City of Crossgate v. U.S. Dep't of Veterans Affairs

Citation526 F.Supp.3d 239
Decision Date18 March 2021
Docket NumberCivil Action No. 3:18-cv-167-CHB
Parties CITY OF CROSSGATE, Plaintiff, v. U.S. DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.
CourtU.S. District Court — Western District of Kentucky

Clay A. Barkley, Randal A. Strobo, Strobo Barkley PLLC, Louisville, KY, Thomas Joseph Fitzgerald, Kentucky Resources Council, Inc., Frankfort, KY, for Plaintiff.

Reuben S. Schifman, U.S. Department of Justice - Environmental Enforcement, Washington, DC, Timothy D. Thompson, U.S. Attorney Office, Louisville, KY, for Defendant U.S. Department of Veterans Affairs.

Timothy D. Thompson, U.S. Attorney Office, Louisville, KY, for Defendant David J. Shulkin 810 Vermont Avenue, N.W. Washington, DC 20420.


This matter is before the Court on the partiescross-motions for summary judgment. [R. 33, 37] Various responses and replies were filed. [R. 36, 40, 41, 42] For the reasons explained below, the Court grants Defendant United States Department of Veterans AffairsCross-Motion for Summary Judgment. [R. 37]

I. Background

The U.S. Department of Veterans Affairs (VA) operates a medical center, located on Zorn Avenue in Louisville, Kentucky. Between 1998 and 2004, the VA completed a nationwide assessment of its facilities and identified the Louisville medical center as one that needed to be replaced due to the projection that the medical center would not have enough space to meet the future health care needs of the region's veterans. [R. 36 at 3-4; VA-008181 ] In 2009, the VA conducted a feasibility study to consider reconfiguration options for the existing medical center but concluded that a new medical center at a different location would ultimately best meet future needs. [VA-04317] Specifically, the VA "concluded that a full replacement hospital on a greenfield (previously undeveloped) site would likely be least expensive, fastest to delivery, and [have] the least adverse impact on ongoing Veteran access to care and services." [VA-04326] The VA began the long process of finding available property that could eventually serve as the location of a newly constructed replacement medical center. [VA-04327] After receiving offers and screening the options based on various criteria, the VA identified four potential locations, referred to as the Brownsboro site, the St. Joseph site, the Fegenbush site, and the downtown site,2 as well as continuing to consider the option to reconfigure the existing medical center. [VA-04327] In 2011, the VA began its environmental review process under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), a process that will be discussed in greater detail below, and in 2017 made the final decision that the new VA medical center would be constructed on the Brownsboro site. [VA-30606]

Next door to the Brownsboro site is the City of Crossgate. [R. 1 at 3] It is comprised of about 100 single family homes and around 240 citizens. [Id. ] Crossgate did not take well to the VA's plans to construct a new medical center, with approximately 1,000,000 square feet of building space in an adjacent field, without completing a "full and adequate review of the environmental impact" the project would have, as required by NEPA. Therefore, Crossgate sued under NEPA and the Administrative Procedure Act (APA), 5 U.S.C. § 706, seeking a declaratory judgment and injunctive relief requiring the VA to comply with NEPA and prohibit any construction until the VA has done so. [R. 1] Crossgate and the VA ultimately filed cross-motions for summary judgment on the APA and NEPA claims, based on the administrative record before the Court.

II. Standard

"Summary judgment is proper if the record shows that no genuine dispute exists as to any material fact, and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Kentucky Riverkeeper, Inc. v. Rowlette , 714 F.3d 402, 407 (6th Cir. 2013). Additionally, a federal agency's compliance with NEPA is reviewed under the Administrative Procedure Act's arbitrary and capricious standard. Friends of Tims Ford v. Tennessee Valley Authority , 585 F.3d 955, 967 n. 3 (6th Cir. 2009) ("NEPA does not authorize a private right of action but judicial review is granted through the APA" (citations omitted)); Save Our Cumberland Mountains v. Kempthorne , 453 F.3d 334, 339 (6th Cir. 2006) ("When faced with a lawsuit under [NEPA], a federal court has authority to review the agency's action under the [APA]"). The APA directs courts to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency's decision is arbitrary and capricious when the agency has:

relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Nat'l Ass'n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).

Therefore, "[j]udicial review of NEPA compliance is limited in scope." Kentucky Riverkeeper , 714 F.3d at 407 (quoting Cmtys., Inc. v. Busey , 956 F.2d 619, 623 (6th Cir. 1992) ). Federal agencies have "considerable discretion" in carrying out NEPA obligations and judicial review is through a "deferential lens"—the arbitrary and capricious standard. Klein v. U.S. Dep't of Energy , 753 F.3d 576, 580 (6th Cir. 2014). This involves a "searching and careful" review that asks "whether the agency adequately studied the issue and took a hard look at the environmental consequences of its decision, not whether the agency correctly assessed the proposal's environmental impacts." Id. (quoting Marsh v. Oregon Natural Res. Council , 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) and Save Our Cumberland Mountains , 453 F.3d at 339 ). And while an agency must take a "hard look," it is "equally well established" that the "hard look" requirement is "tempered by a practical ‘rule of reason.’ " Mason Cty. Med. Ass'n v. Knebel , 563 F.2d 256, 264 (6th Cir. 1977) ; Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers , 746 F.3d 698, 710 (6th Cir. 2014).

III. The National Environmental Policy Act

The National Environmental Policy Act (NEPA) was "enacted to promote efforts by federal agencies to prevent damage to the environment and advance human health and welfare." Latin Americans for Soc. & Econ. Dev. v. Adm'r of Fed. Highway Admin. , 756 F.3d 447, 462 (6th Cir. 2014) ; 42 U.S.C. § 4321. It requires federal agencies planning "major Federal actions significantly affecting the quality of the human environment" to consider the environmental effects of its action and alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). NEPA also established the Council on Environmental Quality (CEQ), 42 U.S.C. § 4321, which issues mandatory regulations for the implementation of the procedural provisions of NEPA. Andrus v. Sierra Club , 442 U.S. 347, 357, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). CEQ's regulations and interpretation of NEPA is "entitled to substantial deference." Id. at 358, 99 S.Ct. 2335 ; Kentucky Riverkeeper , 714 F.3d at 407 (courts "give ‘substantial deference’ to the regulations promulgated by the [CEQ], the federal agency established to fill in the gaps of NEPA's regulatory scheme."). Under NEPA "[t]he role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc. , 462 U.S. 87, 97–98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

NEPA employs a "set of ‘action-forcing’ procedures that require agencies to take a ‘hard look at environmental consequences.’ " Kentucky Riverkeeper , 714 F.3d at 407. Although NEPA and its implementing regulations impose various requirements on federal agencies’ decision-making, it does not require a particular result. Save Our Cumberland Mountains , 453 F.3d at 338. NEPA "serves procedural rather than substantive goals. It does not require agencies to ‘achieve particular substantive environmental results,’ but requires them to ‘collect and disseminate information about the environmental consequences of proposed actions that fall under their respective jurisdictions.’ " Id. (quoting Marsh v. Or. Natural Res. Council , 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) and Sw. Williamson Cty. Cmty. Ass'n, Inc. v. Slater , 243 F.3d 270, 278 (6th Cir. 2001) ); Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).3 Thus, NEPA's requirements are meant to simply "integrate environmental concerns into the very process of agency decisionmaking." Save Our Cumberland Mountains , 453 F.3d at 338 (cleaned up) (quoting Andrus , 442 U.S. at 350, 99 S.Ct. 2335 ).

To ensure an agency takes the required "hard look" at the environmental consequences of its actions, NEPA requires federal agencies to prepare a "detailed statement" called an "environmental impact statement" (EIS) for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C) ; Kentucky Riverkeeper , 714 F.3d at 407. However, "[t]o spare agencies the hardship of conducting exhaustive review of every [federal] proposal's environmental impact, [the] CEQ authorized agencies to first prepare a less burdensome environmental assessment as a method for determining whether a proposal needed an environmental impact statement." Kentucky Riverkeeper , 714 F.3d at 407–08 ; 40 C.F.R. § 1508.9.4 Thus, two types of NEPA documents are the ...

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