Agenda - Planning Commission - 01/07/2016

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December 10, 2015 1 Volume 9 1 Issue 23 Zoning Bulletin ing the transloading activities, and so a "rail carrier" was doing the transporting. Petitioners sought judicial review. DECISION: Judgment of Surface Transportation Board vacated, and matter remanded. The United States Court of Appeals, First Circuit, determined that the wood pellet facility was operated by a "rail carrier," but found that the STB relied on an erroneous standard in concluding that the activities at the facil- ity were a part of "transportation." The STB had concluded that the facility activities constituted "transportation" because they resulted in cost efficiency. The court said the STB should have instead looked at whether the activities at the facility "facilitated the physical movement of `passengers or property' (here the transfer of the pellets from rail to truck), rather than cost efficiency." Accordingly, the court vacated the STB 's decision and remanded the matter for the STB to apply the proper standard in determining whether the facility's activities constituted transportation and were therefore under the exclusive jurisdiction of the STB and ICCTA, thus preempting local regulation of the facility. In so holding, the court explained that ICCTA § 10501 vests the STB with "exclusive" jurisdiction over "transportation by rail carriers" and the "construction, acquisition, operation, abandonment, or discontinuance of . . facilities." (49 U.S.C.A.§ 10501(b).) "Transportation," said the court, covers "a . . . facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail," (49 U.S.C.A. § 10102(9)(A),) as well as "services related to that movement, including receipt, delivery, elevation, transfer in transit, . . . storage, handling, and interchange of passengers and property," (49 U.S.C.A. § 10102(9)(B)). The court further explained that, generally, "intermodal transloading operations and activities involving loading and unloading materials from rail cars and temporary storage of materials" are recognized as "transportation," and such operations and activities are generally preempted by the ICCTA from state and local regulation. Here, the Petitioners had argued that G & U's wood pellet facility did not amount to traditional transloading operations, but rather constituted manufacturing, and that state and local regulations were therefore not preempted. The court found that the STB, in its decision, had not focused on whether the activities at the facility facilitated transloading of the pellets from rail to truck, but instead had concluded that the activities constituted "transporta- tion" because they made the transportation of the pellets more "efficient." The court said the STB's interpretation was defective because it failed to relate the wood pellet facility's activities to the "physical `movement of pas- sengers or property,' as opposed to cost efficiency." The court explained that the ICCTA does not preempt all state and local regulation of activities that has any efficiency -increasing relationship to rail transportation. Rather, the court said, the ICCTA "focuses on physical instrumentalities `related to the movement of passengers or property,' " and " `services related to that 4 © 2015 Thomson Reuters