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Committee of 100 On Federal City v. Foxx

United States District Court, D. Columbia.

April 7, 2015

COMMITTEE OF 100 ON THE FEDERAL CITY, Plaintiff,
v.
ANTHONY FOXX, et al., Defendants

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For COMMITTEE OF 100 ON THE FEDERAL CITY, Plaintiff: John F. Karl, Jr., Leslie David Alderman, III, ALDERMAN, DEVORSETZ & HORA PLLC, Washington, DC.

For ANTHONY FOXX, Secretary of Transportation, VICTOR MENDEZ, Administrator, Federal Highway Administration, GINA MCCARTHY, Administrator, U.S. Environmental Protection Agency, JAMES F. AMOS, Commandant, U.S. Marine Corps, SALLY JEWELL, Secretary U.S. Department of the Interior, JON JARVIS, Director National Park Service, Defendants: Paul David Barker, Jr., LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC; Alison D. Garner, U.S. DEPARMENT OF JUSTICE, Washington, DC.

For VINCENT C. GRAY, Mayor, District of Columbia, MATTHEW BROWN, Acting Director D.C. Department of Transportation, Defendants: Thomas Louis Koger, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

For LEIF DORMSJO, MURIEL BOWSER, Defendants: Chad Wayne Copeland, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC; Thomas Louis Koger, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

For CSX TRANSPORTATION, INC., Intervenor Defendant: Thomas H. Dupree, Jr., LEAD ATTORNEY, David Ari Schnitzer, Michael K. Murphy, GIBSON, DUNN & CRUTCHER, LLP, Washington, DC; Peter Richard Steenland, Jr., SIDLEY AUSTIN LLP, Washington, DC.

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MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge.

The nation's transportation infrastructure, especially in its cities, is rapidly deteriorating. But making the necessary improvements can be disruptive and harmful to the environment if not done properly. It thus falls to government to shepherd the modernization of our roads, bridges, and tunnels without unduly diminishing the quality of life and well-being of affected residents. The tension between these often competing aims is what animates this case.

At issue is the Virginia Avenue Tunnel (" VAT" ), a 111-year-old rail tunnel that runs for approximately nine blocks under the Capitol Hill neighborhood in the center of Washington, D.C. The tunnel is an integral link in a rail network that serves the mid-Atlantic and mid-western United States. Yet due to its age, the tunnel is ill-equipped to accommodate 21st century freight traffic: It is too narrow for two parallel tracks; it is not high enough for trains carrying modern, double-stacked shipping containers; it floods often and requires frequent repairs; and its earthen foundation requires trains to travel well below their normal speeds. These deficiencies have combined to make the tunnel, in the opinion of a coalition of Washington-area government leaders, " one of the most significant freight bottlenecks on the East Coast." Metropolitan Washington Council of Governments, Transportation Improvement Program for the Metropolitan Washington Region: FY 2013-2018, at D-1 (2012). And because passenger trains pass just to the west of the tunnel to access Washington's Union Station, the bottleneck causes passenger rail delays as well.

CSX Transportation, Inc. (" CSXT" ), which owns the Virginia Avenue Tunnel and much of the associated rail network, would like to renovate and expand the capacity of the tunnel as part of a regional railway improvement program. The tunnel renovation project has been almost five years in the making, and CSXT estimates that construction will take 30 to 42 months to complete. The federal government, the District of Columbia government, AMTRAK, and a range of regional government representatives support reconstruction of the tunnel.

The same cannot be said of the Committee of 100 on the Federal City (the " Committee" ), a non-profit organization dedicated to urban planning and historic preservation in the Washington, D.C. area. Part of the Committee's opposition to the reconstruction undoubtedly stems from broader concerns over CSXT's movement of hazardous materials through Washington, D.C., so close to our halls of government and national monuments, which has been a topic of much public debate and litigation in recent years. In 2005, the District of Columbia City Council passed an act that would have forbidden the rail shipment of " explosives, flammable gases, poisonous gases and other poisonous materials" within 2.2 miles of the United States Capitol Building. CSX Transp. v. Williams, 406 F.3d 667, 669, 365 U.S.App.D.C. 331 (D.C. Cir. 2005). CSXT successfully challenged the act on the ground that it was pre-empted by federal law. Id. at 673. CSXT did, however, voluntarily agree not to ship certain hazardous materials through the District. While relevant to this case in certain respects, neither the

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wisdom nor legality of that practice is before the Court.

The focus of the Committee's suit here is more limited. It contends the District of Columbia Department of Transportation (" DDOT" ) and the United States Department of Transportation, through the Federal Highway Administration (" FHWA" ), violated the National Environmental Policy Act in numerous respects by failing adequately to assess the potential environmental harms of the proposed reconstruction. The agencies' environmental review and resulting final Environmental Impact Statement were deficient, the Committee alleges, because they improperly committed themselves to the project before completing the review, understated or ignored potential environment risks, and failed to consider in detail alternatives to the chosen project that called for rerouting trains around the city.

Before the Court is an application by the Committee for a preliminary injunction prohibiting DDOT from issuing the necessary permits for reconstruction of the tunnel to begin. The bar for obtaining a preliminary injunction pending resolution of a suit on the merits is high, and the Court concludes that it has not been cleared here. On the record before the Court, the Committee has not established that its suit is likely to succeed on the merits. Nor has it shown that the potential environmental harm of reconstruction outweighs the public benefit from modernizing the tunnel. The Court will, accordingly, deny the Committee's application.

I. Background[1]

A. The Virginia Avenue Tunnel

Completed in 1904, the Virginia Avenue Tunnel passes under the Capitol Hill neighborhood of Washington, D.C., from 2nd Street to 11th Street Southeast. Final Environmental Impact Statement (" FEIS" ) at S-1. It runs beneath Virginia Avenue Southeast and parallel to, and just south of, Interstate 695 (formerly I-295). Its western portal emerges four blocks from the U.S. Capitol Building. Id. at 1-2. The tunnel is constructed of masonry and its rails sit atop crushed stone on a dirt floor. Id at 2-3, 2-4. Although the tunnel is functional, it requires frequent inspection and repair. Id. at 2-3. Its walls are flaking, its mortar is deteriorating, and the dirt floor floods frequently due to poor drainage. Id. at 2-4. The recurrent repairs cause significant backups in rail traffic. Id. at 2-3. The soft foundation of the tunnel also limits the speeds of passing trains. Id. at 2-4, 2-5.

The VAT and the rail tracks that pass through it are owned by CSXT and comprise part of a CXST freight rail corridor that runs between the East Coast and West Virginia, Pennsylvania, Ohio, Indiana, and Illinois. Even when it is performing at top capacity, the VAT is a choke point in the CSXT system. Id. at S-3. Although the VAT used to contain two railroad tracks, with changes in modern railway technology it now has room for just one. Id. at 2-1. Freight on much of the rest of the network travels on two tracks, including both before and after the VAT. Id. at 1-4. Due to the single track, trains often must idle outside the tunnel, waiting for oncoming trains to clear the tunnel so they can pass single-file. Id. at 2-2. Passenger trains traveling to and from Washington's Union Station share the tracks just west of the VAT with

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freight trains. A tunnel shutdown or backup in idling trains therefore causes cascading delays for passenger travel as well. Id. at 1-5. The VAT also lacks sufficient vertical clearance to accommodate " double-stacking" of intermodal freight containers--a relatively recent practice that doubles the capacity of each train. Id. at S-3.

B. The National Gateway Initiative

In 2010, CSXT launched the $842 million National Gateway Initiative with the central purpose of ensuring dual tracks and enabling double-stacking of containers throughout its rail system. Appl. Prelim. Inj. Ex. 3, at 2. The proposed expansion of the VAT, discussed in more detail below, accounts for approximately $160 million of the total cost of the initiative. Id. Ex. 5. These investments were spurred by projections that the nation's rail freight volume will increase by up to 50 percent by 2040. 77 Fed.Reg. 25,781, 25,782. Much of this increase is expected to result from the anticipated expansion of the Panama Canal, which would enable larger intermodal container ships that previously docked at West Coast ports to reach the East Coast and the Gulf of Mexico. FEIS at 2-6.

Due to its potential to increase rail freight capacity, reduce the need for shipping freight by truck, and limit passenger rail delays, expansion of the VAT is supported by a wide range of transportation authorities, as reflected by its inclusion in the Northeast Corridor Infrastructure Master Plan, a set of recommendations for regional transportation improvements issued by AMTRAK, the Federal Railroad Administration, and the twelve states in the Northeast Corridor. NEC Master Plan Working Group, Northeast Corridor Infrastructure Master Plan (2010), available at http://bit.ly/1sZRYWE. Reconstruction is also supported by some neighborhood groups, including the Capitol Hill Southeast Advisory Neighborhood Commission. ROD App. C-14, C-16.

In furtherance of the National Gateway Initiative, CSXT and the DDOT entered into a series of agreements, which are described in further detail below. See infra, III.B.1.b. In an August 2010 agreement, DDOT agreed to support the initiative and to redesign ongoing reconstruction of the 11th Street Bridge--which sits near the eastern portal of the tunnel--so as not to preclude expanding the VAT. Appl. Prelim. Inj. Ex. 13 at 2--4. In exchange, CSXT agreed to relocate a communication tower near the 11th Street Bridge and pay DDOT (subject to a credit) $4,171,044 to offset the cost of the bridge redesign. Id.; Appl. Prelim. Inj. Ex. 13 at 2. In a December 2012 agreement, DDOT promised to issue permits for the VAT reconstruction, conditioned on the project receiving NEPA approval, and to " provide oversight of the EIS process." Appl. Prelim. Inj. Ex. 19 at 1--2. DDOT later issued CSXT public right-of-way occupancy permits to enable construction activities to begin in the event of NEPA approval. Id. Exs. 15, 17. And in October 2013, DDOT received an option to make an offer to purchase a five-mile tract of unused railway line owned by CSXT elsewhere in the city. Id. Ex. 14 at 1--2. The option was conditioned on CSXT obtaining the necessary permits to undertake the VAT reconstruction. Id. at 3.

C. Preparation of the Environmental Impact Statement

Because reconstruction of the VAT would require the temporary closure of ramps to Interstate 695, which is federal property, the project requires federal approval. Record of Decision (" ROD" ) at 1. FWHA, which oversaw the approval process, decided a full environmental impact

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statement (" EIS" ) was needed in order to assess the environmental impacts of construction before it could grant approval. Compl. ¶ 40, 77 Fed.Reg. 25,781. FHWA, as the lead agency, and DDOT, as joint lead agency, oversaw an extensive environmental review process beginning in the summer of 2011. Compl. ¶ ¶ 39--40. DDOT consulted and met with elected officials and various local and federal agencies responsible for historic preservation, housing and community development, and environmental protection, including the Environmental Protection Agency (" EPA" ), the Fish and Wildlife Service, the D.C. Department of Housing and Community Development, and the State Historic Preservation Office. FEIS at 7-1 to 7-4. Before issuing the draft EIS, the agencies hosted four public meetings, made information available online, and solicited written comments. Id. at 7-9 to 7-11. They considered twelve possible design concepts--a no-action scenario, seven " build options," and four options that would have rerouted trains around the city.

The draft EIS was issued on July 12, 2013. DDOT presented the draft at a public meeting, which a FHWA representative attended, and extended the public comment period by 30 days. Id. at 7-12 to 7-13; Transcript, July 31, 2013, available at http://www.virginiaavenuetunnel.com/sites/default/files/VAT_Public_Meeting_Transcript_Redacted_102513_1.pdf. Over one hundred individuals and organizations--including the Committee--provided written comments on the draft EIS. FEIS at 7-13; Compl. ¶ 43; Appl. Prelim. Inj. Ex. 10.

The final EIS was approved almost a year later, on June 5, 2014. The document outlined the purpose and need of the project, the alternatives considered, the affected environment, the potential environmental consequences of the various alternatives, and the historic properties affected by the project. It also incorporated a detailed study of the historical uses of the land (in order to understand what hazardous industrial substances might be disturbed by excavation), and various engineering specifications. The EIS attached 700 pages of public comments and agency responses. FEIS App. L. Altogether, the EIS spanned six volumes, 13 appendices, and over 2,500 pages. It analyzed four alternative scenarios in detail: a no-action scenario and three alternative design concepts that maintained freight traffic through downtown Washington, D.C. The EIS discussed and eliminated eight options: four other options for rebuilding the tunnel and four options that involved rerouting most or all freight around the city entirely. FEIS at 3-44. All of the " reroute" options required the ...


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