Becker v. Federal Railroad Administration
| Decision Date | 30 December 1996 |
| Docket Number | No. 3:95CV01076 (PCD).,3:95CV01076 (PCD). |
| Citation | 999 F.Supp. 240 |
| Parties | Jason BECKER, et al. v. FEDERAL RAILROAD ADMINISTRATION and National Railroad Passenger Corporation. |
| Court | U.S. District Court — District of Connecticut |
Charles C. Goetsch, Cahill, Goetsch & Dipersia, P.C., New Haven, CT, Robert A. Fasanella, Ann M. Sobolewski, Fasanella, Johnson & Wood, Boston, MA, for Plaintiffs.
John B. Hughes, U.S. Attorney's Office, New Haven, CT, for Defendant, Federal Railroad Administration.
David R. Schaefer, Brian P. Daniels, Brenner, Saltzman & Wallman, New Haven, CT, James A. Rogers, Neil J. King, Carol A. Clayton, David H. Topol, Wilmer, Cutler & Pickering, Washington, DC, for Defendant, National Railroad Passenger Corp.
RULING ON MOTIONS FOR SUMMARY JUDGMENT AND FOR PERMANENT INJUNCTION
Pending is plaintiffs' motion for a permanent injunction to preclude defendants from electrification of defendant National Railroad Passenger Corporation's (Amtrak) Northeast Corridor line from New Haven, Connecticut to Boston Massachusetts. That motion included a preliminary injunction which has been denied. Also pending is defendants' motion for summary judgment asserting the complaint to be without factual merit.
FACTS:
A Northeast Corridor Improvement Project (NECIP) is Amtrak's response to a congressionally mandated improvement of rail service between Boston and New York. The proposal would extend the present electrification to Boston from New Haven to permit electric power to move trains faster and without changing engines in New Haven as is presently the case. The Federal Railroad Administration (FRA) issued a Programmatic Environmental Impact Statement (PEIS) in 1978 and a final EIS (FEIS). The PEIS described the project generally and its technological aspects, including electrification, and alternative routes. The FEIS supplemented the PEIS, dealing with the project and its components in greater detail. The extent of electrification was determined in 1991.
Congress enacted the Amtrak Authorization and Development Act in 1992, Pub.L.No. 102-533, 106 Stat. 3516, which required FRA to issue a plan by which a three hour trip between New York and Boston would be achieved, safely and dependably. The resulting Northeast Corridor Transportation Plan (NECTP) was presented to Congress on July 11, 1994. It called for the noted electrification and use of the shoreline route, deemed necessary to meet Congress' mandate.
An environmental review resulted in a Record of Decision: Northeast Corridor Improvement Project Electrification-New Haven, CT. to Boston, MA. (May 9, 1995) (ROD) which included consideration of the FEIS. The ROD noted the appropriate use of electric motive power, operating characteristics, maximum speed, acceleration and deceleration rates, reliability and maintenance costs. Id. p. 3. Since 1991 Congress has appropriated $292,800,000 of the total $390,000,000 electrification cost, none of which was released for construction until the ROD was issued.
The FEIS premises that improved rail service will result in 60.7% of rail/air travel between all points from New York to Boston will be by rail as opposed to 39.9% by air. Plaintiffs dispute that claim, citing such trips between New York and Washington, D.C. which have not reached that percentage. Defendants note, without dispute, that of all such trips on the line from New York to Washington, 65% travel by rail. Intermediate stop travel is 70% by rail.
Three alternative routes between New Haven and Boston were considered. The FEIS noted advantages of each route at specific locations. Plaintiffs note safety hazards at grade-crossings without suggesting alternative routes would not involve such. Defendants note the FEIS discusses grade-crossing safety. The FEIS does not appear to determine a choice of route based on safety alone. It notes a substantial time span that would be required, beyond the time frame set for the project, to obtain required permits and approvals for construction of either alternative to the shore route. Also noted is a substantially higher capital cost for construction of either of the alternatives to the shoreline route, a significant factor in the absence of appropriations sufficient for a more expensive route and Congress' unlikely appropriation of higher amounts to construct either alternative.
The shoreline route includes five movable bridges over waterways used by commercial and pleasure boats.
Multiple ownership and use of the shoreline route is cited but with no showing that the trip-time goal would thereby be prevented.
The FEIS discussed the By-Pass route along I-95 and found it to be deficient due to adverse environmental impacts, permits needed and problems posed by construction though it would eliminate grade crossing and five bridges. The Inland and Airline routes were reported unfavorably based largely on expense and delay.
Electric motive power was chosen over turbo electric engines. In making this determination, a yet-to-be-developed form of turbo electric engines which can meet the three-hour trip requirement was considered, but rejected. Turbo units have been commented on favorably in various quarters as have dual traction units which have power limitations on grades.
The cost of electrification was not justified in the FEIS on the basis of a cost/benefit analysis. Yet-to-be-developed trains' emissions have not been evaluated.
Energy loss was accounted for in the FEIS, from generation point to meter and thence from substation to locomotive. Popoff Affid. ¶¶ 5-8, Yachmetz Affid. ¶¶ 89-90. Though not calculated, the loss will be offset by regenerative braking and use of new engines.
A protocol approved by EPA and the DEPs of Connecticut, Rhode Island and Massachussetts was followed in the FEIS discussion and analysis of hazardous air pollutants, volatile organic compounds and nitrous oxides, the precursors of ozone.
Train horns required to be blown will increase by four soundings for each additional train at each crossing.
No bird species survey along the shoreline route was performed but no adverse effect on birds from the project is suggested.
The FEIS notes a measurement of current vibration and comparison to prototypical equipment vibration.
The FEIS discusses the unquantified increase of noise and vibration along the right of way from more and higher speed trains.
DISCUSSION:
Plaintiffs allege defendants' non-compliance with the reviews mandated by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Plaintiffs seek to enjoin pursuit of the NECIP for want of full consideration of its environmental impact as required by NEPA for which 40 C.F.R. § 1508.7 is cited. The issue presented is not whether the court approves the agency's decision as to a course of action. See Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), (quoting Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C.Cir.1972); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-29, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 555, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1383 (2nd Cir.1977)). It is sufficient if defendants have compiled adequate "relevant information, [have] analyzed it reasonably, [have] not ignored pertinent data, and [have] made disclosures to the public." Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029 (2d Cir.1983). Consideration of environmental effects of the project, including alternatives, is required. See I 291 Why? Association v. Burns, 372 F.Supp. 223, 254 (D.Conn.1974). The court's inquiry is not whether the agency decision achieves "particular substantive environmental results", Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), but whether "adverse environmental effects of the proposed action are adequately identified and evaluated" without preclusion from "deciding that other values outweigh environmental costs." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). A record reflecting consideration of detailed information concerning significant environmental impact, available to permit public comment, is required. Id.
A. Agency Bias in Approving the Project.
Plaintiffs claim defendants were predisposed to electrify the shoreline route and gave no real consideration to alternatives, demonstrating bias and making the environmental review a charade. They base that claim on conclusions in the several studies done between 1978 and 1994 and the expenditure of funds for the project before the FEIS. The extent defendants arranged and considered the several studies, the administrative record's demonstration of the extent of the hearings and consideration given to the matters, all belie plaintiff's contentions. Calling a NEPA study a charade as a foregone conclusion without substantiating evidence is not a meritorious argument. County of Suffolk v. Secretary of the Interior, 562 F.2d at 1390. Defendants' assertion that no money was expended before the ROD, though appropriated is uncontradicted. Thus this is not a case of commitment by action before the FEIS. Nor are the "errors" cited by plaintiffs suggestive of defendants' tailoring the record to substantiate the decision. The explanations offered suggest that there were not "errors" but rather, that plaintiffs have misconstrued what actually occurred. For example projections of ridership cannot absolutely be guaranteed but defendants' judgment that the project will attract additional train passenger cannot be found to be unsupported. Defendants cannot be faulted for accepting opinions which appear to be made in good faith and with adequate...
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