Audubon v. Fed. Highway Admin.

• Decision Date: 19 May 2010
• Docket Number: Civil Action No. H-09-0692.
• Citation: 715 F.Supp.2d 721
• Parties: SIERRA CLUB and Houston Audubon, Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION, Department of Transportation, Secretary of Transportation Raymond LaHood, Texas Transportation Commission, Deirdre Delisi, Janice Brown, and Jeffrey F. Paniati, Defendants.
• Court: U.S. District Court — Southern District of Texas

715 F.Supp.2d 721

SIERRA CLUB and Houston Audubon, Plaintiffs,

v.FEDERAL HIGHWAY ADMINISTRATION, Department of Transportation, Secretary of Transportation Raymond LaHood, Texas Transportation Commission, Deirdre Delisi, Janice Brown, and Jeffrey F. Paniati, Defendants.

Civil Action No. H-09-0692.

United States District Court,

S.D. Texas,

Houston Division.

May 19, 2010.

Marisa Perales, Bradley Rockwell, Lowerre Frederick Perales Allmon and Rockwell, Austin, TX, James B. Blackburn, Jr., Blackburn Carter PC, Houston, TX, for Plaintiffs.

Jack Foster Gilbert, USDOT, Atlanta, GA, for Defendants Federal Highway Administration, Department of Transportation, Secretary of Transportation, Janice W. Brown, Jeffrey F. Paniati, and Sec. Transportation Raymond LaHood.

Lisa Marie McClain, Stephen L. Tatum Jr., Office of the Attorney General, Austin, TX, for Texas Transportation Commission and Deirdre Delisi.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Sierra Club and Houston Audubon bring this action against the Federal Highway Administration (“FHWA”) and other federal and state defendants seeking an injunction to block construction of a new highway in northwest Houston. At issue is whether the defendants' issuance of an Environmental Impact Statement (“EIS”) approving the highway project violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”). Pending before the court are State Defendants' Motion for Summary Judgment (Docket Entry No. 46), Plaintiffs' Motion for Summary Judgment (Docket Entry No. 47), and Federal Defendants' Motion for Summary Judgment (Docket Entry No. 49). For the reasons explained below, the court will deny the plaintiffs' motion and will grant the defendants' motions.

I. Background

This action concerns the defendants' approval of construction of “Segment E,” an approximately fifteen-mile stretch of new highway in northwest Houston that is projected to be part of a 180-mile loop around Houston known as the “Grand Parkway.” Plaintiff Sierra Club is a national nonprofit environmental organization based in San Francisco, California. Houston Audubon is a nonprofit organization that promotes bird conservation in the Houston area. The FHWA is an agency of the United States charged with developing the road transportation systems of the United States. Janice Brown is sued in her official capacity as Division Administrator of the Texas Division of the FHWA. Jeffrey Paniati is sued in his official capacity as Acting Administrator of the FHWA. The FHWA is a part of the United States Department of Transportation, the government department that oversees the national transportation system. Raymond LaHood is sued in his individual capacity as the Secretary of Transportation, the head of the United States Department of Transportation (“USDOT”). The Texas Transportation Commission is a state agency that oversees the Texas Department of Transportation (“TXDOT”). Deirdre Delisi is sued in her official capacity as Chair of the Texas Transportation Commission.

A. The Grand Parkway Segment E

The City of Houston Planning Commission first proposed the Grand Parkway in 1961 as a 170-mile highway loop around the Houston Metropolitan area. ¹ Various efforts have been undertaken over the years to initiate construction of the Grand Parkway, although at present most segments of the loop are still in planning stages. Current plans divide the Grand Parkway into eleven lettered segments. ² This action concerns only Segment E, an approximately fifteen-mile stretch that is intended to connect Interstate Highway 10 in the Katy area west of Houston to U.S. 290 northwest of Houston. ³ Segment E is planned as a four-lane controlled access toll facility.

In August of 1993 TXDOT and FHWA filed a Notice of Intent to prepare an EIS for Segment E. ⁴ Public meetings concerning Segment E were held in September 1993 and February 2000. ⁵ Plans for Segment E have been included in several regional transportation planning documents since 1993, including the 1995 National Highway System designation, the Texas Statewide Transportation Improvement Program for 2006 and 2008, the Harris County Major Thoroughfare and Freeway Plan for 2006, the Houston-Galveston Area Council's 2025 Regional Transportation Plan (“RTP”), and the Harris County Transportation Improvement Plan. ⁶

FHWA and TXDOT published a Draft Environmental Impact Statement (“DEIS”) for Segment E in February of 2003. ⁷ A public hearing on the DEIS was held on March 25, 2003. ⁸ The records from that hearing show that the Sierra Club expressed concerns that the DEIS provided inadequate discussion of several issues, including cumulative effects, wetlands mitigation measures, and other reasonable alternatives to Segment E. ⁹ On April 24, 2003, the Texas Transportation Commission issued Minute Order 109226, which states, “The completion of the Grand Parkway is essential and urgent, as construction of the projects would alleviate congestion and improve traffic flow in the Houston metropolitan area and the surrounding region.” ¹⁰

B. The Final Environmental Impact Statement

FHWA and TXDOT assembled a Study Team of engineers and environmental consultants to perform the analysis necessary to finalize the EIS. Drawing in part on comments received at the public hearing, FHWA and TXDOT selected a Preferred Alternative Alignment for the path of the proposed road. ¹¹ FHWA and TXDOT published the Final Environmental Impact Statement (“FEIS”) for Segment E on November 19, 2007. ¹²

An FEIS must consider alternatives to the proposed government action and must evaluate those alternatives according to the need and purpose for the project. The FEIS summarized the needs for the project as follows:

Transportation improvements are needed in the Segment E study area because there are inefficient connections between suburban communities and major radial highways, the current and future transportation demand exceeds capacity, many roadways in the study area have a high accident rate, and there is an increasing strain on transportation infrastructure from population and economic growth. ¹³

The FEIS summarizes the purposes for Segment E as follows:

The purpose of the proposed transportation improvements in the Segment E study area is to efficiently link the suburban communities and major roadways, enhance mobility and safety, and respond to economic growth. The goal is to improve system linkage, address current and future transportation demand, improve safety, and address population and economic growth. ¹⁴

To address these needs and purposes, the Study Team conducted an alternatives analysis comparing a Build alternative with a No-Build alternative and concluded that the Build alternative better meets the needs and purposes for the project. ¹⁵ Under the Build alternative, the Study Team considered three different alignments that Segment E could follow and selected a Preferred Alternative Alignment. ¹⁶ After publication of the FEIS, notices were placed in local newspapers seeking public comments. ¹⁷

The FHWA issued its Record of Decision (“ROD”) on June 24, 2008. ¹⁸ The ROD concluded that a four-lane controlled access toll road along the Preferred Alignment best meets the needs and purposes of the project. ¹⁹

In June of 2009 FHWA and TXDOT issued a Re-Evaluation of the FEIS to consider the implications of a design change at a specific intersection and to follow up on questions left open in the initial FEIS, such as the possible impact of the project on certain endangered species potentially in the construction area. ²⁰ The Re-Evaluation concluded that “there have been no significant changes to the assessed areas based upon the proposed design change, updates to regulations or guidance, and progress to commitments and permits.” ²¹ On June 9, 2009, FHWA issued a Revised Record of Decision incorporating the information in the Re-Evaluation and generally affirming all of the decisions in the initial ROD. ²²

C. Procedural History

Sierra Club filed this action on March 9, 2009 (Docket Entry No. 1). On October 15, 2009, Sierra Club moved to add Houston Audubon as a plaintiff and Harris County as a defendant, expand upon two of its original causes of action, and add five new causes of action (Docket Entry No. 29). On November 25, 2009, the court granted Sierra Club's motion to add Houston Audubon as a plaintiff but denied Sierra Club's other motions (Docket Entry No. 43). On January 20, 2010, the state defendants filed a motion for summary judgment (Docket Entry No. 46). The plaintiffs filed a motion for summary judgment the same day (Docket Entry No. 47). The federal defendants filed a motion for summary judgment on January 21, 2010 (Docket Entry No. 49). The parties have submitted Responses and Replies (Docket Entry Nos. 56, 57, 60, 61).

D. Sierra Club's Claims

Plaintiffs allege six causes of action against the defendants regarding their issuance of the FEIS and the ROD. Specifically, plaintiffs allege that the defendants violated NEPA, NEPA regulations, and the APA by:

1. Conducting an inadequate and unlawful alternatives analysis;

2. Failing to assess properly the impacts of Segment E on hydrology, drainage, floodways, and floodplains;

3. Failing to disclose significant impacts and indirect effects on wetlands;

4. Failing to disclose significant air impacts and safety risks;

5. Failing to properly disclose noise impacts; and

6. Failing to consider indirect, secondary, and cumulative impacts. ²³

The defendants argue that they are entitled to summary judgment on each of these claims.

II. Applicable Law

A. Standard of Review

In the usual case, summary judgment is proper when the record, viewed in the light most favorable to the non-moving party, establishes that no genuine issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 106...