UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


LEE'S SUMMIT MO

v.

STB


99-1435a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: This is a joint petition for review  of orders
of the Surface Transportation Board authorizing the  restoration of
service over, and trackage rights to operate on,  an existing but
unused 278 mile railroad line in Missouri.  Petitioners, the cities of
Lee's Summit and Raytown, contend  that the Board erred in deciding
that its regulations required  no environmental review under the
National Environmental  Policy Act (NEPA), 42 U.S.C. s 4321, et


I.


In December of 1997, GRC Holdings Corporation filed a  notice with the
Board to acquire from the Union Pacific  Railroad Company a railroad
line and associated real proper- ty. The line runs from the eastern
border of Missouri to the  city of Pleasant Hill near the western
border of the state.  GRC announced its intention to retain the real
property not  needed for rail operations and to convey the line to the
 Missouri Central Railroad Company. Missouri Central filed  a Notice
of Exemption, indicating that it intended to acquire  the line from
GRC, and to obtain trackage rights from Union  Pacific to operate over
additional segments at the line's  eastern and western ends. GRC and
Missouri Central sought 




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n 1 The cities do not challenge the validity of the regulations.


to avoid full Board review of the transaction, claiming an  exemption
under 49 U.S.C. s 10502.


The cities of Lee's Summit and Raytown are located on the  24.8 mile
segment at the western end, with respect to which  Missouri Central
proposed obtaining trackage rights from  Union Pacific. The cities
petitioned the Board to reject  GRC's and Missouri Central's claim for
exemption. Of the  arguments the cities raised, only one is before
us--namely,  that the Board's regulations obligated it to perform an
envi- ronmental assessment of the transaction.


The regulations require such an assessment when the  acquisition of a
segment of rail or the construction of track  results in "either ...
an increase in rail traffic of at least 100  percent (measured in
gross ton miles annually) or an increase  of at least eight trains a
day on any segment of rail line  affected by the proposal." 49 C.F.R.
s 1105.7(e)(5)(i)(A). An  environmental assessment is also required
when an acquisi- tion results in "[a]n increase in railyard activity
of at least 100  percent (measured by carload activity)." 49 C.F.R.  s
1105.7(e)(5)(i)(B).


Much of the Missouri line had not been used since 1979,  although it
had never been formally abandoned. The cities  argued that the
increase in rail traffic from the present level  of zero to the levels
proposed by the transaction--two trains  a day five days per
week--constituted at least a 100 percent  increase in gross annual
tons and therefore compelled an  environmental assessment. The Board
denied the cities'  petition. Missouri Central Railroad
Company-Acquisition  and Operation Exemption-Lines of the Union
Pacific Rail- road Company, S.B. Finance Docket No. 33508; GRC Hold-
ings Corporation-Acquisition Exemption-Union Pacific  Railroad
Company, STB Finance Docket No. 33537 at 6  (STB served Apr. 30, 1998)
("1998 Decision"). As the Board  saw it, when "a line currently
carries no traffic, any resump- tion of service, no matter how small,
represents an increase  mathematically of infinite magnitude." Id. at
7. The Board  therefore turned to the alternative measurement of eight
 trains per day, drawing an analogy to transactions in which 


carriers reinstate service on abandoned lines. For aban- doned lines an
environment assessment is required only when  the restored operations
amount to eight trains per day. Id.  (citing 49 C.F.R. s
1105.7(e)(5)(i)(C)). Thus, "reading the  regulations as a whole," the
Board declined to order an  assessment.


On their petition for reconsideration, the cities offered an 
additional argument: Missouri Central's planned rail car  interchange
at Pleasant Hill, at the beginning of the western  "trackage rights"
segment, required an environmental assess- ment because the facility
constituted a "rail yard" and the  activity there would increase at
least 100 percent. Without  deciding whether the Pleasant Hill
facility constituted a "rail  yard," the Board ruled again that it
would be "inappropriate  to apply a percentage increase to a base of


II.


When there is doubt about a party's constitutional stand- ing, the
court must resolve the doubt, sua sponte if need be.  See Steel Co. v.
Citizens for a Better Environment, 523 U.S.  83 (1998); National Ass'n
of Reversionary Property Owners  v. Surface Transp. Bd., 158 F.3d 135,
141 n.12 (D.C. Cir.  1998). Here the cities' Article III standing is
unclear be- cause, under the Board's regulation (49 C.F.R. s
1105.6(c)(4)),  the acquisition of trackage rights can never trigger a
manda- tory environmental assessment, and yet the cities are located 
on the western "trackage" portion of the line. This suggests  that the
cities were not injured or perhaps could not get  redress. If the
Board had ordered an environmental evalua- tion, one might assume that
it would have dealt only with the  portion of the line to the east of
the cities; hence the effect of  the increased rail traffic in the
cities' vicinity would not have  been evaluated in any event. Oral
argument brought some  new information to light. We learned from Board
counsel  that if an environmental assessment is required for one 
portion of a line, the Board's practice is to conduct the  assessment
for the entire transaction, which in this case  would include the line
running near the cities. For this 


reason we are satisfied that the cities have demonstrated the 
requisite "injury in fact" "fairly traceable" to the Board that  can
be "redressed by a favorable decision." Lujan v. Defend- ers of
Wildlife, 504 U.S. 555, 560-61 (1992). The Board, we  should add,
agrees that the cities have standing.


III.


On the merits, the main issue is whether the Board improp- erly
disregarded the part of its regulation demanding an  environmental
assessment whenever the acquisition of rail  line would result in "an
increase in rail traffic of at least 100  percent (measured in gross
ton miles annually)." 49 C.F.R.  s 1105.7(e)(5)(i)(A). The cities
believe that an increase from  zero tonnage to whatever gross tonnage
is represented by 520  trains per year (10 per week) equals an
"increase in rail  traffic of at least 100 percent." How the cities
calculate this  is a mystery. The regulation asks the question: what
is the  percentage increase on the acquired line? Suppose there  were
100 tons per year before the acquisition and 200 tons  afterwards. One
does not have to be a Richard Feynman to  figure out that 200 tons is
100% greater than 100 tons. The  formula 100 x (a / b) yields the
percentage, when a equals  the post-acquisition increase in tonnage
(100 tons) and b  equals the pre-acquisition tonnage (100 tons). But
there is  trouble when b equals zero, as it does here. Then there must
 be division by zero. Yet as mathematicians know, "you can't 
legitimately divide by 0. [Symbol not available electronically]
doesn't mean anything." Robert Kaplan, The Nothing That Is 73 (1999);
see also Charles  Seife, Zero 23 (2000) ("[d]ividing by zero destroys


We may approach the problem differently by trying to  calculate what
percentage the post-acquisition traffic repre-




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n 2 For the reasons stated in the text, the Board also properly 
refused to require an assessment based on the increased activity at 
the Pleasant Hill exchange. Even if the exchange were a "rail  yard,"
the Board determined that its 100 percent standard could not  be
applied because pre-acquisition activity was zero. See 49 C.F.R.  s
1105.7(e)(5)(i)(B).


sents of the pre-acquisition traffic. Suppose 1 train equals 1  ton.
The Missouri Central will run 10 trains per week on the  line, 52
weeks per year. What percentage of zero tons is 520  tons? Once again,
as a matter of mathematics, the answer is  problematic. If one asked
what is 5% of 100, multiplying .05  x 100 yields 5. But if we ask what
is 5% of 0, the answer is 0.  Zero multiplied by any number is zero.
So what is 100% of  0? Zero of course. One might say, and this perhaps
is what  the cities have in mind, that since zero is 100% of zero, it 
follows that anything (any tonnage) greater than zero must  trigger
the assessment. But the Board had an additional good  reason for not
reading its regulation this way. Another  subsection of the
regulation--49 C.F.R. s 1105.7(e)(5)(i)(C)-- provides that "[f]or a
proposal ... to construct a new line or  re-institute service over a
previously abandoned line, only the  eight train a day provision ...
will apply." All abandoned  lines will, by definition, have had zero
traffic. The Board  thought that the Missouri Central line was
analogous; it had  been without traffic for nearly 20 years. 1998
Decision at 7;  Missouri Central Railroad Company--Acquisition and Op-
eration Exemption--Lines of Union Pacific Railroad Com- pany, STB
Finance Docket No. 33508; GRC Holdings Corpo- ration--An Acquisition
Exemption--Union Pacific Railroad  Company, STB Finance Docket No.
33537 at 2 (STB served  Sept. 14, 1999). Although the Board refused to
find a "de  facto" abandonment here, it did not have to ignore its
aban- donment rule. If the cities' argument were credited, any 
increase in traffic above zero would trigger an assessment;  yet in
the comparable situation of an abandoned line being  reactivated, an
assessment would be triggered only if the new  traffic amounted to
eight trains per day. To maintain some  consistency in its regulatory
treatment of these closely analo- gous situations, the Board therefore
decided to apply the  eight-trains-per-day portion of the rule to this


It is true that the Board's resolution is not perfect. If on  the same
rail line involved in this case, there had been 1 train  per day, five
days per week (instead of zero traffic), the  increased traffic after
the acquisition would have required an  environmental assessment
because 2 trains per day over the 


same period (assuming equal weight) amounts to a 100%  increase. So an
environmental assessment would be required  for an increase of 1 train
per day but not, as here, for an  increase of 2 trains per day on the
same line. That, say the  cities, is senseless.


They have a point but so does the Board when it relies on  the manner
in which it treats abandoned lines. There is, as  we have indicated,
no perfect solution to the problems posed  by applying the 100%
increase standard to a baseline of zero.  In these circumstances, the
Board's interpretation of its  regulation is deserving of respect.
Application of the eight  trains per day standard is not "plainly
erroneous or inconsis- tent with the regulation." United States v.
Larionoff, 431  U.S. 864, 872 (1976); Bluestone Energy Design, Inc. v.
 FERC, 74 F.3d 1288, 1292 (D.C. Cir. 1996).3


The petition for judicial review is denied.




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n 3 We reject the cities' claim that rehabilitation of the line will 
constitute construction of track and therefore trigger an assessment 
under a different regulation (49 C.F.R. s 1105.6(b)(1)). Improve- ment
of existing track does not constitute "construction," and does  not
even trigger Board jurisdiction under 49 U.S.C. s 1091. City of 
Detroit v. Canadian Nat'l Ry., 9 I.C.C. 1208, 1215-17 (1993), aff'd 
sub nom. Detroit/Wayne County Port Auth. v. ICC, 59 F.3d 1314, 
1316-17 (D.C. Cir. 1995).