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Friends of Capital Crescent Trail v. Federal Transit Administration

United States District Court, District of Columbia

May 22, 2017

FRIENDS OF THE CAPITAL CRESCENT TRAIL et al., Plaintiffs,
v.
FEDERAL TRANSIT ADMINISTRATION et al., Federal Defendants.
v.
STATE OF MARYLAND, Defendant-Intervenor.

          MEMORANDUM OPINION (MAY 22, 2017) [DKTS. ## 47, 115, 116]

          RICHARD J. LEON UNITED STATES DISTRICT JUDGE.

         On November 22, 2016, I issued an opinion and order instructing the FTA to critically evaluate the significance of Washington Metropolitan Area Transit Authority ("WMATA") Metrorail's recent safety issues and ridership decline to determine whether a supplemental Environmental Impact Statement ("SEIS") was required for the Purple Line Project. Mem. Op. and Order. [Dkts. ## 109, 110]. Three weeks later, the FTA issued a seven-page memorandum that was based largely on a Maryland Transit Authority ("MTA") assessment that preceded my November 22nd Order and concluded that an SEIS was not required. Shortly thereafter, FTA notified the Court of its decision that an SEIS was not necessary. Notice [Dkt. #113]. As such, both the FTA and Maryland filed renewed cross-motions for summary judgment on December 16, 2016. Fed. Defs.' Renewed Cross-Mot. for Summ. J. [Dkt. # 115]; Def.-Intervenor Maryland's Renewed Cross-Mot. for Summ. J. [Dkt. # 116]. After further briefing from plaintiffs and defendants, and the filing of the Joint Appendix, the renewed motions became ripe for a ruling at the end of January 2017 and are now pending before this Court.

         Defendant-intervenor Maryland filed a motion two months later-on March 31- effectively demanding that the Court issue a ruling on all remaining issues no later than April 28, arguing that the Purple Line "hangs in the balance" and is on the "brink of cancellation" if the ROD is not reinstated imminently. Mot. to Expedite and Mem. in Supp. [Dkts. #133, 133-1]. Not surprisingly, plaintiffs opposed that motion, contending that the defendants set forth no justification for the April 28 deadline and pointing out that defendants' tactical decision to litigate the necessity of an SEIS, rather than proceed with preparing one, inevitably played a role in prolonging the litigation.[1] Pis.' Resp. to Mot. to Expedite [Dkt. # 114].

         While the Court has been working diligently to resolve the myriad of issues raised in the renewed motions for summary judgment, and intends to issue an opinion on these remaining issues in the next few weeks, it seems prudent to issue today my ruling on the overarching issue that has been the focus of this litigation since my opinion last November: the necessity of an SEIS addressing the potential impact of WMATA's ridership and safety issues. After careful consideration of the motions, the applicable law, and the entire record in this case, I find that defendants have failed to take the requisite "hard look" at the potential impact that WMATA's ridership and safety issues could have on the Purple Line Project and conclude for the following reasons that an SEIS that addresses these issues is in fact required. As a result, I GRANT IN PART plaintiffs' motion for summary judgment [Dkt. # 47] and DENY IN PART defendants' and defendant-intervenor's renewed cross-motions for summary judgment [Dkts. ## 115, 116].

         BACKGROUND

         On March 19, 2014, the FTA issued a Record of Decision ("ROD") approving the Purple Line Project, a 16.2-mile light rail project in Montgomery and Prince George's Counties, Maryland. As a result, plaintiffs Friends of the Capital Crescent Trail ("FCCT"), John MacKnight Fitzgerald, and Christine Real de Azua ("plaintiffs") filed suit in this Court against the FTA, the U.S. Fish and Wildlife Service ("FWS"), the Department of Transportation, and the Department of the Interior (collectively, "federal defendants").[2]Plaintiffs' suit challenges the ROD (as well as related approvals by the FWS) under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and raises claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Federal Transit Act, 49 U.S.C. § 5309, the Federal-Aid Highway Act, 23 U.S.C. § 138, the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. § 703. See generally Am. Compl. [Dkt. # 20]; First Supp. Compl. [Dkt. # 33]; Second Supp. Compl. [Dkt. # 42].

         On August 3, 2016, 1 granted partial summary judgment to plaintiffs and found that the FTA's conclusion that Metrorail's ridership and safety issues would have no effect on the Purple Line was arbitrary and capricious. As a result, I vacated the ROD and instructed the defendants to prepare an SEIS as expeditiously as possible addressing these issues. Mem. Op. and Order Granting Partial Summ. J [Dkts. ## 96, 97]. In response, federal defendants and Maryland filed motions pursuant to Federal Rule of Civil Procedure 59(e), asking me to alter or amend my judgment. Motions to Alter Judgment [Dkts. ## 98, 99]. On November 22, 2016, I granted in part and denied in part their Rule 59(e) motions. Although I declined to reinstate the ROD, I amended my judgment to give the FTA an opportunity to critically evaluate WMATA's ridership and safety issues, and determine what level of additional NEPA analysis was required for the Purple Line. Mem. Op and Order [Dkts. ## 109, 110].

         On remand, FTA considered whether WMATA's safety and ridership issues constituted "new information or circumstances relevant to environmental concerns and bearing on the proposed action" such that an SEIS was required. 23 C.F.R. § 771.130(a)(1)(2). In doing so, FTA relied heavily on a November 3, 2016 technical assessment that MTA prepared in consultation with FTA experts. AR6000533-67. The assessment discussed the likely results of five separate WMATA ridership scenarios, ranging from a situation where WMATA's recent ridership decline ends in 2017 and then recovers at the previously expected rate from 2017 to 2040, to a "most extreme" scenario where no Purple Line trips include any transfers to or from WMATA Metrorail. AR600554. MTA concluded that, under any of those five scenarios, the Purple Line's footprint (and its environmental consequences) will remain unchanged, and the project will still meet its established purposes and needs. AR6000566-57. In December 2016, the FTA prepared a memorandum that agreed with MTA's analysis and formally concluded that the FTA was not required to (and would not) prepare an SEIS, on the grounds that "the recent declines in WMATA ridership, even if they were to continue, would neither change the environmental impacts previously evaluated in the FEIS, nor undermine the Purple Line Project's ability to meet the identified Purpose and Need." AR6000916-23. Unfortunately, defendants did not provide any written evaluation of the expert declarations submitted by plaintiffs in the days following my November 22, 2016 Order. Thereafter, federal defendants and defendant-intervenor Maryland filed on December 16, 2016 renewed cross-motions for summary judgment, which are now pending before the Court.

         STANDARD OF REVIEW

         Summary judgment is warranted when the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When reviewing challenges to agency action under the APA, 5 U.S.C. § 551 et seq., the court's review is "based on the agency record" and is confined to determining whether the agency acted "arbitrarily or capriciously." Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (citing 5 U.S.C. § 706). The scope of review is narrow, and the court "may not substitute its judgment for that of agency"; instead, agency action is arbitrary and capricious if it "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for a decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43(1983).

         ANALYSIS

         The National Environmental Policy Act ("NEPA") sets forth a series of procedural requirements that are intended to ensure that federal agencies "carefully consider[] . . . [the] significant environmental impacts" of proposed federal actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). For example, federal agencies are required to issue an Environmental Impact Statement ("EIS") whenever a proposed government action qualifies as a "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Summarized briefly, the EIS must include "a full and fair discussion of [the project's] significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.

         Under certain circumstances, agencies are required to prepare a supplemental EIS ("SEIS") after they have completed the original EIS. Specifically, agencies are obligated to prepare an SEIS whenever "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 CFR § 1502.9(c)(1); Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989). Although this obligation is not triggered "every time new information comes to light, " an agency must prepare an SEIS whenever "new information provides a seriously different picture of the environmental landscape." Id. at 373; Nat'l Comm. for the New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (citation omitted); City of Olmsted Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002).

         Like other APA challenges, courts review an agency's decision to undertake or forego an SEIS under the arbitrary and capricious standard. City of Olmsted Falls v. FAA,292 F.3d 261, 274 (D.C. Cir. 2002). The court's review is limited, and it may not interject itself into the agency's discretion to choose the substantive action that will be taken. Kleppe v. Sierra Club,427 U.S. 390, 411 n.21 (1976). Instead, the court's "role is to [e]nsure that the agency has taken a 'hard look' at the environmental consequences." Id. As such, the Supreme Court has instructed that courts "reviewing a decision not to supplement an EIS . . . should . . . carefully review[] the record and satisfy[] themselves that ...


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