Sierra Club v. U.S. Dept. of Transp.

Decision Date11 March 2004
Docket NumberNo. CV-S-02-0578-PMP RJJ.,CV-S-02-0578-PMP RJJ.
Citation310 F.Supp.2d 1168
PartiesSIERRA CLUB, Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION (USDOT); Secretary of Transportation Norman Mineta; Federal Highway Administration (FHWA); Administrator of FHWA Mary Peters; Division Administrator of FHWA Nevada Division, John Price, Defendants.
CourtU.S. District Court — District of Nevada

Patrick Gallagher, Sierra Club, Sanjay Narayan, Sierra Club, San Francisco, CA, Margaret L. Sanner, Morris Pickering & Sanner, Las Vegas, Joanne Spalding, Sierra Club, San Francisco, Robert E. Yunke, Boulder, CO, for Plaintiff.

Rimantas A. Rukstele, U.S. Attorney's Office, Las Vegas, for Defendants.

ORDER

PRO, Chief Judge.

Presently before this Court are cross-motions for summary judgment. Defendants United States Department of Transportation ("USDOT"); Secretary of Transportation Norman Mineta; Federal Highway Administration ("FHWA"); FHWA Administrator Mary Peters; and FHWA Division Administrator John Price (collectively "Defendants" or "FHWA") filed a Motion for Summary Judgment (Doc. # 74) on June 30, 2003. Plaintiff Sierra Club also filed a Motion for Summary Judgment (Doc. # 76) on June 30, 2003. Both parties filed Responses (Docs.# 86, 87) on August 29, 2003, and filed Replies (Docs.# 96, 97) on October 20, 2003. On February 18, 2004, the Court conducted a hearing regarding the foregoing Motions.

Also before the Court is Plaintiff Sierra Club's Third Motion to Supplement Administrative Record and Request for Judicial Notice (Doc. # 100), filed on March 4, 2004. FHWA filed Federal Defendants' Response to Plaintiff's Third Motion to Supplement the Administrative Record (Doc. # 102) on March 8, 2004. The Court conducted a teleconference hearing on this motion on March 9, 2004.

I. BACKGROUND

Sierra Club commenced this action for injunctive and declaratory relief on April 22, 2002, pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), the Federal-Aid Highway Act as amended by the Transportation Equity Act for the 21st Century, 23 U.S.C. §§ 101 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. ("APA") and these statutes' implementing regulations. Sierra Club seeks injunctive and declaratory relief relating to FHWA's approval of a proposed project to widen US-95 to ten lanes. (Compl.¶¶ 34-36.) Sierra Club claims that in reaching the decision to approve the US-95 widening project, FHWA did not adequately discharge various statutory duties. (Compl.¶ 1.)

First, Sierra Club challenges the adequacy of the Environmental Impact Statement ("EIS") FHWA prepared for the proposed project. Sierra Club asserts the EIS did not adequately identify and study the project's direct, indirect, and cumulative impacts, such as induced growth, induced travel, adverse health impacts from increased motor emissions, air quality impacts during construction, and social and fuel costs of traffic delays during construction. (Compl. ¶¶ 117-18 [Count 1].) Sierra Club also argues FHWA relied on inaccurate information in preparing the EIS, particularly in its use of unreliable traffic and population projections. (Compl. ¶¶ 120-121 [Count 2].) Additionally, Sierra Club alleges the EIS failed to identify and analyze all reasonable alternatives. Sierra Club particularly takes issue with the EIS's failure to consider a fixed guideway alternative. (Compl. ¶¶ 124-26 [Count 3].) Sierra Club also argues FHWA inadequately responded to comments by the United States Environmental Protection Agency ("EPA") and others that the project would not meet project goals, and that the EIS failed to consider induced demand and public health risks created by the project. (Compl. ¶¶ 129-131 [Count 4].)

In addition to its concerns about the EIS, Sierra Club alleges FHWA violated NEPA by refusing to prepare a supplemental EIS ("SEIS") following Sierra Club's two requests that FHWA do so. According to Sierra Club, NEPA requires FHWA to prepare a SEIS to study induced travel and health risks associated with the project. (Compl. ¶¶ 133-36 [Count 5].)

Finally, Sierra Club contends FHWA violated federal highway statutes and their implementing regulations. Sierra Club asserts the EIS failed to consider mitigation of adverse health impacts as required by 23 U.S.C. § 109. Sierra Club also challenges whether FHWA's "open house" hearings satisfy 23 U.S.C. § 128's public hearing requirement. (Compl. ¶¶ 138-142 [Counts 6, 7].)

1. The Major Investment Study

Nevada is the fastest growing State in the United States, having doubled in population every decade since 1970. (Administrative Record ["AR"] 30-14496.) A large percentage of that growth is occurring in the northwest portion of the Las Vegas metropolitan area. (Id.) The primary employment center in Las Vegas is the Resort Corridor, a centrally located area in which many of the city's resort hotels are situated. (Id.) Although several major roadways link the northwest to the Resort Corridor, US-95 is the only freeway serving the northwest region. (AR 01-00052.)

US-95 is a six-lane freeway extending westward for five miles from the downtown I-15/US-95 interchange to the Summerlin Parkway/Rainbow Boulevard interchange. (AR 01-00057.) At the Summerlin Parkway/Rainbow Boulevard interchange, US-95 constricts to four lanes, and turns northward for five and one half miles to the Rancho interchange. (Id.) At Rancho, US-95 turns northwestward towards Tonopah. (Id.)

The rapid population growth in the northwest is overwhelming the capacity of existing transportation facilities. As of 1995, traffic volumes on approximately forty miles of roadways in the northwest, including US-95, exceeded road capacity during the evening peak-hour of traffic. (AR 01-00091.) Commuter trips between the northwest and the Resort Corridor are expected to increase by fifty-four percent by 2015. (AR 01-00064.) In the absence of any improvements, by the year 2015, peak-hour traffic volume is expected to equal or exceed capacity on over one hundred miles of roadway in the northwest. (AR 01-00019.)

In addition to these transportation problems, air quality in the Las Vegas valley has fallen below the EPA's national ambient air quality standards ("NAAQS") promulgated under the Clean Air Act. (AR 30-14726.) The EPA has classified Clark County, Nevada as a serious nonattainment area for the air pollutants carbon monoxide and particulate matter (PM10).1 (Id.)

In response to this rapid growth and increased congestion, the Nevada Department of Transportation ("NDOT"), in cooperation with the Regional Transportation Commission ("RTC"), the Cities of Las Vegas and North Las Vegas, and Clark County initiated a Major Investment Study ("MIS"). (AR 01-00048.) The purpose of the MIS was:

to develop a program to meet the short and long term transportation needs of the Northwest Region of the Las Vegas Valley. The Study will identify and evaluate alternatives which will provide increased opportunities for enhanced mobility for Valley residents. The Study will seek technically sound, practical solutions in response to the need to relieve congestion to accommodate the continued growth of the community.

(AR 02-00782.) The MIS proceeded in two phases. The first phase consisted of articulating the purpose and need for the project, identifying improvement alternatives, initiating public involvement, and developing an early action plan. (AR 01-00188.) The second phase consisted of an evaluation of alternative strategies to meet the area's short and long term transportation needs. (AR 02-00914.)

During the first phase, NDOT, through its consultant Louis Berger & Associates, prepared a series of technical memoranda "to identify and analyze investment needs and opportunities for major transportation infrastructure and services that could best alleviate mobility problems in the Northwest Region." (AR 01-00050; 01-00048-01-00113; 01-00117-01-00142; 01-00184-01-00419; 01-00420-02-00776; 04-01651-04-02033; 05-02034-05-02458.) NDOT also prepared and issued an Early Action Plan ("EAP") in May 1996. (AR 01-00143-00183.) The EAP identified improvements that could be implemented within a one-year time frame to temporarily relieve congestion in the northwest.2 (AR 01-00146.)

As a result of these efforts, NDOT produced a Preliminary Evaluation of Alternatives ("PEA") in February 1997. (AR 02-00777-02-00904.) The report's purpose was "to identify alternatives which would be effective in reducing congestion and improving mobility in the Northwest Region." (AR 02-00779.) The PEA relied on the RTC's TRANPLAN travel demand forecasting model. (AR 02-00920.) This model reports trip patterns and purposes in terms of "person trips." (Id.) "Person trips vary from vehicle trips because of the potential of multiple occupancy in private vehicles and the use of public transit." (Id.) Based on traffic projections using TRANPLAN, the PEA projected a capacity shortfall in 2015 of approximately 23,000 vehicle trips during the peak hour, or approximately 30,000 person trips. (AR 02-00793.)

The PEA identified a variety of alternatives to address this capacity shortfall. The PEA considered widening US-95, double decking US-95, installing reversible or high occupancy vehicle ("HOV") lanes on US-95, enhancing bus services, developing fixed guideway transit, and creating new freeways or super arterial corridors. (AR 02-00782.)

The report concluded "no individual project could be expected to provide sufficient capacity to accommodate projected growth through the year 2015." (Id.) Consequently, the PEA recommended considering alternatives in combination to meet the projected capacity shortfall. (Id.) The report recommended three possible strategies, all consisting of combined projects: (1) the US-95 Improvement Strategy...

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