The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court
Upon consideration of defendants' Motions for Summary Judgment [66, 67, 68], plaintiffs' Motion for Summary Judgment , plaintiffs' Statement of Points and Authorities , defendants' Replies [71, 72, 74], plaintiffs' Reply , the applicable law, and the Administrative Record [77-1 to -6] herein, the Court finds that the federal defendants failed to make a convincing case that no Supplemental Environmental Impact Statement ("SEIS") was needed. However, plaintiffs' requested relief is not appropriate at this time. Therefore, defendants' Motions for Summary Judgment will be denied in part and granted in part, and plaintiffs' Motion for Summary Judgment will be denied.
Plaintiffs Jim Lemon and Robin Biser filed a complaint alleging that the Army and private defendants did not comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., with respect to a redevelopment plan for a decommissioned Army base. (Compl.  at 20--21.) In September 1998, the Army closed Fort Ritchie, an Army post in Washington County, Maryland. Prior to closure of a military post, the Defense Base Closure and Realignment Act ("BRAC") requires the Secretary of Defense to consult with state and local governments concerning any plan for reuse of the property by the local community. See 10 U.S.C. § 2687 note (§ 2905(b)(2)(D)). Washington County established a Local Redevelopment Authority ("LRA") (Admin. R. at 00007--09), which created a Comprehensive Redevelopment Plan for the property with input from the local government and community. (Id. at 00011--54.) In April 1997, Washington County approved the Comprehensive Redevelopment Plan for the reuse of Fort Ritchie. (Def.'s Mot. for Summ. J.  at 5.)
The Army evaluated the planned reuse of Fort Ritchie in a Draft Environmental Impact Statement ("DEIS"). The Army extrapolated from the Comprehensive Redevelopment Plan to determine three likely development scenarios, or "Reuse Alternatives" (Low Reuse Alternative, Low-Medium Reuse Alternative, and Medium Reuse Alternative), which it evaluated in the DEIS.*fn1 (Admin. R. at 00336--00506.) The Comprehensive Redevelopment Plan most closely resembled the Low-Medium Reuse Alternative. (Id. at 00393.) The Low Reuse Alternative and Medium Reuse Alternative assumed lower and higher amounts, respectively, of building reuse, building construction, employment, and housing availability than the Low-Medium Alternative. (Id.) These amounts were reflected in the form of raw numbers. (Id.) After receiving public comments on the DEIS, the Army issued a Final Environmental Impact Statement ("FEIS") in May 1998. (Id. at 00792--00874.) The Court refers to the DEIS and FEIS collectively as the "EIS."
Under the Army's methodology, any plan could be placed into a "land use intensity level," which is different from the Reuse Alternatives described above.*fn2 The intensity levels represent a "continuum" of activity levels on a given piece of land. (Id. at 00388.) At the low end of the continuum would be "uses not requiring substantial building or infrastructure improvements (e.g., open space, parks, conservation districts, etc.)." (Id.) At the high end would be "uses requiring substantial infrastructure (heavy manufacturing and industrial facilities, etc.)." (Id.) The Army exercised its own judgment to decide how to evaluate land use intensity. (Id.) "No national standards exist to describe what constitutes low-, medium-, and high-intensity land use, and land use intensity standards used by land use planners vary considerably." (Id.) Upon evaluation of various types of indicators, the Army selected five representative intensity parameters: residential density, employee density (general spaces), employee density (warehouse spaces)*fn3, floor area ratio, and development ratio.*fn4 (Id.)"The intensity parameters should be considered together in evaluating the intensity of reuse of a site so as to provide full context. Use of any single parameter in isolation may unduly emphasize certain aspects of a site or preclude broader consideration." (Id. at 00390.) Each Reuse Alternative was placed into one of these intensity levels and named accordingly (i.e., the Low-Medium Reuse Alternative falls into the low-medium intensity level). (Id. at 00389--93.)
The Maryland General Assembly created the PenMar Development Corporation ("PenMar") to help implement the Comprehensive Redevelopment Plan, and in June 1997, the Army recognized PenMar as the LRA for the site. (Id. at 00317--30, 00334.) In 2004, Corporate Office Properties Trust ("COPT"), a development company, developed a new plan: the Master Plan for Redevelopment of Fort Ritchie ("COPT plan"). (Id. at 01067--01179.) PenMar approved the COPT plan in 2004. (Id. at 01230.)
The Army issued its FEIS in 1998, six years before PenMar approved the COPT plan. (Id. at 00792, 01230; Def.'s Mot. for Summ. J.  at 7.) Upon issuance of the COPT plan and its approval by the Department of Housing and Urban Development in October 2005, the Army prepared a Record of Environmental Consideration ("REC"), which it issued in January 2006. (Admin. R. at 01223--28.) The REC concluded that the COPT plan presented "no significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impact" and that "no additional analysis under the National Environmental Policy Act (NEPA) [i.e., no SEIS] [was] required." (Id. at 01224.) In October 2006, the Army transferred part of Fort Ritchie to PenMar, which immediately transferred it to COPT. (Def's Mot. for Summ. J.  at 8.) In November 2007, the Army transferred the remainder of the property to PenMar, which transferred it to COPT. (Id.)
In May 2005, the plaintiffs filed suit, alleging that the COPT plan gave rise to violations of the BRAC, NEPA, and National Historic Preservation Act ("NHPA"). In August 2006, this Court dismissed all three counts of the plaintiffs' Second Amended Complaint based solely on the issue of standing. See Lemon v. Harvey, 448 F. Supp. 2d 97, 106 (D.D.C. 2006). Plaintiffs appealed the ruling with respect to their claims under the NEPA and NHPA. (Pls.' Statement of P. & A.  at 11.) The Court of Appeals reversed, and the current action is on remand from that decision. See Lemon v. Geren, 514 F.3d 1312, 1316 (D.C. Cir. 2008). Plaintiffs voluntarily dismissed their NHPA claim in October 2008. (Pls.' Statement of P. & A.  at 11.) The only remaining issues are whether defendants violated the NEPA and whether the Army must issue a SEIS.
The Army moved for summary judgment, arguing that it was not required to issue a SEIS because it already evaluated possible environmental impacts of the COPT plan in the EIS. (Def.'s Reply  at 3.) It also argues that the REC adequately demonstrates that the COPT plan's environmental impacts were analyzed in the EIS. (Def.'s Mot. for Summ. J.  at 17.)
Plaintiffs filed an opposition to defendants' motions and also moved for summary judgment. They claim that the NEPA required the Army to supplement its EIS in light of the COPT plan and changed circumstances, and that it failed to do so. (Pls.' Statement of P. & A.  at 12.) Plaintiffs make four arguments in support of their Motion for Summary Judgment. First, plaintiffs allege that the COPT plan represents a substantially higher development intensity level than contemplated by the Reuse Alternatives examined in the EIS. (Id. at 13--16.) Second, they claim that the COPT plan imposes significant new impacts on Fort Ritchie's historic district, which the Army failed to evaluate. (Id. at 16--17.) Third, they claim that Washington County's non-attainment status for particulate matter under the Clean Air Act is a significant new circumstance requiring supplementation of the EIS. (Id. at 17--18.) Finally, they allege that the COPT plan creates significant new impacts from an increase in impervious surfaces and the transfer of the base's water system to a private entity. (Id. at 18--20.)
Plaintiffs are challenging the Army's decision not to issue a SEIS, which is a final agency action. The Administrative Procedures Act ("APA") provides for judicial review of final agency action. 5 U.S.C. §§ 702, 704. Summary judgment is normally appropriate where there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "In a case involving review of a final agency action under the [APA], however... it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas 'the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" AFL-CIO v. Chao, 496 F. Supp. 2d 76, 81--82 (D.D.C. 2007) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769--70 (9th Cir. 1985)) (internal citation omitted).
The Court must review the Army's decision not to issue a SEIS for "agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375--76 (1989). Under this standard, the Court must engage in a "thorough, probing, in-depth review" of the administrative record to determine whether the Army's decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 416 (1971).
Under the law of this Circuit, an agency has additional burdens of persuasion in the particular context of NEPA review: the agency must (1) accurately identify the relevant environmental concern; (2) take a "hard look" at the problem in preparing the REC; (3) make a "convincing case" that the potential environmental impact is not significant enough to require a SEIS; and (4) show that "even if there is an impact of true significance, [a SEIS] is unnecessary because changes or safeguards in the project sufficiently reduce the impact to a minimum."*fn5 Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (citing TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006)). The Court reviews the administrative record only to determine whether the Army "followed the necessary procedural requirements." Overton Park, 401 U.S. at 417. Even if this Court disagrees with the Army's decisions and conclusions, it may not substitute the agency's judgment with its own. Id. at 416.
Under the NEPA, an agency must issue a SEIS if (1) "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns" or (2) "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1); 32 C.F.R. § 651.5(g)(2) (implementing NEPA regulations as applied to action by the Army). Under the second prong of this regulation, a SEIS is required where "new information 'provides a seriously different picture of the environmental landscape.'" City of Olmstead Falls, OH v. Fed. Aviation Admin., 292 F.3d 261, 274 (D.C. Cir. 2002) (quoting Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984)). The Supreme Court interprets the NEPA to mean that "[i]f there remains 'major Federal actio[n]' to occur, and if the new information is sufficient to show that the remaining action will 'affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered, a ...