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Committee of 100 on The Federal City v. Foxx

United States District Court, D. Columbia

October 22, 2015

ANTHONY FOXX, et al., Defendants

          For Committee of 100 on The Federal City, Plaintiff: John F. Karl, Jr., Leslie David Alderman, III, ALDERMAN, DEVORSETZ & HORA PLLC, Washington, DC USA.

         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, Washington, DC USA; Alison D. Garner, U.S. DEPARMENT OF JUSTICE, Washington, DC USA.

         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, Washington, DC USA.

         For 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.

         For Csx 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.


         CHRISTOPHER R. COOPER, United States District Judge.

         The 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.

         In 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).

         Recycling 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 questions:

[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.

         I. Background

         The 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 omitted).

         On May 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.

         II. ...

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