United States District Court, D. Columbia
Committee of 100 on The Federal City, Plaintiff: John F.
Karl, Jr., Leslie David Alderman, III, ALDERMAN, DEVORSETZ &
HORA PLLC, Washington, DC USA.
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, Washington, DC
USA; Alison D. Garner, U.S. DEPARMENT OF JUSTICE, Washington,
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, Washington, DC
Leif Dormsjo, Muriel Bowser, Defendants: Chad Wayne Copeland,
Thomas Louis Koger, LEAD ATTORNEYS, Fernando Amarillas, Kevin
John Healy, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT
OF COLUMBIA, Washington, DC USA.
Transportation, Inc., Intervenor Defendant: Thomas H. Dupree,
Jr., LEAD ATTORNEY, David Ari Schnitzer, Michael Robert
Huston, Michael K. Murphy, GIBSON, DUNN & CRUTCHER, LLP,
Washington, DC USA; Peter Richard Steenland, Jr., SIDLEY
AUSTIN LLP, Washington, DC USA.
R. COOPER, United States District Judge.
Committee of 100 on the Federal City, a community planning
and historic preservation organization, filed suit in
November 2014 seeking to enjoin construction on an aging rail
tunnel that runs through the core of Washington, D.C. As the
Court has previously explained, see Comm. of 100 on Fed.
City v. Foxx, 87 F.Supp.3d 191, 196 (D.D.C. 2015), the
Committee contends that 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 (" NEPA" ) by committing
themselves to the project before completing their review of
its environmental impact.
ruling on the Committee's motion for a preliminary
injunction, the Court found, however, that the
Committee's evidence did not establish that the local
agency--DDOT--had predetermined the outcome of the
environmental review, or that any local predetermination
could be attributed to the federal agency--FHWA. See id. at
211. And in ruling on the Committee's subsequent motion
to alter that judgment, the Court held that " the
portions of the administrative record provided by the
Committee do not support its position that DDOT unlawfully
predetermined the NEPA outcome or that FHWA failed to
independently consider the environmental effects of the
tunnel reconstruction." Comm. of 100 on Fed. City v.
Foxx, No. 1:14-CV-01903 (CRC), 106 F.Supp.3d 156, 2015
WL 3377835, at *5 (D.D.C. May 26, 2015).
many of the same arguments and most of the same evidence it
put forward previously, the Committee now moves to supplement
the administrative record and for leave to conduct discovery
" in order to substantiate its claim that the
[project's] Environmental Impact Statement violated NEPA
as a result of unlawful predetermination." Pl.'s
Mot. to Supplement the Administrative Record & for Leave to
Conduct Discovery (" Mot. to Supplement" ) 1.
According to the Committee, supplementing the administrative
record and conducting discovery would enable it to answer two
[W]hether the District agreed to reach certain decisions
regarding the environmental effects of the Virginia Avenue
Tunnel expansion project, and then concealed those agreements
or made them appear 'contingent on the outcome' of
the NEPA process . . . [and] whether FHWA knew about that
predetermination and took appropriate steps to insulate
itself from that predetermination.
Id. at 2. But without identifying with specificity
the documents that it seeks to include in the administrative
record or offering non-speculative evidence that such
documents were considered by agency decision-makers, the
Committee has not met its burden to show that supplementation
is warranted. And because the Committee has not made a strong
showing of bad faith or improper conduct on the part of the
agencies, or otherwise demonstrated that the record is
incomplete, it may not obtain discovery. The Court will
therefore deny the Committee's motion.
Court assumes familiarity with the facts and law outlined in
its prior opinions, and will only briefly recount the salient
facts as laid out in its decision denying reconsideration:
[On November 12, 2014, the] 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. 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. The . . . FHWA,
along with . . . DDOT as co-lead agency, published an
Environmental Impact Statement and Record of Decision ("
ROD" ) under the National Environmental Protection Act
allowing CSXT to proceed with the reconstruction, and the
Committee has brought suit to challenge that decision.
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.
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. 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. 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. 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.
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,
[t]he 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.
Comm. of 100, 2015 WL 3377835, at *1-2 (internal citations
26, 2015, the Court denied the Committee's motion to
alter the denial of its motion for a preliminary injunction,
" conclud[ing] . . . that the Committee's new
evidence [did] not satisfy its burden to demonstrate that the
agencies failed objectively to consider the environmental
impacts of the reconstruction." Id. at *1. The
following day, the D.C. Circuit denied both the
Committee's motion for an emergency stay pending appeal
and the Committee's motion for summary reversal. Comm. of
100 on Fed. City v. Foxx, No. 15-5112, 2015 WL
4072321, at *1 (D.C. Cir. May 27, 2015) (per curiam). On July
6, 2015, the Committee again moved this Court to reconsider
its earlier decision, and the Court denied the motion on
August 3, 2015. See Order Denying Pl.'s Mot. Recons., ECF
No. 88. In the intervening period, the Committee moved to
dismiss its appeal before the D.C. Circuit, and the Circuit
obliged on July 1, 2015. Comm. of 100 on Fed. City v.
Foxx, No. 15-5112, 2015 WL 5210462, at *1 (D.C. Cir.
July 1, 2015). This Court must now decide whether to order
supplementation of the administrative record with the
categories of documents requested by the Committee and
whether to allow the Committee to conduct discovery.