CSX Fights Subpoena in Capitol Hill Tunnel Dispute

The National Law Journal reports that CSX is fighting the subpoena in the Virginia Avenue Tunnel dispute. Full text below:

CSX Fights Subpoena in Capitol Hill Tunnel Dispute

Photo: Ralph Coulter/iStockphoto.comUpdated at 3:26 p.m.

CSX Transportation Inc. is fighting a subpoena for documents about a controversial plan to rebuild a section of its rail network running through a Washington neighborhood.

CSX, represented by Gibson, Dunn & Crutcher and Sidley Austin, wants to modernize and expand the Virginia Avenue Tunnel in Capitol Hill. Residents, community groups and politicians have raised concerns about safety and quality of life issues associated with the project. A local watchdog organization that advocates on planning and transportation issues, the Committee of 100 on the Federal City, filed a lawsuit in November seeking to stop construction.

The committee argued that federal and local officials who signed off on the project failed to consider certain environmental and safety factors and didn’t give enough weight to alternative options. The group also accused the D.C. Department of Transportation of entering into a “quid pro quo” agreement with CSX to support the project. That agreement, the committee claimed, led to an “unlawful predetermination” by local officials that tainted the Federal Highway Administration’s ultimate approval.

In late December, CSX asked the federal district judge in Washington hearing the case to toss out a subpoena from the committee seeking 27 categories of documents. CSX said the subpoena appeared to be aimed at uncovering evidence of the alleged “predetermination”—an accusation CSX and federal and D.C. officials rejected in court papers.

“The District of Columbia did not of course ‘predetermine’ the outcome—but the claim is irrelevant in any event. The Record of Decision approving the Virginia Avenue Tunnel project was issued not by the District of Columbia, but by the Federal Highway Administration, which expressly stated in the Record of Decision that it did not consider any agreements between CSXT and the District of Columbia in approving the project,” CSX argued in its Dec. 26 motion to quash the subpoena.

Additional discovery usually wasn’t allowed in cases challenging the action of a federal agency under the National Environmental Policy Act, CSX said. Instead, the company argued, the court could only consider documents and other information that were part of the record during the administrative proceedings before the agency.

Even if the committee was permitted to ask for more documents, CSX argued that the subpoena was premature because the government hadn’t finished putting together the administrative record. The company also called the committee’s requests “overbroad” and said the subpoena’s 10-day deadline for certain categories of documents was “unreasonable.”

Monte Edwards, vice chair of the Committee of 100, said in a phone interview on Monday that the committee should be allowed to request additional documents about information that wasn’t addressed in the final environmental impact statement about the project or in the administrative record.

Edwards said the committee believed that the additional documents would show “a pre-disposition on the part of [the D.C. Department of Transportation], if not a legal obligation under the agreement, to approve what should have been an open and objective process.”

The committee is represented by Leslie Alderman III of Alderman, Devorsetz & Hora.

The committee has asked U.S. District Judge Christopher Cooper to enter an injunction barring federal or local officials from allowing the project to move forward by issuing permits or other approvals. CSX, thefederal government and the D.C. government filed papers with the court in December defending their actions.

Cooper is scheduled to hear arguments on the subpoena issue on Jan. 26 and on the committee’s injunction request on Feb. 17.

A spokesman for CSX, Rob Doolittle, said in a statement on Monday that the company “believes the project should move forward promptly.”

“The reconstruction of the Virginia Avenue Tunnel was approved by the federal and District of Columbia governments following a lengthy public oversight, review and comment process that shaped the final design of this project,” Doolittle said. “CSX is committed to doing this project the right way, safely, respecting our neighbors and working closely with residents and businesses to minimize impacts and to ensure that they are informed about construction plans.”