Railroad

B&D has worked for decades with freight railroads, other transportation sector entities, and producers and manufacturers of commodities and other goods transported by rail on environmental matters regarding siting, permitting, and operating rail infrastructure and terminals. We are well-versed in first and last mile regulatory issues, including those that apply to intermodal facilities and engagements between ports and freight companies. Based on this work, we understand the intersection of the rail business and the environment.

    Representative Matters

    • Advised and represented a freight railroad franchise in connection with an appeal of a walkway-related citation issued by the Washington Department of Labor & Industries, Division of Occupational Safety and Health, involving multiple questions of jurisdiction.
    • Assisted in the defense of a railroad franchise in a criminal investigation by the U.S. Department of Justice, Environmental Crimes Section, involving alleged false statements made in FRA certifications.
    • Defended a freight railroad network company in the permitting for its $2 billion national intermodal facility against environmental group challenges under NEPA and Section 404 of the Clean Water Act. Plaintiffs challenged the U.S. Army Corps of Engineers’ environmental assessment and Finding of No Significant Impact for the facility, as well as the related Section 404 permit authorizing wetland impacts onsite. After obtaining intervention as a defendant to help the Corps protect the NEPA study and permit, B&D led a successful defense through numerous proceedings, including oppositions to plaintiffs’ motions in the District Court for preliminary injunction, summary judgment, and following a decision in our favor on our client’s cross-motion for summary judgment, an injunction pending appeal. We then successfully opposed in the U.S. Court of Appeals for the Tenth Circuit the plaintiffs’ motion for injunction pending appeal and secured a decision affirming the District Court’s summary judgment rulings.
    • Defended claims that air-borne coal dust from train cars provided a basis for a claim under the Resource Conservation and Recovery Act, which typically applies to surface and subsurface contamination, rather than airborne releases, which are typically handled under the Clean Air Act. The case settled during trial.
    • Advised a commuter rail operator on federal and state preemption for tree and vegetation cutting associated with right-of-way clearing for compliance with FRA regulations and installation of the Positive Train Control project.