Coal. for the Advancement of Reg'l Transp. v. Fed. Highway Admin., 13-6214

• Decision Date: 07 August 2014
• Docket Number: No. 13-6214,13-6214
• Parties: COALITION FOR THE ADVANCEMENT OF REGIONAL TRANSPORTATION, Plaintiff-Appellant, v. FEDERAL HIGHWAY ADMINISTRATION; VICTOR M. MENDEZ, In his Official Capacity as Administrator of the Federal Highway Administration; JOSE SEPULVEDA, In his Official Capacity as Division Administrator, Kentucky Division, Federal Highway Administration; KAREN BOBO, in her Official Capacity as Acting Indiana Division Administrator, Federal Highway Administration, Defendants-Appellees, and INDIANA DEPARTMENT OF TRANSPORTATION; MICHAEL CLINE, In His Official Capacity as Commissioner, Indiana Department of Transportation; KENTUCKY TRANSPORTATION CABINET; MICHAEL W. HANCOCK, In His Official Capacity as Secretary, Kentucky Transportation Cabinet; KENTUCKIANS FOR PROGRESS, INC., Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

COALITION FOR THE ADVANCEMENT OF

REGIONAL TRANSPORTATION, Plaintiff-Appellant, v. FEDERAL HIGHWAY ADMINISTRATION; VICTOR M. MENDEZ,

In his Official Capacity as Administrator of the Federal Highway Administration;

JOSE SEPULVEDA, In his Official Capacity as Division Administrator,

Kentucky Division, Federal Highway Administration;

KAREN BOBO, in her Official Capacity as Acting Indiana Division Administrator,

Federal Highway Administration, Defendants-Appellees,

and INDIANA DEPARTMENT OF TRANSPORTATION;

MICHAEL CLINE, In His Official Capacity as Commissioner,

Indiana Department of Transportation; KENTUCKY TRANSPORTATION CABINET;

MICHAEL W. HANCOCK, In His Official Capacity as Secretary, Kentucky Transportation Cabinet;

KENTUCKIANS FOR PROGRESS, INC., Intervening Defendants-Appellees.

No. 13-6214

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

AUGUST 7, 2014

NOT RECOMMENDED FOR PUBLICATION

File Name: 14a0608n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

BEFORE: GRIFFIN and DONALD, Circuit Judges; and GRAHAM, District Judge.^*

GRIFFIN, Circuit Judge.

Plaintiff Coalition for the Advancement of Regional Transportation alleges that defendants failed to comply with the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), when they approved the Louisville-Southern Indiana Ohio River Bridges Project, a $2.6 billion construction and transportation management program designed to improve mobility across the Ohio River in the Louisville metropolitan area. The district court granted summary judgment in favor of defendants on all claims. We affirm.

I.

Plaintiff is a volunteer member, tax exempt 501(c)(3) organization, incorporated in 1993 in Louisville, Kentucky, for the purpose of promoting sustainable and equitable, regional, modern transit planning. There are two categories of defendants in this case: the federal defendants and the state defendants. The federal defendants include the Federal Highway Administration ("FHA"); Victor Mendez, Administrator of the FHA; Karen Bobo, Indiana Division Administrator of the FHA; and Jose Sepulveda, Kentucky Division Administrator of the FHA. The state defendants include Kentucky; Michael W. Hancock, Secretary of the Kentucky Transportation Cabinet; Indiana; and Michael B. Cline, Commissioner of the Indiana Department of Transportation.

The saga of the Louisville-Southern Indiana Ohio River Bridges Project (the "Project") spans over twenty years and includes an Administrative Record in excess of 150,000 pages. The relevant background set forth by the district court is reproduced below:

Currently, three bridges provide transit across the Ohio River between Jefferson County in Kentucky and Clark County in Southern Indiana. Beginning with the western-most bridge, the Sherman Minton Bridge carries I-64 traffic between West Louisville and New Albany, Indiana. About four miles to the east is the downtown George Rogers Clark Memorial Bridge, which carries U.S. 31 traffic across the Ohio River. Finally, less than half a mile to the east of the Clark Memorial Bridge lies the John F. Kennedy Memorial Bridge ("Kennedy Bridge"), which carries I-65 traffic between downtown Louisville and Jeffersonville, Indiana.

Over the course of a decade, Defendants investigated cross-river traffic issues and the possibility of alleviating problems by building a fourth bridge in East Louisville and reconstructing the existing transportation infrastructure. This culminated in the Project, which is a roughly $2.6 billion construction and transportation management program designed to improve mobility across the Ohio River between Louisville and Southern Indiana. The Project addresses current cross-river traffic congestion and safety needs, provides better navigability within the existing transportation system, and improves cross-river mobility, especially in light of existing and anticipated population and employment patterns in the region. In its current iteration, the Project includes the following five major elements:

• Downtown Crossing: Defendants will reconstruct, expand, and reconfigure the Kennedy Bridge. The existing but reconstructed Kennedy Bridge will carry six lanes of southbound I-65 traffic. Defendants will construct a new bridge parallel to and immediately upstream of the Kennedy Bridge, and this new span will carry six lanes of northbound I-65 traffic. Defendants will also reconstruct the downtown Louisville I-65/I-64/I-71 Kennedy Interchange ("Kennedy Interchange") and approach roadways in Jeffersonville, Indiana.

• East End Crossing: Defendants will construct a new bridge connecting KY 841 (Gene Snyder Freeway) in eastern Jefferson County, Kentucky, with S.R. 265 (Lee Hamilton Highway) in eastern Clark County, Indiana. The East End Crossing will not be part of the Interstate system.

• Tolling: Defendants will place electronic tolling facilities on the expanded and reconstructed Downtown Crossing (both directions) and the new East End Crossing to assist in financing the Project.

• Transportation Management: Defendants will provide enhanced funding for bus service.

• Mitigation Commitments: Defendants will plan and implement various mitigation strategies aimed at ameliorating potential impacts on the natural and human environment resulting from the Project's implementation.

Since the Project's conception, Defendants have undergone various phases of planning and implementation. [ ] From 1991 to 1994, Kentucky and Indiana sponsored the Metropolitan Louisville Ohio River Bridge Study, which examined four potential cross-river bridge locations. The study recommended further evaluation of two bridge locations in the "Near East" (near the terminus of I-264) and in the "Far East" (near the termini of KY 841 and S.R. 265). In 1995, based on that preliminary study, the Kentuckiana Regional Planning and Development Agency initiated the Ohio River Major Investment Study ("ORMIS"). That study evaluated a wide range of potential transportation schemes to improve cross-river mobility. Ultimately, ORMIS recommended a two-bridge solution, which entailed the construction of a downtown bridge adjacent to the Kennedy Bridge, reconstruction of the Kennedy Interchange, and construction of a bridge in the Far East.

To pursue this recommendation, the States sought federal assistance. To receive federal funding for transportation projects, the FHA must verify that applicants comply with the National Environmental Protection Act ("NEPA"). NEPA prescribes a process that federal agencies must follow before taking any action that significantly affects the environment. [ ]

The FHA initiates the NEPA process by publishing a Notice of Intent to prepare an environmental impact statement ("EIS"). 40 C.F.R. § 1508.22. Following the issuance of the Notice of Intent, the agency prepares a Draft EIS. 40 C.F.R. § 1502.9. The EIS must provide a "full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. Alternative actions, including a No Action Alternative required to be considered by 40 C.F.R. § 1502.13(d), are measured against the Purpose and Need Statement, which explains why the agency is proposing to spend federal money on an action that potentially results in significant environmental impacts. 40 C.F.R. § 1502.13 ("The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.").

Once the agency publishes the Draft EIS, the public may submit comments in response. Next, the agency must issue a Final EIS, which accounts for public comments, addresses opposing views not already discussed in the Draft EIS, and incorporates any further information necessary to justify implementation of the proposed project. 40 C.F.R. § 1502.9. Finally, the FHA will issue a Record of Decision ("ROD") approving the final proposed action prior to its implementation. Occasionally, the FHA must prepare a supplemental EIS to respond to "substantial changes in the proposed action that are relevant to environmental concerns" or "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Id. If the agency issues a supplemental EIS after the ROD, the agency must prepare a revised ROD. 23 C.F.R. § 771.127(b).

On March 27, 1998, the FHA published the Notice of Intent to prepare an EIS based on the ORMIS recommendation. Next, in preparing the Draft EIS, Defendants evaluated the region's transportations issues to compose the Project's Purpose and Need Statement. [ ] Defendants then identified and analyzed a range of alternatives that could possibly meet the Project's objectives.

The FHA published the Draft EIS in November 2001, and a 101-day public comment period followed. The FHA then published the Final EIS in September 2003, reflecting consideration of public input, potential environmental impacts, and possible adaptions to reduce residual problems.

The Final EIS initially screened a variety of alternatives that can be categorized into five major groups:

• Transportation System Management Alternatives (e.g., traffic signal timing and coordination and HOV lanes);

• Transportation Demand Management Alternatives (e.g., carpooling and congestion pricing);

• Mass Transit Alternatives (e.g., rail transit and enhanced bus service);

• Bridge/Highway Alternatives (including five potential cross-river bridge and highway combinations, Kennedy Interchange reconstruction, and a river tunnel alternative); and

• No Action Alternative

Following the initial screening, Defendants advanced three groups of alternatives that most closely met the tenets of the Purpose and Need Statement: the

Transportation Demand Management

...