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  5. 863 F.3d 816 (2017)
 

UNION PACIFIC R. CO. v. SURFACE TRANSP. BD.

No. 16-3307, No. 16-3504, No. 16-3512, No. 16-3513, No. 16-3514.

863 F.3d 816 (2017)

UNION PACIFIC RAILROAD COMPANY, Petitioner. Association of American Railroads, Intervenor v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents. National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association; Southern Rail Commission; Virginians for High Speed Rail, Intervenors. Chamber of Commerce of the United States of America; Professor Neomi Rao, Amici on Behalf of Petitioner. United States Conference of Mayors, Amicus on Behalf of Respondent. Association of American Railroads, Petitioner v. Surface Transportation Board; United States of America, Respondents. National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association; Southern Rail Commission; Virginians for High Speed Rail, Intervenors. United States Conference of Mayors, Amicus on Behalf of Respondent. Chamber of Commerce of the United States of America; Professor Neomi Rao, Amici on Behalf of Petitioner. CSX Transportation, Petitioner. Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents. National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association; Southern Rail Commission; Virginians for High Speed Rail, Intervenors. Chamber of Commerce of the United States of America, Amicus on Behalf of Petitioner. United States Conference of Mayors, Amicus on Behalf of Respondent. Professor Neomi Rao, Amicus on Behalf of Petitioner. Norfolk Southern Railway Company, Petitioner. Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents. National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association; Southern Rail Commission; Virginians for High Speed Rail, Intervenors. Chamber of Commerce of the United States of America, Amicus on Behalf of Petitioner. United States Conference of Mayors, Amicus on Behalf of Respondent. Professor Neomi Rao, Amicus on Behalf of Petitioner. Canadian National Railway Company; Illinois Central Railroad Company; Grand Trunk Western Railroad Company, Petitioners. Association of American Railroads, Intervenor v. Surface Transportation Board; United States of America, Respondents. National Railroad Passenger Corporation; SMART-Transportation Division-New York State Legislative Board; National Association of Railroad Passengers; All Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal; Environmental Law and Policy Center; Michigan Association of Rail Passengers, Inc; Midwest High Speed Rail Association; Southern Rail Commission; Virginians for High Speed Rail, Intervenors. Chamber of Commerce of the United States of America, Amicus on Behalf of Petitioner. United States Conference of Mayors, Amicus on Behalf of Respondent. Professor Neomi Rao, Amicus on Behalf of Petitioner

United States Court of Appeals, Eighth Circuit.

Filed: July 12, 2017.

Attorney(s) appearing for the Case

Counsel who presented argument on behalf of the petitioners was Thomas H. Dupree, Jr. , of Washington, DC. The following attorney(s) appeared on the joint brief of petitioners. For Union Pacific Railroad Co.; Rebecca Gregory , John J. Brennan , Louise Anne Rinn of Omaha, NE., for CSX Transportation, Inc. Peter J. Shudtz , Paul R. Hitchcock , Cindy Craig Johnson , Sean M. Craig of Jacksonville, FL., for Canadian National Railway Co., et al. Paul A. Cunningham , David A. Hirsh , Simon A. Steel , Theodore K. Kalick of Washington, DC., for Association of American Railroads Michael K. Murphy , David Fotouhi , David A. Schnitzer , Kathryn D. Kirmayer , Daniel Saphire , Timothy J. Strafford of Washington, DC. for Norfolk Southern Railway Co. Joseph R. Palmore , David L. Meyer , James A. Hixon , John M. Scheib , Greg E. Summy , Garrett D. Urban , of Norfolk, VA., James R. Sigel of San Francisco, CA.

Counsel who presented argument on behalf of the respondents was Theodore Leonard Hunt , of Washington, DC. The following attorney(s) appeared on the brief, Jeffrey D. Komarow of Washington, DC.

Counsel who presented argument on behalf of the intervenor National Railroad Passenger Corporation was Kelly P. Dunbar of Washington, DC. The following attorney(s) appeared on the brief; David W. Ogden , Ari Holtzblatt , Jonathan Edward Paikin , Derek Woodman , of Washington, DC.

The following attorney(s) appeared on the intervenors brief of the Southern Rail Commission, et al., Gordon P. MacDougal of Washington, DC., Karen E. Torrent , of Chicago, IL.

The following attorney(s) appeared on the amicus brief of Chamber of Commerce of the United States of America; Patrick N. Strawbridge , of Boston, MA., Steven P. Lehotsky , Kathryn L. Comerford Todd , of Washington, DC., Michael H. Park , of New York, NY.

The following attorney(s) appeared on the amicus brief of Professor Neomi Rao; John Michael Connolly , Thomas R. McCarthy , of Arlington, VA.

The following attorney(s) appeared on the amicus brief United Counsel of Mayors, Gregory Rodriguez of Washington, DC.

Before SMITH, BENTON and SHEPHERD, Circuit Judges.

When Congress expressly delegates rulemaking authority in a regulatory sphere to one agency, and that delegation is declared unconstitutional, may a different agency provide regulatory guidance in the same sphere on its own initiative? The Surface Transportation Board ("Board") said yes — and on that basis it promulgated...

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