United States DC Circuit

Petitions for review of recent rulemaking, wherein the Surface Transportation Board changed aspects of its rail rate-setting methodology, are denied where: 1) an argument that language in 49 U.S.C. section 10707 limits the Board's ability to eliminate all movement-specific adjustments was forfeited; 2) the Board's rejection of other proposals and its own balancing of costs and benefits fell within the expertise of the agency; 3) a change to the method of determining a complaining shipper's maximum reasonable rate furthered the Board's goals under the Guidelines and applicable law; 4) a change to the method of forecasting the hypothetical Stand-Alone-Railroad's (SARR) future operating expenses is upheld; 5) the method of allocating to the SARR the revenue from shippers that use both the SARR and other off-SARR parts of the railroad is not arbitrary; and 6) the Board did not impermissibly apply the proposed rulemaking retroactively.

Appellate Information

• Argued 02/05/2008
• Decided 05/20/2008
• Published 05/20/2008

Judges

• Before:  GINSBURG, ROGERS, and KAVANAUGH, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• John H. LeSeur argued the cause for Shipper Petitioners.   With him on the briefs were Christopher A. Mills, William L. Slover, Kelvin J. Dowd, C. Michael Loftus, Andrew B. Kolesar III, and Peter A. Pfohl., Samuel M. Sipe, Jr. and Michael L. Rosenthal argued the cause for Railroad Petitioners.   With them on the briefs were Richard E. Weicher, Anthony J. LaRocca, Peter J. Shudtz, Paul R. Hitchcock, George A. Aspatore, John M. Hemmer, Louise A. Rinn, Terence M. Hynes, G. Paul Moates, and Paul A. Hemmersbaugh., Richard E. Weicher, Samuel M. Sipe, Jr., and Anthony J. LaRocca were on the brief for intervenor BNSF Railway Company., C. Michael Loftus, Andrew B. Kolesar III, and Peter A. Pfohl were on the brief for intervenor Western Coal Traffic League.


• For Appellees:
  
• Raymond A. Atkins, Associate General Counsel, Surface Transportation Board, argued the cause for respondents.   With him on the brief were Robert B. Nicholson and John P. Fonte, Attorneys, U.S. Department of Justice, and Ellen D. Hanson, General Counsel.