By LISA SCAGLIOTTI
The waiting continues for Vermont Railway Inc. and the town of Shelburne in the ongoing legal dispute involving the giant road-salt storage sheds built just north of the village.
Now in operation for their second winter season, the sheds are the subject of an appeal that has landed in the U.S. Court of Appeals for the Second Circuit in New York City. Lawyers for the railroad and the town government on Nov. 8 presented oral arguments and answered questions from a three-judge panel that will make the next decision in the case.
At issue is a decision made nearly a year ago by Senior Federal Judge William K. Sessions III in federal court in Burlington. Judge Sessions ruled that a town ordinance to regulate the storage, handling and distribution of hazardous materials should not apply to the salt facility that Vermont Railway built in 2016-17.
Shipments of road salt arrive by rail and are off-loaded into the two sheds, which combined can hold up to 80,000 tons of salt. The material is later trucked from the site to customers in Vermont, mainly municipal and state highway departments that use it to treat roads in wintertime.
In a December 2017 decision, Sessions said that the ordinance, in setting limits on quantities of salt that could be stored in one place, unfairly targeted the railroad’s operation and ordered that the local law not be enforced against the facility.
Before the Shelburne Selectboard approved the new ordinance in 2017, the project had been the subject of several federal court proceedings to determine whether the facility’s construction should have been subject to local and state development review. Judge Sessions heard and decided those questions in the railroad’s favor, essentially saying that federal law exempted the project from most permitting review.
Opponents to the project including environmental groups and the town government raised concerns about impacts of the facility given its proximity to the LaPlatte River and Lake Champlain.
All of this legal wrangling sets the scene for the appeals court’s current review. Lawyers for both sides said they were impressed with the level of detail of the judges’ questions and comments in the recent hearing.
Claudine Safar, who represented the town, acknowledged that arguing a case on appeal is a challenge.
“The bar is always higher on appeal,” she said.
Jennifer McDonald represented the railroad. She said she hopes the appeals court will agree with the lower court’s ruling and let it stand.
“We were happy with Judge Sessions’ decision,” she said.
Both sides said they expect that it could take months before a ruling is made in the case. Safar said she doesn’t mind the wait — a quick decision usually means the court agrees with the previous ruling, she explained. A longer wait is likely when the court is working on writing a new decision.
The three judges for the Nov. 8 oral arguments were Judges Peter W. Hall, Reena Raggi and Richard Sullivan.
Some of the questions posed by the appeals judges focused on the nature of the activity at the salt sheds and whether it was considered transportation. Federal law that exempts railroads from many local regulations is based on transportation functions.
The town’s lawyer urged the court to take a broad view to consider overall aspects of the operation, while the railroad’s counsel focused narrowly on the question decided by the lower court last December pertaining to the town hazardous materials ordinance.
The case has held the attention of local residents and town officials who have spent a significant amount of time and resources in the matter. Prior to the appeal, legal costs were just over $488,000 according to Peter Frankenburg, town finance director.
In moving ahead with the appeal, the town’s legal team said it would cap its fee at $20,000 to the town. The Vermont Natural Resources Council, an environmental conservation nonprofit opposed to the salt-shed development, stepped up to donate that sum to the town to pay the bill.