United States District Court, District of Columbia
MEMORANDUM OPINION (MAY 22, 2017) [DKTS. ## 47, 115,
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
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.
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. Pis.' Resp. to Mot. to Expedite [Dkt.
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].
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").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].
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].
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.
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).
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.
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).
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