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Note, Protecting Communities from Unwarranted Environmental Risks: A NEPA Solution for ICCTA Preemption

By Shata L. Stucky. Full text here.

In 1995, Congress passed the Interstate Commerce Commission Termination Act (ICCTA) in an effort to relieve the railroad industry of burdensome regulation. The ICCTA preempts local land-use regulations that communities formerly used to protect valuable resources such as drinking water supplies. Under some circumstances, the National Environmental Policy Act (NEPA) provides the public with limited assurance that railroad projects will not unduly threaten the environment. However, because NEPA does not apply to all railroad projects, the ICCTA’s preemption provision continues to create a regulatory loophole through which railroad companies may undertake a variety of environmentally harmful activities without any local or federal government oversight. Theoretically courts could close the loophole by interpreting the ICCTA’s preemption provision narrowly. Yet no courts to date have taken this approach, and two courts of appeals have expressly rejected such an interpretation.

This Note urges Congress to close the regulatory loophole by enacting a statute closely resembling NEPA but requiring railroad companies, rather than federal government agencies, to perform an environmental impact assessment before undertaking activities likely to have a significant effect on the environment. Such a NEPA-like statute, if carefully crafted, would close the loophole directly, while minimizing the burdens imposed on railroad companies.