United States District Court, District of Columbia
MEMORANDUM OPINION [DKTS. ## 47, 54, 56, 115,
RICHARD J. LEON JUDGE
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")- 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].
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,
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.
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)).
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."
National Environmental Policy Act ("NEPA")
Plaintiffs' NEPA Claims Challenging the Alternatives
Analysis/Draft Environmental Impact Statement and the Final
Environmental Impact Statement lack merit.
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.
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.
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
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.
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.
With the Exception of WMATA Metrorail's Safety and
Ridership Issues, Plaintiffs Have Not Identified Any New
Circumstances or Information that ...