669 F.3d 194 (4th Cir. 2012), 10-1954, Shenandoah Valley Network v. Capka

Docket Nº:10-1954.
Citation:669 F.3d 194
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:SHENANDOAH VALLEY NETWORK; Coalition for Smarter Growth; Rockbridge Area Conservation Council; Virginia Organizing Project; Scenic Virginia Incorporated; Valley Conservation Council; Sierra Club; National Trust for Historic Preservation in the United States; APVA Preservation Virginia, Plaintiffs-Appellants, v. J. Richard CAPKA, Administrator, Fede
Attorney:Matthew E. Price, Jenner & Block, LLP, Washington, D.C., for Appellants. Sambhav N. Sankar, United States Department of Justice, Washington, D.C., for Appellees. Andrea C. Ferster, Washington, D.C., for Appellants; Elizabeth S. Merritt, Deputy General Counsel, Paul W. Edmondson, Vice President & ...
Judge Panel:Before WILKINSON, KING, and KEENAN, Circuit Judges. Dismissed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge KEENAN joined.
Case Date:February 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

Page 194

669 F.3d 194 (4th Cir. 2012)

SHENANDOAH VALLEY NETWORK; Coalition for Smarter Growth; Rockbridge Area Conservation Council; Virginia Organizing Project; Scenic Virginia Incorporated; Valley Conservation Council; Sierra Club; National Trust for Historic Preservation in the United States; APVA Preservation Virginia, Plaintiffs-Appellants,

and

Larry Allamong, Plaintiff,

v.

J. Richard CAPKA, Administrator, Federal Highway Administration; Mary Peters, Secretary, United States Department of Transportation; Roberto Fonseca-Martinez, Virginia Division Administrator Federal Highway Administration, Defendants-Appellees,

v.

Virginia Department of Transportation; Virginia Secretary of Transportation, Pierce Homer; Commonwealth of Virginia; Commissioner of Transportation, David S. Ekern, Intervenors-Appellees.

No. 10-1954.

United States Court of Appeals, Fourth Circuit.

February 17, 2012

Argued: Dec. 8, 2011.

Page 195

ARGUED:

Matthew E. Price, Jenner & Block, LLP, Washington, D.C., for Appellants.

Sambhav N. Sankar, United States Department of Justice, Washington, D.C., for Appellees.

ON BRIEF:

Andrea C. Ferster, Washington, D.C., for Appellants; Elizabeth S. Merritt, Deputy General Counsel, Paul W. Edmondson, Vice President & General Counsel, National Trust for Historic Preservation, Washington, D.C., for Appellant National Trust for Historic Preservation.

Kenneth T. Cuccinelli, II, Attorney General, Suzanne T. Ellison, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia; Timothy J. Heaphy, United States Attorney, Anthony P. Giorno, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia; Ignacia S. Moreno, Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Tracy White, United States Department of Transportation, Federal Highway Administration, Baltimore, Maryland, for Appellees.

Before WILKINSON, KING, and KEENAN, Circuit Judges.

Dismissed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge KEENAN joined.

Page 196

OPINION

WILKINSON, Circuit Judge:

The Federal Highway Administration (" FHWA" ) and the Virginia Department of Transportation (" VDOT" ) (collectively, " the Agencies" ) are planning improvements to Virginia's Interstate 81 corridor using a tiered review process. Appellants— a group of environmental and preservation organizations— challenged the Agencies' execution of the tiered process, alleging various constitutional and statutory violations. The district court rejected these challenges and granted summary judgment in favor of the Agencies.

On appeal, appellants claim that the Agencies are attempting to foreclose consideration of environmentally friendly alternatives for specific sections of I-81 by choosing a corridor-wide improvement concept in the first stage of the review process. Appellants, however, misapprehend the Agencies' position. As confirmed at oral argument, the Agencies plan to comply with the Stipulation in this case and the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § 4321 et seq., by considering site-specific alternatives to the corridor-wide concept in subsequent stages. Because there is no actual dispute here, and because appellants cannot show any injury or imminent threat of injury, this suit is not justiciable. Accordingly, we must dismiss the appeal.

I.

A.

NEPA requires federal agencies to prepare a detailed statement on the environmental impacts of any " major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The resulting Environmental Impact Statement (" EIS" ) must describe " any adverse environmental effects which cannot be avoided" and rigorously explore alternatives to the proposed action. Id.; see 40 C.F.R. §§ 1502.1, 1502.14. NEPA does not mandate substantive results, Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996), but it does require agencies to " take a ‘ hard look’ at environmental consequences" and to disseminate information that allows the public to participate in the decisionmaking process, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citation omitted).

Agencies are encouraged to conduct a " tiered" or multiphase analysis when contemplating large or complex projects. See 40 C.F.R. §§ 1502.20, 1508.28. At the first tier of " major transportation actions," agencies consider " broad issues such as general location, mode choice, and areawide air quality and land use implications of the major alternatives." 23 C.F.R. § 771.111(g). The agencies then address " site-specific details" at the second tier. Id. This approach allows agencies " to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review." 40 C.F.R. § 1502.20.

After an agency approves a transportation project and notifies the public of its final action in the Federal Register, the limitations period for NEPA claims is 180 days. 23 U.S.C. § 139( l )(1). Claims arising under NEPA are subject to judicial review pursuant to the Administrative Procedure Act (" APA" ). Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 189 (4th Cir.2009). A reviewing court must set aside the action if it is found to be " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (citing 5 U.S.C. § 706(2)(A);

Page 197

Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

B.

Interstate 81— a major trucking corridor— extends 855 miles from Tennessee to New York at the Canadian border, connecting markets in the northeastern United States and Canada to the mid-southern states. By any measure this highway, and especially some segments of it, bears heavy traffic. In Virginia, the I-81 corridor includes many priceless natural and historic properties, including national parks, Civil War battlefields, historic landscapes, and Main Street historic districts. As a spokesman for the National Trust for Historic Preservation noted, " [M]any small towns in the Shenandoah Valley have worked for many years to preserve their historic character and to revitalize their downtown commercial districts by capitalizing on their historic properties." J.A. 190.

FHWA and VDOT are upgrading Virginia's I-81 corridor using a tiered NEPA review. In a 2003 Streamlining Agreement, the Agencies agreed to make broad, corridor-wide decisions in Tier 1 and then evaluate site-specific proposals in subsequent stages. The Streamlining Agreement set forth the decisions that would be made at the conclusion of each tier, established timelines, and explained that the Tier 1 process would require the Agencies to select a corridor-wide improvement concept, such as adding highway capacity, adding rail capacity, or segregating commercial truck traffic from general purpose traffic. In Tier 2, the Agreement stated, the Agencies would settle on conceptual design features of the improvements for the components identified in Tier 1.

FHWA issued a Final Tier 1 EIS on March 21, 2007. The Tier 1 EIS identified a wide range of approaches for improving I-81, including: (1) a " No-Build Concept" in which the only projects that would be completed are those that are fully funded through construction; (2) a " Transportation System Management (" TSM" ) Concept" that included safety improvements, truck climbing lanes, and advanced transportation management systems; (3) four different " Rail Concepts" involving rail line improvements; (4) five " Roadway Concepts" involving the addition of vehicle lanes for the entire length of I-81 in Virginia; (5) five " Combination Concepts" that combined rail and highway improvements; and (6) five " Separated Lane Concepts" involving the separation of lanes in the same direction of travel.

The EIS analyzed how well each concept would meet I-81's projected capacity and safety needs and the potential impact of each concept on social, economic, and environmental resources. It concluded that the No-Build Concept, a stand-alone TSM Concept, and a stand-alone Rail Concept would all fail to satisfy the heavy transportation demands on the I-81 corridor. Moreover, the EIS determined, no concept that added a uniform number of new lanes— separated or not— along the entire corridor would satisfy I-81's needs in certain sections without providing more lanes than necessary in other sections. Accordingly, the EIS settled on a concept that adds a variable number of lanes, based on traffic demands, to individual segments of the corridor.

On June 6, 2007, FHWA issued a Tier 1 Record of Decision (" ROD" ), which announced that the concept that FHWA was advancing into Tier 2 involves constructing no more than two general purpose lanes in each direction, where needed, to address 2035 traffic demands. Along with this concept, the ROD reported, FHWA would advance to Tier 2 several short-term, independent safety and operational improvements.

Page 198

Importantly, the ROD also declared that FHWA would divide Virginia's I-81 corridor into eight sections of independent utility for site-specific analysis at Tier 2.

Following issuance of the Tier 1 ROD, FHWA published a Notice of Final Agency Actions in the Federal Register on June 18, 2007. The Notice advised the public of the specific decisions made at the conclusion of Tier 1, that the Tier 1 decisions would form the basis of subsequent tier proceedings, that the decisions were final, and that— pursuant to 23 U.S.C. § 139( l )(1)— judicial review of the Tier 1 decisions would be barred unless sought within 180 days.

C.

Appellants filed a complaint in the U.S. District Court for the Western District of Virginia within the...

To continue reading

FREE SIGN UP