USCA Case #15-1199

Document #1570877

Filed: 09/01/2015

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
SIERRA CLUB, FORESTETHICS,
RIVERKEEPER, WASHINGTON
ENVIRONMENTAL COUNCIL,
WATERKEEPER ALLIANCE, FRIENDS
OF THE COLUMBIA GORGE, SPOKANE
RIVERKEEPER, AND CENTER FOR
BIOLOGICAL DIVERSITY,
Petitioners,

v.

No. 15-1131, 15-1132, 11-1182,

15-1194, 15-1195, 15-1199
(Consolidated)

UNITED STATES DEPARTMENT OF TRANSPORTATION,

SECRETARY OF TRANSPORTATION
Respondents.

NOTICE OF MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF ALBANY

COUNTY, NEW YORK IN SUPPORT OF PETITIONERS SIERRA CLUB, ET AL.

PLEASE TAKE NOTICE that, the County of Albany, New York, by and through
undersigned counsel, and consistent with Circuit Rule 29(b), hereby move this Court for leave to
participate as amicus curiae in this matter.

Dated: September 1, 2015

Respectfully submitted,
/s/ Thomas Marcelle
Thomas Marcelle
Bar Admission Pending
Albany County Attorney
1

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Attorney for Amici County of Albany

112 State Street, Rm. 600
Albany, NY 12207
Tel. No. 518-447-7110
Fax No. 518-447-5564

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
SIERRA CLUB, FORESTETHICS,
RIVERKEEPER, WASHINGTON
ENVIRONMENTAL COUNCIL,
WATERKEEPER ALLIANCE, FRIENDS
OF THE COLUMBIA GORGE, SPOKANE
RIVERKEEPER, AND CENTER FOR
BIOLOGICAL DIVERSITY,
Petitioners,

v.

No. 15-1131, 15-1132, 11-1182,

15-1194, 15-1195, 15-1199
(Consolidated)

UNITED STATES DEPARTMENT OF TRANSPORTATION,

SECRETARY OF TRANSPORTATION
Respondents.

CERTIFICATE AS TO PARTIES, RULINGS, AND OTHER CASES

Pursuant to D.C. Circuit Rule 28(a)(1)(A), the County of Albany, New York (County)
hereby submits this certificate as to parties.
A. Parties and Amici
Petitioners
The Petitioners in this matter are Sierra Club; ForestEthics; Riverkeeper, Inc.;
Washington Environmental Council; Waterkeeper Alliance; Friends of the Columbia Gorge;
Spokane Riverkeeper; and Center for Biological Diversity.
Respondents
The Respondents in this matter are the United States Department of Transportation and
the Secretary of Transportation.

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Intervenors
No individual or entity has requested to intervene in this matter at this time.
Amici
No individual or entity has requested permission for leave to participate as amicus curiae
at this time.
Dated: September 1, 2015

Respectfully submitted,
/s/ Thomas Marcelle
Thomas Marcelle
Bar Admission Pending
Albany County Attorney
Attorney for Amici County of Albany
112 State Street, Rm. 600
Albany, NY 12207
Tel. No. 518-447-7110
Fax No. 518-447-5564

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
SIERRA CLUB, FORESTETHICS,
RIVERKEEPER, WASHINGTON
ENVIRONMENTAL COUNCIL,
WATERKEEPER ALLIANCE, FRIENDS
OF THE COLUMBIA GORGE, SPOKANE
RIVERKEEPER, AND CENTER FOR
BIOLOGICAL DIVERSITY,
Petitioners,

v.

No. 15-1131, 15-1132, 11-1182,

15-1194, 15-1195, 15-1199
(Consolidated)

UNITED STATES DEPARTMENT OF TRANSPORTATION,

SECRETARY OF TRANSPORTATION
Respondents.

DECLARATION OF THOMAS MARCELLE IN SUPPORT OF MOTION FOR LEAVE

TO FILE AMICUS CURIAE BRIEF OF ALBANY COUNTY, NEW YORK IN SUPPORT
OF PETITIONERS SIERRA CLUB, ET AL.
I, Thomas Marcelle, hereby declare the following:
1.

I am the Albany County Attorney for the County of Albany (County). I am duly

licensed to practice law in the State of New York, the Second Circuit Court of Appeals, and
various other jurisdictions. My admission to the United States Court of Appeals for the District
of Columbia Circuit is currently pending. I am fully familiar with the facts and procedural
history of this case.

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2.

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Albany County is comprised of 19 municipalities on the western side of the Hudson

River, lies approximately 150 miles north of New York City and contains more than 300,000
residents. County possesses a strong interest in the regulation of crude-by-rail transportation.
3.

Rail tank cars transport over one billion gallons of crude oil a year in and through Albany

County. Specifically, Albany County has several rail and port facilities for movement of crude
oil in and through the County, which include:
a. A cross-County main line owned by Canadian-Pacific (CP) running north-south along
the Hudson River and through the downtowns of the Cities of Albany, Cohoes and
Watervliet and several river towns and villages;
b. A cross-County main line owned by CSX running west-east to the south of Albany;
c. The CSX Selkirk Yard in Selkirk, about 8 miles south of the City of Albany, the largest
freight car yard in the northeastern United States;
d. The Global Petroleum and Buckeye Partner petroleum terminals located on the Hudson
River in downtown Albany, with associated rail lines and the Kenwood Yard;
e. The West Albany Yard in the City of Albany; and
f. The freight transfer and shipping facilities of the Port of Albany, located on the Hudson
River in downtown Albany, which is the northernmost point on the Hudson River
accessible by bulk petroleum freighters and barges.
4.

The oil tankers travel in close proximity to many sensitive resources. For example, the

CSX line traverses a watershed and borders one side of the Watervliet Reservoir, the source of
drinking water for a large number of County residents.

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5.

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County shares in the heavy responsibilities of federal, state and local regulators to assure

that the operation of these rail and port facilities does not pose undue risks to the Countys
population, property and resources.
6.

With those responsibilities, County is justifiably alarmed by the dramatic growth of crude

oil transported in and through the County by dangerously inadequate rail cars under inadequate
operating specifications.
7.

In response to these dangers, the Albany County Executive has issued an Executive Order

to form an advisory committee that will advise and coordinate the hiring of specific consults to
review, investigate and report on the broad range of concerns relative to crude oil issues.
8.

Additionally, County has hosted a special summit in which first responders with direct

experience with oil train derailments made presentations to:

a. Shed light on the catastrophic consequences of an oil train derailment and explosion;
b. Prepare the Countys Emergency Management Office for any event of this nature; and
c. Provide insight on the safety measures they took and how the County can improve
planning and safety in the transportation of hazardous materials by rail.
9.

Recently set forth is Respondent Secretary of Transportations (Secretary) final rule

entitled, Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for
High-Hazard Flammable Trains.
10.

Respondent Department of Transportation has determined that transportation of

hazardous materials in deficient tank cars amounts to an imminent hazard to life, property and
the environment.
11.

Given the heavy extent of the Countys involvement in crude-by-rail transportation,

County is well suited to be a participant in this case.

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12.

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County has sent multiple letters and comments to Respondent Department of

Transportation regarding the inadequacies of the Secretarys final rule, thereby showing the
Countys vigilance and interest in this matter. Attached hereto as Exhibit A are the Comments
of Albany County, NY in response to NPRM entitled: Hazardous Materials: Enhanced Tank
Car Standards and Operational Controls for High-Hazard Flammable Trains. Attached hereto
as Exhibit B is a letter from Albany County Executive Daniel McCoy to U.S. Secretary of
Transportation Anthony Foxx, dated April 28, 2015. Attached hereto as Exhibit C is a letter
sent by Albany County Executive McCoy to Secretary Foxx, dated May 7, 2015. Attached
hereto as Exhibit D is a letter sent by Secretary Foxx to County Executive McCoy, dated July
27, 2015.
13.

County can assist this Honorable Court by demonstrating how these crude-by-rail

inadequacies pose unique and unacceptable, imminent hazards to the population, property and
resources of Albany County, thereby furthering Petitioners request to vacate and remand
appropriate aspects of the Secretarys final rule.
14.

If allowed to submit a brief, the County would argue that the safeguards promulgated in

the Secretarys final rule are inadequate and such inadequacies pose unique and unacceptable,
imminent hazards to the population, property and resources.
15.

Unlike other parties present in this matter, County is responsible for the protection of its

people, property and environment. As such, County can offer a practical perspective that may not
otherwise be provided by either Petitioners or Respondents in this case.
WHEREFORE, the County of Albany, New York respectfully requests that the Court
grant the County leave to file the brief as amicus curiae in support of Petitioners.

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Pursuant to 28 USC 1746, I declare under penalty of perjury that the foregoing
declaration is true and correct.
Executed on: September 1, 2015
Respectfully submitted,
/s/ Thomas Marcelle
Thomas Marcelle
Albany County Attorney
Attorney for Amici County of Albany
112 State Street, Rm. 600
Albany, NY 12207
Tel. No. 518-447-7110
Fax No. 518-447-5564

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