Austin v. Ala. Dep't of Transp.
| Decision Date | 16 November 2016 |
| Docket Number | Case No. 2:15-cv-01777-JEO |
| Parties | JOHNATHAN AUSTIN, RANDALL WOODFIN, JAMES CLARK, DARRELL O'QUINN, AMIE EVANS, MERRIAM MCLENDON, SHIRLEY ELLIS, and JACQUES LOVEJOY, Plaintiffs, v. ALABAMA DEPARTMENT OF TRANSPORTATION; JOHN R. COOPER, Director, ALDOT; FEDERAL HIGHWAY ADMINISTRATION; and MARK BARTLETT, Division Administrator, FHWA, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
In this action for declaratory and injunctive relief, eight individuals (collectively, the "Plaintiffs") bring claims against the Alabama Department of Transportation and Director John Cooper (collectively, "ALDOT") and the Federal Highway Administration and Division Administrator Mark Bartlett (collectively, the "FHWA") for alleged violations of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA").1 The Plaintiffs allege that ALDOT and the FHWA (collectively, the "Agencies") violated NEPA in their assessment of the environmental impact of the I-59/20 Corridor Improvements Project in Jefferson County, Alabama (the "Project"). They allege that the Agencies violated NEPA by preparing an allegedly deficient Environmental Assessment for the Project and by finding that the Project will have no significant impact on the environment, obviating the need for an Environmental Impact Statement. Among other relief, the Plaintiffs seek a permanent injunction enjoining the Agencies from taking further action on the Project until they have prepared an Environmental Impact Statement.
Before the court are (1) the Plaintiffs' motion for summary judgment (Doc. 40), (2) ALDOT's motion to dismiss for lack of standing or, in the alternative, cross-motion for summary judgment (Doc. 46), and (3) the FHWA's cross-motion for summary judgment (Doc. 48). The motions have been fully briefed by the parties. (Docs. 41, 47, 48-1, 51, 52 & 53). For the reasons that follow, ALDOT's motion to dismiss will be denied, the Plaintiffs' motion for summary judgment will also be denied, and the cross-motions for summary judgment by ALDOT and the FHWA will be granted.
NEPA is our "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). The dual purposes of NEPA are: "(1) ensuring that agency attention will be focused on the probable environmental consequences of the [agency's] proposed action and (2) assuring the public that the agency has considered environmental concerns in its decision making process." N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1540 (11th Cir. 1990) (). NEPA established the Council on Environmental Quality ("CEQ"), which has promulgated regulations to govern federal agency NEPA compliance. 42 U.S.C. § 4342; see 40 C.F.R. §§ 1500.1-1517.7; Robertson, 490 U.S. at 354. The CEQ regulations are entitled to substantial deference. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 372 (1989).
NEPA requires a federal agency to take a "hard look" at the environmental consequences of its proposed action. Robertson, 490 U.S. at 350. NEPA is not, however, "a substantive environmental statute which dictates a particular outcome if certain consequences exist," but rather is a procedural statute that creates "a particular bureaucratic decisionmaking process." Sierra Club v. U.S. Army Corpsof Eng'rs, 295 F.3d 1209, 1214 (11th Cir. 2002) (quotation marks and citation omitted); 40 C.F.R. § 1508.21.
NEPA allows for three levels of detail in analyzing a project's impacts: an environmental impact statement ("EIS"), an environmental assessment ("EA"), or a categorical exclusion ("CE"). An EIS is required before a federal agency undertakes any "major" federal action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). If an agency expects an action will cause significant impacts, it can prepare an EIS directly. See 40 C.F.R. §§ 1502.9, 1503.1(a).
If an agency cannot predict whether a proposed action may cause a significant impact on the environment, the agency may prepare an EA to help it reach a conclusion on the significance of the impacts. 40 C.F.R. §§ 1501.4, 1508.9. An EA is a "more limited" document than an EIS. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004). A "brief and concise" EA satisfies NEPA if it "contain[s] sufficient evidence and analysis for the agency to determine . . . whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an [EIS]." Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir. 1996) (quotation marks and citation omitted). If, upon reviewing the EA, the agency determines that the action's effects will not besignificant, it can issue a "finding of no significant impact" and proceed without preparing an EIS. 40 C.F.R. § 1508.13.
Finally, agencies can comply with NEPA without completing an EIS or an EA if the action fits a category that does not "individually or cumulatively have a significant effect on the human environment." 40 C.F.R. §§ 1507.3(b)(2)(ii) & 1508.4. NEPA calls on agencies to designate certain categories of actions as CEs if experience has shown that such actions normally do not have a significant impact on the environment and they identify no "extraordinary circumstances." 40 C.F.R. §§ 1507.3(b)(2)(ii) & 1508.4.
Interstate 59/20 runs east-west through the City of Birmingham's Central Business District ("CBD"). Between the Interstate 65 interchange and the Red Mountain Expressway interchange, a distance of approximately 1.25 miles, the highway is elevated on a bridge (the "CBD Bridge"). (R. 13846).2 Construction of the CDB Bridge began in the 1960s and was completed in 1971. (R. 12176). The bridge is primarily a six-lane divided highway with "inconsistent travel lane widths and minimal inside and outside shoulder widths." (R. 13846). It wasdesigned to carry 80,000 vehicles per day, but now carries almost 160,000. (R. 12176). In addition, deficiencies in the design of the bridge cause unsafe traffic "weaving" and contribute to crashes along the bridge. (R. 13847).
In early 2011, ALDOT determined that the CDB Bridge was "rapidly deteriorating" and that replacement of the bridge decks was becoming "critical." (R. 4455). ALDOT proposed the Project to both "address the structurally deficient bridges along I-59/20" and "improve the traffic operations and access through" the Birmingham CBD. (R. 13847).
Initially, ALDOT contemplated a maintenance (repair) project that included replacing the bridge decks and some of the existing girders under the decks, but leaving the substructure (the columns, foundations, and footings) of the bridge in place. (R. 1666, 13850). For a project of that scope, ALDOT anticipated that it could use a CE to comply with NEPA, pending completion of the public involvement process. (R. 1369).
In May and June of 2012, the City of Birmingham and Jefferson County asked ALDOT to consider replacing (rather than simply repairing) the existing CDB Bridge with a "new concrete structure." (R. 1610-11). The City and the County noted that "[n]ew lanes could be designed as part of a new structure, the substructure and the superstructure would be the same age and require lessmaintenance, noise could be abated through downtown and the appearance of the structure could be much improved." (Id.)
Following a public involvement meeting and a stakeholder meeting in July 2012 (R. 1638-1733), and as requested by the City and the County, ALDOT began revising the Project to encompass replacement of the entire bridge. (R. 4999). ALDOT also began considering ways to address the appearance of the bridge, the operation of traffic on the bridge, and safety concerns associated with the traffic weaves on the bridge. (Id.) ALDOT's preliminary replacement design included replacing the CDB Bridge with a segmental concrete bridge, adding auxiliary lanes on the bridge, and moving all of the interstate access to and from the CBD onto a widened 11th Avenue North corridor. The design also included closing several surface streets to through-traffic beneath the bridge and modifying the I-59/20 interchanges at I-65 and 31st Street. (R. 13850).
ALDOT presented its preliminary design for replacing the CDB Bridge at a public involvement hearing in March 2013. (R. 2302-27). Over the next two years, ALDOT held a series of fourteen public involvement and community outreach meetings on the Project. (R. 13606-07). ALDOT also coordinated with the City of Birmingham on the development of the Project. (R. 4455-57, 5119-21). The Project design was modified and refined in response to this input. (See R. 13529-30, 13602-05, 13851).
As the design of the Project evolved, ALDOT looked at two alternatives to reconstructing the CDB Bridge in its existing location: moving the highway north to the Finley Boulevard corridor (two alternative designs), and "sinking" the section of the highway that runs through the Birmingham CBD to below street level. (R. 5051-5109). ALDOT retained an independent consultant to study these alternatives and assess their feasibility. (R. 4456). By early 2014, ALDOT had determined that both alternatives were too costly and required unacceptably long timeframes to construct, among other issues. (R. 5058, 5071, 5099, 5104-05).
By March 2015, the design of the Project had been refined to its currently proposed form. That month, ALDOT issued an Environmental Assessment evaluating the potential environmental consequences of the proposed Project.3 The EA consists of a twelve-page summary supported by 283 pages of attached studies and documentation. (R. 13845-14140.) The EA uses a "No-Build Alternative"—leaving the CDB Bridge as it currently exists except for routine maintenance—as the "baseline...
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