v. New York, Susquehanna & Western Ry., 750 A.2d 57, 67 (N.J. 2000) ................................................................................. 7 STATUTES 49 U.S.C. § 10102 .............................................................................................. 3, 4-5 49 U.S.C. § 10501(b) ............................................................................................. 4-5 Federal Power Act .................................................................................................. 7, 8 Interstate Commerce Commission Termination Act of 1995 (ICCTA) ...........passim New York State Environmental Quality Review Act, N.Y. Envtl. Conserv. Law § 8-0101 et seq.(SEQRA).....................................................passim 1 INTEREST OF THE AMICUS CURIAE Railroads of New York (“RONY”) is a trade association representing the freight rail industry in New York State, whose membership includes four Class I railroads and 33 regional (Class II) and short line (Class III) railroads. Together, RONY’s members directly employ over 3,700 people in New York and carry nearly 77 million tons of freight every year in the State. The total freight rail network in the State of New York consists of approximately 4,200 miles of track, which interconnects with neighboring states and Canada. This interconnected network provides many of New York’s industrial, manufacturing, and agricultural businesses with access to markets throughout North America, giving them a substantial competitive advantage over other businesses that lack access to this rail network. In addition to providing substantial economic benefits to the customers in New York who are served by RONY’s railroad members, freight rail also offers many environmental benefits over competing modes of transportation, including reduced pollution, increased fuel efficiency, and reduced highway congestion. Because of the substantial advantages of connecting their customers to a nationwide freight rail network that is the envy of the world, RONY’s members heavily rely on a national policy of regulating railroad development, access to industry, and operations at the federal level. Applying state or local environmental preclearance requirements to railroad transportation in New York would create 2 barriers to accessing the nationwide freight rail network, disadvantaging not only RONY’s members but also New York businesses that depend on rail access to markets and would be at a significant competitive disadvantage without it. Therefore, RONY and its members have an interest in the resolution of this case. INTRODUCTION Petitioners ask this Court to confer standing under a state environmental law to an individual who seeks to shut down an interstate railroad operation because he claims to have suffered a particularized injury based on the noise it generates. Apparently recognizing that a federal statute clearly preempts state regulation of noise generated by railroad operations or the movement of trains, Petitioners argue that because state environmental law purports to require the railroad’s counterparty to a lease – and not the railroad itself – to consider the noise impacts of the railroad operations resulting from the lease, preemption does not apply. This Court should reject Petitioners’ attempt to end-run federal law and national policy that regulate railroad development and operations exclusively at the federal level. FACTUAL AND PROCEDURAL SUMMARY The Village of Painted Post, New York, (“the Village”) contracted to sell groundwater to a Shell Oil subsidiary for use in its hydraulic fracturing operations in Pennsylvania. To get the water to Pennsylvania, the parties contracted with the 3 Wellsboro & Corning Railroad1 to build a water transloading facility on land the railroad leased from the Village from which the railroad would haul the water. The Petitioners have challenged the Village’s action, alleging that the Village failed to consider, inter alia, the impact of greater noise from the increased train traffic in and out of the transloading facility pursuant to the New York State Environmental Quality Review Act, N.Y. Envtl. Conserv. Law § 8-0101 et seq. and its implementing regulations at 6 N.Y.C.R.R. Part 617 (“SEQRA”). When the defendants moved to dismiss for lack of standing, the trial court found that because noise is within SEQRA’s zone of interest, one plaintiff had sufficient standing to maintain he suffered an injury in fact from the increased train noise. Sierra Club v. Vill. of Painted Post, 115 A.D.3d 1310, 1311, 983 N.Y.S.2d 380, 382, reargument denied, 118 A.D.3d 1369, 987 N.Y.S.2d 590 (4th Dep’t 2014), leave to appeal granted, 24 N.Y.3d 908, 997 N.Y.S.2d 117 (2014). On appeal, the Fourth Department reversed the trial court, finding that this plaintiff did not in fact have standing because his injury was no different from that suffered by the general public. 115 A.D. 3d at 1312. As the Court reviews the Fourth Department’s treatment of the state law standing issue in this appeal, it should be mindful of the interplay with, and preemption by, a federal statute – the Interstate Commerce Commission 1 It is undisputed that the Wellsboro & Corning Railroad is a rail carrier within the meaning of 49 U.S.C. § 10102. 4 Termination Act of 1995 (“ICCTA”). The Fourth Department did not address this crucial issue. ARGUMENT ICCTA preempts SEQRA to the extent that SEQRA requires a municipality to review noise impacts resulting from train operations associated with the municipality’s lease of property to a railroad for the sole purpose of constructing and operating a railroad transloading facility. Furthermore, train noise impacts cannot confer standing to an individual suing under SEQRA because state and local regulation of train noise is preempted by ICCTA. I. ICCTA Preempts any Requirement Under SEQRA that a Municipality Evaluate Potential Noise Impacts Resulting from a Railroad Transloading Facility’s Construction and Operation Pursuant to a Lease Agreement Between the Municipality and Railroad. It is well settled that ICCTA preempts state and local environmental review processes for the construction and operation of railroad facilities. ICCTA vests exclusive jurisdiction in the federal Surface Transportation Board over “transportation by rail carriers” and the “construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one state.” 49 U.S.C. § 10501(b). “Transportation” is broadly defined to include a “[a] facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement 5 concerning use; and services related to that movement, including receipt, delivery, elevation, transfer in transit, . . . storage, handling, and interchange of passengers and property.” 49 U.S.C. § 10102(9). The remedies provided under ICCTA “with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” 49 U.S.C. § 10501(b). “It is difficult to imagine a broader statement of Congress’s intent to preempt state regulatory authority over railroad operations.” CSX Transp., Inc. v. George Public Service Comm’n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996). Applying this broad preemption provision to state and local environmental review of the construction of rail facilities, courts have found that ICCTA preempts “this kind of state and local regulation of rail lines.” City of Auburn v. United States, 154 F.3d 1025, 1031 (9th Cir. 1998) (holding that local environmental review of proposed repairs and improvements on a rail line was preempted by ICCTA). The federal Surface Transportation Board has ruled that “state and local permitting or preclearance requirements (including environmental requirements) are preempted because by their nature they unduly interfere with interstate commerce by giving the local body the ability to deny the carrier the right to construct facilities or conduct operations.” Joint Petition for and Declaratory Order – Boston & Maine Corp. and Town of Ayer, MA, STB Finance Docket No. 33971, 2001 STB LEXIS 435, at *17 (S.T.B. Apr. 30, 2001). Environmental preclearance requirements 6 “unduly interfere[] with interstate commerce by giving the local body the ability to deny the carrier the right to construct facilities or conduct operations” and they “can be time-consuming, allowing a local body to delay construction of railroad facilities almost indefinitely.” Green Mountain R.R. Corp. v. State of Vermont, 404 F.3d 638, 642 (2d Cir. 2005) (holding that review of proposed construction of rail transloading facilities under state environmental land use law is preempted by ICCTA). It is equally well settled that any state or local effort to limit, restrict, or otherwise regulate train noise is a regulation of rail operations and would unduly burden interstate commerce. Norfolk Southern Ry. Co.—Petition for Declaratory Order, STB Finance Docket No. 35701, 2013 STB LEXIS 338 (Nov. 4, 2013). In Norfolk Southern Ry. Co.—Petition for Declaratory Order, a landowner brought claims in state court for harms related to noise, vibrations, and discharges from trains moving on tracks near his property. The STB held that: “the harms alleged by Owners directly result from NSR’s rail operations. Subjecting NSR to claims based on the alleged byproducts (such as noise, vibration, and various discharges) of conventional and routine rail operations on the rail carrier’s own property--which could be invoked by owners of property near operating rail lines anywhere--would unduly burden interstate commerce and significantly hinder NSR’s ability to function as a rail carrier, amounting to impermissible state regulation of NSR’s operations. Accordingly, Owners’ claims against NSR are preempted under 49 U.S.C. § 10501(b).” 7 2013 STB LEXIS 338 at *10. Similarly, in Ridgefield Park, it was held that section 10501(b) precluded the state court from adjudicating common law nuisance claims involving noise and air pollution from a railroad maintenance facility because to do so would infringe on the Surface Transportation Board’s exclusive jurisdiction over the location and operation of railroad facilities. Village of Ridgefield Park v. New York, Susquehanna & Western Ry., 750 A.2d 57, 67 (N.J. 2000); see also Rushing v. Kansas City So. Ry. Co., 194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) (holding that claims regarding noise levels and vibrations involved a switching yard, and they were preempted under ICCTA); Guckenberg v. Wis. Cent. Ltd., 178 F. Supp. 2d 954, 958 (E.D. Wis. 2001) (holding ICCTA preempted property owners’ tort claims which alleged the noise from railroad’s operations on nearby tracks constituted a nuisance). This Court has consistently found that state environmental laws must give way in the face of comprehensive federal regulatory schemes. For example, New York courts have uniformly held that the Federal Power Act (“FPA”) preempts environmental review of projects that fall under the jurisdiction of the Federal Energy Regulatory Commission (“FERC”). In New York Power Authority v. Williams, this Court held that the FPA vested exclusive jurisdiction to review proposed hydroelectric projects on the navigable waters of the United States in FERC, subject only to the reservation that state authorities were permitted to 8 review such projects for adherence to local water quality standards. 60 N.Y.2d 315, 327, 457 N.E.2d 726, 730 (1983). This meant that any review beyond this very limited scope was preempted. Id. In Erie Boulevard Hydropower, L.P. v. Stuyvesant Falls Hydro Corp., a New York appellate court extended this analysis specifically to SEQRA. The Erie Boulevard Court held that the licensee of a hydroelectric dam was not required to conduct any SEQRA review whatsoever before taking title to the dam through eminent domain because there was no water quality issue presented. 30 A.D.3d 641, 644, 816 N.Y.S.2d 224, 227 (3d Dep’t 2006); see also Fourth Branch Assocs. v. Dep’t of Envtl. Conservation, 146 Misc. 2d 334, 335-36, 550 N.Y.S.2d 769, 771- 72 (Albany County Sup. Ct. 1989) (“[FERC] has been vested with practically exclusive jurisdiction over the regulation and licensing of hydroelectric projects on the navigable waterways of this country which preempts all licensing and permit functions with respect to projects within the Commission’s jurisdiction.” (internal quotation marks omitted)). The FPA and ICCTA’s preemptive effects are very similar: both vest exclusive jurisdiction in the relevant federal regulatory body. While the FPA preserves state review of local water quality standard compliance, however, ICCTA limits state and local regulation to actions that are ministerial in nature, such as the enforcement of building and electrical codes. See Green Mountain R.R. 9 Corp., 404 F.3d at 642. Thus, ICCTA differs from the FPA in its express preemption of all state and local regulation and remedies that unduly interfere with transportation by a rail carrier, including environmental preclearance requirements for railroad operations, giving it an even greater preemptive effect than the FPA. Petitioners argue, however, that ICCTA has no application to this case because it is the Village’s decision to lease property to the railroad that is subject to SEQRA review. Petitioners’ circuitous analysis concluded that the Village was required to take a hard look at the railroad operation’s noise impacts, and not any activity undertaken by the railroad itself. See Reply Brief for Petitioners- Appellants at 14-15. This argument is nonsense. Petitioners attempt to avoid the obvious fact that the lease itself, and therefore the Village’s decision to enter into the lease, was exclusively for the purpose of constructing and operating the railroad transloading facility. The lease makes clear that the purpose of the transaction was “the design, planning, construction, equipping, operating, and maintaining of . . . a rail siding . . . to connect to the existing rail line along Chemung Street . . . to be used solely for the loading and transportation of water from the Leased Premises,” together with related improvements to facilitate the transloading operation. R. 120. Indeed, Petitioners themselves state within this same argument that the project subject to SEQRA review was not only the decision to lease but SEQRA was triggered 10 “because the rail-loading facility project involved the physical alteration of 11.8 acres” and therefore was a Type I action under SEQRA. Reply Brief for Petitioners-Appellants at 14. While the Village was as free as any other commercial actor to consider the impacts resulting from the railroad operation such as train noise, a state law requiring that the Village consider these railroad operational impacts is in sum and substance a regulation of those railroad operations. If SEQRA required the Village to take a hard look at the railroad operations’ environmental impacts as an element of the Village’s commercial decision to lease property to a railroad, then the Village might decide to forego entering into the lease. Alternatively, the Village might condition the lease on certain operational restrictions, such as limiting transloading to certain times of day or otherwise proscribing activities at the transloading facility or on the rail line. Indeed, this is precisely why Petitioners are demanding SEQRA review. Petitioners want to utilize SEQRA to force the Village to make another choice – to cancel the lease with the railroad or place some sort of condition on the lease that significantly limits the impacts resulting from the lease. And it is that sort of state regulation of railroad activity that is clearly preempted by ICCTA. Like the Petitioners in this case, others have tried to avoid the reach of ICCTA by regulating other essential actors in the transportation chain rather than 11 directly regulating the railroad itself. The City of Alexandria, Virginia, having failed in its attempt to directly regulate a rail-to-truck ethanol transloading facility, passed an ordinance prohibiting the hauling of certain materials (including ethanol) on its streets without a permit. The permit imposed several conditions, including specifying a hauling route and restricting the days and times for hauling. The Fourth Circuit properly viewed the ordinance and permit as impermissible regulation of the railroad’s transloading operations at the facility. Noting that the ordinance and permit “directly impact [the railroad’s] ability to move goods shipped by rail,” the court held that “they unreasonably burden rail carriage and thus cannot escape ICCTA preemption.” Norfolk Southern Rwy. Co. v. City of Alexandria, 608 F.3d 150, 159-60 (4th Cir. 2010). Likewise, the Town of Ayer, Massachusetts tried to indirectly regulate railroad operations by applying its zoning law to a track owned by an industry, Tighe, which was used by a railroad, Pan Am, to provide common carrier transportation. The Surface Transportation Board held that “such an attempt to prohibit common carrier rail transportation directly conflicts with the most fundamental common carrier rights and obligations provided by federal law and the Board’s exclusive jurisdiction over that service. The Town’s actions are therefore plainly preempted by [ICCTA].” Boston and Maine Corp. and Springfield Terminal Railroad Co – Petition for Declaratory Order, STB Finance 12 Docket No. FD 35749, 2013 STB LEXIS 225, at *9 (July 19, 2013). The Board went on to say that “even if we construed the Town’s action narrowly as directed solely at Tighe, and solely at a short piece of allegedly private track located adjacent to the warehouse, there remains a fundamental conflict between the Town’s regulation and the rights of Tighe and Pan Am to request and provide, respectively, common carrier rail service under the Interstate Commerce Act. That conflict must be resolved in favor of federal law.” Id. at *10. Just as the attempts by the City of Alexandria and the Town of Ayer to regulate railroad transportation by specifically targeting non-railroad actors failed under ICCTA, so too must the attempt by the Petitioners to regulate railroad transportation by specifically targeting the Village. Petitioners next cite to a long line of cases in support of their assertion that ICCTA preemption does not apply to property that is not owned or leased by a railroad. In other words, non-railroad facilities do not enjoy federal preemption under ICCTA. Reply Brief for Petitioners-Appellants at 16-17. However, those cases are inapposite here. We do not dispute that it is a basic tenet of ICCTA preemption that such preemption applies only to facilities that are constructed and/or operated by or on behalf of a railroad. In the instant case, there is no doubt that the property is to be leased to a railroad, and therefore is to be under a railroad’s control, and that a railroad will construct and operate the transloading 13 facility. Indeed, Supreme Court found it to be undisputed that the Surface Transportation Board has exclusive jurisdiction over the transloading facility, which necessarily means that the facility is operated by or on behalf of a railroad. See Sierra Club v. Vill. of Painted Post, Decision and Order, Mar. 25, 2013, slip op at p. 2. As noted above, the project that was the subject of SEQRA review involved not only the lease itself but the construction and operation of the railroad transloading facility. As such, Petitioners’ entire argument in its Reply Brief regarding application of ICCTA preemption to non-railroad entities is not only misplaced, but irrelevant. Petitioners then cite to two examples of cases in support of their assertion that noise has been considered in environmental reviews involving other rail loading facilities. Reply Brief for Petitioners-Appellants at 20-21. This argument, too, is a red herring. Neither of the cases cited in Petitioners’ Reply Brief involve – or even claim to involve – a railroad as the operator of the transloading facility. Both of the facilities Petitioners aver undertook environmental reviews that included evaluation of noise at the rail loading facilities were being permitted for construction and operation by a non-railroad entity. Petitioners suggest in the discussion of the Crestwood gas loading facility in Savona, New York that the project is being undertaken by or on behalf of one of RONY’s members, Norfolk Southern. That is not the case. While Norfolk Southern may serve that facility, 14 the transloading operation is not operated by Norfolk Southern and nothing in the Draft Supplement Environmental Impact Statement cited by Petitioners suggests that it is.2 Likewise, Petitioners point to a Noise Impact Assessment as part of an environmental review conducted by the Environmental Protection Agency that involves loading material from the Hudson River PCB Superfund Site onto rail cars and transporting the material by rail to a disposal facility. But once again, nothing in the Noise Impact Assessment suggests that the loading facility will be operated by a rail carrier.3 There is no dispute that ICCTA would not apply in the two cases cited by the Petitioners. Notably, however, it appears that neither of the noise analyses to which Petitioners point included analysis of train noise arising out of operations by the railroad – along the mainline railroad right of way. See id. That fact shows that even in those cases where the proposed non-railroad transloading facility evaluates train noise from the non-railroad transloading facility, the normal train noise associated with railroad operations is not part of the environmental reviews. The railroad industry relies on the consistency and predictability imposed on its nationwide operations by a federal regulatory scheme, and the preemption of state and local preclearance requirements is a crucial aspect of this scheme. 2 See http://www.dec.ny.gov/docs/permits_ej_operations_pdf/fngrlkdseis.pdf. 3 See http://www.epa.gov/hudson/pdf/2006_03_21%20Phase%20I%20FDR%20ATTACHMENT% 20J.pdf. 15 RONY therefore urges the Court to consider the impact of ICCTA preemption on this case. II. Petitioners Lack Standing Because ICCTA Preempts State or Local Regulation of Train Noise, Thereby Eliminating Train Noise from the “Zone of Interests” Protected by SEQRA. ICCTA’s preemption of Petitioners’ SEQRA claims necessarily deprives Petitioners of standing in this case. If ICCTA precludes a petitioner from using SEQRA to force an agency to consider factors like train noise, then surely train noise and similar train or transloading facility related impacts are not within SEQRA’s “zone of interests.” The parties do not dispute the relevant test for standing to challenge government action under SEQRA: the claimed injury must fall within the “zone of interests” sought to be protected by SEQRA, and the petitioner must establish that he “would suffer direct harm, injury that is in some way different from that of the public at large.” Soc’y of Plastic Indus. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773-74 (1991). While the parties’ briefs focus mainly on the requirement that the asserted injury differs from any harm suffered by the public at large, Petitioners also fail to establish standing because railroad noise is not within the “zone of interests” sought to be protected by SEQRA. As discussed above, ICCTA preempts any state or local pre-clearance regulation of the railroad-operated transloading facility at issue here, including 16 regarding train noise. In the decision appealed from, however, the Fourth Department held that the noise complained of here falls within the “zone of interests” protected by SEQRA. See 115 A.D.3d at 1312. It reached this conclusion without addressing ICCTA preemption, and relied on cases not involving train noise. See id. By failing to consider the interrelation of preemption and standing, the Fourth Department erred with respect to this issue. ICCTA’s broad preemption of state and local regulation removes the regulation of train noise from the “zone of interests” protected by SEQRA. Because SEQRA cannot force a state agency to consider environmental impacts of train operations like train noise that fall under STB jurisdiction, these impacts are necessarily outside SEQRA’s zone of interest, and a citizen cannot have standing for a cause of action regarding them under SEQRA. See Brighton Residents Against Violence to Children, Inc. v. MW Props., LLC, 304 A.D.2d 53, 58 (4th Dep’t 2003) (holding that plaintiff failed to establish standing where alleged injury was outside the “zone of interests” protected by statute because local regulation was preempted); see also Norfolk So. Ry. Co.-Petition for Declaratory Order, Docket No. FD-35701, 2013 STB LEXIS 338 (Nov. 4, 2013) (finding claims based on train noise as a byproduct of conventional rail operations under any theory of damages was preempted). 17 If train noise—or any other byproduct of train operations—was found to be within SEQRA’s “zone of interests,” then residents such as the Petitioners here could have standing to challenge an agency’s failure to include it as a factor in a SEQRA review of a proposed action. If standing lies, it could create a slippery slope where courts would be presented with the merits of SEQRA challenges to railroad action, which would make SEQRA the sort of pre-clearance regulation that has been widely held preempted by ICCTA. The courts must therefore exercise their gate-keeping function, recognizing that standing is “an indispensable part of plaintiff’s case,” Save the Pine Bush v. Common Council of the City of Albany, 13 N.Y.3d 297, 306 (2009), and recognize that legal challenges to railroad operations brought under SEQRA fail at their inception for lack of standing. Failing to do so would unjustifiably burden railroads and the businesses that utilize them by forcing railroads to defend against meritless litigation. 18 CONCLUSION The national policy embodied in ICCTA is clear. “[ICCTA] is intended to prevent a patchwork of local regulation from unreasonably interfering with interstate commerce.” Boston and Maine Corp., 2013 STB LEXIS at *6. But preservation of this policy is not only in the national interest. It benefits state and local businesses as well because it frees them from the sort of parochial concerns that would otherwise impede their access to this country’s vast and efficient freight rail network. That is as true in New York State as it is anywhere else. Providing freight rail service to New York’s manufacturing, industrial, and agricultural sectors gives them a significant competitive advantage over other businesses that are not connected to the rail network. Moreover, a viable freight rail network helps promote statewide economic development efforts by allowing these businesses to grow their customer base and expand their operations. Finally, increasing access and utilization of the State’s freight rail network helps reduce the use of trucks for freight transportation needs, resulting in less pollution and congestion on New York’s roads and highways. On a ton-mile basis, railroads emit four times less pollution than trucks, and a typical freight train handles the capacity of more than 280 trucks. 19 For the foregoing reasons, RONY respectfully urges this Court not to erode the doctrine of ICCTA preemption by conferring standing upon an individual who seeks to impose state pre-clearance regulations on a railroad operation that are inconsistent with the federal regulatory scheme. Rather, this Court should uphold this important preemption doctrine and leave regulation of railroad operations at the national level. Dated: September 2, 2015 By: HARTER SECREST & EMERY LLP s/ John P. Bringewatt Leslie M. Mauro, Esq. Jeffrey A. Wadsworth, Esq. John P. Bringewatt, Esq. 1600 Bausch and Lomb Place Rochester, NY 14604-2711 Telephone: 585.232.6500 Counsel for Railroads of New York