Airport Impact Relief Inc. v. Fed Highway Admin.

• Decision Date: 05 August 1999
• Docket Number: No. 99-1469,99-1469
• Parties: (1st Cir. 1999) AIRPORT IMPACT RELIEF, INC., ET AL., Plaintiffs, Appellants, v. KENNETH R. WYKLE, ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION, ET AL., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 197

192 F.3d 197 (1st Cir. 1999)

AIRPORT IMPACT RELIEF, INC., ET AL., Plaintiffs, Appellants, v. KENNETH R. WYKLE, ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION, ET AL., Defendants, Appellees.

No. 99-1469.

United States Court of Appeals for the First Circuit.

Heard Aug. 5, 1999.

Decided Oct. 1, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Copyrighted Material Omitted] Peter L. Koff, with whom McGowan, Engel, Tucker & Schultz, P.A. was on brief, for appellants.

Stephen H. Burrington and Veronica Eady on brief for Conservation Law Foundation and Alternatives for Community and Environment, amici curiae.

Marc P. Frey and Tinti, Quinn, Grover & Frey, P.C. on brief for Sierra Club, amicus curiae.

Jennifer Zacks, Assistant United States Attorney, and Stephen M. Leonard, with whom Donald K. Stern, United States Attorney, Thomas F. Reilly, Attorney General, Pierce O. Cray, Assistant Attorney General, Administrative Law Division, William L. Pardee, Assistant Attorney General, Environmental Protection Division, Marilyn Newman and Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. were on brief, for appellees.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and Fuste,^* District Judge.

TORRUELLA, Chief Judge.

Plaintiffs-appellants Airport Impact Relief, Inc. ("AIR") and individual residents of East Boston¹ filed the present action to review and set aside the June 25, 1998 decision of Peter Markle, Division Administrator of the Federal Highway Administration ("FHWA"), to approve the Massachusetts Highway Department's ("MHD") revised plans for a construction project without preparing a supplemental environmental impact statement ("SEIS"). After conducting what it termed a "Phase One Nonjury Trial," the district court entered judgment in favor of the defendants, finding that Markle's decision to approve the changes to the project without preparing an SEIS was not "arbitrary and capricious." Plaintiffs appeal, and we affirm.

BACKGROUND

The Central Artery/Tunnel Project (the "CA/T Project") is an extensive construction project planned in Boston, Massachusetts that is designed to ameliorate traffic congestion through downtown Boston and the two tunnels connecting downtown Boston with East Boston and Logan Airport. The portion of the project at issue connects two new roadways (Route 1A Northbound and Route 1A Southbound) with the Massachusetts Bay Transportation Authority's ("MBTA") Blue Line Airport Station. We refer to this portion as the Logan Airport/Route 1A Interchange.

In 1985, the FHWA conducted an environmental review of the CA/T Project and prepared a Final Environmental Impact Statement ("FEIS"). The FHWA then approved the construction plans for the CA/T Project in 1986. In 1991, the project plans were revised, and the FHWA prepared a Final Supplemental Environmental Impact Statement ("FSEIS") addressing the changes to the project. The FHWA approved the revised project in its 1991 Record of Decision.

In 1997, MHD issued a Notice of Project Change ("NPC") proposing a number of changes to the surface roads and transit elements of the Logan Airport/Route 1A Interchange. One change involves extending service road SR-2 so that it continues north to connect to the intersection of Prescott and Frankfort Streets. Under the previous design, SR-2 detoured east before continuing north. The proposed extension of SR-2 would result in the extended portion being located approximately 750 feet west of SR-2's location in the 1991 approved plans. This would move SR-2 to the west of a seven-acre parcel of land known as the Robie Parcel. Thus, SR-2 would no longer bisect the Robie Parcel or separate it from the airport.

In addition to relocating SR-2, the proposed changes consist of: (1) the relocation of Airport Station approximately 500 feet north of its current location; (2) the redesign of Airport Station's passenger entrances and bus platforms, including the elimination of the planned cross-platform connection between Logan Airport shuttle buses and the Blue Line trains; (3) the elimination of a bus loop that would have connected both sides of Airport Station; (4) changes in the elevations of ramps and roadways, including raising Route 1A Southbound to as high as 36 feet; (5) the realignment of Ramp T-S and service road SR-10 to Terminal A; (6) the widening and extension of service road SR-10; (7) the elimination of service road SR-1; (8) the redesign of Ramp 1A-S as a surface roadway; and (9) the addition of service road SR-14 to connect Logan Airport and Airport Station.

The NPC was circulated for public comment by MHD as part of the environmental review process required by the Massachusetts Environmental Protection Act ("MEPA"). Several members of the public, including representatives of appellant AIR, raised environmental issues and concerns regarding the NPC. On May 13, 1998, Massachusetts Secretary of Environmental Affairs Trudy Coxe determined that the environmental effects of the changes did not require MHD to prepare a supplemental state environmental impact report.

While the state environmental review process proceeded, MHD also requested federal approval of the changes from the FHWA. On April 24, 1998, MHD submitted to the FHWA an Environmental Reevaluation of the proposed changes, consisting of the NPC and additional information gathered during the state review process. In the Environmental Reevaluation, MHD analyzed the environmental impacts of the proposed changes and expressed its belief that the FHWA need not conduct any further environmental review under the National Environmental Policy Act of 1969 ("NEPA"). In a June 1, 1998 letter to the FHWA, Acting Deputy Regional Administrator Mindy Lubber of the United States Environmental Protection Agency ("EPA") expressed the opinion that the changes merited a thorough environmental review and comment process under NEPA. After the FHWA reviewed the Environmental Reevaluation, FHWA Division Administrator Markle issued a June 25, 1998 decision letter to MHD, concurring in MHD's conclusion that the proposed changes will have "negligible environmental impacts," and therefore do not require the preparation of an SEIS.

In July of 1998, plaintiffs filed the present action, challenging the FHWA's approval of the project changes and naming as defendants; (1) Markle, Division Administrator of the FHWA; (2) Kenneth R. Wykle, Administrator of the FHWA; (3) Kevin J. Sullivan, Commissioner of MHD; and (4) Patrick J. Moynihan, Chairman of MBTA and Secretary of the Executive Office of Transportation and Construction. In Count One, plaintiffs claimed that the June 25, 1998 decision violated section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), and its applicable regulations by failing to require an SEIS to be prepared. In Counts Two and Three, which are not at issue in this appeal, plaintiffs claimed that the FHWA violated: (1) section 4(f) of the Department of Transportation Act of 1996, 49 U.S.C. § 303(c) and 23 U.S.C. § 138, and (2) Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. Count Three was dismissed by stipulation on October 1, 1998.

The FHWA's administrative record was filed with the district court, and the parties sought to resolve the case through cross-motions for summary judgment. The district court advised the parties that any motions for summary judgment would be treated as motions for judgment upon the conclusion of a "Phase One Nonjury Trial." Both sides then moved for judgment in their favor upon conclusion of the Phase One Trial on both Counts One and Two.

The district court conducted a three-day "Phase One Nonjury Trial" to address three issues: (1) the extent to which evidence beyond the FHWA's administrative record would be considered in reviewing the FHWA's decision; (2) whether the evidence created a genuine issue of material fact that would require a Phase Two Trial on the merits of the case; and (3) whether any party was entitled to judgment as a matter of law at the end of the Phase One Trial. The parties stipulated to various facts, and their counsel presented the parties' respective positions and argued the pending motions. No witnesses testified at the trial, but each party moved to admit additional affidavits and declarations in an attempt to supplement the administrative record. Counsel for each side explained to the district court the project's proposed changes and the likely effects of those changes. Counsel argued at length about the factors that the FHWA should have considered and about whether those factors were in fact considered.

In an extensive March 25, 1999 opinion, the district court: (1) granted in part and denied in part the parties' motions to supplement the administrative record with affidavits and declarations; (2) granted defendants' motion for judgment upon conclusion of the Phase One Trial; and (3) denied plaintiffs' motion for judgment upon conclusion of the Phase One Trial. See Airport Impact Relief, Inc. v. Wykle, 45 F. Supp. 2d 89, 109 (D. Mass. 1999). In ruling that defendants were entitled to judgment as a matter of law, the district court first outlined the numerous facts that were stipulated to by the parties. See id. at 94-98. The district court then allowed plaintiffs to supplement the administrative record with affidavits from Frederick Salvucci and Mary Ellen Welch to demonstrate factors that the FHWA should have considered, but did not. See id. at 98-99. The court also allowed defendants to supplement the record with affidavits from Markle and the FHWA's CA/T Project Administrator, Thomas Smith, to explain the steps taken by the FHWA to reach their decision.² See id. at 99. The court next addressed and dismissed each of plaintiffs' claims that there were procedural flaws in the FHWA's decisionmaking process. See id. at 100-01. The court then turned to the likely environmental impacts of the project changes and found that the FHWA...