CN (TSX: CNR) (NYSE: CNI) said today that it has asked the Surface
Transportation Board (STB) to take a new approach to CN's proposed
acquisition of the major portion of the Elgin, Joliet & Eastern
Railway Company (EJ&E). CN has asked the Board to issue a final
decision on the transportation merits of the transaction in time to
permit the transaction to close before year-end, but to preserve
the environmental status quo pending further STB action on the
environmental issues posed by the transaction. The new approach
would assure adequate protection of the environment for communities
along the EJ&E. At the same time, it would avoid the risk to
the broader public interest in improved rail transportation posed
by regulatory delays that threaten termination of the transaction.
CN's petition requests that the STB decide by September 15, 2008
whether it will modify its procedural schedule to provide for a
final decision by October 15, 2008 on the transportation merits of
the proposed EJ&E acquisition. Under law, that decision would
be based on whether the Board has found adverse competitive impacts
that are both "likely" and "substantial." CN is also asking the
Board, if it decides to approve the transaction in October, to
condition its approval on preserving the environmental status quo
until the Board's Section of Environmental Analysis (SEA) has
completed its environmental review of the transaction. CN contends
that, so long as the environment is not affected by the transaction
during environmental review, the law requires the Board to approve
the transaction on its competitive merits. Once the STB's
environmental review is completed, the Board would be expected to
issue a decision governing any change in the environmental status
quo.
"This transaction has far-reaching economic and transportation
benefits to the Chicago region, the Midwest, and the nation as well
as for CN and its customers," said E. Hunter Harrison, President
and Chief Executive Officer of CN. "This transaction enjoys
significant support from a broad array of shippers and the range of
other parties who have a stake in making sure that the serious rail
congestion issues plaguing Chicago are being addressed by sound
transportation initiatives such as the acquisition by CN of the
EJ&E.
"At the same time, we are well aware of the concerns raised by
communities along the EJ&E line about the environmental impacts
of increased train traffic. We are asking the STB to set a schedule
providing for a decision on the merits which, if favorable to CN,
would allow us to close on this transaction before the end of this
year, but would not cause any adverse environmental impacts before
the Board completes its environmental review and develops a full
record on which to base the environmental mitigation that it may
impose on the transaction."
CN is entitled to and requires this relief because the STB
declined CN's request for a fixed timetable that would conclude its
regulatory and environmental review by the end of the year and,
despite CN's continuing best efforts, a substantial risk remains
that EJ&E, which is an indirect subsidiary of United States
Steel Corporation (U. S. Steel), would terminate the proposed
transaction if it is not closed before year-end. U. S. Steel has
recently declined CN's request for a modification of the Stock
Purchase Agreement (SPA) or other action that would assure that the
transaction could still be closed if approved after December 31,
2008. That decision has highlighted the risk that the transaction
would be terminated before it was reviewed by the STB. As a result,
CN is seeking relief to allow this important transaction to close
prior to the end of 2008.
"CN is prepared to take the positive step of closing this
transaction before year-end in a way that provides the STB with
additional time to complete its environmental review by early
2009," Harrison said. "We are hopeful that the final EIS will
conform to the view that this transaction is clearly beneficial to
the environment of the broader Chicago region and that the
legitimate impacts on affected communities are not novel and can
all be reasonably mitigated in accordance with sound STB precedents
and the long-established public policy framework governing railroad
transactions throughout the United States.
"The chief concerns raised by opponents of this transaction are
the impacts of train traffic that will be diverted from CN lines in
Chicago onto the EJ&E," Harrison said. "Our proposal would
ensure that the STB has sufficient time to review those matters
fully before it authorizes any diversion of traffic. The action we
are requesting would not interfere in any way with SEA's
environmental review process and we are seeking to protect the
interests of all parties. At the same time, we would be moving one
step closer to meaningful rail congestion relief and rail
efficiency enhancements in the Chicago region.
"We have consistently stated that we understand and are willing
to address the concerns of communities that will experience train
traffic increases as a result of this transaction," Harrison said.
CN has been actively engaged in the SEA's environmental review
process and will participate in the SEA's public hearings in August
and September in communities in the region. CN also will continue
to work with affected communities along the EJ&E line in an
effort to reach voluntary mitigation agreements addressing
reasonable environmental concerns associated with increased train
traffic on the EJ&E.
CN's petition notes that if the Board does not act by September
15, 2008, CN will be prepared to petition the U.S. Court of Appeals
for the District of Columbia Circuit immediately thereafter to
compel the STB to issue a final decision that would permit CN to
close the transaction by December 31, 2008. By requesting an STB
decision by September 15 solely on the question of whether the STB
will agree to issue a final decision on the transportation merits
by October 15, 2008, CN hopes to avoid the need for judicial
intervention.
CN and U. S. Steel announced on September 26, 2007, an agreement
under which CN would acquire most of the EJ&E for $300 million,
subject to regulatory approval by the STB. The transaction would
enable CN to re-route its trains along the EJ&E arc around the
periphery of the Chicago area, reducing rail congestion in the
inner core of Chicago while significantly improving the flow of
CN's rail operations in the Chicago region. CN has committed an
additional $100 million for integration, new connections, and
infrastructure improvements to add capacity on the EJ&E line
and allow network synergies to be realized over time. This $400
million of private-sector investment, combined with the roughly $40
million that CN would expect to spend to mitigate the impacts of
increased train traffic along the EJ&E line, would better
utilize and enhance capacity on the Chicago-area rail network.
More information on the transaction, including a map of the
areas served by the EJ&E and CN, is available by clicking on
the EJ&E Acquisition icon on the About CN section of its
website http://www.cn.ca/about/EJE/about_EJE/en_About.shtml.
Forward-Looking Statements
This news release contains forward-looking statements. CN
cautions that, by their nature, forward-looking statements involve
risk, uncertainties and assumptions. In addition to the other
assumptions contained in this release, the Company believes the
U.S. economy is currently experiencing recessionary conditions, but
assumes that it will recover within the next six to nine months,
and that the global economy will grow at a moderate pace throughout
this period. The Company cautions that these assumptions may not
materialize. The Company's results could differ materially from
those expressed or implied in such forward-looking statements.
Important factors that could cause such differences include, but
are not limited to, industry competition, legislative and/or
regulatory developments, compliance with environmental laws and
regulations, various events which could disrupt operations,
including natural events such as severe weather, droughts, floods
and earthquakes, the effects of adverse general economic and
business conditions, inflation, currency fluctuations, changes in
fuel prices, labor disruptions, environmental claims,
investigations or proceedings, other types of claims and
litigation, and other risks detailed from time to time in reports
filed by CN with securities regulators in Canada and the United
States. Reference should be made to CN's most recent Form 40-F
filed with the United States Securities and Exchange Commission,
its Annual Information Form filed with the Canadian securities
regulators, and its 2007 Annual Consolidated Financial Statements
and Notes thereto and Management's Discussion and Analysis
(MD&A), as well as its 2008 quarterly consolidated financial
statements and MD&A, for a summary of major risks.
CN assumes no obligation to update or revise forward-looking
statements to reflect future events, changes in circumstances, or
changes in beliefs, unless required by applicable laws. In the
event CN does update any forward-looking statement, no inference
should be made that CN will make additional updates with respect to
that statement, related matters, or any other forward-looking
statement.
CN - Canadian National Railway Company and its operating railway
subsidiaries - spans Canada and mid-America, from the Atlantic and
Pacific oceans to the Gulf of Mexico, serving the ports of
Vancouver, Prince Rupert, B.C., Montreal, Halifax, New Orleans, and
Mobile, Ala., and the key metropolitan areas of Toronto, Buffalo,
Chicago, Detroit, Duluth, Minn./Superior, Wis., Green Bay, Wis.,
Minneapolis/St. Paul, Memphis, and Jackson, Miss., with connections
to all points in North America. For more information on CN, visit
the company's website at www.cn.ca.
www.cn.ca
Contacts: CN Jim Kvedaras (Media) Senior Manager U.S. Public
& Government Affairs (708) 332-3508 CN Robert Noorigian
(Investors) Vice-President Investor Relations (514) 399-0052
Canadian National Railway (TSX:CNR)
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