No Further Legal Action Likely Against Norfolk-Southern Ethanol Facility

(Tuesday) July 13, 2010

Norfolk-Southern Van Dorn Street Ethanol Transloading Facility (Courtesy image)

By Carla Branch
alexandrianews.org

Although the Alexandria City Council has not taken a formal vote, it looks unlikely that the City will  appeal the Fourth Circuit court’s recent ruling that the City does not have the right to regulate Norfolk-Southern’s ethanol transloading facility.

Just before the long Fourth of July holiday weekend, City Attorney Jim Banks sent an email to the mayor and members of Council recommending that Alexandria make no further appeal in the Norfolk-Southern lawsuit. The City, which attempted to regulate the facility through the use of hauling permits and other local land use ordinances, lost at both the federal district court and Court of Appeals levels.  Both courts ruled that the ethanol transloading facility at Norfolk-Southern West End property is regulated by the Surface Transportation Act and that the federal law supersedes any local code.

“I recommend that the City not pursue any further appeals in the matter. The next step of appeal, of course, would be to the United Sates Supreme Court. Such an appeal is not mandatory. In other words, we would first petition the Court for an appeal before we could actually address the substance of our claims. Only after the Court granted a petition for appeal, would we proceed to further brief the substance of the appeal itself. First, I think it unlikely that the Court would grant an appeal. The substance of the case turns upon the doctrine of federal preemption as it specifically pertains to railroads. The Court would normally grant an appeal in such a case if the state of the law was unsettled or if there was a significant difference between the positions of two or more Circuit Courts on the issue. Neither situation is true here. In addition, while we certainly wish that both the District Court and the Circuit Court had come to different conclusions, both applied the standard type of analysis in federal preemption cases in a fairly straightforward and standard way. Finally, there is nothing in the current state of the law that would lead me to conclude that the Supreme Court is likely to change the application of the federal preemption doctrine in a new or novel way that would necessitate a reversal of the 4th Circuit’s recent decision. Therefore, it appears that the City would likely expend additional costs on appeal with only a very small chance of success,” Banks wrote in his email.

In an interview with alexandrianews.org last week, Alexandria Mayor Bill Euille accepted Banks’ recommendation. “I know that I said I would defend our citizens up to the Supreme Court but wiser legal heads have prevailed and the courts have told us that we don’t have the right to regulate Norfolk-Southern’s use of the facility to transport ethanol,” he said.