Advocates for Transportation v. U.S. Army Corps
| Decision Date | 29 September 2006 |
| Docket Number | Civil Action No. 05-11918-WGY. |
| Parties | ADVOCATES FOR TRANSPORTATION ALTERNATIVES, INC.; John Bewick; Martha Bewick; Amanda Burgoon; Norma Kravette; Ann Collins; Marian Sherman; Dan Clark; Emily Clark; Kathleen Donohue; Colleen O'Hanley; Valerie O'Hanley; Nancy Hills; Fred Hills; and Phyllis Koch, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS; Hon. Francis J. Harvey; Lieutenant General Carl A. Strock; Colonel Thomas L. Koning, Defendants. v. Massachusetts Bay Transportation Authority, Defendant-Intervenor. |
| Court | U.S. District Court — District of Massachusetts |
Douglas H. Wilkins, Anderson & Kreiger LLP, Cambridge, MA, for Plaintiff.
Alan D. Greenberg, U.S. Department of Justice, Environmental Defense Section, Denver, CO, Eugenia M. Carris, United States Attorney's Office, Boston, MA, John P. Almeida, U.S. Army Corps of Engineers, Concord, MA, for Defendants.
Richard A. Nylen, Jr., Lynch DeSimone & Nylen, Boston, MA, for Defendant-Intervenor.
The plaintiffs Advocates for Transportation Alternatives, Inc.1 and individual Massachusetts residents2 (collectively, the "Advocates") allege that the U.S. Army Corps of Engineers ("Corps") violated federal environmental statutes by issuing a permit pursuant to the Clean Water Act to the Massachusetts Bay Transportation Authority ("MBTA") to restore commuter rail service on the Greenbush Line between Braintree and Scituate, Massachusetts. See Compl. ¶¶ 131-50.
The Advocates seek a permanent vacation of the permit and any other actions related to the permit, or, in the alternative, temporary enjoinment of any action in furtherance of the Greenbush Line until the Corps: (1) prepares an Environmental Impact Statement ("EIS") with respect to the Greenbush Line; (2) prepares an independent analysis of the environment and human impacts of, and alternatives to, the Greenbush Line; and (3) complies with all the requirements of the National Environmental Policy Act. See Compl. Prayers for Relief ¶¶ 1-12.
The Advocates filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Pl.'s Mot. Summ. J. [Doc. No. 39]. The Corps filed a Cross-Motion for Summary Judgment against the Advocates. Def. Corps' Mot. Summ. J. [Doc. No. 46]. The MBTA, which has intervened in this suit as a defendant,3 opposes the Advocates' motion and moves for summary judgment as well. Def. MBTA's Mot. Summ. J. [Doc. No. 50]. All parties submit that the suit ought be resolved by summary judgment on the agreed-upon administrative record. Joint Mot. to Enter Briefing Schedule [Doe. No. 23] at 2.
The Old Colony Railroad system, including the Main (Boston to Braintree), Middleborough, Plymouth, and Greenbush Lines, provided freight and passenger commuter rail service between Boston and Plymouth from 1844 to 1959, with freight service running on part of the line until 1983. Administrative Record ("AR") III:8798; AR II:I-1. In 1984, the Massachusetts Legislature directed the MBTA to study the possibility of restoring the commuter rail system to the southeastern region of Massachusetts. AR I:41. From that study, the MBTA concluded that it was feasible to restore commuter rail service. Id. Afterwards, the Governor and Legislature directed the MBTA to conduct environmental studies as part of the Old Colony Railroad Rehabilitation Project. Id.
The Old Colony Railroad Rehabilitation Project studied the siting and conceptual design of twenty-one proposed commuter rail stations and three layover facilities and proposed the reinstitution of these commuter rail services. AR I:41; AR II:I-1. On May 7, 1990, the MBTA and the Federal Transit Administration filed a Draft Environmental Impact Statement/Report pursuant to the National Environmental Policy Act ("NEPA")4 and the Massachusetts Environmental Policy Act ("MEPA")5 requirements for the proposed restoration of the commuter rail service on the Main Line and the three branch lines. The Federal Transit Administration and the MBTA "defer[red] a decision on the Greenbush Line because of a significant number of unresolved environmental concerns" and separated the Greenbush Line as an "independent project." AR I:10, AR II:1-2. In March 1992, a final Environmental Impact Statement/Report was prepared for the Main, Middleborough, and Plymouth Lines pursuant to both the NEPA and MEPA. See AR I:1. In September 1997, the Middleborough and Plymouth Lines were opened for commuter rail service. AR II:1-2.
The MBTA's plan to resume commuter rail service on the Greenbush Line is part of a transportation system planning process to mitigate the impact on highway traffic, promote transit, and meet obligations under the Massachusetts State Air Quality Implementation Plan and a Memorandum of Understanding arising from the Central Artery/Third Harbor project. AR I:11995, 12052-53. In December 1992, the Massachusetts Executive Office of Environmental Affairs issued the scope for the Supplemental Draft Environmental Impact Statement/Report ("Supplemental Draft Report") for the Greenbush Line project (the "Greenbush Project") that would meet both MEPA and NEPA requirements. AR II:1-2, P-12. In March 1995, the MBTA and the Federal Transit Administration published the Supplemental Draft Report that proposed and examined various transportation alternatives and their environmental impacts for the Greenbush Project. AR II:P-12. On June 1, 1995, the Massachusetts Secretary of Environmental Affairs issued a Certificate finding that the Supplemental Draft Report complied with MEPA and its implementing regulations. AR I:14386. In its Certificate, the Secretary detailed issues concerning the environmental and alternatives analyses that needed to be addressed in the Final Environmental Impact Report/Statement. See AR I:14386-93.
In November 1995, the MBTA, in concert with Governor William Weld, announced that they had selected restoration of the commuter rail at grade on the Greenbush Line right-of-way6 as the preferred alternative. AR II:P-12. The Greenbush Commuter Rail alternative includes replacement of tracks, rail signal systems, layover train facilities at the end of the Greenbush Line, and seven new passenger stations with parking at Weymouth Landing, East Weymouth, West Hingham, Nantasket Junction in Hingham, Cohasset (Route 3A), North Scituate, and Greenbush. AR I:11991. In response to environmental and other concerns raised during the public review process, the MBTA amended the Greenbush Project to include: (1) a major redesign of Weymouth Landing of avoid or mitigate potential traffic impacts; (2) grade separations at specific locations at Weymouth and Cohasset so the railroad would be on a bridge over the street, instead of intersecting at grade; (3) construction of an underpass in Hingham Square to prevent intersecting at grade; and (4) redesign or relocation of two parking lots to avoid wetland and traffic impacts. AR I:12003-04.
Around the same time, MBTA announced that it would not seek federal funding for the Greenbush Project. AR II:P-12. As a result, the Federal Transit Administration withdrew from the Greenbush Project in January 1996,7 and the Corps became the lead agency responsible for subsequent environmental and historic impact review for the Greenbush Project. AR II:P-12-13.
On May 21, 2001, the MBTA issued the Final Environmental Impact Report on the Greenbush Project pursuant to MEPA requirements.8 See AR II. The Final Report evaluated and compared alternatives that included: (1) no new construction; (2) enhanced bus service on the existing Greenbush right-of-way; (3) two types of commuter boat service from Hingham and Hull; and (4) various commuter rail alternatives. AR II:P-3. The alternatives were analyzed for impacts on the natural and human environment such as noise, vibration, wetlands, and traffic. AR II:P-3-5.
As a necessary part of the Greenbush commuter rail restoration, the MBTA applied for a Clean Water Act Section 404 permit ("Permit") for the discharge of dredged or fill materials into 7.6 acres of jurisdictional waters and wetlands (4.2 acres of temporary impacts, 3.4 acres of permanent impacts). AR I:11992. As a result, the Corps examined the environmental impacts of all the MBTA's proposed activities over a 250-foot-wide corridor along the entire 18-mile Greenbush commuter rail line. AR I:12049. Through its own analysis and consultation with federal and state agencies and the general public,9 the Corps identified issues that would be addressed in its permit review process. AR I:12048-49.
In order to determine if an EIS was needed for the Greenbush Project,10 the Corps prepared an environmental assessment ("Assessment") that examined in detail the MBTA's proposal and alternatives such as ferry service and transportation systems management. AR I:11987-12051. The ferry service alternative (the "Ferry Alternative") would expand the commuter boat service to Greenbush area to include the purchase and operation of highspeed passenger boats. AR I:12007. The transportation system management alternative (the "Management Alternative") would use existing roadways to build on commuter bus service that would include the addition of three new park-and-ride parking lots, and the expansion of current commuter bus routes and service. AR I:12005-06. The Assessment also discussed other alternatives that were not considered in detail, such as high-occupancy-vehicle lanes, commuter rail or Red Line extension along Route 3, light rail or a trackless trolley along the Greenbush right-of-way, and others. AR I:12009-15. The Assessment examined environmental concerns such as wetlands, wildlife habitat, air quality and noise, and historic resources of the main alternatives. AR I:12022-41. After...
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