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Arthur S. West v. Pierce R. Horner

September 14, 2011

ARTHUR S. WEST, PLAINTIFF,
v.
PIERCE R. HORNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Pro se Plaintiff Arthur West brings this lawsuit against various federal and state officials in charge of proposing and approving road-construction projects in Northern Virginia. Because the particular project about which he complains has been abandoned, his current suit is moot. In addition, as the project proposed in its place has not yet received final agency approval, Plaintiff cannot amend his Complaint to proceed on this new challenge either.

I.Factual Background

The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., requires federal agencies to consider the environmental impact of "major Federal action[s] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Certain state-initiated modifications to the interstate highway system -- including the construction of new entrances, exits, and interchanges -- require the approval of the Federal Highway Administration (FHWA), and thus may constitute "major Federal action" subject to NEPA's requirements. See 23 U.S.C. § 111(a); West v. Secretary of the Dep't of Transportation, 206 F.3d 920, 926 (9th Cir. 2000). Before FHWA can approve such a road-construction project, NEPA requires the project's proponents to prepare one of three levels of documentation based on the significance of the project's impact on the environment. See 23 C.F.R. § 771.115; 40 C.F.R. § 1507.3(b). Projects that significantly affect the environment require the preparation of an Environmental Impact Statement (EIS). See 42 U.S.C. § 4332(C). Projects whose environmental impact is not clearly established require the preparation of an Environmental Assessment (EA), followed by either a finding of "no significant impact" on the environment (FONSI), or the subsequent preparation of an EIS. See 23 C.F.R. § 771.115; 40 C.F.R. §§ 1508.9, 1508.13. Projects that "do not individually or cumulatively have a significant environmental effect" may proceed under a "Categorical Exclusion" (CE) from NEPA review, in which case neither an EIS nor an EA need be prepared. See 23 C.F.R. §§ 771.115, 771.117; 40 C.F.R. §§ 1508.4, 1507.3(b)(2)(ii).

This case arises from a Virginia Department of Transportation (VDOT) proposal for construction work to Interstates 95 and 395 in Northern Virginia: the I-95/I-395 High Occupancy Vehicle/High Occupancy Toll Lanes Project, referred to here as the "2009 Project." See Compl., ¶ 1; State Def. Mot. at 2. On January 7, 2009, the FHWA approved the 2009 Project by CE. See Fed. Def. Mot., Exh. 3 (Declaration of Edward Sundra), ¶ 3.

Pro se Plaintiff Arthur West is a resident of the State of Washington and an occasional visitor to the Washington, D.C., metropolitan area who has "travelled repeatedly upon the I 95-395 Interstate and the Shirlington Interchange" in Northern Virginia. Compl., ¶ 3.1. He claims that the federal and state officials*fn1 who approved the 2009 Project failed to comply with NEPA by improperly issuing a CE and not preparing an EIS or an EA with a finding of "no significant impact." See Compl., ¶ 5.1. He also asserts that Defendants "improperly delegate[ed] NEPA authority" in conducting their environmental review. Id., ¶ 6.1.

As relief, Plaintiff seeks a declaratory judgment "declaring the [2009] I 95-395 HOT Lane project CE void, and annulling any delegation of NEPA authority to any private entity[,]" and an injunction "compel[ing Defendants] to revoke the CE for the [2009] I 95-395 project, and [to] comply with the requirements of NEPA in regard to assessment of appropriate traffic, economic, and environmental impacts of the I 95-395 and 495 HOT Lane projects as a whole, and that mitigation measures be considered to reduce resulting traffic impacts upon the City of Alexandria and Arlington County." Id., ¶¶ 7.1, 7.2.

Plaintiff filed his initial Complaint on August 18, 2009, in the U.S. District Court for the Eastern District of Virginia. ECF No. 1. On October 27, 2009, Federal and State Defendants separately moved to dismiss. ECF Nos. 9, 10. In the alternative, Federal Defendants moved to transfer the case to this district on the grounds that Plaintiff's claims could have been brought here and that the interests of justice favored transfer, given the prior filing in this court of another case, then pending before Judge Rosemary Collyer, alleging NEPA claims against the same Federal Defendants arising from the 2009 Project. See ECF Nos. 11, 12; County Board of Arlington v. U.S. Dep't of Transportation, No. 09-cv-1570 (D.D.C.). On November 23, 2009, Judge Anthony Trenga, with the consent of the parties, transferred the case to this district. ECF No. 18.

VDOT has since abandoned the 2009 Project. On February 16, 2011, VDOT informed FHWA that it had withdrawn its proposal to construct the 2009 Project and requested that FHWA consider the CE issued in January 2009 moot. See Sundra Decl., ¶ 7. As a result, on March 3, 2011, FHWA withdrew its approval of the 2009 Project by rescinding the CE. See id.,

¶ 8. VDOT instead announced that it is planning a new I-95/I-395 HOV/HOT Lanes Project, referred to here as the "2011 Project." Seeid., ¶ 6. As of the filing of the Motions to Dismiss in this case, the "Virginia Secretary of Transportation [had] advised that an environmental review of the new project [would] be undertaken," and "FHWA [had] not taken any approval action on any new project." Id.

On March 14 and 17, 2011, respectively, Federal and State Defendants renewed their Motions to Dismiss. On April 4, 2011, in response, Plaintiff moved to amend his Complaint. He now seeks a declaratory judgment to the effect that, inter alia, Defendants "failed to comply with the requirements of NEPA in their various HOT Lanes projects" and that they have "attempted to evade the requirements of NEPA by altering their HOT Lanes project in a manner intended to escape review, and [by] attempt[ing] to intimidate and politically stigmatize those seeking judicial review . . . ." Prop. Am. Compl., ¶ 9.1-9.2. He additionally seeks to compel Defendants to "formally revoke the CE for the original I 95-395 project, . . . to comply with the requirements of NEPA . . . [and to complete] a comprehensive assessment of reasonable alternatives to, as well as any foreseeable traffic, economic, and environmental impacts of, any future Mega-projects and/or any I-95, I 395 or I-495 HOT Lane projects in Virginia as a whole." Id., ¶ 9.3. Plaintiff's Proposed Amended Complaint adds the Department of Defense as a defendant, and seeks to compel the Department to work with Virginia and the State of Washington to "address in a comprehensive manner[] the impacts of the ongoing [Defense Base Closure and Realignment Act] realignments," and to include the impact of BRAC realignments in the "regional EIS documentation" for both states. Id., ¶ 9.4. Finally, Plaintiff seeks a declaration that § 2.2-3704 of the Virginia Code is unconstitutional, and an injunction "compel[ling] immediate disclosure of the records requested by Plaintiff from the State of Virginia." Id., ¶¶ 4.9, 9.5. He also seeks monetary damages. Id., ¶ 9.6.

Defendants oppose such an amendment on the ground of futility. More specifically, they maintain that Plaintiff's claims regarding the 2011 Project are not ripe, as there has been no final agency action, and Plaintiff's entirely unrelated claims belong in a separate lawsuit. The Court agrees.*fn2

II.Legal Standard

In evaluating Defendants' Motion to Dismiss, the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendants' Motions under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader"); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, "a legal conclusion ...


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