Citizens against Pellissippi v. Mineta, 02-6536.

• Citation: 375 F.3d 412
• Decision Date: 07 July 2004
• Docket Number: No. 02-6536.,02-6536.
• Parties: CITIZENS AGAINST THE PELLISSIPPI PARKWAY EXTENSION, INC., Plaintiff-Appellee, v. Norman Y. MINETA, Secretary of the United States Department of Transportation, official capacity; Mary Peters, Administrator of the Federal Highway Administration, official capacity; Charles Boyd, Division Administrator for the Nashville Division, FHWA, official capacity, Defendants-Appellants, J. Bruce Saltsman, Commissioner of the Tennessee Department of Transportation, individual and official capacities; Charles Bush, Manager of Environmental Planning and Permits for TDOT, individual and official capacities, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

375 F.3d 412

CITIZENS AGAINST THE PELLISSIPPI PARKWAY EXTENSION, INC., Plaintiff-Appellee, v. Norman Y. MINETA, Secretary of the United States Department of Transportation, official capacity; Mary Peters, Administrator of the Federal Highway Administration, official capacity; Charles Boyd, Division Administrator for the Nashville Division, FHWA, official capacity, Defendants-Appellants, J. Bruce Saltsman, Commissioner of the Tennessee Department of Transportation, individual and official capacities; Charles Bush, Manager of Environmental Planning and Permits for TDOT, individual and official capacities, Defendants.

No. 02-6536.

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2004.

Decided and Filed July 7, 2004.

Joe W. McCaleb (argued and briefed), Hendersonville, TN, for Plaintiff-Appellee.

Michael L. Roden, Asst. U.S. Attorney, Nashville, TN, John L. Smeltzer (argued and briefed), U.S. Department of Justice Environment Division Appellate Section L'Enfant Plaza Station, Washington, DC, James C. Thomason, III, Regional Counsel, Office of the Federal Highway Administration, Linda J. Amidon, Federal Highway Administration Southern Legal Services, Atlanta, GA, for Defendants-Appellants.

Before: MARTIN and ROGERS, Circuit Judges; BELL, Chief District Judge.^*

OPINION

ROGERS, Circuit Judge.

To comply with the National Environmental Policy Act (NEPA), the Federal Highway Administration (the "FHWA"), in conjunction with federal and state agencies, issued a finding of no significant impact ("FONSI") for a proposed 4.5 mile extension of a highway in Tennessee. Subsequently, a citizens group opposed to the extension brought suit in federal district court alleging that the agency's finding violated NEPA because it did not address a specific federal regulation. The district court issued a broad preliminary injunction that prevented state or federal agencies from "planning, financing, contracting land acquisition, [or] construction" for the highway extension. In response, the FHWA withdrew the FONSI and sought a voluntary remand so that it could reconsider its decision. The district court denied the FHWA's motion for a remand. The FHWA now appeals, arguing that it acted properly by withdrawing the FONSI, that the district court erred in refusing to modify the injunction to allow the agency to reconsider the FONSI, and that the agency is entitled to a voluntary remand to consider the regulation that it did not address in the preparation of the initial FONSI. Because the district court erred in denying the FHWA an opportunity to revisit its decision, we reverse the judgment of the district court and remand the case to the district court with instructions to vacate or modify the injunction so as to allow the FHWA to comply with NEPA.

Tennessee state route 162, the Pellissippi Parkway, presently runs from state route 62 in Knox County and ends at state route 33 in adjacent Blount County. The Tennessee Department of Transportation (the "TDOT") proposed the Pellissippi Parkway Extension Project, which would extend the Pellissippi Parkway 4.5 miles to relieve congestion in the Smoky Mountain gateway towns of Maryville and Alcoa. The project calls for the construction of a four-lane limited access highway with a grassy median, and would require the acquisition of 155 acres of new right-of-way land.

There is no dispute that the project is a "major Federal action" subject to the National Environmental Policy Act. See 42 U.S.C. § 4332(C); see generally 42 U.S.C. § 4321 et seq. NEPA sets forth essentially procedural requirements to assess environmental impacts of major federal actions. See 42 U.S.C. § 4332(C); Southwest Williamson County Cmty. Ass'n v. Slater, 243 F.3d 270, 278 (6th Cir.2001). In general, NEPA requires agencies to prepare an Environmental Impact Statement (an "EIS") for any major federal action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(C). An EIS provides an extensive explanation of the environmental impacts of, and possible alternatives for, a proposed major federal action. Id.

Regulations promulgated by the Council on Environmental Quality, implementing NEPA, require federal agencies to prepare an EIS for any proposed major federal action, unless the action is categorically excluded or unless the project would not have a significant impact on the environment. See 40 C.F.R. §§ 1500.3, 1501.4. If an agency is unsure as to whether a project would significantly affect the quality of the human environment, an agency may postpone the preparation of an EIS and prepare an Environmental Assessment (an "EA"), which briefly provides sufficient evidence and analysis for determining whether there is a significant environmental impact. Id.; 40 C.F.R. § 1508.9. After analyzing the EA, the agency decides whether to prepare an EIS or issue a finding of no significant impact. 40 C.F.R. § 1501.4(e); 40 C.F.R. § 1508.13. A FONSI briefly presents the reasons why an agency action will not create a significant environmental impact and why an EIS will not be issued. 40 C.F.R. § 1508.13.

FHWA regulations in turn guide that agency's determination whether to prepare an EIS or an EA and a FONSI. These regulations divide FHWA actions into three classes. "Class I" actions "significantly affect the environment and require an EIS." 23 C.F.R. § 771.115(a). "Class II" actions do not "have a significant environmental effect," and thus do not require an EIS or an EA. 23 C.F.R. § 771.115(b). The remaining category of Class III actions encompasses those actions "in which the significance of the environmental impact is not clearly established." 23 C.F.R. § 771.115(c). Class III actions necessitate the preparation of an EA "to determine the appropriate environmental document required." Id. The FHWA regulations list "examples" of Class I projects, and the examples include "(1) A new controlled access freeway" and "(2) A highway project of four or more lanes on a new location." 23 C.F.R. § 771.115(a).

The FHWA issued an EA for the extension project on October 3, 2001. Roughly seven months later, on April 24, 2002, the FHWA issued a FONSI for the project. Neither the EA nor the FONSI discussed the apparent Class I nature of the project. However, the FONSI allowed the project to move forward. 23 C.F.R. § 771.113(a)(1).

On June 7, 2002, a not-for-profit corporation called the Citizens Against the Pellissippi Parkway Extension, or CAPPE, filed suit against the FHWA and TDOT officials in federal district court to enjoin further action on the project. CAPPE consists of Blount County residents who own property that would be affected by the project. The complaint alleged that because the project fit within Class I of the FHWA regulations, the FONSI needed to explain why an EIS was not needed, in light of the provisions of 23 C.F.R. § 771.115(a).

On June 26, 2002, in response to the lawsuit, Charles S. Boyd, the Tennessee Division Administrator for the FHWA, informed the TDOT that the FHWA was suspending federal funding for the project until further notice. Thereafter, the district court held a hearing on the injunction. During the hearing, a TDOT representative informed the district court that the TDOT was seriously considering continuing with the project even in the absence of federal funds. On July 17, 2002, the district court granted CAPPE a preliminary injunction that stated:

all Defendants and their officers, agents, employees, servants, attorneys, and all persons in active concert or participation with them are hereby restrained and enjoined from continued planning, financing, contracting, land acquisition, and construction of a four-lane, controlled access highway called the Pellissippi Parkway Extension .... pending further order of the Court.

Over a month later, on August 29, 2002, Boyd informed the TDOT that the FHWA was withdrawing the FONSI for the project. Boyd's letter to the TDOT stated that the FHWA was taking "additional administrative actions" on the project, and as a consequence all federal funds would be suspended from the project. The letter also warned the TDOT that if the state were to proceed with the project, the state would "jeopardize the project for future federal-aid funding."

Subsequently, the FHWA¹ moved the district court for a voluntary remand of the case to the FHWA for further review or to dismiss the case as moot because the FHWA had withdrawn the FONSI and stopped the federal funding of the project. On October 1, 2002, the district court denied the FHWA's motion because of Tennessee's expressed desire to continue with the project absent federal funding. The FHWA filed a motion for reconsideration, but the district court denied that motion as well. The FHWA now appeals.²

The district court improperly failed to vacate or modify the injunction, because in doing so it precluded the agency from acting to comply with the very statute that formed the basis for the lawsuit. The injunction essentially prevents the FHWA from all "planning" associated with the project, including the planning necessary to complete an EIS or another FONSI. Although the FHWA's motion to the district court was styled as a motion for voluntary remand, the motion may appropriately be considered as a motion to modify the injunction so that it could continue to prepare a proper FONSI or EIS. The district court itself considered the motion to remand as an attempt by the FHWA to dissolve the injunction and refused to do so, citing the potential for irreparable harm to CAPPE.

It is only if we consider the motion as one to deny modification of the injunction that we even have jurisdiction over an appeal from the district court's denial of the motion. While we generally lack jurisdiction over interlocutory appeals, 28 U.S.C. § 1292(a)(1) gives this court jurisdiction over interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or...