FRIENDS OF THE EEL RIVER v. NORTH COAST RAILROAD AUTHORITY (NORTHWESTERN PACIFIC RAILROAD COMPANY)

Amicus Curiae Brief of Center for Biological Diversity

Cal.June 17, 2015

ETDTTL PERMISSION Sunreme Court Copy SUPREME COURT | FILED JUN 17 2015 IN THE SUPREME COURT OF CALIFORNyank A. McGuire Clerk Case No. 8222472 Deputy FRIENDS OF THE EEL RIVER AND CALIFORNIANS FOR P ALTERNATIVESTO TOXICS Plaintiffs and Appellants Vv. NORTH COAST RAILROAD AUTHORITY AND BOARD OF DIRECTORS OF NORTH COAST RAILROAD AUTHORITY Defendants and Respondents NORTHWESTERN PACIFIC RAILROAD COMPANY Real Party in Interest and Respondent After a decision by the Court of Appeal First Appellate District, Division Five Case Nos. A139222, A139235 Appeal from the Superior Court of California, County of Marin Case Nos. CIV11-3605, CIV11-03591 Honorable Roy Chernus, Judge APPLICATION FOR LEAVETO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANTS AND [PROPOSED] BRIEF OF AMICUS CURIAE CENTER FOR BIOLOGICAL DIVERSITY IN SUPPORT OF APPELLANTS Clare Lakewood (SBN 298479)* Kassia R. Siegel (SBN 209497) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway,Ste 800 Oakland, CA 94612 Tel: (510) 844.7100 Fax: (510) 844.7150 Counselfor Proposed Amicus Curiae Centerfor Biological Diversity RECEIVED JUN 1 2 2015 CLERK SUPREME COURT Case No. $222472 IN THE SUPREME COURT OF CALIFORNIA FRIENDS OF THE EEL RIVER AND CALIFORNIANS FOR ALTERNATIVES TO TOXICS Plaintiffs and Appellants V. NORTH COAST RAILROAD AUTHORITY AND BOARD OF DIRECTORS OF NORTH COAST RAILROAD AUTHORITY Defendants and Respondents NORTHWESTERN PACIFIC RAILROAD COMPANY Real Party in Interest and Respondent After a decision by the Court of Appeal First Appellate District, Division Five Case Nos. A139222, A139235 Appeal from the Superior Court of California, County of Marin Case Nos. CIV11-3605, CIV11-03591 Honorable Roy Chernus, Judge APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANTS AND [PROPOSED] BRIEF OF AMICUS CURIAE CENTER FOR BIOLOGICAL DIVERSITY IN SUPPORT OF APPELLANTS Clare Lakewood (SBN 298479)* Kassia R. Siegel (SBN 209497) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway,Ste 800 Oakland, CA 94612 Tel: (510) 844.7100 Fax: (510) 844.7150 Counselfor ProposedAmicus Curiae Centerfor Biological Diversity TABLE OF CONTENTS APPLICATION FOR LEAVE TO FILE AMICUS CURIAEBRIEF IN SUPPORT OF PLAINTIFF AND APPELLANTS FRIENDS OF THE EEL RIVER AND CALIFORNIANS FOR ALTERNATIVESTO TOXICS1.00... eeccecccceeseesseeeseeteaeeesateesneneatees | I. IDENTITY AND INTERESTS OF AMICUS CURIAE.........00... I]. NEED FOR FURTHER BRIEFING...eeeeeeeeeeeeees 2. Ill. CERTIFICATE REGARDING AUTHORSHIP AND FUNDINGueeeeececeteeeeete reece eeneeeeeeseeseasessueeeeeenseensseetnaeenaaeenes 3 TV. CONCLUSION(0.eeccceesenceeeeseeeeeseseseeesesaeeceeaeesnsaaeestasesesanes 3 PRELIMINARY STATEMENT.0000.cece cece sees reeseceeeeereseeeresenersareenegs 4 ARGUMENToceecccecencecee eens reneeeeeeeeeeeeeaeeeetaeeseesessesseesseseessesseaeersaeesngas 7 I. PREEMPTION TEST.cecerset eeeeeceneeereeseeeenesteneetegs 7 Il. FEDERAL REGULATION OF RAIL CARRIERS HAS ALWAYSBEEN CONCERNED WITH DIRECT ECONOMIC REGULATION 0.ceccecceceeeeeeeeeneeeeeteneseeeereneeens 9 Federal Regulation of Railways Arose from a Need to Regulate Activity Beyond the Reach ofthe States .......00.000.. 9 Federal Regulation of Railways bythe Interstate Commerce Commission Has Always Been Confined to Direct Economic Regulation and Deregulation of the Rail Industry 20.0... ceccescecceceesenneeeeeeeeeresaeeeserseeesesseeneeeseas 11 Ill. CONGRESS’S INTENTION IN PASSING ICCTA WAS TO COMPLETE THE PROJECT OF FEDERAL DEREGULATION OF THE RAIL CARRIER MARKET, AND TO PREVENT STATES FROM INTERFERING WITH DEREGULATION.....eeeeee cere ceneeeeseeeseteneereaeeeatens 15 The Preemption Clause Was Not Amended to Expand the Scope of Federal Preemption, But to RemoveState Authority to Impose Economic Regulations on Intrastate Rail 2...eee eecceeececeneeeeeeceseeseeeeneeeeaeeceeesseeeetaeeneeees 20 IV. THE LANGUAGE AND STRUCTUREOF SECTION 10501(B) AND ICCTA ARE CONSISTENT WITH CONGRESS’ INTENTION THAT THE SCOPE OF PREEMPTION BE NARROWuucecece cere eeeteeereneeeneees 22 A Narrow View of Preemption Gives Meaning to All the Text of Section 10501 (D)..........cceccecseceeseeeeeeeeeseeseeeesseeesnaes 22 The Structure of ICCTA Demonstrates a Concern Only With Direct Economic Regulation ..............ccceeeeeseeeeeseeeenees 24 V. AUBURN ERREDIN ITS INTERPRETATION OF SECTION 10501(B) OF ICCTA 00.eeeeeececeneeesereeeeneeenerenes 26 VI. A NARROW INTERPRETATION OF PREEMPTIONIS CONSISTENT WITH THE INTERPRETATION OF ANALOGOUS CLAUSESIN OTHER LEGISLATION.......... 27 VIL INTERPRETING PREEMPTION BROADLY WILL RESULT IN A REGULATORY VOID NOT INTENDED BY CONGRESS 2.0. eeecsssccceceeeeeeseeseesesaseeeeseeessasesessereetsaeseniaes 31 VIN. THE PURPOSE AND FUNCTION OF CEQAIS TO SET OUT A PROCESS FOR INFORMED DECISION- MAKING AND SELF-GOVERNANCE......o ee eeeeeeeeeeeeees 39 CONCLUSION o.oo ececcceeccceceeteeeeeeeneeeeeeeessneseaeesaeensaceesneeeseaeeseenareseneeseaees 45 CERTIFICATE OF COMPLIANCE... ccecccceseeseceesceseeeeseeerseseeesnseesaes 46 1 TABLE OF AUTHORITIES CASES Federal Cases Bennett v. Spear (1997) . 520 U.S. 154 occcccccccccscessesssesseccsseeccsssedeseessecseecesecsseeeeesseessesaesseecsseessees 23 Bldg. & Constr. Trades Council v. Associated Builders & Contractors (1993) 507 US. 218 oececccescesceseeeceeeseceeeeseceneesseeseseceeeessessesetrsassesesssevastseeseseeesaes 9 Californiansfor Safe & Competitive Dump Truck Transportationv. Mendonca (9th Cir. 1998) 152 F.3d L184 weeccccccecsecseseceneeeceeececeaeceeeesneesaecssecesaeeeaeeesaneeiressseesses 30 Chi. & N.W. Transp. Co. v. Kalo Brick & Tile Co (1981) 450 US. BLL oeeececcecceseeseeseesceeeeeeeaeeeeaeeeneeseeateeaeesaereecaresaeeeseerenseateaaes 7, 43 City ofAuburn v. United States (1998) 154 F.3d 1025 wo. cccccceseeececeeceeeeeeceecaceesecneescaceceetsaeeeaaeeeseesseessneesiees 27 Dan's City Used Cars, Inc. v. Pelkey (2013) S69 US. [133 S.Ct. 1769]oeeeceeneeeeeeneensaeeeeenaeeeeteaeenaes passim English v. General Electric Co. (1990) 496 UWS. 72 vecccccccccsscesseeeseessneeees fee ecaceeseeesecenseeeeeuseseseueceusaeeessseeeseeeecsanees 7 Fla. E. Coast Ry. v. City of West Palm Beach (11th Cir. 2001) 266 F.3d 1324 oooeeccccececcesecececeeeeeeneeesesceceeesaceeaeeseaeeeenersneeeaaets 21, 23, 24, 39 Hines v. Davidowitz (1941) 312 US. 52 oieceeseceeeeeeeceeaneceeesaceeeceneesnecesaaeecsaeessseessnaseseeseeeneeteneatese 7 Hughes v. Consol-Pennsylvania Coal Co. (3d Cir. 1991) DAS F.2d 594 oe eccccccccsccenecneceeeeceeeceseaeeceaeeaeesaeescaneceneceseesaeesseeseeesseeeeseess 35 Indianapolis Power & Light Co. v. Interstate Commerce Com. (7th Cir. 1982) O87 F.2d 1098 ooo. eecseeseseeceeeeeeeecesnersseeaeeaeeaeeseseeeeeasceeeseseesesereeneesateas 12 Interstate Commerce Comm’n v. Texas (1987) 479 US. 450 ooeccccscccsccsseeceecesseeseeeeseeceseeeeeeaecaecsaecesegereeaeenseseneeeeeeerseeeneseas 13 il Iowa, Chi. & E. R.R. Corp. v. Washington County (8th Cir. 2004) 384 F.3d S57 oo eeecccsceeeseeeseecesceeeeseesececeseeeeecaeeeseeeeseceeteeseccersreesasecseseessaees 24 Lee's Summit v. Surface Transp. Bd. (D.C. Cir. 2000) 231 F.3d 39 oeeecceeeecesccceeceeeeceeeeeecececeesaeeaeceseeeentessaeeecseeeaeecseeeeetseeeeas 34 Medtronic v. Lohr (1996) S18 U.S. 470 woe ccccccsccseeeneeceseeecececeseeeeeenseseeeecaeeseneesaeeeeeeasesseetieeteeeeeeeaseeees 8 Munn vy.Ill. (1876) 94 U.S. LLB ceeeeceeccccceceseceseeeeeeneeeeeseceseeeceseeaeseaeseateeeseceeseetseesaeeeeenetens 10 New York Susquehanna and Western Ry. Corp. (3d Cir. 2007) S00 F.3d 238 ooo... eeecceeeeceeseeceecceeeeeeececenecceseaecsaeeseaeenaeeeeeatessesenaeeraeenaeees 22 Nicholson v. Interstate Commerce Com. (D.C. Cir. 1983) TLL F.2d 364 ooo ceccecccescececceescceeeeceseneeeseeaecececseeecaeeteneeeesaueceeetsaeentatensaeees 36 Oneok, Inc. v. Learjet, Inc. (2015) S75 U.S. [191 L.Ed.2d 511) ooeeeceeeeeeeceeeaeesneeseeesnaeeesseees 39 Retail Clerks v. Schermerhorn (1963) 375 U.S. 96 .eecccccscccteesececeeeseeeeeereesesesseseeseeaecsesenesressanesnaeeeeeneseaeesteeeeeees 8 Perez v. Campbell (1971) 42 U.S. 637 occcccccecceecceccceeceescecesceenaeeeeceeeseeeceeecaeecsaeeessnaesaresesettusseseeeees 8 Rowe v. New Hampshire Motor Transp. Assn. (2008) 552 U.S. 364 oo .ecccceccccecceceeeceesceeeseeesneceaecenesseceseeceaeeesaeeeesaeeesneteneeeeatess 28, 29 Rushing v. Kansas City S. Ry. Co. (S.D.Miss. 2001) 194 F, Supp.2d 493 oo. eecececceecsccesceeseeeeceeeessneeeaeeeseeeeeeseeeaeeeeeseeeesneees 24 San Diego Building Trades Council v. Garmon (1959) 359 U.S. 236 oo .eeccceccescceceeececeneecesseeeseeceeecesetetessnecssnecsseeessatesseseeesaaeenieeeneaes 9 Wabash, St. Louis & Pac. Ry. v. Ill. (1886) 118 US. 557 coe cccececeseeceseeeneeceaeeeseceeecseesecseceaeeeaesaneeneeeseaeeeaeeaesnteeneesseeens 10 Wyeth v. Levine (2009) S55 U.S. S55 ooeeccccccccececeeeceeeeceeeeacececeecaeeeseseeseeceaeeeeaeeessaeeeseeeeesseesiaseesanees 8 1V California Cases Assoc. ofIrritated Residents v. County ofMadera (2003) 107 Cal.App.4th 1383.0... cecececcccesceeeessecsacereneesaneceseesseeseaeeseeeeenesesaneees 4] Brown v. Mortensen (2011) S1 Cal4th 1052 ooo.eee ceecceccesceceeecceeceeceeeceneeeneesseeenseseeeraeeessneseeeees 8,9 Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553 ...cccccccccscesccceseeseeeeeeeeecerscecsenseceeeseeeeeeeseaeeaeesseeeeeeeesseecses 40 Committeefor a Progressive Gilroy v. State Water Resources Control Board (1987) 192 Cal.App.3d 847 .....ccceccccecceesecceeececeseeeteaceceaeeeaneeserecnessaeenseeeseseeseeeenas 44 County ofOrange v. Superior Court (2003) 113 CalApp.4th Lincecccccscccesseseeeceecesececeeeesaeeeseueessereeseteeesseeeessaeees 44 . Laurel Heights Improvement Assn. v. Regents of Univ. ofCal. (1998) AT Cal. 3d 376 ....cccccccceccccsseccessecenseeeeccsessensecseeenaseenseeeceesesesseeenseesesensees 40, 41 Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d S15... cceeccceccssceceeceesseeseeesesneeeesesnaeeeeesanecesseaeeeeeessaeeeees 42 Lee v. Lost Hills Water District (1978) 78 Cal.App.3d 630... ccccssccscecesesseeceseeeeceeeeeeseeeensasesseeeeeeeessseesesseseneas 44 No Oil, Inc. v. City ofLos Angeles (1974) 13 Cal.3d 68 .....cccccccccescccessscessecceseesecessseseeeaeeecseeeecsseesseeeeeseecessueesseeeenes Al Olszewski v. Scripps Health (2003) 30 Cal.4th 798 ...ccccccccccccsccsseeessnaceeeeeseeseceaeececseeeeesseeseseeesseesseeeesseseeesees 8 People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772 ....ccccccccccccccsssessececssseeccesseeneeseeeesseeeesseseseeeeseees 8, 28, 30, 31 Rio Vista Farm Bureau Center v. County ofSolano (1992) S Cal.App.4th 351 ooo. ceccceecceccesecceececeeeceeeeseeeeseeseseeseaeeeaeceesenetessseeeeees 43 San Francisco Ecology Center v. City and County ofSan Francisco (1975) 48 CalApp.3d 584.0... ccccccccccececcceesseeceeeeeesseceeeeseaeeseneceaeeeaseeaeeesreesseeaeees 43 TownofAtherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314.eeeeenecseecesenseeeeneestecseseseeeeseessreeaeeeseeeesaeeens 20 Vv Other States Cases HomeofEcon. v. Burlington N. Santa Fe R.R. (N.D. 2005) 694 N.W.2d 840 oc eccecccceeceeseesseesseeseeseseceaeceeeeaeesnectsesesseaeeneeeaeeseesstesss 24 Native Vill. ofEklutna v. Ala. R.R. Corp. (Alaska 2004) B7 PB AL oo. cecccecsecesceseeeesceeecececneeceaeceeceeceeeeeeneessaeesseseeseeeetsaesesiseeeseesses 24 Ridgefield Park v. New York Susquehanna & W. Ry. Corp. (N.J. 2000) 163 NV. 446.cececcccceeeseceeeceneenseceecsecseceecaeecanecseeseaesensensseseaeeneseeeeaes 36 STATUTES Federal Statutes 42 ULS.C. § 4321 Ct SCG .oececcccccccsceeeeeecteecesneeeeeeesenecnereseessnaceseeeeeteseceeaeeensaeees 5 42 U.S.C. § 4322(1)(C) ececcecccescccseceeeeeeeseteeeeeceseecseneceaeeseeeseeesesetseesseeenatees 33 49 US.C. § 10101 «0...poceeceesceecseeeeceaeseeeaecaecsaeessseeneseateseeeseneeeeseeaes 4,25 AOD ULS.C. § LOLOL (8)... eee cececceescecseecseesseneeeecseesaeeeaneceaeeensesseeesnesseseaeeaues 26 AO ULS.C. § 10102 ooo cecccccecceceeeceececeeteeeeeeeeanecsaceceaeeesneseeesneeeasesesiees 22, 30 49 ULS.C. § LOSOL (Db)... eee eccececeecceencecseeeeteneeneeeeseeeeseneesseeesnenats 5, 21, 23, 27 49 U.S.C. § LOSOL(D)(2) oo ceccececncceccceeceeteeeeeceaeeeseeeesaeeseeeeetatetssesseeenseees 22 AO ULS.C. § LOTOL o.ceeeeececcccecccecceeccecesneeeeceeeeeaeesacesseeeeaeeseeeeeaeeaeesaetesseeesaeens 25 AO ULS.C. § 10706 ..cceccccccecceeccecceeeeeaceseeceeeeaeesaceseneseaneecsceeeeesareesetenseeeneeees 25 AD ULS.C. § LOT4L oocecccccccceceecceeeeeeeceecseceeeaeesacesseaeeesaeeseaeseeesaeesaeeesseeenneess 26 AD ULS.C. § 1090] oo ccccecccscecnneeeeeeeesseseeseneessneceaeeeeaeessesseesatesseseseeeeeees 26 AO ULS.C. § LLD21 (a1)occccccccceceeseeeceesaeecsaeereaeeseasesisenetseeenseessaeeees 26 AD U.S.C. § LIB41a)... cccecenccecseeeeeeeseeeaesneeeneceaeecseceseeseeeesseenaeenseesaes 23 AOD U.S.C. § L450 1(C)(1) occ eecececsceeeeeceeeeceterserenerearenaneeaneeserintaceaee 28, 29, 31 vi AO U.S.C. 8§ 11323-11328 vccccccecccsscccsssesssssssesessuvecsssesssssesessssssessssseesssevesese 26 California Statutes Pub. Res. Code § 21000 oo... ccccccccsseceseeeeeeeesseseeeeesseessseesaeeeeesseceesseeeneas 40 Pub. Res. Code § 21002 ......ecececceccccceeseeeceeeceeeeeteseeeceeeeeeeeteeeennensaes 40, 42, 43 Pub. Res. Code § 21002. o...ccceeccccscecesececececceneeeeeaeeeeeeeeaeeestesseeseeeeseaes 40, 43 Pub. Res. Code § 2106121 oo... eeeeecceecceeeceeseeceeteeteeneeeeeeeeeeeeeeeseeseseeeeseseeenes 42 Pub. Res. Code § 21081 o....eeeeccecceeceeseseceeseeeeaeeeeeesneeeseaeeeeeseeseesaeeeens 42, 43 Pub. Res. Code § 21000-21177 000... ceeceeceececeseeeeeeceeenecenecneteaeessseeeseeesseeenaes 5 REGULATIONS Federal Regulations AO CAF.R § 1105.7(6)(5) cesccssssessssvesssecssseessssseccsssecssuvessetsessusessssuesessuesenseeesees 34 AO CAFR. § 1105.6 .ccccscsssssessssecsssvecssessssecsssssessssuecssucssscsssseeesssavecssseeesees 33, 34 AO CAFR. § 1105.6(C)(2) ceccecssecssssssssecssseesssssvessssecesusessetessssvescesuseareeesneeesees 34 California Regulations CEQA Guidelines § 15002 2.0.0... ceccceceecccecceesseeceseeeeeeeeeeeeeaeseatetsneeesasesesseees 42 CEQA Guidelines § 15040...eeececeeeceeeeeceeeeeeeeeeneeceaeeeeeesseeesaeeensaeeee 42 CEQA Guidelines § 15093 oo... cccceecesecseceeecsneeeneeeeeeseeseseenecsseesaeensessaes 43 CEQA Guidelines § 15112...ceccececeeeeeeeeeeceeesesaeeesaeeeseesaeesssseeesaaes 44 CEQA Guidelines § 15021cececeeceesceeeeceeeeeeenececaeesseeseeeieeseeeseeeesseenses 42 CEQA Guidelines § 15091 oo... ..cccecccceeecceecceeeeenceeseseesseeneeeaeteseesseesesseeenes 42 CEQA Guidelines § 15043 2... ccccccccceececeseceeseeteceeeeeceeeeeeeaeenseetneeessseeensaeees 43 Vil ADMINISTRATIVE DECISIONS Boston & Maine Corp. v. Town ofAyer (S.T.B. 2000) STB Finance Docket No. 33971, 2001 WL 458685 ........ceeesseeseeeetees 35 Friends ofthe Aquifer, City ofHauser, Idaho, Hauser Lake Water Dist., Rodger, Larkin, Kootenai Envil. Alliance, R.R. & Clearcuts Campaign (S.T.B. 2001) STB Finance Docket No. 33966, 2001 WL 928949 oooeeeeeeee 35 OTHER AUTHORITIES Cal. Dep’t. Justice, Quantifying the Rate of Litigation Under the California Env’tl. Quality Act (CEQA) (2012)... ceccecesenteeenees 44, 45 Ely, “The Railroad System Has Burst Through Gate Limits”’: Railroads and Interstate Commerce, 1830-1920 (2003) 5 Ark. L.Rev. 933 oo. .eeeccccescceneceeeeeseesseceaeeeseessneesaececeanerseaeeesseeseneeaes 9, 10 H.R.Rep. No. 96-1430,. 96th Sess. (1980)... eeeesesteeeneeeseeeseeeeeseenneens 13 H.R.Rep. No. 104-311, Ist Sess. (1995) oo...ee cecceeeeeeeseeeeees 15, 16, 17, 18 H.R.Rep. No. 104-422, Ist Sess. (1995)... ceeeeseeeseeseeeneeeeteeeees 19, 21, 22 Pub.L. 95-473 (Oct. 17, 1978) § 10907...eee ecceeeeetteesseeeeeeeteneeeeeeenees 15, 21 Pub.L. 96-448 (Oct. 14, 1980) § 214d) oo.cece ceeceeeeneetenetecseeenseenseees 14 Pub.L. 94-210 (Feb. 5, 1976) § 101(a). ....eeeecceeceeeeeeeseeeeeteseettseeensneneeeeaeens 12 Sen.Rep. No. 104-76, Ist Sess. (1995) oe. cecceeeeeeeeeeteeeesees 11, 12, 13, 19 The Nation, Oct. 28, 1886 0.0...cc ccc cccccecceesesssessensseeeeeeceseceeeteeeeeuseeueeness 10 Villa, Cleaning Up at the Tracks: Superfund Meets Rails-to-Trails (2001) 25 Harv. Envtl. L.Rev. 481 oo... cceccceeceseeeceseeneeeeaeecseeneeeseenees 33 vill APPLICATION FOR LEAVE TO FILE AMICUS CURIAEBRIEF IN SUPPORT OF PLAINTIFF AND APPELLANTS FRIENDS OF THE EEL RIVER AND CALIFORNIANSFOR ALTERNATIVES TO TOXICS TO THE HONORABLECHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Pursuant to Rule 8.250(f) of the California Rule of Court, Center for Biological Diversity hereby applies for leaveto file the amicus curiae brief that follows this application. I. IDENTITY AND INTERESTS OF AMICUS CURIAE The Center for Biological Diversity (“Center”) is a non-profit organization whose missionis to ensure the preservation, protection and restoration of biodiversity, native species, ecosystems, public lands and waters, and public health. The Center has more than 900,000 members and online activists nationwide, and has offices in California and several other states. The Center worksthrough science, law and creative media to secure a future for all species, great or small, hovering on the brink of extinction. In California, the Center has been a party in numerous CEQA lawsuits where land use activities threaten the Center’s conservation interests. The Center has a particular interest in ensuring that the impacts of these activities are fully disclosed, and that decision-makersare fully informed and have the opportunity to reflect on the impacts of proposed activities. In addition to litigating when necessary, the Center frequently engages in the opportunities CEQA provides for public comment and l public participation in the decision-making process. The Center uses such opportunities to alert agencies to environmental impacts that are of particular concern to the Center, and about which the Center often has specialized knowledge that mayassist the decisionmaker. The Center thus has a significant interest in the outcomeofthis case. Hl. NEED FOR FURTHER BRIEFING Amicusis familiar with the issues before this Court and the scope of their presentation. Amicusbelieves that further briefing is necessary to highlight the fundamental and unique role that CEQAplays in requiring decisionmakers to document and reflect upon the environmental implications of their actions. This amicusbrief is also submitted to assist the Court in understanding the potential ramifications of this case on projects in California that have some connection with railway operations. CEQA sets out the process that the State Legislature has determined public agencies should follow in order to ensure sound and well-informed decisionmaking in the context of action that will impact the environment. TheInterstate Commerce Commission Termination Act (“ICCTA”) is a federal law concerned solely with economic regulation of railroads. Yet Defendant and Respondents argue for an interpretation of ICCTA that would eliminate CEQAreview for any project with some connection to rail operations. Absent CEQA,California public agencies would have to approve or deny significant projects without meaningful environmental information and mitigation that the state Legislature has decided best serve state agencies and the public. No analogous federal process would standin its place. Such an interpretation goes far beyond the jurisdictional scope of ICCTA’s preemption clause. It.CERTIFICATE REGARDING AUTHORSHIP AND FUNDING No party or counsel in the pending case authored the proposed amicuscuriae brief in whole or in part, or made any monetary contribution intended to fund the preparation or submission ofthe brief. No person made any monetary contribution intended to fund the preparation or submission ofthis brief. IV. CONCLUSION For the reasons described above, Amicus respectfully requests that the Court accept the accompanyingbrieffor filing in this case, in support of Plaintiff and Respondents Friends of the Eel River and Californians for Alternatives to Toxics. Dated at Oakland, California on June 11, 2015. Respectfully submitted, Clare Lakewood Attorney for [Proposed] Amicus Curiae CENTER FOR BIOLOGICAL DIVERSITY BRIEF OF AMICUS CURIAE CENTER FOR BIOLOGICAL DIVERSITY IN SUPPORT OF APPELLANTS PRELIMINARY STATEMENT The Interstate Commerce Commission Termination Act (“ICCTA”) (49 U.S.C. § 10101 et seg.) was enacted to abolish direct economic regulation of rail carriers, while ensuring sufficient continuing oversight to prevent market abuses. The “economic regulation” imposedbythestatute is limited only to a narrow range of regulations dealing expressly with fees, rates, schedules andtariffs. It is not a statute that comprehensively regulates the rail transportation industry. The scope of ICCTAis limited because Congress intended that ICCTA merely complete the process of deregulation of the rail transportation market begun through prior legislative efforts. Congress first became involved in economic regulation of the rail industry in the nineteenth century, following market abusesbyrail monopolies, to protect the public and ensure fair rates for rail carriers. By the late twentieth century, however, this economic regulation cameto be perceived as an unnecessary burden on an industry struggling to survive. Focusing only on direct economic regulation, Congress began to loosenits control of the economicsofthe rail industry. The ICCTA wasthe culmination of this program of deregulation, abolishing the federal Interstate Commerce Commission and removing from thestates their remaining powertoset rail rates. Accordingly, section 10501(b) of ICCTA preempts “the remedies provided under [ICCTA] with respect to regulation of rail transportation.” (49 U.S.C. § 10501(b).) Consistent with Congress’ focus on economic deregulation, ICCTA is concerned only with direct economic control of the market; with rates and charges, schedules and railroad restructuring. It does not affect the exercise of state police powers, save those that attempt to directly regulate economic aspectsofthe rail industry. Yet Respondents would have the Court stretch the language of ICCTA’s preemption clause well beyond the bounds of Congressional intent. Respondents argue for a holding of sweeping preemption that would eliminate the application of any state law that may havean incidental economic effect on rail carriers. If adopted, such an interpretation will prevent the State of California from engaging in the processofreflective self-governance and environmental protection that the Legislature, in passing the California Environmental Quality Act (“CEQA”) (Pub. Res. Code § 21000-21177), imposed. Moreover, for many rail projects, a complete regulatory void would result. Under ICCTAandits attendant regulations, National Environmental Policy Act (“NEPA”) (42 U.S.C. § 4321 et seq.) review is carried out only for certain rail projects. If CEQA is preempted, any rail infrastructure project that involves maintenance of an existing line, rather than new line 5 construction — no matter how expensive or large, no matter its impact on the environment — would proceed without any environmental review whatsoever. In repairing lines and building warehouses, wharves, refueling station, terminals, railyards and spurlines,rail carriers would effectively be abovethe state laws that protect not only the environment, but also basic public safety and welfare. CEQA’s informational disclosure provisions, whichserve asthe state’s most basic community-right-to-know law, would also be subverted. This is not the outcome Congress intended whenit sought to deregulate the rail industry. The courts that have decided to the contrary have done so without adequate consideration of the full text of the preemption provision, and without full consideration ofthe legislative history of ICCTA andthe statutes that precededit. In context, it is clear that the preemption provision is intended to preempt only direct economic regulation by the states - interference with rates, charges, schedules and railroad restructuring. Congress’ clear intention wasthat exercise of state police powers, including those embodied in environmental and land use planningstatutes, continue. Accordingly, CEQA,a statute that does not grant any agency the powerto refuse or prohibit a project, but merely requires public participation and governmentreflection upon the decisionmaking process, is not preempted by ICCTA. ARGUMENT I. Preemption test The underlying rationale of the preemption doctrine, as stated more than a century anda half ago,is that the Supremacy Clause invalidates state lawsthat “interfere with or are contrary to, the laws of congress.” (Chi. & N.W. Transp. Co. v. Kalo Brick & Tile Co (1981) 450 U.S. 311, 317.) Preemption may occurin three circumstances. First, Congress may “define explicitly the extent to which its enactments preemptstate intent” (express preemption). (English v. General Electric Co. (1990) 496 U.S. 72, 78.) Secondly, in the absence of explicit statutory language, state law is preempted where Congress intended that federal law occupy the field exclusively (field preemption). (Ibid.) Finally, state law is preempted to the extent that it actually conflicts with federal law, or where the state law “stands as an obstacle to the accomplishment and execution ofthe full purposesand objectives of Congress,” (conflict preemption). (Ibid., quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67.) The categories are not necessarily rigidly distinct. (English v. General Elec. Co., 496 U.S.at p. 79, fn. 5.) Where,as here, a statute contains an express preemptionclause, the task of statutory construction must focus “on the plain wording of the clause, which necessarily contains the best evidence of Congress's pre- emptive intent.” (People ex rel. Harris v. Pac Anchor Transportation, Inc. 7 (2014) 59 Cal.4th 772, 778.) However, the text of the preemption clause aloneis not the sole source for determining the scope of the preemptive clause, because “interpretation of [statutory] language does not occur in a contextual vacuum.” (Medtronic v. Lohr (1996) 518 U.S. 470, 485.) Accordingly, consideration must be givento the “structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory schemeto affect business, consumers, and the law.” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 816, quoting Medtronic, supra 518 U.S.at p. 486.) In all preemption cases, the Court should “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” (Brown v. Mortensen (2011) 51 Cal.4th 1052,1060.) When determining whether a federal law does overcome the presumption against preemption, [t]he purpose of Congressis the ultimate touchstone.” (Medtronic, supra, 518 U.S. at p. 485, quoting Retail Clerks v. Schermerhorn (1963) 375 USS. 96, 103; see also Wyeth v. Levine (2009) 555 U.S. 555, 565.) Once the preemptive scope of the federal law is determined, consideration must be given to whetherthe state law falls within the scope of the preemption. (Perez v. Campbell (1971) 402 U.S. 637, 644.) Not every state law that touches upon the federally regulated subject matter is 8 invalid. The preemption doctrine “does not and could not in our federal system withdraw from the States either the power to regulate where the activity regulated is a merely peripheral concern a federal law.” (San Diego Building Trades Council v. Garmon (1959) 359 U.S. 236, 243). In deciding whetherfederal law does withdraw the states’ powerto legislate, “[c]onsideration under the Supremacy Clausestarts with the basic assumption that Congress did not intendto displace state law.’’ (Bldg. & Constr. Trades Council v. Associated Builders & Contractors (1993) 507 U.S. 218, 224.) The role of this presumptionis to “provide[] assurancethat the federal-state balance will not be disturbed unintentionally by Congress or unnecessarily by the courts.” (Brown v. Mortensen, supra, 5\ Cal.4th at p. 1060, citations and quotations omitted.) Il. Federal Regulation of Rail Carriers Has Always Been Concerned With Direct Economic Regulation Federal Regulation of Railways Arose from a Need to Regulate Activity Beyondthe Reach ofthe States The states have a long history of involvementin rail regulation. Throughout most of the nineteenth century the states were the primary source ofrailroad regulation. (Ely, “The Railroad System Has Burst Through Gate Limits”: Railroads and Interstate Commerce, 1830-1920 (2003) 55 Ark. L.Rev. 933, 937.) The powerofthe states to regulate rail rates wasinitially upheld by the Supreme Court, even where such 9 regulations impacted interstate commerce. (See Munnv.Ill. (1876) 94 U.S. 113.) The result was state-level rate legislation that favored localinterests by requiring interstate carriers to charge higherrates than intrastate carriers. (Ely, The Railroad System Has Burst Through Gate Limits, supra,at p. 942.) This early state dominance of economic regulation of railways did not continue, however. In Wabash, St. Louis & Pac. Ry. v. Ill. (1886) 118 U.S. 557, the Supreme Court struck down an Illinois statute regulating interstate freight transportation rates, finding that “if each one of the States through whoseterritories these goods are transported can fix its own rules for prices, for modesoftransit, for times and modes of delivery, andall the other incidents of transportation to which the word ‘regulation’ can be applied,it is readily seen that the embarrassments uponinterstate transportation, as an elementof interstate commerce, might be too oppressive to be submitted to.” (Id. at p. 572.) While the decision “utterly demolish[ed] the pretension of the State legislatures to regulate the rates of freight and fare on goods and passengers passing through the States” (Ely, The Railroad System Has Burst Through Gate Limits, supra, at p. 945, quoting The Nation, Oct. 28, 1886), the Supreme Court continued to give the states leeway to regulate railroad operations to protect the safety of passengers and the public. (Ely, The Railroad System Has Burst Through Gate Limits, supra, at pp. 945.) 10 Federal Regulation of Railways by the Interstate Commerce Commission Has Always Been Confined to Direct Economic Regulation and Deregulation of the Rail Industry While the Supreme Court had held that state attempts to regulate interstate rail rates were unconstitutional, the problems ofindiscriminate construction, market manipulation, rates abuses and discriminatory practices from the rail industry remained. Farmers and consumers began demanding rate control, while merchants and shippers demanded equal treatment with competitors. (Sen.Rep. No. 104-76, Ist Sess., p. 2 (1995) Thus, in 1887, Congress enacted the first federal legislation requiring that all rates be “reasonable and just,” and established the ICC to administer the law.(Ibid). The ICC’s jurisdiction expanded throughout the early twentieth century, eventually encompassing not onlyrail transport, but pipeline transportation, truck and bus industries, and even communications systems. (Sen.Rep. No. 104-76, Ist Sess., p. 2-3 (1995).) In the secondhalf of the twentieth century, the rail industry’s dominanceofthe transport industry waned dramatically. The collapse of the rail industry, rather than market abusesbyrail carriers, became the issue of primary concern to government. Bythe 1970s, six major northeastern railroads and one Midwestern line were bankrupt.(Id. at p. 3.) As a result, President Carter created a taskforce to streamline the ICC and reduceregulation. (Ibid.) 11 The deregulation that followed was only ever concerned with undoing federal interference in the economicsofthe rail industry. It did not look to removerail carriers from the scope of any incidental state or federal regulation. The first major federal rail regulation reform legislation, the Railroad Revitalization and Regulatory Reform Act of 1976 (““RRRRA”) providedasits goal the earnings of “adequate revenues”byrail carriers. (Sen.Rep. No. 104-76, Ist Sess., p. 3 (1995).) This was to be achieved through ratemaking and regulatory reform, economicrestructuring ofrail carriers, and financing mechanisms. (Railroad Revitalization and Regulatory Reform Act of 1976 (Pub.L. 94-210 (Feb. 5, 1976)) § 101(a).) Noneof the reforms in the RRRRA sought to touch upon the exercise of state police powers,including state planning and environmentallaws. The Staggers Rail Act of 1980 (“Staggers Act’) more comprehensively reformed regulation of economic aspects ofthe rail industry. Perceiving a “great disparity between interstate and intrastate rail rates, caused partly by a lack of uniform standards and partly by state regulatory delay,” the Staggers Act “effected a basic change in the regulatory spheres of state agencies and the ICC.” Undianapolis Power & Light Co. v. Interstate Commerce Com. (7th Cir. 1982) 687 F.2d 1098, 1100.) Prior to the Staggers Act, states had the powerto regulate rates charged byintrastate rail lines, so long as the state regulations were fair and did not interfere with interstate commerce. The Staggers Act instead 12 provided that states could regulate intrastate railroads only if the state rate regulations mirrored federal standards. (Interstate Commerce Comm’nv. Texas (1987) 479 US. 450, 453-54.) However,like previous federal regulatory efforts, The Staggers Act limited its intervention only to reforms directly concerned with economic aspects of the rail industry. Finding that “modernization of economic regulation for the railroad industry with a greater reliance on the marketplace is essential,” the Act sought to increase competition by removing anti-trust immunity overcollective ratemaking, reducing rail rate regulation, and easing the way for mergers. (Sen.Rep. No. 104-76, Ist Sess., p. 3 (1995).) Congress expressly removedstate jurisdiction over certain aspects of rate regulation, including “general rate increases, inflation-based rate increases and fuel adjustment surcharges.” (H.R.Rep. No. 96-1430. 96th Sess. (1980), reprinted in US. Code Cong. & Admin. News, p. 4115.) It also established a federal procedure for approval of state administration of the provisionsofthe Interstate CommerceAct. (Ibid; Pub.L. 96-448 (Oct. 14, 1980) § 214(b).) That is, subject to the federal certification process, direct economicregulation of rail carriers was shared between federal and state governments. To enforce this new system, under which federal economic regulation was exclusive, but could be administered bythe states, Congress inserted a preemption clause: 13 The jurisdiction of the Commission andof State authorities (to the extent such authorities are authorized to administer the standards and proceduresofthistitle pursuant to this section and section 11501(b) ofthis title) over transportation byrail carriers, and the remedies providedin this title with respect to the rates, classifications,rules, and practices of such carriers, is exclusive. (Pub.L. 96-448 (Oct. 14, 1980), § 214(d),italics added.) Federal oversight did not encompassevery regulation that might touch uponrail carriers. Rather, rail carriers had the right to petition the Interstate Commerce Commission only for review ofthe decision of any State authority “in which the lawfulness of an intrastate rate, classification, rule, orpractice is determined, on the groundsthat the standards and procedures applied by the State were not in accordance with the provisions of this subtitle” (Pub.L. 96-448 (Oct. 14, 1980) § 214(c), italics added.) Direct economic regulation wasthe only sphere in which there was shared federal and state regulatory control. There was no federal attempt to regulate, or to limit the states’ power to regulate, environmental or other planning lawsas they applied to railways. Furthermore, states expressly retained their power to impose economic regulation, including rate-setting, on purely intrastate rail activities. Thus the Staggers Act retained 1978 amendmentthat expressly stated that: 14 The Commission does not have authority under sections 10901-10906 of this title over— (1) the construction, acquisition, operation, abandonment, or discontinuanceof spur, industrial, team, switching, or side tracksif the tracks are located, or intended to be located, entirely in one State; or (2) a street, suburban, or interurban electric railway that is not operated as part of a general system ofrail transportation. (Pub.L. 95-473 (Oct. 17, 1978) § 10907.) III. Congress’s Intention in Passing ICCTA Was to Complete the Project of Federal Deregulation of the Rail Carrier Market, and to Prevent States From Interfering with Deregulation The ICCTA wasintroduced to complete the work of the Staggers Act. Observing “that the surface transportation industry is competitive and that few economic regulatory activities are required to maintain a balanced transportation network,” Congress intendedto further deregulate therail carrier market, and to abolish the ICC. (H.R.Rep. No. 104-311, Ist Sess., p. 82 (1995) The ICCTA intended to transfer continuing governmental duties to the Department of Transportation, and to abolish the system of certification of state regulatory agencies to exercise federal authority. Any limited remaining functions would be exercised only by the newly-created STB. 15 The statutory changes brought about by the ICCTA demonstrate a continued legislative focus upon the impact of direct economic regulation by the states, rather than any incidental impact arising from the exercise of traditionally local police powers, such as planning and environmental laws. The regulatory burdens that were abolished were those concerned with rates, tariffs and securities laws. Tariff filing obligations were abolished,as wasregulation of passengerrail fares. Securities jurisdiction and the financial assistance program were reformed. (H.R.Rep. No. 104-311, Ist Sess., p. 82 (1995).) The emphasis was noton freeing railroads from all formsofregulation, but only from direct economic regulation. The House Committee Report accompanying the Interstate Commerce Commission Termination Bill referred only to regulation needed to addressrates, facility access, and industry restructuring. At the timethe bill was being discussed, CEQA hadbeen in place for some 25 years. Yet the House Committee Report is completely silent as to any need, or intention, to eliminate state and local environmental and planning laws. There is no indication that such laws were in any way contributing to the financial difficulties facing the railways, or that reform was required in that area. The intention that states would retain their police powers was so clear that a proposed “disclaimer regarding residual State police powers 16 [was] eliminated as unnecessary.” (H.R.Rep. No. 104-311, 1st Sess., p. 95- 96 (1995).) Congress’ expressed intention was that while: States retain the police powers reserved by the Constitution, the Federal scheme of economic regulation and deregulation is intended to address and encompassai// such regulation and to be completely exclusive. Any other construction would underminethe uniformity of Federal standards and risk the balkanization and subversion of the Federal scheme. (Id. at p. 96,italics in original.) It is clear that the federal scheme,as set out in the ICCTA, was of limited scope. It was concerned not with preempting any andall state regulations that might have some conceivable, incidental economic effect on a rail carrier, but rather only with preempting regulation dealing directly with rates andtariffs, railroad restructuring, and financial assistance. The preemption clause reflects only Congress’s explicit concern that the states might seek to continue the type of economic regulation that Congress had abolished. Thus the House Report went ontostate: The abolition of railroad securities jurisdiction formerly administered by the ICC placesthe railroad industry for securities purposesin the sameposition as other industries—being subject to Federal securities regulation by the Securities and Exchange Commission, and as applicable, State securities or ‘‘blue sky’’ laws. 17 It is not consistent with the intent to have all economic regulation of rail transportation governed by uniform Federal standards for State securities laws to be employed as a meansof reasserting preempted forms of economic regulation. (Ibid.) The intent to preempt state regulation only in areas ofdirect economic regulation is echoed in other reports on the Interstate Commerce Commission Abolition Bill. For example, the Senate Committee Report on the Bill stated not that state authority to regulate railroads was preempted, but rather that: [NJothing in this bill should be construedto authorize States to regulate railroads in areas where Federal regulation has been repealedby this bill ... The hundredsofrail carriers that comprise the railroad industry rely on a nationally uniform system of economic regulation. Subjecting rail carriers to regulatory requirements that vary amongthe States would greatly undermine the industry’s ability to provide the ‘‘seamless’’ servicethat is essential to its shippers and would weakenthe industry’s efficiency and competitive viability. (Sen.Rep. No. 104-176, Ist Sess., p. 6 (1995),italics added.) The concern expressed is for the provision of a nationally uniform framework for direct 18 economic regulation, not the removal of any regulation that may incidentally have an economic impacton a rail carrier. The House Report describing the bill as it appearedin its final form madeclear that state criminal laws would survive preemption, because they were notthe target of the ICCTA scheme. The Report stated that: The Conference provision [of 49 U.S.C. § 10501(b)] retains this general rule [of increased exclusivity for Federal remedies], while clarifying that the exclusivity is limited to remedies with respect to rail regulation—not State and Federal law generally. For example, criminal statutes governing antitrust matters not pre-empted bythis Act, and laws defining such criminal offenses as bribery and extortion, remain fully applicable unless specifically displaced, because they do not generally collide with the scheme ofeconomic regulation (and deregulation) ofrail transportation. (H.Rep. No. 104—422, Ist Sess., p. 167 (1995),italics added.) Like environmental laws, state criminal laws have the potential to incidentally impact upona rail carrier. Like environmental laws, they have the potential to have some kind of economic impact upona rail carrier. However, Congress had no interest in preempting such incidental impacts. Thus,“[w]ith respect to rail transportation, the ICCTA seeks to implementa ‘[f]ederal scheme of minimalregulation forthis intrinsically interstate form of transportation,’ and to retain only regulations‘that are 19 necessary to maintain a “safety net” or “backstop” of remedies to address problemsofrates, access to facilities, and industry restructuring.’” (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 328, citations omitted.) The Preemption Clause Was Not Amended to Expand the Scope of Federal Preemption, But to Remove State Authority to Impose Economic Regulations on Intrastate Rail In 1995, the preemption provision in the Staggers Act was replaced with ICCTA’s current preemption clause, which reads: (b) The jurisdiction of the Board over— (1) transportation byrail carriers, and the remedies providedin this part with respectto rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuanceof spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise providedin this part, the remedies provided underthis part with respect to regulation ofrail 20 transportation are exclusive and preempt the remedies provided under Federal or State law. (49 U.S.C. § 10501(b).) The more general expression of exclusive jurisdiction in section 10501(b) of ICCTA did not broaden the scope of the preemption provision but rather expanded the federal government’s exclusive economic regulation a greater number of railways — namely,for the first time, those located entirely within a state. Prior to ICCTA,“[flederal law ... recognized exclusive state authority over ‘the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching,or side tracks if the tracks are located, or intendedto be located, entirely in one State ...’” (Fla. E. Coast Ry. v. City of West Palm Beach (11th Cir. 2001) 266 F.3d 1324, 1337; quoting Pub.L. 95-473 (Oct. 17. 1978) § 10907(b).) Such authority included the powerto approveactivity and impose economicregulations. In orderto clarify that ICCTA endedthe states’ prior authority over wholly intrastate carriers, and to emphasize “the exclusive Federal authority over auxiliary tracks and facilities,” (H.R.Rep. No. 104-422, Ist Sess., p.167 (1995)), ICCTA amended the Staggers Act preemption clause to clarify that the STB hasjurisdiction over“the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching,or side tracks, or facilities, even ifthe tracks are located, or 21 intendedto be located, entirely in one State.” (49 U.S.C. § 10501(b)(2), italics added.) This language is drawn from the clause that previously reserved economic regulation and approvalofintrastate rail for the states alone. Its inclusion verbatim indicates Congress’s intention that section 10501(b) of ICCTA be “reflect the direct pre-emption of State economic regulation of railroads.” (H.R.Rep. No. 104-422, Ist Sess., p.167 (1995)). The expression “construction, acquisition, operation, abandonment, or discontinuance,” reflects the specific economic activities of rail carriers that require STB approval(see 49 U.S.C. § 10102 part (9).) Thus, ICCTA “regulates the economics and financesofthe rail carriage industry — and provides a panoply of remedies whenrail carriers break the rules.” (New York Susquehanna and Western Ry. Corp. (3d Cir. 2007) 500 F.3d 238, 252.) It does not expand the scope ofpreemption to preclude the exercise of state police powers other than the direct economic regulation of railways. IV. The Language andStructure of Section 10501(b) and ICCTA Are Consistent With Congress’ Intention that the Scope of Preemption Be Narrow A Narrow View of Preemption Gives Meaning to All the Text of Section 10501(b) Section 10501(b) applies only to state laws “with respect to regulation ofrail transportation.” 49 U.S.C. § 10501(b). The language of this section can be contrasted with 49 U.S.C. § 11341(a), which provides 22 S a t t that, with regard to mergers and acquisitions, railroad companies are exemptfrom “antitrust laws and from all other law, including State and municipal law.” Section 10501(b) does not preempt“all other law,” and therefore necessarily must preempt some narrowerclass ofstate law. The provision does not preempt laws “with respect to rail transportation.” It preempts laws “with respect to regulation ofrail transportation”(italics added). It 1s a “cardinal principle of statutory construction” that courts must “give effect, if possible, to every clause and word of a statute.” (See Bennett v. Spear (1997) 520 U.S. 154, 173, citations and quotations omitted.) Accordingly, the preemption of law “with respect to regulation oftrail transportation” must mean something qualitatively different than a law “with respect to rail transportation.” (Fla. E. Coast Ry. v. City of West Palm Beach (11th Cir. Fla. 2001) 266 F.3d 1324, 1331.) Other courts have given the expression “regulation ofrail transportation” meaning by interpreting the provision to apply only to laws that “‘have the effect of ‘manag[ing]’ or ‘govern[ing]’ rail transportation . . while permitting the continued application of laws having a remote or incidental effect on rail transportation.” (Ibid.) This interpretation has been adopted in other cases considering section 10501(b), which have found that state laws regarding highwaysafety, tort claims and zoningall can coexist with ICCTA.In Jowa, Chi. & E. R.R. Corp. v. Washington County (8th Cir. 23 2004) 384 F.3d 557, 561, the court held that a state law requiring railroad bridge replacement was not preempted by ICCTA.In Rushing v. Kansas City S. Ry. Co. (S.D.Miss. 2001) 194 F.Supp. 2d 493, a nuisance claim arising out of damage from stormwater runoff from railroad property was held not to be regulation ofrail transportation and thus not preempted.In Native Vill. ofEklutna v. Ala. R.R. Corp. (Alaska 2004) 87 P.3d 41, 57, the court found that ICCTA did not preempta local zoning requirementfor a conditional use permit for a quarry operated by a railroad. And in Home of Econ. v. Burlington N. Santa Fe R.R. (N.D. 2005) 694 N.W.2d 840,the court held that ICCTA does not preemptthe exercise of state police powers to control public accessto rail lines. | TheStructure of ICCTA Demonstrates a Concern Only With Direct Economic Regulation That ICCTA wasnever concerned with broad-ranging economic impacts upon railway transportation is evident from the very nameofthe statute. The longtitle of the Act is “An Act[t]o abolish the Interstate Commerce Commission, to amendsubtitle IV oftitle 49, United States Code, [and] to reform economic regulation of transportation ...” The policy of the United States Governmentas stated in section 10101 is devoted almost exclusively to issues of revenue, rates and competition for the protection of both railway companies andthe public. Thereis an express intention to minimize regulatory control in order to 24 “establish reasonable rates,” allow “rail carriers to earn adequate revenues,” and “‘foster sound economic competitions in transportation and to ensure effective competition and coordination betweenrail carriers,” while also “prohibit[ing] predatory pricing and practices,” and “maintain[ing] reasonable rates wherethere is an absence of effective competition.” (49 U.S.C. § 10101.) All aspects of this policy are concerned with direct economic regulation — regulation of fees, schedules andtariffs — and deregulation of the rail industry. Congress’s stated policy is carried out through the implementation of standardsfor rates, classifications and through routes (49 U.S.C. § 10701); the exemption of rate agreements from antitrust laws (49 U.S.C. § 10706); prohibiting discrimination byrail carriers (49 U.S.C. § 10741); providing for authorization of construction and operation ofrail lines (49 U.S.C. § 10901); and providing mechanisms for the consolidation, merger and acquisition ofrail carriers (49 U.S.C. §§ 11323-11328). However,there is no indication that Congress intended, through the abolition of certain direct federal economicregulations imposed upon the rail industry, to removerailwaysentirely from the reach of state and local environmental laws, or any other exercise of state police powersthat incidentally impacts railways. To the contrary, it is the express policy of ICCTA to “operate | transportation facilities and equipment without detriment to the public health and safety.” (49 U.S.C. § 10101(8).) The ICCTAitself did not 25 provide anything approaching comprehensiveregulation in this area, but required only that carriers “furnish safe and adequate car service.” (49 U.S.C. § 11121(a)(1).) In the absenceofany expression in ICCTAofan intention to preempt general exercises of state police power, the preemption ofstate “regulation with respectto rail transportation” must be understood to be limited to the kind of regulation with which ICCTA is concerned. Thatis,it preempts only direct regulation of the economicsand financesofthe rail industry by states. This narrow field of concern is consistent with the statutes that preceded ICCTA, and with the legislative history of ICCTA itself, V. Auburn Erredin Its Interpretation of Section 10501(b) of ICCTA In City ofAuburn v. United States (1998) 154 F.3d 1025, the Ninth Circuit held that “the congressional intent to preemptthis kind of state and local regulation ofrail lines [1.e., environmental permitting requirements] is explicit in the plain language of the ICCTA andthe statutory framework surroundingit.” (City ofAuburn v. United States (1998) 154 F.3d 1025, 1031.) But section 10501(b) does not expressly preemptstate environmental review statutes. There is no language in ICCTAto such effect. Rather, the court was only able to reach its conclusion that preemption was“explicit,” by conflating environmental regulation with ceeeconomic regulation. It found that “‘environmental’ permitting regulations 26 ... will in fact amount to ‘economic regulation,’ if the carrier is prevented from constructing, acquiring, abandoning, or discontinuing a line.” (Ibid). Yet the court cites no authority for this conclusion. Asset out above, the scope of preemption is correctly determined by looking to Congressional intent. Andit is clear from the history, context, language andstructure of ICCTA that Congress was notinterested in preempting state laws that might incidentally impact upona rail carrier. Rather, with section 10501(b) of ICCTA, Congress intended to make clear that the states, which in the era of the Staggers Act had retained the power to impose economicregulations on the construction, abandonment, acquisition and discontinuance ofintrastate rail lines, no longer had such authority. VI.A Narrow Interpretation of Preemption is Consistent with the Interpretation of Analogous Clauses in Other Legislation This Court, like the Supreme Court of the United States, has found that a preemption clause similar to section 10501(b) of ICCTA does not extend so far as to preemptlaw that incidentally affects the preempted subject matter. (Dan's City Used Cars, Inc. v. Pelkey (2013) 575 U.S. [133 S.Ct. 1769]; People ex rel. Harris v. Pac Anchor Transportation, Inc., supra, 59 Cal. 4th 772.) These cases considered section 14501(c)(1) of the Federal Aviation Administration Authorization Act of 1994 (““FAAAA”) 27 which,like section 10501(b) of ICCTA, preempts state laws with respect to “transportation.” (49 U.S.C. § 14501(c)(1).) The FAAAAwasenacted for similar reasons to ICCTA.“In 1978, Congress determin[ed] that ‘maximum reliance on competitive market forces’ would favor lowerairline fares and better airline service, and it enacted the Airline Deregulation Act.” (Rowe v. New Hampshire Motor Transp. Assn. (2008) 552 U.S. 364, 367-368, quotations omitted.) “In order to ensure that the States would not undo federal deregulation with regulation of their own that Act included a pre-emption provision that said ‘no State ... shall enact or enforce any law... relating to rates, routes, or services of any air carrier.’”(Ibid, at p. 368.) “In 1980, Congress deregulated trucking... [I]n 1994, Congress similarly sought to pre-empt state trucking regulation... In doing so, it borrowed language from the Airline Deregulation Act and wrote into its 1994 law languagethat says: ‘[A] State ... may not enact or enforce a law ... related to a price, route, or service of any motorcarrier ... with respect to the transportation of| property.” (Ibid, at p. 368, quoting 49 U.S.C. § 14501(c)(1).) In Dan's City Used Cars, Inc. v. Pelkey, supra, 133 S.Ct. at 1780, in the context of interpreting the preemption clause in the FAAAA,the United States Supreme Court observedthat, “[c]oncerned that state regulation ‘impededthe free flow oftrade, traffic, and transportation of interstate commerce,’ Congress resolved to displace ‘certain aspects of the State 28 999regulatory process.’” (Ibid, citations omitted,italics in original.) The target at which the preemption clause aimedis not described as being any state law that might have an effect on carrier prices, routes or services, but rather “a State’s direct substitution of its own governmental commandsfor competitive market forces in determining(to a significant degree) the services that motorcarriers will provide.” (Ibid, citing Rowe, supra, 552 USS.at p. 372.) Thusthe Court held that the “the breadth of the words ‘related to’ [in 40 U.S.C. § 14501(c)(1)] does not meanthe skyis the limit.” (Dan's City Used Cars, supra, 133 S.Ct at p. 1778.) Mindful that section 14501(c)(1) of the FAAAA“does not preemptstate laws affecting carrier prices, routes, and services in only a tenuous, remote or peripheral manner,” the Supreme Court found that state laws governing the disposal of abandoned vehicles were not preempted by the FAAAA.(Ibid.) The Ninth Circuit has followed the approach adopted in Rowe and Dan’s City. Thus, the FAAAAdoesnot preempt generally applicable employment lawsthat affect prices, routes and markets. (Californiansfor Safe & Competitive Dump Truck Transportation v. Mendonca (9th Cir. 1998) 152 F.3d 1184, 1190.) This Court likewise held that, “the FAAAA was intended to prevent state regulatory practices including ‘entry controls, tariff filing and price 399regulation, and [regulation of] types of commodities carried.’” (People ex 29 rel. Harris v. Pac Anchor Transportation, Inc., supra, 59 Cal. 4th at pp. 779-780, quoting H.Rep. No. 103-677, 2d Sess., p. 86 (1994), reprinted in 1994 U.S. Code Cong. & Admin. News,p. 1758.) In that case, this Court found that, even though the scope ofstate unfair competition law is “broad, and its coverage is sweeping,” it was not preempted by the FAAAA.(Ibid.) The Court relied on the fact that the unfair competition laws the subject of the preemption claim “apply to all employers, not just trucking companies.” (Id. at p. 786.) Defendants in Pac Anchor, supra, relied on similar reasoning to that used by Respondentsin this case to argue that CEQA is preempted by ICCTA.In Pac Anchor, supra, defendants argued that state unfair competition laws should be preempted by the FAAA,evenifthe state laws’ effect on motorcarrier transportation was remote, because suchstate laws threatened Congress’ deregulatory purpose. That is, the laws would have an indirect economic effect on motorcarrier transportation. This Court rejected that argument. It found that the Congressional record indicated a concern with ending a patchwork ofstate regulations, not with preempting state laws to tax motorcarriers, to enforce labor and wagestandards,or to exempt motorcarriers from generally applicable insurance laws.(Ibid.) The line of cases interpreting the preemption clause in the FAAAA is relevant here. Like section 10501(b) of ICCTA,the preemption clause in the FAAAAappearsto be broad — it preempts any lawsthat “relate to 30 prices, routes, and services.” (49 U.S.C. §14501(c)(1).) In interpreting that expression, the Supreme Courts of the United States and California have considered carefully the kind of state regulation “relating to” the federal law that is preempted. On the basis that Congress’ concern wasonly with state legislation that directly regulated motorcarrier transport prices, routes and services, both Courts have upheld the validity of state laws that have an incidental effect on prices, routes and services. As discussed above, ICCTA was enacted with a similar purpose — to ensure that the states did not directly seek to regulate regarding the rates, fees and schedulesofrail carriers. Accordingly, the same kind ofinterpretive approach should be . applied to section 10501(b) of ICCTA as was to FAAAA.Section 10501(b) should be interpreted to preserve state law, including CEQA,which have merely incidental effects on rail carrier rates, schedules and fees. Vil. Interpreting Preemption Broadly Will Result in a Regulatory Void Not Intended by Congress In taking a narrow approach to preemption in Dan’s City, the Supreme Court was influenced by the fact that a broad interpretation of the preemption clause would havethe result that “no law would govern,” the parties’ dispute over vehicle towing. Vehicle owners would have no recourse for damages, and towing companies would havenolegal authorization to dispose of abandoned vehicles. (Dan’s City Used Cars, 31 Inc. v. Pelkey, supra, 133 S.Ct. 1769 at p. 1780-81). “No such design,” the Court held, “can be attributed to a rational Congress.”(Id. at p. 1781.) A broadinterpretation of section 10501(b) of ICCTA would result in the creation of a regulatory void, the kind that cannotbe attributed to a “rational Congress.” As discussed above, ICCTA is not a comprehensive regulatory scheme. It is concerned only with direct economic regulation of rail transportation. The STB requires review under the National Environmental Policy Act (“NEPA”) only for a sub-set of rail projects, being only those projects that require STB authorization. The preemption of CEQAwould leave a regulatory gap that will result in manyrail projects in the state proceeding without any kind of environmental review. Yet, rail operations are not benign activities. The construction and operation ofrail lines can have serious environmental impacts. Railroad rights-of-way may be “contaminated through chemicalspills caused by derailments, treatment of woodenrailroad ties, engine maintenance and railcar repair, railcar cleaning, and acts ofthird parties, such as waste disposal.” (Villa, Cleaning Up at the Tracks: Superfund Meets Rails-to- Trails (2001) 25 Harv. Envtl. L-Rev. 481, 486-487.) If section 10501(b) is interpreted to preempt CEQA,the result will be the creation of a regulatory void, in the absence of any evidence that Congress intended such a result. By nature of the preemption clause, there would be no opportunity for state-level review of the environmental impacts of the project. For many 32 projects, the federal environmental review regime would not apply either. This is because NEPA applies only wherethere is federal government “action,(42 U.S.C. § 4322(1)(c).) and the STB engagesin action that triggers NEPA review only in a narrow range of circumstances. Title 49 of the Code of Federal Regulations, section 1105.6, sets out the circumstances in which action under ICCTA requires an environmental assessment or environmental impact statement, documents prepared pursuant to NEPA.(49 C.F.R. § 1105.6.) The regulations provide that a NEPA documentis only required for construction or abandonment of a line; discontinuanceofrail services; acquisition, lease, operation, consolidation, merger or control ofa line if it will result in significant changes to carrier operations or construction or abandonmentofa line; and rulemaking, policy statements andlegislative proposals. (49 C.F.R. § 1105.6.) Importantly, maintenance ofexisting rail lines is not activity requiring environmental review. This is so even where,as in this case, the maintenance involvessignificant construction activity. Additionally, no NEPA reviewis required for the acquisition, lease, operation, consolidation, merger or control of a line where an action “does not result in significant changes in carrier operations.” (49 C.F.R. § 1105.6(c)(2).) That is, where the action does notresult in atleast: 33 (A) Anincreaseinrail traffic of at least 100 percent (measured in gross ton miles annually) or an increase ofat least eight trains a day on any segmentofrail line affected by the proposal,or (B) Anincreaseinrail yard activity of at least 100 percent (measured bycarload activity), or (C) An averageincrease in truck traffic of more than 10 percent of the average daily traffic or 50 vehicles a day on any affected road segment, quantify the anticipated effect on air emissions. (49 C.F.R § 1105.7(e)(5).) NEPAreview is only required for the reopening of an abandonedrail line if at least eight trains per day will run on the line. (Lee's Summit v. Surface Transp. Bd. (D.C. Cir. 2000) 231 F.3d 39, 42.) Thus the recommencementofless frequent rail services in an area, with or without maintenance activity, may proceed without any kind of federal environmental impact review. Because construction and maintenance on an existing line is excluded from review under NEPA,activity escaping review can include such substantial projects as the construction of a new spur, industrial, team, switching or side track; construction or expansion of any facilities that assist the railroad in providing existing operations; and,as here, line upgrades involving substantial new construction. 34 Numerous projects with obvious, detrimental environmental consequences could evade environmental review entirely should statutes like CEQA be found preempted. In Friends ofthe Aquifer, City ofHauser, Idaho, Hauser Lake Water Dist., Rodger, Larkin, Kootenai Envtl. Alliance, R.R. & Clearcuts Campaign (S.T.B. 2001) STB Finance Docket No. 33966, 2001 WL 928949, the construction of a refueling terminal directly over a town’s only drinking water aquifer received no review under either NEPA or state law. In Boston & Maine Corp. v. Town ofAyer (S.T.B. 2000) STB Finance Docket No. 33971, 2001 WL 458685, a 57.7 acre construction project that included an access road,eight rail tracks, a maintenance building and parking for 3,000 cars did not require NEPA review.In Hughes v. Consol-Pennsylvania Coal Co. (3d Cir. 1991) 945 F.2d 594, the construction of 14.5 miles ofrail track was deemed a ‘spur’ that did not require a license from the STB and thus escaped NEPAreview.In Nicholson v. Interstate Commerce Com. (D.C. Cir. 1983) 711 F.2d 364, 366, construction on agricultural land of a classification yard with “numeroustracks” to make and break up freight trains was not subject to either STB approval or NEPA review. And in Ridgefield Park v. New York Susquehanna & W. Ry. Corp. (N.J. 2000) 163 N.J. 446, the construction of a sidetrack to locate five rail cars and two permanent, 20,000 gallon diesel tank cars with pumping equipment, the construction of a towerto facilitate loading sand into locomotive tanks, and the installation of a hand-pumped 35 septic system, were not subject to federal environmental review. All were also foundto be outside the purview of state zoning and nuisance laws. In this case, the rehabilitation work proposed is far more extensive than the work considered in these cases; in fact, it essentially amounts to the building of a new line. Indeed, an expert had previously concludedthat the railroad’s “ties, rails, roadbeds, signal circuits and crossing protection have deteriorated so far that the railroad must be rebuilt from scratch.” (AR:8:78:2156. ') The work would include not only replacement of some 20,500 railroad ties, but also the addition of 10,000 tons ofnew ballast rock along the line, 50 miles of track surfacing, 141.5 miles of track repair, complete reconstruction of 4,300 feet of track, and the removalof vegetation along 114.5 miles. (AR:8:78:2155.) The removal of vegetation also requires systemwidespraying of herbicides to control regrowth of vegetation. (AR:8:78:2147.) Culverts must be repaired and replaced, erosion repaired, and debris removed from slopes and ditches. (Ibid.) Thirty-one bridges require repairs that include replacing bridgepiles, frames, guards, handrails and decks, and repairing erosion.(Ibid.) In short, the reopening ofthis rail line requires extensive work that will have a variety of impacts on aesthetics, air quality, soil and water quality, greenhouse gas emissions, noise, transportation andtraffic. ' Citation to the Administrative Record is by volume,tab and page number, e.g. AR:8:78:2155. 36 If this Court concludes ICCTA preempts CEQA onthebasis that CEQA may have someindirect economic impacton a rail carrier, none of these effects would need to be disclosed or considered by public agencies in evaluating projects related to rail traffic. Such a conclusion could also be read even more broadly to preempt any planning, zoning, or local public safety laws that may have similar incidental economic effects. Neither CEQAnorlocal land use lawsare directly concerned with regulating economic aspects of the rail industry, but it is conceivable that either might have an incidental effect on a rail carrier’s finances.If the preemption clause is extended to preempt any regulation that incidentally has an economic impact on a rail carrier, the result may be that rail carriers will be able to engage in a panoplyof significant infrastructure projects not requiring STB authorization, irrespective of state environmental laws and local planning and zoning laws. Moreover,it is not only actions byrail carriers that could evade review. Amicus Center for Biological Diversity is involved in CEQA processes for several approvals by local agencies which involvetherail transport of crude oil. Due to the domestic oil boom in North Dakota and elsewhere, crude oil is increasingly shipped to California refineries byrail. Local agencies have arguedthat they are not obligated to disclose or analyze the environmental, safety or health effects of these hazardoustrain shipments because CEQAreview is preempted by ICCTA. 37 For example, one such project, the “Alon Bakersfield Refinery CrudeFlexibility Project,” entails refinery upgrades and construction of related facilities to allow the refinery to receive up to 60 million barrels of crude oil per year by rail. This oil would pass through California communities and sensitive wildlife habitat, posing severe safety risks. Muchof California’s rail infrastructure is aging and unsafe, and much of the oil shipped today is Bakken crude from North Dakota which is more volatile and explosive than heavy crudeoil. In July 2013, a train carrying Bakken crude derailed in Lac-Mégantic, Canada, and exploded,killing 47 people and decimating half of downtown. CEQAprovides one of the few processes by which Californians may access information about these ultra-hazardous crude-by-rail shipments, and participate in decisionsthat will increase the amountof crudeoil shipped through their local communities. The sweeping interpretation of ICCTA preemption that Respondents urge would allow suchprojects to evade environmental, health, safety, and community-right-to-know safeguards, a result never intended by Congress. The only reasonable reading of ICCTA’s preemption provision—one consistent with Congress’s clearly stated intent—isthat it preserves the ability of the states to exercise their police powers in areas not regulated at the federal level. The expression “regulation of rail transportation” should be interpreted to preserve the application of environmental review lawsthat 38 have an incidental effect on rail transportation. (Fla. E. Coast Ry. Co. v. City of West Palm Beach, supra, 266 F.3d at p. 1331.) VIII. The Purpose and Function of CEQAIs to Set Out a Process for Informed Decision-Making and Self-Governance CEQAdoesnotdirectly regulate the economicsofrail carriers. Given that section 10501(b) of the ICCTA intended only to preemptdirect economicregulation of rail carriers by the states, CEQA doesnotfall within the scope of ICCTA’s preemption clause. To determine whether a state law is preempted, the Court must consider “the target at which the state law aims.” (Oneok, Inc. v. Learjet, Inc. (2015) 575 U.S. ___ [191 L.Ed. 2d 511, 522]; see also Dan's City Used Cars, Inc. v. Pelkey, supra, 133 S.Ct. 1769, 1780.) Asthis Court has recognized from the statute’s inception, CEQA’s primary purposeis to protect the environment though informed decisionmaking, public accountability, and implementation offeasible measuresto reduce or avoid environmental damage. In enacting CEQA,the California legislature exercised its proprietary powerto self-govern, andits traditional police powers to protect the health and welfare ofits citizens.It did so bysetting out an ordered system to ensure that government agencies reflect upon the consequencesof their actions and make fully informed decisions. (See, e.g., Pub. Res. Code § 21000, subd. (g) (requiring “that major consideration is given to preventing environmental damage”); § 39 21002 (“the procedures required by this division are intendedto assist public agencies in systematically identifying both the significant effects of proposedprojects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects”); § 21002.1, subds.(a), (b).) This Court has long held that informed decision making and public participation are central to CEQA’s fundamental environmental protection purpose.(See, e.g., Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 564 [purpose of EIR “is to inform the public andits responsible officials of the environmental consequences oftheir decisions before they are made”; Laurel Heights Improvement Assn. v. Regents of Univ. ofCal. (1998) 47 Cal.3d 376, 394 [“A fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project . . .”]; No Oil, Inc. v. City ofLos Angeles (1974) 13 Cal.3d 68, 75 [an EIR serves to guide an agency in deciding whether to approve or disapprove a proposed project’’].) Informed decision making, moreover,is essential not only to environmental protection, but also to participatory democracy. “Because the EIR mustbe certified or rejected by public officials, it is a document of accountability. If CEQAis scrupulously followed, the public will know the basis on whichits responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can 40 respond accordingly to action with whichit disagrees.” (Laurel Heights ImprovementAssn. v. Regents of Univ. ofCal., supra, 47 Cal. 3d at p. 392.) ‘The CEQAprocessthus “protects not only the environment but also informedself-government.”(Ibid.) It is because the EIR is an educational tool for the public as well as the decistonmakerthat “CEQA’s investigatory and disclosure requirements must be carefully guarded.” (Assoc. ofIrritated Residents v. County ofMadera (2003) 107 Cal.App.4th 1383, 1392.) CEQAprotects the environment by enhancingparticipatory democracy and informed self-governance while requiring public agencies to mitigate the damage causedbytheir projects where feasible. CEQA does nothing that comes even close to the direct economic regulation ofrail carriers preempted by ICCTA. By the same token, CEQAcannotinterfere with authority under ICCTAwith respect to “rates, classifications, rules ..., practices, routes, services andfacilities.” CEQAin andofitself does not grant agencies any authority or powerto refuse a project, to refuse to grant necessary licenses or permits, or to refuse to proceed with a project on the basisofits environmental impacts. Nothing in CEQA allows an agencyto prevent a rail carrier from “constructing, acquiring, operating, abandoning,or discontinuing a line.” Any such discretionary poweris sourcedin an agency’s enabling legislation. (See CEQA Guidelines, Cal. Code Regs., tit. 14, § 15040). CEQA merely requires that a particular process be followed 41 to ensure that a power wielded by an agencyis exercised in a mannerthat promotes participatory democracy, reflection upon environmental impacts, and informed decisionmaking. CEQAdoesrequire that agencies adoptfeasible mitigation measures to substantially lessen or avoid otherwise significant adverse environmental impacts. (Pub. Res. Code. §§ 21002, 21081, subd. (a); CEQA Guidelines, §§ 15002, subd. (a)(3), 15021, subd. (a)(2), 15091, subd. (a)(1); Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 521.) “Feasible” mitigation measures include only those measuresthat are “capable of being accomplishedin a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social and technological factors.” (Pub. Res. Code § 21061.1.) “CEQA does not demand whatis notrealistically possible, given the limitation of time, energy and funds.” (Rio Vista Farm Bureau Center v. County ofSolano (1992) 5 Cal.App.4th 351, 376, citation omitted.) In each review conducted under CEQA,the lead agency hasthe powerto approvea project, irrespective of its environmental impacts,if the agency determinesthatit is not feasible to lessen or avoid the impacts, and the identified benefits of the project outweigh the unavoidable environmental impacts. (Pub. Res. Code, §§ 21002, 21002.1, subd.(c); CEQA Guidelines, § 15043 subd.(a), (b); San Francisco Ecology Centerv. City and County ofSan Francisco (1975) 48 Cal.App.3d 584.) CEQA does 42 not bar a project from proceeding, provided the lead agency complies with CEQA’s requirements for approving a project despite significant, unavoidable environmental effects. (See Pub. Resources Code, § 21081, subd. (a)(3), (b); CEQA Guidelines, § 15093.) To ensure the integrity of the CEQAprocess, the Legislature elected to allow citizen enforcement of the statute. However,this is not directly relevant to the preemption inquiry. In deciding questions of preemption,“a court’s concern is necessarily with ‘the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.’” (Chi. & N. W. Transp. Co. v. Kalo Brick & Tile Co., supra, 450 USS.at p. 317-318). Evenifthe possibility of CEQAlitigation were relevant to determining the preemption question (which it is not), 1t would nottip the scales toward preemption. The Legislature put mechanismsin place that prevent projects being delayed. For example, “CEQA provides unusually short statutes of limitations on filing court challenges to the approval of projects underthe act.” (CEQA Guidelines, § 15112, subd. (a).) These limitations periodsare strictly construed. (Committeefor a Progressive Gilroy v. State Water Resources Control Board (1987) 192 Cal.App.3d 847, 861 [CEQA limitation period still applies to CEQA claims when they are joined with non-CEQAclaims governed by different limitation periods]. See also, e.g. Lee v. Lost Hills Water District (1978) 78 43 Cal.App.3d 630, 634.) In so doing, the Legislature expressed an intent to strike a balance between ensuring that public agencies fully follow the CEQAprocess and preventing CEQA from becoming overly burdensome. “The Legislature has obviously structured the legal process for a CEQA challenge to be speedy, so as to prevent it from degenerating into a guerilla warofattrition.” (County ofOrange v. Superior Court (2003) 113 Cal.App.4th 1, 12.) Citizen enforcementis rarely invoked in any event. The Department of Justice, using the City and County of San Francisco as a case study, has determinedthat, over the 18-month period coveredbyits study, approximately 99.7 percent of projects reviewed under CEQA were not challenged in court. (Cal. Dep’t. Justice, Quantifying the Rate of Litigation Underthe California Env’tl. Quality Act (CEQA) (2012).) This result is consistent with the outcome of a 1991 survey-based study. In that study, researchersat the University of Illinois found, based onself-reported activity by local governments across California,a litigation rate of one lawsuit per 354 CEQAreviews.(Id. at p. 4.) When objectively assessed,it is clear that the CEQAprocess is working as intended, allowing informed public participation in the government decisionmakingprocess, and ensuring that decisitonmakers meaningfully consider the environmental _ impactsoftheir decisions. Nothing in ICCTAorits long legislative history 44 shows Congress intended to bring CEQA’s forty-plus years of successful environmentalprotection and informed self-governmentto a halt. CONCLUSION For the reasons set forth above, amicus respectfully requests that Appellants’ appeal be granted and the case remanded with instructions to the trial court to set aside its writ and judgment. Dated at Oakland, California on June 11, 2015. Respectfully submitted, 4) = By: (VLE Clare Lakewood Attorney for Amicus Curiae CENTER FOR BIOLOGICAL DIVERSITY 45 CERTIFICATE OF COMPLIANCE (Cal. Rules of Court, Rules 8.520(c) and 8.520(f)) I, Clare Lakewood,certify that this Brief of Amicus Curiae Center for Biological Diversity has been prepared using double-spaced 13-point Times New Romanfont. Relying on the word count feature of Microsoft Word for Windows software,I certify that the total number of wordsofthis brief is 9,300 words, including footnotes. I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on June 11, 2015. ot Clare Lakewood Attorney for Amicus Curiae CENTER FOR BIOLOGICAL DIVERSITY 46 PROOF OF SERVICE I, Andrea Weber, declare as follows: I am employedin the County of Alameda,State of California. I am over the age of eighteen and my business address is 1212 Broadway, Suite 800, Oakland, CA 94612. On June 12, 2015, I served the following document(s) entitled: APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANTS AND BRIEF OF AMICUS CURIAE, CENTER FOR BIOLOGICAL DIVERISTY IN SUPPORT OF APPELLANTS by placing a copy thereof enclosed in a sealed envelope addressed as follows: For Appellant Friends ofthe Eel River: AmyBricker Shute, Mihaly & Weinberger LLP 396 HayesStreet San Francisco, CA 94102 For Appellant Californiansfor Alternatives to Toxics: Sharon E. Duggan 336 Adeline Street Oakland, CA 94607 For Respondents North Coast Railroad Authority and Board ofDirectors of the North Coast Railroad Authority: Christopher J. Neary Neary & O’Brien 110 South Main Street, Suite C Willits, CA 95490 For Respondent Northwestern Pacific Railroad Company: Andrew B. Sabey Cox, Castle & Nicholson LLP 555 California St, 10" Floor San Francisco, CA 94104 47 For Proposed Amici Curiae Town ofAtherton, California Rail Foundation, Transportation Solutions Defense and Education Fund, Community Coalition on High-Speed Rail and Patricia Hogan-Giorni Stuart M. Flashman Law Offices of Stuart M. Flashman 5626 Ocean View Drive Oakland, CA 94618-1533 For ProposedAmicus Curiae South Coast Air Quality Management District Kurt R. Wiese, General Counsel South Coast Air Quality ManagementDistrict 21865 Copley Drive, Diamond Bar, CA 91765 For Proposed Amicus Curiae Bay Area Quality ManagementDistrict Brian C. Bunger, District Counsel Bay Area Quality ManagementDistrict 939 Ellis Street, San Francisco, CA 94109 For Proposed Amici Curiae Madera County Farm Bureau and Merced County Farm Bureau Jason W. Holder, SBN 232402 Holder Law Group 339 15th St., Suite 202 Oakland, CA 94612 For ProposedAmici Curiae Sierra Club, Coalitionfor Clean Air, Natural Resources Defense Council, Planning and Conservation League, and Communitiesfor a Better Environment David Pettit Natural Resources Defense Council,Inc. 1314 SecondStreet Santa Monica, CA 90401 For Proposed Amicus Curiae California High-Speed Rail Authority Kamala D.Harris, Attorney General of California Attn: John A. Saurenman, Senior Assistant Attorney General 1300 I St, Suite 125 P.O. Box 944255 Sacramento, CA 94244 48 For Proposed Amicus Curiae California EPA Kamala D. Harris, Attorney General of California, Attn: Robert W. Byrne, Senior Assistant Attorney General 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 Marin County Superior Court Clerk of Court P.O.Box 4988 San Rafael, CA 94913-4988 I served the documentby enclosing copies in envelopes and delivering the sealed envelopes to a United States Postal Service collection location, prior to the last pick-up on the day of deposit, fully prepaid First Class Mail. In addition I electronically served the California Court of Appeal,First District, pursuant to that court’s rules. I declare under penalty of perjury under the laws ofthe state of California that the foregoing is true and correct and that this Proof of Service was executed on June 12 , 2015, in Alameda County, California. ChLW Andrea Weber 49