Canyon v. U.S. Dep't of Energy

Decision Date14 November 2011
Docket NumberNo. C 11–01564 WHA.,C 11–01564 WHA.
Citation830 F.Supp.2d 737
CourtU.S. District Court — Northern District of California
PartiesSAVE STRAWBERRY CANYON, Plaintiff, v. U.S. DEPARTMENT OF ENERGY, et al., Defendants.

OPINION TEXT STARTS HERE

Michael Robert Lozeau, Richard Toshiyuki Drury, Lozeau Drury LLP, Oakland, CA, for Plaintiff.

Barclay Thomas Samford, United States Department of Justice, Denver, CO, Sunil R. Kulkarni, UC Office of the President Office of the General Counsel, Oakland, CA, Peter Christopher Whitfield, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT, MOTION TO AUGMENT THE RECORD, REQUESTS FOR JUDICIAL NOTICE, AND MOTION TO STRIKE

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this NEPA action, the parties bring cross-motions for summary judgment. Plaintiff moves to augment the record and makes three requests for judicial notice. Defendants move to strike plaintiff's opposition to defendants' motion for summary judgment and reply in support of plaintiff's motion for summary judgment. This order follows full briefing and oral argument. For the reasons stated below, the defendants' motion for summary judgment is Granted. Plaintiff's motion for summary judgment is Denied. Plaintiff's motion to augment the record is Denied. Plaintiff's requests for judicial notice are Granted, to the extent stated below. Defendants' motion to strike is Denied as Moot.

STATEMENT

This action arises from the proposed construction of the Computational Research and Theory Facility Project (“CRT project”). In an earlier action, this Court held that a federal NEPA review was required, even though the University of California was the developer, because of the role of the United States Department of Energy in the project. That federal agency has now done the NEPA review and the pending question in this new action is whether the federal review was sufficient. The Department of Energy found that the CRT project will not have a significant impact on the quality of the human environment and does not require an environmental impact statement (“EIS”) pursuant to the National Environmental Policy Act.

DOE's stated purpose for the proposed action is “to support DOE [Office of Sciences'] mission in Computational Research and Theory by operating the [National Energy Research Scientific Computing Center (‘NERSC’) ] as the premier computing user facility for the research community, and by conducting programmatic and applied research and development in computational science, computer science, and applied mathematics” (AR 29). Under the proposed CRT project, NERSC would be relocated to the new CRT facility. A description and history of the project follows.

1. The CRT Project.

The proposed CRT project comprises the following: (1) Construction of a new “three-story facility and associated infrastructure that would be constructed at the Lawrence Berkeley National Laboratory (“LBNL”) site by the University of California” on University-owned land. The facility would become the new home to various LBNL and NERSC programs and computations equipment; (2) Relocation of DOE's NERSC, which includes two supercomputing systems, data storage systems, and staff from Oakland to the proposed CRT facility; and (3) Relocation of LBNL's Computational Research Division and the joint UC Berkeley/LBNL Computational Science and Engineering programs to the proposed CRT facility (AR 28–30).

The proposed 2.25 acre site for the CRT facility is located in the “western portion of the LBNL site, in the eastern hills of the cities of Berkeley and Oakland in Alameda County, California” (AR 30). It is approximately 122 meters (400 feet) east of the eastern trace of the Hayward fault (AR 73). The proposed site is flanked on three sides by buildings (AR 30). The sloped terrain of the site is vegetated with “75 eucalyptus and a few oak and bay trees” ( ibid.). The proposed facility is designed to be “green” and meet Leadership in Energy and Environmental Design (“LEED”) gold standards (AR 144). The facility would consist of (AR 30):

approximately 3,000–square–meter (32,000 gross square feet [gsf] ) [high-performance computing] floor with a high ceiling and two additional floors of office space for a total of approximately 12,980 square meters (139,700 gsf). The computer floor would consist of two 10,000–square–foot (sf) column-free spaces flanking a central 12,000–sf space with no more than four columns.

Approximately 300 staff from LBNL programs would be relocated to the new facility (AR 29). At full implementation, the facility would require five 20–foot high cooling towers for cooling the supercomputers, located near the exterior southeast side of the high-performance computing portion of the facility (AR 50).

2. History of the CRT Project.

In 2007, the University of California adopted what it refers to as a Long Range Development Plan (“LRDP”). The University determined that the CRT project was part of the growth projected under the LRDP, and, in compliance with the California Environmental Quality Act (“CEQA”), the University evaluated the CRT project for its environmental impacts in an environmental impact report (“EIR”) (AR 33). The University approved the CRT project (AR 33). Plaintiff Save Strawberry Canyon filed an action in state court challenging the University's environmental review of the CRT project under CEQA. Plaintiff abandoned that effort and requested dismissal of that action. It was dismissed on December 1, 2008 (Whitfield Exh. 1).

Plaintiff Save Strawberry Canyon then filed a federal complaint seeking declaratory relief, specifically, it sought a declaration that the project was a major federal action governed by NEPA. Plaintiff also sought injunctive relief to halt the project until defendants completed an environmental impact review. At that time, Save Strawberry Canyon earned a reprieve when the undersigned judge held that a federal agency was behind the planned construction project, and, therefore, the federal agency had to carry out the NEPA process. That agency—the United States Department of Energy—has now done so. This has been in addition to the full California environmental CEQA review undertaken on behalf of the University of California in whose name the project was initiated.

Pursuant to this Court's decision in Save Strawberry Canyon v. DOE, 613 F.Supp.2d 1177 (N.D.Cal.2009), DOE undertook a NEPA review and conducted an environmental assessment of the CRT project. DOE conducted a study of 14 environmental impacts: (1) geology and soils; (2) water resources; (3) hazards, human health, and accidents; (4) biological resources; (5) cultural resources; (6) visual resources; (7) air quality; (8) greenhouse gases; (9) noise; (10) transportation and traffic; (11) utilities and waste management; (12) public services; (13) population and housing, socioeconomics, and environmental justice; and (14) construction traffic accidents (AR 18, 69–111). (As to this list, plaintiff challenges DOE's analysis and conclusions as to noise, traffic, and GHG emissions.) DOE provided opportunities for public comment and input. DOE evaluated five other alternatives, including a no-action alternative (AR 31–32). As part of its study, DOE engaged and relied upon expert consultants to perform studies related to noise, traffic, and GHG emission impacts, and LBNL's geotechnical expertise.

On September 15, 2010, DOE released a draft environmental assessment (“EA”) for a 30–day public comment period (AR 1585, 1591). Plaintiff, two public agencies, six different organizations, and twelve individuals provided comments on the draft EA (AR 326–27, 754–62, 759, 768–1506, 1570–78, 1582, 1584). DOE held a public information meeting to discuss the project on September 20, 2010 (AR 1585, 1587). DOE addressed comments received on the draft EA (AR 323–90). On February 25, 2011, DOE issued a finding of no significant impact (“FONSI”), concluding that the anticipated impacts of the CRT project would not have a significant environmental impact (AR 6–13). DOE released a final EA deciding not to prepare an EIS for the CRT project.

* * * * * *

This follow-on action was filed on March 31, 2011, challenging DOE's finding of no significant impact and use of an EA rather than an EIS. The complaint alleges two claims for violations of NEPA and the Administrative Procedure Act. Plaintiff seeks a declaratory judgment and injunctive relief preventing defendants from funding the CRT project or initiating any activities in furtherance of it that could change or alter the physical environment unless defendants prepare an EIS in compliance with NEPA.

The question is whether the DOE environmental review has been in compliance with NEPA and the APA. DOE performed an environmental assessment and found that the project would have no significant environmental impact. Based on this finding, DOE did not undertake a full-scale EIS.

We must always remember that NEPA is a procedural—not a substantive—statute. Once the agency takes a hard look at the environmental consequences of the proposed action, the agency is free to destroy the environment. NEPA does not require, in making the substantive decision, that any extra weight be given to environmental preservation, sad as that sometimes is.

The administrative record was lodged in May 2011, and supplemented in June 2011 (Dkt. Nos. 12, 30). It contains over sixteen thousand pages of documents. After the administrative record was completed, cross-motions for summary judgment were filed and fully briefed. Plaintiff filed a motion to augment the record and a request for judicial notice. Plaintiff filed two additional requests for judicial notice. Defendants filed a motion to strike. This order follows a hearing on the motions.

ANALYSIS

NEPA has no specific judicial review provision. NEPA actions are, instead, reviewable under the APA. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882–83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Under the APA,...

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    ...WildEarth Guardians v. Jewell, 738 F.3d 298, 310 & n.5, 44 ELR 20001 (D.C. Cir. 2013); Save Strawberry Canyon v. U.S. Dep’t of Energy, 830 F. Supp. 2d 737, 754-55, 41 ELR 20344 (N.D. Cal. 2011). In no cases, however, does it appear that a court overturned an agency’s NEPA analysis because i......

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