SEATTLE— BNSF Railway is not subject to local zoning laws in its plan to add a second track along part of its main line through Washington’s Columbia Gorge, a U.S. appeals court has ruled.
The decision by the Ninth Circuit Court of Appeals affirmed a lower court judgment that federal law — specifically, the Interstate Commerce Commission Termination Act of 1995 — preempts local permitting requirements by Clark County, Wash.
An opinion written by Judge Jay S. Bybee concludes the Gorge Act, passed by Congress in 1986 to establish the Columbia Gorge as a National Scenic Area, did not qualify as a federal environmental law, which would have required balancing it against the act governing railroads. “Nothing in the Gorge Act authorizes the states to regulate rail transportation in ways they could not have done prior to their entering into the Compact,” Bybee wrote. “Because … nothing in the Gorge Act indicates that the local ordinances otherwise hav ehte force and effect of federal law, the Clark County Code is not exempt from preemption under the ICCTA.”
Courthouse News Service reports that environmental group Friends of Columbia Gorge, which was a defendant in the case, is evaluating a possible appeal.
The news service previously reported that the project to build an additional 800 feet of track in Clark County was completed in 2019 while litigation continued. BNSF had filed suit in 2018 after county officials said the railroad needed a development permit for the track project.
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