NEPA NIMBYs Gnawed at CPKC (UPDATED, 6/23)
Unless, of course, one is a no-growth advocate or NIMBY (not-in-my backyard) opposed to change.
Before a federal appellate court in Washington, D.C., May 2, was a lawyer-armed posse of nine suburban Chicago communities determined to undue a March 2023 Surface Transportation Board (STB)-approved cross-border railroad merger—Canadian Pacific with Kansas City Southern to form 20,000-mile CPKC. Their gripe? Track that long preceded their arrival now hosts more trains, and it inconveniences them.
They ignored that CPKC is part of the first seamless railroad connecting Canada, the U.S., and Mexico, delivering to the economies of all three broad societal benefits. And so it was that on June 20, a federal appeals court sent them packing, declining to second-guess the expertise in such matters of the Surface Transportation Board, as explained in an “update” at the end of this article.
These anti-growth suburban Chicago NEPA NIMBYs begged the court to be a fellow traveler in a self-serving quest to contort the National Environmental Policy Act (NEPA) for personal gain and concomitantly upset the synergies and efficiencies of a transnational railroad. Especially inconvenient, they say, are unacceptably longer motorist delays at highway/rail grade crossings. The case oozes of assumed privilege.
Canadian Pacific is no interloper to the complaining communities, having operated trains through them since 1886—the railroad’s 19th century arrival solidifying cross-border economic ties and helping establish Chicago as a logistics and commercial hub. The NEPA NIMBYs arrived later, with full knowledge the existing railroad might grow, as all that is born is destined to blossom.
Still, the plaintiffs allege the STB, in its NEPA-required environmental review of the merger application, failed to take a “hard look” at elements impacting “delays to motorists” at highway/rail grade crossings. While the court is unlikely to order the merger unraveled, it could instruct the STB to reconsider the localized impacts.
Were the STB to impose additional conditions under its merger-oversight authority, such conditions likely would shift from the NEPA NIMBY communities to unidentified other communities the undesired rail traffic, thus encouraging elsewhere similar anti-growth and NIMBY actions—all at the expense of the greater good the STB is charged by Congress with respecting.
Congress recognized the danger of such domino-effects more than 150 years ago when it gave a single federal agency (the Interstate Commerce Commission and now the STB) exclusive authority to review rail merger applications on the basis of national interest.
In implementing NEPA as part of its merger application review, the STB considers environmental impacts on streams, forests and habitats, as well as examining motorist inconvenience at highway/rail grade crossings. Hoping to stymie an outcome they oppose, the NEPA NIMBYs are “flyspecking” an environmental statute and the STB’s decision in dire hope of punting their bothers elsewhere.
The case, Coalition to Stop CPKC v. Surface Transportation Board (STB), was first filed in May 2023 with the 7th Circuit Court of Appeals in Chicago, but later incorporated with other judicial challenges before the District of Columbia Circuit Court of Appeals.
The nine northwestern and western suburban Chicago communities challenging the merger decision are Bartlett, Bensenville, Elgin, Hanover Park, Itasca, Roselle, Schaumburg, Wood Dale and DuPage County.
Oral argument was before judges Neomi J. Rao, nominated in 2019 by POTUS 47; Karen L. Henderson, nominated in 1990 by President George H.W. Bush; and Bradley N. Garcia, nominated in 2023 by President Joe Biden. Responding to the NEPA NIMBYs’ complaint over motorist delays, Judge Rao termed it a “nuisance” issue, saying, “There’s not really any connection between [rail] traffic and environmental harms.”
Presumably, if the additional rail traffic isn’t inefficiently rerouted to less fluid CPKC lines elsewhere, the NEPA NIMBYs want CPKC to spend hundreds of millions of dollars to replace grade crossings by tunneling under (or bridging over) track that long predates the impacted highways.
That alternative would be ghastly on freight rates and create a perilous precedent in every succeeding case where railroads chase new business. It would suppress railroad growth in favor of less-safe and more air-polluting long-combination trucks.
In fact, the STB did study the merger’s effect on motorist delays—including first responders—and determined it to be “negligible, minor and/or temporary”—a result the NEPA NIMBYs are flyspecking. The STB found the complained-of CPKC line has “infrastructure to facilitate the fluid movement of both freight and passenger [Chicago Metra commuter] trains as it has two parallel tracks with nine crossovers, allowing faster trains to overtake slower ones. The STB also found the line “not particularly crowded” relative to other Chicago-area rail lines.
CPKC said in its merger application it would add eight daily freight trains (four in each direction) for a total of 11 daily—below the number CP ran over that line during the 1980s. CPKC further said it will be shortening train length by some 20% by 2027, which will have a positive effect on motorist delays at grade crossings.
The NEPA NIMBYs, having arrived a century or so after the track in question was spiked in place, appear to have forgotten the Biblical advice of God to Noah: “If you build it, they will come.”
Frank N. Wilner’s latest book, “Railroads & Economic Regulation (An Insider’s Account),” is available from Simmons-Boardman Books at https://www.railwayeducationalbureau.com, 800-228-9670.
June 23, 2025 Update
The U.S. Court of Appeals Court for the District of Columbia Circuit has denied a request by the Coalition to Stop CPKC, a group of Chicago suburbs consisting of DuPage County, Ill., and the communities of Bartlett, Bensenville, Elgin, Itasca, Hanover Park, Roselle, and Wood Dale, seeking review of the STB decision approving the CPKC merger, according to multiple news reports.
In a decision announced on June 20, the Court denied the request, saying the STB “thoroughly considered the merger‘s potential environmental harms and reasonably concluded the merger was in the public interest.“ (Download decision below.)
The Coalition to Stop CPKC had organized shortly after the merger was proposed, “expressing concerns about traffic and safety impacts,” according to multiple news reports. “At one time, the communities sought up to $9.5 billion in mitigation, such as grade crossing separation projects and reconstruction of infrastructure in Elgin.”
The coalition filed suit seeking a review of the STB decision shortly after the March 2023 approval of the Canadian Pacific-Kansas City Southern merger, arguing that the Board’s decision was “arbitrary and capricious—which would qualify as grounds for review—because it had failed to adequately address the environmental impacts of the merger, and inadequately explained the public-interest reasoning of its decision.” They had sought another environmental impact statement specifically addressing impacts in the Chicago area, as well as stronger mitigation requirements, according to multiple news reports.
But in its per curiam decision, the three-judge panel writes that “the Board did a commendable job of addressing each of the Coalition’s and other stakeholders’ many comments. The Coalition may disagree with some of the Board’s judgements, but it is not our rule to second-guess the Board’s reasonably explained choices.”
Notably, one of the precedents cited by the decision is the recent Supreme Court ruling in the Uinta Basin Railway case, according to multiple news reports. The judges note that decision directs the court to “afford substantial deference to the agency” and to “not micromanage the agency choices so long as they fall within a broad zone of reasonableness.”
The three-judge panel—Karen LeCraft Henderson; appointed by George H. W. Bush in 1990; Neomi Rao, appointed by POTUS 47 in 2019; and Bradley N. Garcia, appointed by Joe Biden in 2023—said it would “not publish a full opinion, which indicates the court did not consider the matter to require a more complete explanation,” according to multiple news reports.
Senior Editor Carolina Worrell contributed to this story.
