Accordiing to a Chicago Trib article CN lost an appeal and will have to pay $68 million for two underpasses at Ogden Ave. In Aurora and US30 in Lynwood.
After reading the 45 page federal appeals court decision (yawn!..Case 09-1002; Document 1298123) it could have been a lot worse…The case also re-verified the STB’s regulatory power (much to the chagrin of the local yokels & “good 'ol boys” Chicago politicians)…
It’s definitely a yawn (unless you are someone who gets really excited by things like the Chevron doctrine and the interplay between STB’s conditioning authority and Federal environmental laws). But the decision is as much of a victory to CN as a defeat, That’s because, in addition to turning down CN’s challenges to the STB decision, the court also flatly turned down the community challenges to the decision. If this part of the court decision had gone against CN, they would have had a much bigger problem than just two grade separations.
It’s also questionable how much CN will actually end up “losing”. It’ entirely possible that CN will never have to pay anything for the two grade separations. That’s because, udner the Board condition, if the state doesn’t come up with its share of the costs and begin construction by 2015, CN will have no further obligations. Given the state’s financial situation, the state may not be in a position to do so. Also, if the state tries to use federal funding for its share, FHWA regulatory restrictions on the railroad share of such costs may trump the share mandated by STB (the court decision seems to briefly recognize this when it points out that no federal funds were planned to be used for the state share).
Finally, I may be too Machievellian for my own good, but I’ve always felt that a major reason (perhaps the major reason) CN brought this appeal was as part of its strategy to defend against the community appeals. They may well have felt that they would lose their appeal. But, the principles the court would have to rely upon to reach this result would also likely sink the community appeals. And, if by some chance CN “won”, that would also sink the community appeals. The old saying about the best defense being a good offense comes to mind.
Is it “Machiavellian” to conceive that CN used the federal appeal to mop up or bundle up al local appeals . . . after all, typically when a federal agency gains authority or jurisdiction their first task is to refuse to accept citizen petitions or file lawsuits, and the second is to quash local authorities’ trying to solve their own problems.-- (loaded language but consider BP’s cleanup efforts). Publicly held corporations can always plead out their shareholders (and for the sake of openness, I am a small shareholder in CN – CP too).
Sooo… this wouldn’t be the first time a corporate entity wound up paired with federal law enforcement, not necessarily to feather its nest, and possibly in all good intentions…but Surf has spoken, right! (Nonetheless I am not cruel enough to deny U.S. Route 30 a pass over/under the exx-EJ&E; thanks for passing along ndbrr. I haven’t read Thursday’s TRIB yet. . I’m not familiar with the other intersection.)
…Sorry if any of you had caught the rant that followed. I don’t think it did anyone any good, and I really thought I had struck the verbiage at about 5:00 a.m. CDT on 3-18-2011 (it is now going on 7:00 p.m., same date).
My concern is much more basic. Why do they always force underpasses in the Chicago area so every time it rains significantly they flood and strand motorists. Couldn’t they build just one overpass somewhere? In the south 'burbs every road goes under the IC and everyone floods when it rains. The only recourse is to pay a toll and use I-294 to get to the other side.