MidAmerican Energy Co. v. Surface Transportation Board

169 F.3d 1099
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 10, 1999
DocketNos. 97-1081, 97-1284, 97-1331, 97-1332, 97-1333, 97-1335, 97-1583, 97-2204, 97-2206, 97-2260, 97-2303, 97-2328, 97-2462 and 97-2464,
StatusPublished
Cited by1 cases

This text of 169 F.3d 1099 (MidAmerican Energy Co. v. Surface Transportation Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MidAmerican Energy Co. v. Surface Transportation Board, 169 F.3d 1099 (8th Cir. 1999).

Opinion

WOLLMAN, Circuit Judge.

This is a consolidated action involving Mi-dAmerican Energy Company (MidAmerican), Central Power & Light Company (CP & L), and Pennsylvania Power & Light Company (PP & L) (collectively the utilities). They petition for review of two orders of the Surface Transportation Board (the Board) dismissing their complaints against rail carriers. The carriers cross-appeal from the portion of the Board’s decisions regarding reasonableness review of contractual shipping rates, arguing that the issue was not ripe for adjudication. We affirm the dismissal of the utilities’ complaints. We dismiss the cross-appeal for lack of jurisdiction.

I.

MidAmerican ships coal approximately 750 miles from the Powder River Basin in Wyoming to its generating facility near Sergeant Bluff, Iowa. At the time it filed its complaint, MidAmerican was shipping the coal from origin to destination under contract with the Union Pacific Railroad (UP). This contract was scheduled to expire at the end of 1997. Anticipating the contract’s expiration, Mi-dAmerican began to compare UP’s rates with those of other carriers to obtain the most favorable shipping rates. The only other carrier offering rail service originating in the Powder River Basin is the Burlington Northern Railroad (BN).

[1103]*1103BN does not service the final 90 miles of the route, a stretch from Council Bluffs, Iowa, to the generating station. Such a rail segment is commonly termed a “bottleneck,” because it is serviced by only one carrier. Thus, MidAmerican could not directly compare the rates of BN and UP, as UP is the only carrier capable of shipping all the way to the generating station. To obtain a competitive rate for the 660-mile stretch from Wyoming to Council Bluffs, MidAmerican requested that UP provide a rate for its service over the bottleneck.

UP refused to provide the rate. Instead, it provided a rate for the entire route from the Powder River Basin to the generating station. This precluded MidAmerican from using BN as a carrier from Wyoming to Council Bluffs, essentially extending the bottleneck over the entire 750-mile route. Consequently, MidAmerican brought an action before the Board requesting a rate prescription over the 90-mile bottleneck segment. Although MidAmerican could not challenge a local “unit-train” rate for the bottleneck service, it asked the Board to prescribe a reasonable rate for the bottleneck if it found the published “class” rate for the 90-mile stretch unreasonable.2

CP & L transports coal from the Powder River Basin in Wyoming to its Coleto Creek generating station in Texas. Although both BN and UP offer rail service originating at the coal mines, the Southern Pacific Railroad (SP) is the only carrier from an interchange point in Victoria, Texas, to Coleto Creek.3 UP’s lines run from Wyoming to Victoria; BN’s lines run from Wyoming to Fort Worth, Texas, where SP’s service to Victoria and Coleto Creek begins. Therefore, UP and BN directly compete on the portion of the route from Wyoming to Forth Worth. SP and UP directly compete on the portion from Fort Worth to Victoria. After both BN and UP indicated a willingness to offer competitive rates for their service, CP & L requested that SP provide it a local unit-train rate for the segment from Fort Worth to Coleto Creek, which represented SP’s longest haul, or for the bottleneck from Victoria to Coleto Creek.

SP refused to provide either rate, offering instead to provide a joint rate with UP. CP & L chose to obtain a unit-train rate from UP for service from Wyoming to Victoria, and to ship from Victoria to Coleto Creek under SP’s class rate.4 It could thus take advantage of neither the competition between UP and BN from Wyoming to Fort Worth, nor the competition between SP and UP from Fort Worth to Victoria. Subsequently, CP & L brought a complaint before the Board challenging the class rate as unreasonable and requesting a rate prescription for the bottleneck segment.5

[1104]*1104PP & L can transport its coal from either of two mines in central Appalachia to its four generating facilities on the eastern seaboard. ■ One of the mines is serviced by the Norfolk Southern Railroad (NS), the other is serviced by CSX. Neither NS nor CSX offers service all the way to PP & L’s generating stations. NS transfers its shipments to the Consolidated Rail Corporation (Conrail) at an interchange point in Hagerstown, Maryland; CSX transfers to Conrail in Lurgan, Pennsylvania. Conrail thus controls a bottleneck that services PP & L’s four generating facilities. To obtain competitive rates for the portion of the route serviced by NS and CSX, PP & L requested that Conrail provide it local unit-train rates from the interchange points to the generating stations.6

Conrail refused to provide such rates. Consequently, PP & L filed a complaint challenging ConraiPs class rates from the interchange points to the stations and requesting that Conrail be required to provide local unit-train rates instead.7 Conrail maintained that class rates were inappropriate for the route in question and asked the Interstate Commerce Commission (ICC)8 for an opportunity to provide unit-train rates. The ICC ordered Conrail to do so in a decision dated January 17,1995.

Rather than providing the rates, however, Conrail negotiated a joint rate for origin-to-destination service with CSX and a proportional rate for similar service with NS. As a result, Conrail, rather than PP & L, took advantage of the competition between NS and CSX for service from the central Appalachian mines. PP & L then petitioned the Board for rate prescription on the bottleneck based on a renewed challenge to the class rates.

Although petitioners’ cases involve distinct facts, they were consolidated by the Board for adjudication on common issues regarding “the extent to which bottleneck carriers may exert their market power over the routes and rates made available to shippers for needed rail service.” Central Power & Light Co. v. Southern Pac. Transp. Co., No. 41242, 1996 STB LEXIS 358, at *8-*9 (Surface Transp. Bd. Dec. 27, 1996) (Bottleneck /). Before reaching its decision, the Board solicited commentary on bottleneck regulation from all potentially affected shipper and carrier organizations. After oral argument and consideration of the submitted materials, the Board denied the utilities’ requests for bottleneck relief.9

In considering the utilities’ requests, the Board grappled with the tension between two competing policies expressed in the Interstate Commerce Act (the Act). Under 49 U.S.C. § 10701a(a) (1995) (now 10701(c)), rail carriers possess broad discretion in setting rates and routes. This reflects Congress’s [1105]*1105goal of deregulating the railroad industry and allowing railroads to achieve revenue adequacy by competing on a free-market basis. -See id. § 10101a(3) (now 10101(3)) (providing for adequate revenues); id. § 10101a(l) (now 10101(1)) (allowing “the demand for services” to dictate reasonable rail rates). Under sections 10101a(6) and 10701a(b) (now 10101(6) and 10701(d)), however, some rate regulation is required when carriers possess monopoly power over a section of rail.

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169 F.3d 1099 (Eighth Circuit, 1999)

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169 F.3d 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/midamerican-energy-co-v-surface-transportation-board-ca8-1999.