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Committee of 100 On The Federal City v. Foxx

United States District Court, District of Columbia

May 26, 2015

ANTHONY FOXX, et al., Defendants.



The Committee of 100 on the Federal City has moved for reconsideration of the Court's April 7, 2015 decision to deny its request for an injunction barring CSX Transportation from reconstructing the Virginia Avenue Tunnel in Washington, D.C. The Committee contends that new information gleaned from the recently-produced administrative record demonstrates that the federal and local agencies involved in the environmental review of the reconstruction project unlawfully predetermined its outcome. The Court concludes, however, that the Committee's new evidence does not satisfy its burden to demonstrate that the agencies failed objectively to consider the environmental impacts of the reconstruction. Accordingly, it will deny the motion.

I. Background

Plaintiff Committee of 100 on the Federal City filed an application for a preliminary injunction to prevent construction on the Virginia Avenue Tunnel in the Capitol Hill neighborhood of Washington, D.C. The Court denied the application in a 46-page Opinion after conducting a hearing. Comm. of 100 on the Fed. City v. Fox, No. 14-cv-1903, 2015 WL 1567902 (D.D.C. Apr. 7, 2015). The Court assumes familiarity with the facts and law outlined in its prior opinion, and will only briefly recount the salient facts. CSX Transportation ("CSXT") seeks to renovate the 111-year-old Virginia Avenue tunnel by adding a second track, improving the track ballast, and raising the ceiling to permit double-stacked trains. Id. at *1. The Federal Highway Administration ("FHWA"), along with the District of Columbia Department of Transportation ("DDOT") as co-lead agency, published an Environmental Impact Statement ("EIS") and Record of Decision ("ROD") under the National Environmental Protection Act ("NEPA") allowing CSXT to proceed with the reconstruction, and the Committee has brought suit to challenge that decision. Id. at *2.

Among other issues, the Committee contended in its preliminary injunction application that DDOT unlawfully predetermined the outcome of the NEPA review by entering into a series of agreements with CSXT. DDOT agreed, among other things, to provide letters of support for the project; manage the EIS process; issue permits and provide easements in the event of NEPA approval; and redesign, at CSXT's expense, an ongoing project near the tunnel to permit reconstruction. Id. at *11. Those agreements also provided benefits to the District of Columbia and DDOT, including an option enabling DDOT to make an offer to CSXT to purchase a right-of-way in Southeast D.C. to be used as a walking and biking trail. Id. at *11-12. The Committee argued further that the alleged NEPA predetermination reflected in these agreements should be attributed to FHWA because the federal agency failed to independently consider the data and analysis underpinning the EIS. Id. at *12-13. The Court, however, found that the agreements did not reflect predetermination of the environmental review process because they neither irreversibly committed resources to the project nor bound DDOT to arrive at a specific NEPA outcome. Id. at *10-12. And relying on FHWA's representations in the EIS and ROD that the federal agency had independently reviewed the facts and analysis underlying the EIS, the Court concluded that, even if DDOT had prejudged the NEPA result, the Committee had failed to satisfy its burden to attribute that predetermination to FHWA. Id. at *13.

After the Court denied the Committee's preliminary injunction application, the Committee filed an appeal with the D.C. Circuit and sought an emergency stay of the reconstruction from this Court, which the Court denied. The Committee then requested that the Circuit stay the project. Meanwhile, the parties filed the certified list of the contents of the administrative record. Pointing to a series of emails and agreements contained in this record that it argues shed new light on its claims of predetermination, the Committee on May 5, 2015 filed a motion under Federal Rule of Civil Procedure 59(e) to set aside the Court's denial of its preliminary injunction application. On May 11, 2015, The Court of Appeals issued an order staying the Committee's appeal and directing this Court to consider the Committee's new evidence in the first instance. The Court held a telephonic scheduling conference with the parties the next day and issued an order expediting the remaining briefing schedule on the Committee's Rule 59(e) motion. Briefing was completed on May 21, 2015.

II. Standard of Review

Reconsideration of an order or amendment of a judgment "is an extraordinary measure" that a court does not approach lightly. Fresh Kist Produce, LLC v. Choi Corp., 251 F.Supp.2d 138, 140 (D.D.C. 2003). Relief under Rule 59(e) may be appropriate in circumstances where there has been an intervening change in law, new evidence is available, or the court needs to "correct a clear error or prevent manifest injustice." Ciralsky v. C.I.A., 355 F.3d 661, 671 (D.C. Cir. 2004). The Committee primarily argues that newly available documents from the administrative record provide grounds for reconsideration. As new evidence is a fair ground to bring a Rule 59(e) motion, the Court will examine the merits of the Committee's contention below. The Committee also seeks reconsideration of the standard the Court applied to its predetermination claim. A Rule 59(e) motion, however, "is not simply an opportunity to reargue facts and theories upon which a court has already ruled." Fresh Kist Produce, 251 F.Supp.2d at 140 (internal quotations removed). The Committee does not discuss any change in controlling law or, in the Court's view, identify clear error. It simply reiterates its prior contention that expressing support for a project, negotiating for concessions in exchange for that support, and agreeing to permit the project in the event of successful NEPA review predetermine the environmental analysis. This is insufficient to merit Rule 59(e) relief.

III. Analysis

As the Court explained in greater detail in its April 7, 2015 Opinion, NEPA requires agencies to consider potential environmental effects objectively and in good faith, but they need not be "subjectively impartial." Carolina Envtl. Study Grp. v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975) (citing Envtl. Def. Fund, Inc. v. Army Corps of Eng'rs, 470 F.2d 289, 295 (8th Cir. 1972)). Indeed, Council on Environmental Quality regulations contemplate that agencies will announce any "preferred alternative" at the draft EIS stage. 40 C.F.R. ยง 1502.14(e). And the standards governing NEPA review remain the same regardless of whether the federal agency is reviewing a proposal from a private entity or itself seeks to take action. See, e.g., Coal. to Protect Cowles Bog Area v. Salazar, No. 12-cv-515, 2013 WL 3338491 (N.D. Ind. July 2, 2013) (analyzing whether National Park Service predetermined NEPA review of its own program to restore area to wetland); Los Alamos Study Grp. v. U.S. Dep't of Energy, 794 F.Supp.2d 1216, 1219 (D.N.M. 2011), aff'd, 692 F.3d 1057 (10th Cir. 2012) (reviewing argument that the Department of Energy predetermined its plan to build a research facility before completing NEPA review).

Wyoming Outdoor Council v. Forest Service, 165 F.3d 43, 50 (D.C. Cir. 1999), and Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983), establish the point in time when government action in support of a project triggers an obligation to first complete NEPA review: An agency is not required to prepare a final EIS and ROD until the critical stage at which it makes an irretrievable commitment of resources towards a project. E.g., Wyo. Outdoor Council, 165 F.3d at 49 (issuing leases such that the agency loses authority to preclude the project); Thomas v. Peterson, 753 F.2d 754, 760-61 (9th Cir. 1985) (funding activity having no purpose other than furthering a program under NEPA review). An agency can also predetermine the outcome of its review if it agrees to reach a certain decision regarding the environmental effects of a project before completing the substantive analysis of those effects. Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002) (agreeing to reach a Finding of No Significant Impact by a date certain).

The Committee presents a substantial number of documents culled from the administrative record, which it contends constitute new evidence revealing DDOT's predetermination of the NEPA result and FHWA's failure to independently review DDOT's analysis. The Court will address the Committee's new evidence on a categorical basis.

A. Negotiation Documents

The first category of documents consists of internal DDOT emails and other correspondence concerning the negotiations between DDOT and CSXT regarding the agreements noted above. As explained in the Court's prior Opinion, the agreements do not establish predetermination by DDOT because they do not reflect an irreversible commitment of resources. Comm. of 100 on the Fed. City, 2015 WL 1567902, at *10-12. It follows, then, that correspondence within DDOT regarding negotiation of those agreements-such as asking "what leverage [DDOT has] with the Virginia Avenue tunnel, " ARDDOT0000565, or whether "DDOT need[s] anything from CSXT, " Pl. App. 121-likewise does not establish that the municipal agency was pre-committed to ensuring that the environmental review of the tunnel reconstruction arrived at a specific outcome. NEPA does not preclude a municipal agency that participates in the environmental review process from negotiating with a project proponent to determine under what terms it will provide an easement or permit. To require a completed environmental review at such an early stage would be ...

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