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Friends of Capital Crescent Trail v. Federal Transit Administration

United States District Court, District of Columbia

June 9, 2017

STATE OF MARYLAND, Defendant-Intervenor.

          MEMORANDUM OPINION [DKTS. ## 47, 54, 56, 115, 116]


         In March 2014, the Federal Transit Administration ("FTA") issued a Record of Decision ("ROD") approving the Purple Line Project, a planned 16.2-mile light rail transit system in Montgomery and Prince George's Counties, Maryland. Friends of the Capital Crescent Trail ("FCCT"), John MacKnight Fitzgerald, and Christine Real de Azua ("plaintiffs") filed suit in this Court, challenging the ROD and related approvals by the U.S. Fish and Wildlife Service ("FWS, " together with FTA and the Department of Transportation and the Department of Interior, "federal defendants")-[1] Plaintiffs raise a plethora of claims under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, and five substantive statutes: (1) the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; (2) the Federal Transit Act, 49 U.S.C. § 5309; (3) Section 4(f) of the Department of Transportation Act, 23 U.S.C. § 138; (4) the Endangered Species Act, 16 U.S.C. §§ 1531-1544; and (5) the Migratory Bird Treaty Act, 16 U.S.C. § 703. See generally Am. Compl. [Dkt. # 20]; First Suppl. Compl. [Dkt # 33]; Second Suppl. Compl. [Dkt # 42].

         I already determined that the FTA did not meet its obligations under NEPA when it foiled to properly consider the effects that Washington Metropolitan Area Transit Authority ("WMATA") Metrorail's recent safety issues and ridership decline could have on the Purple Line Project, and ordered the defendants to prepare a supplemental Environmental Impact Statement ("SEIS") addressing those issues. See Aug. 3, 2016 Mem. Op. and Order [Dkts. ## 96, 97]; Nov. 22, 2016 Mem. Op. and Order [Dkts. ## 109, 110]; May 22, 2017 Mem. Op. and Order [Dkts. ## 138, 139].

         However, as mentioned above, plaintiffs raised a variety of other claims that are unrelated to WMATA's ridership and safety concerns. On May 30, 2017, 1 entered final judgment in this case, and granted summary judgment to defendants on plaintiffs' remaining NEPA claims and their claims under the Endangered Species Act, the Migratory Bird Treaty Act, Section 4(f) of the Department of Transportation Act, and the Federal Transit Act. Final Judgment [Dkt. # 142]. At that time, I informed the parties that I would issue an opinion explaining my reasoning by the end of this week. Order on Mot. to Expedite at 2 [Dkt. # 141]. This memorandum opinion explains my reasons for that judgment in detail.


         Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted "if 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." Whenever the Court sits in review of agency action under the APA, its review "is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously." Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009). Whereas "the role of the agency [is] to resolve factual issues, " the sole "function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006). The Court must determine "whether the agency acted within the scope of its legal authority, . . . explained its decision, . . . relied [on facts that] have some basis in the record, and . . . considered the relevant factors." Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C. 1995) (citing Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989)).

         The scope of review under the "arbitrary and capricious" standard is "narrow, " and "a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, the Court must satisfy itself that the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action, including a 'rational connection between the facts found and the choice made.'" Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An agency's 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 its 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." Id.,


         I. National Environmental Policy Act ("NEPA")

         A. Plaintiffs' NEPA Claims Challenging the Alternatives Analysis/Draft Environmental Impact Statement and the Final Environmental Impact Statement lack merit.

         The National Environmental Policy Act sets forth procedures intended to ensure that agency decision-makers "carefully consider[] detailed information concerning significant environmental impacts" and make the public aware of those environmental effects before the proposed action is chosen. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); see also Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010). The Council on Environmental Quality "CEQ" has promulgated regulations implementing NEPA that are binding on all agencies. 40 C.F.R. §§ 1500-08.

         As part of the NEPA process, a federal agency must prepare 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(C). The EIS must include a "full and fair discussion of [the project's] significant environmental impacts and shall inform decision makers 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.

         In September 2003, MTA and FTA published a Notice of Intent to prepare an Environmental Impact Statement "to address the need to improve transit access, reduce travel times and improve connectivity in response to regional growth, traffic congestion, and land use plans" for the Bi-County Transitway in Montgomery and Prince George's Counties. Notice of Intent to Prepare an Environmental Impact Statement (EIS), 68 Fed. Reg. 52, 452, 52, 452 (Sept. 3, 2003). In 2008, after conducting hundreds of meetings with the public about possible alternatives, FTA and MTA published an Alternatives Analysis/Draft Environmental Impact Statement ("AA/DEIS"). AR1_012023-28. The AA/DEIS studied eight alternative projects in detail: a no action alternative, a traffic systems management ("TSM") alternative, three alternatives involving bus rapid transit ("BRT"), and three light rail alternatives-a high investment alternative, a medium investment alternative, and a low investment alternative. AR1_011994-012028. In August 2009, Maryland announced that it had chosen the medium investment light rail alternative (with elements from the high investment alternative) as the Locally Preferred Alternative for the project. AR1_001945. In August 2012, MTA issued a reevaluation of the project because more than three years had passed since the AA/DEIS's publication, and FTA concurred with the re-evaluation. AR2 061614. In September 2013, MTA and FTA released a Final Environmental Impact Statement, which examined the Locally Preferred Alternative and included the agencies' responses to thousands of public comments about the project. AR1_001884-011943. Finally, in March 2014, the FTA's Regional Administrator signed a Record of Decision approving the Locally Preferred Alternative. AR00001-32.

         Plaintiffs raise a number of claims challenging the sufficiency of the AA/DEIS and the FEIS. When Courts review agencies' environmental impact statements, they apply a "rule of reason" to assess "which alternatives the agency must discuss, and the extent to which it must discuss them.'" Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991). The Court's obligation is simply to determine that the agency has taken a "hard look" at the project and "has adequately considered and disclosed the environmental impact of its actions." Nevada v. Dep't o/Energy, 457 F.3d 78, 93 (D.C. Cir. 2006). Generally, an agency's alternatives analysis should be upheld "so long as the alternatives are reasonable and the agency discusses them in reasonable detail." Citizens Against Burlington, Inc., 938 F.2d at 196, and courts will not "'flyspeck' an agency's environmental analysis, looking for any deficiency no matter how minor." Theodore Roosevelt Conservation P'ship, 661 F.3d at 75.

         Plaintiffs raise a number of complaints about the AA/DEIS and FEIS, arguing inter alia that MTA and FTA failed to respond adequately to public comments about the Project, failed to clearly articulate the environmentally-related differences between the alternatives, and failed to examine various aspects and/or environmental impacts of the Preferred Alternative in sufficient detail. Pls.' Mem. in Supp. of Mot. for Summ. J. at 27-39 [Dkt. # 47-1]. I have reviewed the administrative record carefully in light of plaintiffs' arguments. Although I need not discuss in detail each discrete issue that plaintiffs raised, I am convinced that the FTA reasonably considered and the project's possible alternatives and has carefully considered the environmental impacts of the project. Plaintiffs do not identify any fatal flaw in the AA/DEIS or the FEIS; instead, their claims boil down to an argument that the agencies did not consider certain issues with the level of detail they would have liked, or did not reach the substantive conclusion they desired, but that is not sufficient. As just one example, plaintiffs argue that the defendants did not sufficiently explain the stormwater effects of the project. Pls.' Mem. in Supp. of Mot. for Summ. J. at 36-37 [Dkt. # 47-1]. But the record shows that the defendants did consider and explain the project's stormwater effects during the NEPA process, see, e.g., AR1_002120-23, and subsequently developed a detailed, comprehensive Concept Stormwater Management Report after the Preferred Alternative was selected, as they are permitted to do. AR5000718-001325. Plaintiffs' argument simply boils down to a claim that the agencies should have assessed the project's stormwater effects in more detail and at an earlier stage than they did. I disagree. The law only requires that defendants take a "hard look" at the project's environmental impacts during the NEPA process, and it is clear to me that they did so, In addition, plaintiffs argue that MTA refused to provide some of the data underlying ridership estimates "on the basis it was 'proprietary' or gave out information and data that was insufficient or unreadable and even unusable by experts." Pls.' Mem. in Supp. of Mot. for Summ. J. at 29 (citing ARl010972-75). In July 2014, MTA responded to a public information request and provided the Town of Chevy Chase with travel ridership forecast data and three reports relying on the data. That same information was then provided to the plaintiffs as part of the administrative record. AR2219964-65. MTA, however, did not purchase and provide the Town of Chevy Chase (or plaintiffs) with a copy of Cube, the commercially available software that they used to run their ridership models. Plaintiffs rely on 40 C.F.R. § 1502.21, which states that "material based on proprietary data which is itself not available for review and comment shall not be incorporated by reference [into an EIS], " and argue that defendants are inappropriately withholding relevant data or providing it in an unreadable format. But the regulation is inapposite to the situation here. Defendants did not rely on or withhold any "proprietary data"; they made their ridership data available to the plaintiffs and told them how they could purchase their own license to run the proprietary software. NEPA obligates agencies to make information reasonably available to the public; it does not obligate government agencies to purchase and provide commercially available software for private parties.

         B. With the Exception of WMATA Metrorail's Safety and Ridership Issues, Plaintiffs Have Not Identified Any New Circumstances or Information that ...

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