Black Warrior Riverkeeper, Inc. v. Ala. Dep't of Transp.

• Decision Date: 19 January 2016
• Docket Number: CASE NO. 2:13-CV-794-WKW (WO),CASE NO. 2:11-CV-267-WKW (WO)
• Parties: BLACK WARRIOR RIVERKEEPER, INC., Plaintiff, v. ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants. BLACK WARRIOR RIVERKEEPER, INC., Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

BLACK WARRIOR RIVERKEEPER, INC., Plaintiff, v. ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

BLACK WARRIOR RIVERKEEPER, INC., Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

CASE NO. 2:11-CV-267-WKW (WO)

CASE NO. 2:13-CV-794-WKW (WO)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

January 19, 2016

MEMORANDUM OPINION AND ORDER

Mere administrative difficulty does not interpose such flexibility into the requirements of NEPA as to undercut the duty of compliance "to the fullest extent possible." But if this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research - and time - available to meet the Nation's needs are not infinite.

Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972) (quoting 42 U.S.C. § 4332; footnote omitted).

In these consolidated cases, Plaintiff Black Warrior Riverkeeper, Inc., seeks declaratory and injunctive relief to require Defendants to perform a comprehensive supplemental environmental impact statement ("SEIS") for the Northern Beltline Project, a proposed six-lane controlled-access highway north of Birmingham, Alabama. Before the court are Plaintiff's and Defendants' cross-motions for summary judgment. (Docs. # 163, 165, 167.) The parties have fully briefed the motions and have submitted evidence in support of their opposing positions. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendants' motions are due to be granted and Plaintiff's motion is due to be denied.

I. DEFINITIONS

This case involves numerous federal agencies, statutes, and regulations pertinent to environmental issues. The multiplicity of acronyms and terms of art can be confusing. For clarity, the relevant ones are defined as follows:

• AOI: Area of influence. The geographic area within which the project's indirect and cumulative environmental effects are expected to occur. (USACOE000629; USACOE000677.)

• ALDOT: Alabama Department of Transportation.

• APA: Administrative Procedure Act, 5 U.S.C. §§ 701-06.

• AR: Documents from the administrative record submitted by FHWA are designated with this prefix.

• CEQ: Council on Environmental Quality. NEPA established CEQ as a research and advisory body in the Executive Office of the President of the United States. 42 U.S.C. §§ 4342-44. CEQ issues general regulations for implementing NEPA; each federal agency then issues its own implementing regulations not inconsistent with CEQ regulations. 42 U.S.C. § 4332(B); 40 C.F.R. § 1500.1(a); 40 C.F.R. § 1500.2; 40 C.F.R. § 1500.3; 40 C.F.R. § 1500.6; Robertson v. Methow ValleyCitizens Council, 490 U.S. 332, 354 (1989).

• COE: Army Corps of Engineers.

• CWA: Clean Water Act, 33 U.S.C. § 1251 et seq.

• Cumulative impact: a major federal action's "impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7. Sometimes also referred to as "cumulative effect."¹

• Direct impact: an effect of a major federal action that is "caused by the action and occur[s] at the same time and place." 40 C.F.R. § 1508.8(a). Also referred to as a "direct effect." Id.

• Eastern section: the section of the Northern Beltline that joins I-65 with the eastern terminus of the Beltline at I-59 in Trussville.

• EA: Environmental assessment, which is a concise public document that "(1) [b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement [('EIS')] or a finding of no significant impact [('FONSI'),] (2) [a]ids an agency's compliance with the Act when no [EIS] is necessary[, and] (3) [f]acilitate[s] preparation of a statement when one is necessary." 40 C.F.R. § 1508.9(a).

• EIS: Environmental impact statement, which is the detailed written statement required by section 102(2)(C) of NEPA, 42 U.S.C. § 4332, discussing the environmental impacts of, and proposed alternatives to, a major federal action. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11. An EIS can be a draft environmental impact statement, a final environmental impact statement ("FEIS"), or a supplemental environmental impact statement ("SEIS). 40 C.F.R. § 1502.9.

• The EIS Action: The action Plaintiff filed in April 2011 against the Highway Defendants. In the EIS action, Plaintiff challenges the approval of the 2012 Re-evaluation.

• FEIS: Final environmental impact statement. Drafting environmental impact statements involves a number of steps, including circulation of drafts, makingrevisions, responding to public comments, and so forth. The final product of this process is the FEIS. 40 C.F.R. § 1502.9 (b). The fact that the FEIS is a called a "final" environmental impact statement does not mean that additional environmental impact statements will not be required in the event that new information comes to light or changes occur that are relevant to the environmental impacts of the project. See "SEIS," infra.

• FHWA: Federal Highway Administration.

• FONSI: Finding of no significant impact, which is "a document by a Federal agency briefly presenting the reasons why an action . . . will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared. It shall include the [EA] or a summary of it and shall note any other environmental documents related to it." 40 C.F.R. § 1508.13.

• Highway Defendants: Collectively, FHWA, Mark Bartlett in his official capacity as Division Administrator of FHWA, ALDOT, and John Cooper in his official capacity as director of ALDOT. The Highway Defendants are the defendants in the lead case, Case No. 2:11-CV-267-WKW-WC, in which Plaintiff challenges the sufficiency of a re-evaluation of the SEIS for the Northern Beltline.

• Indirect impact: an effect of a major federal action that is "caused by the action and [is] later in time or farther removed in distance, but [is] still reasonably foreseeable. Indirect [impacts] may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." 40 C.F.R. § 1508.8(b). Sometimes also referred to as an "indirect effect." Id.

• NEPA: National Environmental Policy Act, 42 U.S.C. §§ 4321-47. NEPA requires federal agencies to prepare an EIS before undertaking major federal action that will significantly affect the quality of the human environment. 42 U.S.C. § 4332.

• ROD: Record of Decision. When an agency is required to prepare an EIS, the agency is not allowed to make a decision on a proposed action until certain time periods have expired after the publication of the EIS. 40 C.F.R. § 1506.10. At the time the agency makes the decision, it prepares a concise public ROD, which states what the decision is, identifies all alternatives considered, and discusses the means adopted to avoid or minimize the environmental harm from the decision. 40 C.F.R. § 1505.2.

• 2012 Re-evaluation: Refers to a Re-evaluation that was completed in 2012 toreview the continuing validity of the FEIS and ROD for the Northern Beltline Project. FHWA regulations require a written evaluation of a FEIS "before further approvals may be granted" when, as in this case, major steps to advance the project have not occurred within three years after completion of the FEIS. 23 C.F.R. § 771.129(b). The purpose of the re-evaluation is to determine whether a SEIS is needed for the project. See S. Trenton Residents Against 29 v. Fed. Highway Admin., 176 F.3d 658, 661 (3d Cir. 1999).

• § 404 permit: a permit issued by COE pursuant to § 404 of the CWA. In the absence of § 404 permit, the discharge of pollutants, including dredged or fill material, into the waters of the United States is prohibited. 33 U.S.C. § 1311(a); 33 U.S.C. § 1344.

• The § 404 permit action: The action Plaintiff filed in 2013 against COE, COE's district commander, ALDOT, and ALDOT's director. In the § 404 permit action, Plaintiff challenges a § 404 permit issued for a 1.86-mile section of the beltline joining SR 75 and SR 79. The 1.86-mile section is located wholly within the eastern section of the Beltline.

• SEIS: Supplemental environmental impact statement. A SEIS is a supplement to a FEIS. Supplementation is required when "the agency makes substantial changes in the proposed action that are relevant to environmental concerns[,] or" when "there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1); 23 C.F.R. § 771.130(a). See also 23 C.F.R. § 771.130(a) (requiring supplementation "whenever [FHWA] determines that: (1) [c]hanges to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or (2) [n]ew information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS."). The duty to consider the necessity of a supplement is a continuing duty so long as major federal action remains to occur. 42 U.S.C. § 4331(b); Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989).

• SR: State route.

• Tiering: "Tiering refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the

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