Audubon Naturalist Soc. v. U.S. Dept. of Transp.
| Decision Date | 08 November 2007 |
| Docket Number | Civil Action No. AW-06-3386.,Civil Action No. AW-07-1480. |
| Citation | 524 F.Supp.2d 642 |
| Parties | AUDUBON NATURALIST SOCIETY OF THE CENTRAL ATLANTIC STATES, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants. Environmental Defense, et al., Plaintiffs, v. United States Department of Transportation, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Timothy Joseph Sullivan, Brennan Sullivan and McKenna LLP, Greenbelt, MD, Langley Richard Shook, Peter Richard Steenland, William Eron Gerard, Sidley Austin LLP, Erik Brandon Bluemel, Hope Madeline Babcock, Institute for Public Representation, Washington, DC, Robert Edward Yuhnke, Robert E. Yuhnke and Associates, Boulder, CO, William J. Chen, Jr., Chen Walsh Tecler and McCabe LLP, Rockville, MD, for Plaintiffs.
Larry D. Adams, Office of the United States Attorney, Baltimore, MD, Rachel A. Dougan, Wells Daniels Burgess, US Department of Justice, Washington, DC, Mark Alan Nitczynski, US Department of Justice Environment and Natural Resources, Denver, CO, for Defendants.
Presently before this Court are cross-motions for summary judgment. Plaintiffs Audubon Naturalist Society of the Central Atlantic States, Inc. ("Audubon"), Maryland Native Plant Society, Inc., Roger Metcalf, and Eve Burton (collectively "Audubon Plaintiffs" or "Plaintiffs"1) filed a Motion for Summary Judgment (Doc. No. 28) on June 8, 2007. Plaintiffs Environmental Defense and Sierra Club, Inc. (collectively "Environmental Defense Plaintiffs" or "Plaintiffs") filed a Motion for Partial Summary Judgment on Part I of the Complaint (Doc. No. 37) on July 2, 2007. Defendants United States Department of Transportation ("USDOT"); Mary E. Peters, Secretary of Transportation; Federal Highway Administration ("FHWA"); J. Richard Capka, Administrator of FHWA; Nelson Castellanos, Division Administrator of FHWA, Maryland Division; United States Army Corps of Engineers ("USACE"); Col. Peter W. Mueller, Commander and District Engineer of USACE, Baltimore District; and Janet M. Vine, Chief, Regulatory Branch of USACE, Baltimore District (collectively "FHWA" or "Defendants"2) filed a Cross-Motion for Summary Judgment and Opposition to the Audubon Plaintiffs' Motion for Summary Judgment and the Environmental Defense Plaintiffs' Partial Motion for Summary Judgment (Doc. No. 43) on August 17, 2007. Intervenor-Defendant, State of Maryland, also filed a Cross-Motion for Summary Judgment, Cross-Motion for Partial Summary Judgment, and Opposition to Plaintiffs' Motion for Summary Judgment and Motion for Partial Summary Judgment (Doc. No. 44) on August 17, 2007. On October 1, 2007, the Court conducted a hearing regarding the above Motions. See Local Rule 105.6 (D.Md.2004).
Also before the Court is Environmental Defense Plaintiffs' Motion for Summary Judgment on Part II of the Complaint (Doc. No. 42), filed on August 17, 2007. On September 14, 2007, both the Federal Defendants and the Intervenor-Defendant, State of Maryland, filed a Cross-Motion for Summary Judgment on Part II of the Environmental Defense Plaintiffs' Complaint (Doc. Nos. 49 and 50). The Environmental Defense Plaintiffs filed its response to Defendants' cross motion on October 1, 2007. The Court conducted a hearing on these motions on October 29, 2007. See Local Rule 105.6 (D.Md.2004). The Court also allowed supplemental briefing with respect to the Environmental Defense Plaintiffs' Motion to Supplement Complaint (Doc. No. 61). Therefore, also before the Court are the Environmental Defense Plaintiffs' Motion for Summary Judgment on Counts 39 and 41 (Doc. No. 73) and the Federal Defendants' and Intervenor-Defendant State of Maryland's Joint Cross-Motion for Summary Judgment on Plaintiffs' Supplemental Claims (Doc. No. 76). No hearing was deemed necessary on these supplemental motions. See id.
The Court has also reviewed the amicus brief filed by the Prince George's County Elected Officials and has also taken into consideration their arguments advanced during the hearing on October 1, 2007.
The Audubon Plaintiffs commenced this action for injunctive and declaratory relief on December 20, 2006, pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA") and its regulations; the Department of Transportation Act of 1966, 49 U.S.C. § 303 ("Section 4(f)"); the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ("APA"); and the Clean Water Act, 33 U.S.C. § 1344 ("CWA"). The Audubon Plaintiffs seek injunctive and declaratory relief relating to FHWA's approval of a proposed highway project, the Intercounty Connector ("ICC"), which connects I-95/US 1 in Prince George's County, Maryland and 270 in Montgomery County, Maryland. Plaintiffs claim that in reaching the decision to approve the ICC, Defendants did not adequately discharge various statutory duties.
Plaintiffs Environmental Defense and Sierra Club, Inc. also challenge the ICC project and seek both injunctive and declaratory relief. They commenced their action in the United States District Court for the District of Columbia on June 5, 2007, pursuant to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, 23 U.S.C. § 134 ("SAFETEALU"); the Federal-Aid Highways Act, 23 U.S.C. § 109 ("FAHA"); the National Environmental Policy Act, 42 U.S.C. §§ 4321-70(f) ("NEPA"), the Administrative Procedures Act, 5 U.S.C. §§ 701-06 ("APA"); and the Clean Air Act, 42 U.S.C. § 7604 ("CAA"). The Environmental Defense Plaintiffs' case was transferred to this Court on June 5, 2007. The two related cases — Audubon Naturalist Soc'y of the Cent. Atl. States, Inc., et al v. U.S. Dep't of Transp, et al. (06-cv3386) and Envtl. Def., et al. v. U.S. Dep't of Transp. et al (07-cv-1480) — have been consolidated.
Over half a century ago, an east-west highway across the middle of Montgomery County and into western Prince George's County was proposed as part of a larger Outer Beltway around Washington, D.C. FHWA 182676 (Administrative Record). Although the concept of an Outer Beltway was dropped, the plan to build this east-west highway remained and has now developed into the project currently in dispute, the Inter-County Connector ("ICC"). Id.
The ICC, which will be designated as Maryland Route 200, is a controlled access highway with eight interchanges, extending approximately eighteen (18) miles from I-370/I-270 near the Shady Grove Metrorail Station in Montgomery County to I-95/US 1 in Prince George's County. FHWA 182680. Approximately sixteen of the eighteen miles are located in Montgomery County and approximately two miles are in Prince George's County. Id. The ICC was proposed in response to the need for increased mobility and transportation safety in the study area serviced by the ICC project, and is predicted to provide a high-speed, free-flow transportation option to up to 300,000 people per day. FHWA 183090.
The ICC has been an integral part of the comprehensive plans for Montgomery and Prince George's Counties for decades. See FHWA 141888. It will achieve mobility, safety, and "smart growth" objectives, and is one of the many elements of the land use and transportation plans for the Counties, the State, and the region. See FHWA 141891. This transportation project is intended to increase community mobility and safety; to facilitate the movement of goods and people to and from economic centers; to provide a cost-effective transportation infrastructure to serve existing and future development patterns reflecting local land use planning objectives; to help restore the natural, human, and cultural environments from past development impacts in the project area; and to advance homeland security. FHWA 141941.
Beginning in 1953, the concept of the ICC was incorporated into the seminal 1964 General Plan for the Maryland-Washington Regional District, entitled "On Wedges and Corridors."4 FHWA 141888. In 1968, both Montgomery County and Prince George's County rejected the outer beltway concept. Id. Nevertheless, in 1972, Montgomery County approved the proposed ICC alignment between I-270 in Montgomery County and I-95 in Prince George's County. Id. The ICC was dropped from Prince George's County Master Plans with the adoption of the 1982 Prince George's County General Plan, but was reintroduced in Prince George's County in 1990 with the Subregion I Plan. FHWA 141888.
There has been extensive public debate over the ICC, which is best reflected by the fact that the project has been the subject of three separate Federal NEPA studies, only the current of which resulted in the completion of the process to a Final Environmental Impact Statement ("FEIS") and a Record of Decision ("ROD"). FHWA 182676. Prior to the current study, the FHWA and the Maryland State Highway Administration ("SHA") published Draft Environmental Impact Statements ("DEIS") and conducted public hearings in 1983 and again in 1997. FHWA 182677.
The first NEPA analysis of an ICC commenced in 1979, and a DEIS was published on July 8, 1983. AR 141889. The second attempt at an ICC study commenced in 1991, and a DEIS was published on March 3, 1997. Id. Neither study proceeded beyond the preliminary stage. Both times, the studies were abandoned due to concerns expressed by the reviewing agencies over potential environmental concerns and political controversy regarding the location of the highway. FHWA 141889, 182677.
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