A judge has determined state wildlife officials followed state law in issuing permits for BNSF Railway to build a second track through the La Crosse River marsh.
A group of area residents last year challenged the Wisconsin Department of Natural Resources’ decision and asked the court to block the railroad’s wetland permits and to require the DNR to complete a more thorough environmental review of the project, which was completed in September.
In a decision issued Wednesday, La Crosse Circuit Judge Scott Horne found the agency “adequately considered the environmental impact” as required by state law.
A petition filed by Midwest Environmental Advocates on behalf of the local rail safety advocates argued the agency did not take into account the environmental and public safety risks associated with the derailment of a train carrying hazardous materials, the disturbance to neighbors from increased train traffic and the incremental impact of continuing to fill in the marsh, which has been reduced over the years to about half its original size.
The DNR did not conduct a full Environmental Impact Statement, saying its two-month review of BNSF’s application covered most of the same ground. But Sarah Williams, staff attorney for Midwest Environmental Advocates, argued that does not comply with the Wisconsin Environmental Policy Act.
The plaintiffs also contend that the agency rule under which it reviewed the application is in violation of the law.
Horne disagreed on both counts.
“The Petitioners see (the rule) as providing the DNR with a mechanism for skirting WEPA’s detailed statement requirement,” Horne wrote, “whereas the court takes NR 150 at its face value as a framework for the DNR to determine whether its actions are in compliance with WEPA and requiring the DNR to create an EIS when dictated by WEPA.”
Horne ruled that the agency’s decision not to prepare an EIS was made in “good faith” but did not question the analysis itself, noting “the court must defer to the technical expertise of the DNR.”
MEA staff attorney Sarah Geers said the decision — the first court review of the DNR’s new rules — sets a bad precedent for the review of future projects.
“This allows the DNR to go forward with its rules for implementing WEPA, which we think represent a large step back in the level of detail DNR has to include in its environmental analyses,” Geers said. “Basically the DNR just says our permitting programs are enough.”
Geers said the plaintiffs have not decided whether to appeal Horne’s ruling.
BNSF’s La Crosse project was one of more than a dozen upgrades the railroad scheduled last year for its route along the Mississippi River between the Twin Cities and the Illinois border. The railroad said the marsh upgrade would ease delays at each end of what is the area’s only section of single track.
Opponents contended it would lead to increased train traffic, particularly the number of trains carrying highly explosive crude oil from North Dakota.
Horne conceded there are valid concerns about the environmental impact of increased traffic and a potential oil train derailment.
“But these are issues of rail regulation that are outside the purview of the DNR,” he wrote. “The DNR does not have the authority to deny BNSF’s permit on the basis of these concerns.”
Crude oil rail shipping took off in the last decade as new drilling techniques released previously hard-to-reach oil reserves in North Dakota. At its peak, BNSF was running 29 to 39 fully-loaded oil trains through La Crosse every week. But crude shipments from the region including North Dakota to refineries in the Midwest, East and Gulf coasts plunged by 45 percent between December 2013 and December 2015, according to data from the Energy Information Administration.
Lead plaintiff Maureen Freedland said in spite of the reduction, she remains concerned about the estimated 350,000 barrels of oil that move each day through the Midwest.
“In addition to crude oil we’ve got pesticides, insecticides, ethanol and other hazardous materials including acids,” she said.
Freedland said she was disappointed that Horne took a narrow view of his role and that the DNR has not been more aggressive in environmental protection role.
“We’re disappointed that the DNR keeps lowering its bar for analyzing permits, and that their review process is not as thorough as it ought to be,” she said. “It keeps straying away from its mission to protect our resources.”