Friends of the Capital Crescent Trail v. Fed. Transit Admin.

• Decision Date: 19 December 2017
• Docket Number: C/w 17-5161, 17-5174, 17-5175,No. 17-5132,17-5132
• Citation: 877 F.3d 1051
• Parties: FRIENDS OF the CAPITAL CRESCENT TRAIL, et al., Appellees/Cross-Appellants v. FEDERAL TRANSIT ADMINISTRATION, et al., Appellants/Cross-Appellees State of Maryland, Intervenor-Appellant/Cross-Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

877 F.3d 1051

FRIENDS OF the CAPITAL CRESCENT TRAIL, et al., Appellees/Cross-Appellants

v. FEDERAL TRANSIT ADMINISTRATION, et al., Appellants/Cross-AppelleesState of Maryland, Intervenor-Appellant/Cross-Appellee

No. 17-5132

C/w 17-5161, 17-5174, 17-5175

United States Court of Appeals, District of Columbia Circuit.

Argued November 1, 2017

Decided December 19, 2017

Kevin W. McArdle, Attorney, U.S. Department of Justice, argued the cause for appellants/cross-appellees Federal Transit Administration, et al. With him on the briefs were Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Matthew Littleton and Erika Kranz, Attorneys, Paul M. Geier, Assistant General Counsel, U.S. Department of Transportation, and Charles E. Enloe and Joy K. Park, Attorneys.

Nick Goldstein, James M. Auslander, and Gus B. Bauman, Washington, DC, were on the brief for amicus curiae American Road & Transportation Builders Association in support of appellants/cross-appellees.

Albert M. Ferlo, Washington, DC, argued the cause for intervenor-appellant/cross-appellee State of Maryland. With him on the briefs were Eric D. Miller, Seattle, WA, William G. Malley, Washington, DC, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, and Julie T. Sweeney, Assistant Attorney General. Linda DeVuono, Assistant Attorney General, entered an appearance.

Jared M. McCarthy and Milton E. McIver, Landover, MD, were on the brief for amicus curiae Prince George's County, Maryland.

John P. Markovs was on the brief for amicus curiae Montgomery County, Maryland.

Eric R. Glitzenstein, Washington, DC, argued the cause for appellees/cross-appellants Friends of the Capital Crescent Trail, et al. With him on the briefs was David W. Brown. William S. Eubanks, II, Black Mountain, NC, entered an appearance.

Before: Garland, Chief Judge, and Rogers and Srinivasan, Circuit Judges.

Rogers, Circuit Judge:

This case concerns multiple challenges under the National Environmental Policy Act to Maryland's proposed "Purple Line" light rail project. Two orders of the district court are principally at issue. In the first order, the district court directed the Federal Transit Administration ("FTA") to prepare a supplemental Environmental Impact Statement ("SEIS") to analyze the effects of Metrorail's recent safety and ridership problems on the Purple Line's environmental impact and purpose; it also vacated FTA's Record of Decision pending completion of the SEIS. In the second order, the district court rejected other challenges to FTA's final Environmental Impact Statement ("FEIS"). For the following reasons, we reverse the order directing the preparation of a SEIS and vacating the Record of Decision, and we affirm the order rejecting the three challenges to the FEIS presented on appeal.

I.

For over two decades, beginning as early as 1990, the Maryland Transit Administration ("Maryland") has developed plans to construct the "Purple Line"—a 16-mile public transit project that would connect communities in Maryland's Montgomery and Prince George's counties with each other and with other regional transit systems, including the Washington Metropolitan Area Transit Authority's Metrorail system. In 2003, Maryland applied for funding under the "New Starts" program administered by FTA, see 49 U.S.C. § 5309(b)(1) ; 49 C.F.R. pt. 611, to defray part of the Purple Line's construction costs. Notice of Intent to Prepare an EIS, 68 Fed. Reg. 52,452, 52,454 (Sept. 3, 2003). Designed to "foster the development and revitalization of public transportation systems," 49 U.S.C. § 5301(a), the "New Starts" program proceeds in three phases. First, FTA and the applicant together conduct an environmental review, including an analysis under the National Environmental Policy Act ("NEPA"), and develop and compare project alternatives. Id. § 5309(d)(1) ; 23 C.F.R. § 771.109(c)(2). This review culminates in a Record of Decision ("ROD") in which FTA identifies the alternative chosen and demonstrates the project's compliance with NEPA. See id. § 5309(d)(2)(A). In the next two phases, FTA evaluates the project's compliance with other statutory and regulatory criteria not relevant here, finalizes the project's engineering and design, and addresses the project's financial aspects, ultimately deciding whether or not to enter into a grant agreement with the applicant that commits federal funding to the project. Id . § 5309(k).

A.

NEPA, 42 U.S.C. § 4321 et seq ., imposes a set of procedural requirements on federal agencies to "ensure[ ] that the[y] will not act on incomplete information, only to regret [their] decision after it is too late to correct." Marsh v. Or. Nat. Res. Council , 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). It also requires "broad dissemination of information ... [to] permit[ ] the public and other government agencies to react to the effects of a proposed action at a meaningful time." Id. Thus, planned actions that would have an impact on the physical environment will be "fully informed and well-considered." Del. Riverkeeper Network v. FERC , 753 F.3d 1304, 1309–10 (D.C. Cir. 2014) (quotation marks and citation omitted). Among other things, NEPA requires federal agencies proposing to undertake "major Federal actions significantly affecting the quality of the human environment" to prepare an environmental impact statement ("EIS") that compares in detail the foreseeable environmental effects of project alternatives. 42 U.S.C. § 4332(C) ; see also Metro. Edison Co. v. People Against Nuclear Energy , 460 U.S. 766, 772, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). This requires an agency to "take a hard look at environmental consequences" of its proposed action, Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quotation marks and citation omitted), thus ensuring that it will "consider every significant aspect of the environmental impact of a proposed action" and "inform the public" of its analysis and conclusion. Balt. Gas & Elec. Co v. NRDC, Inc. , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Completion of the EIS, however, does not always mark the end of the NEPA process. If "new information" arises that presents "a seri ouslydifferent picture of the environmental landscape," then the agency must prepare a supplemental EIS ("SEIS"). City of Olmsted Falls v. FAA , 292 F.3d 261, 274 (D.C. Cir. 2002) (citation omitted).

Between 2003 and 2008, FTA and Maryland jointly prepared a draft EIS ("DEIS"). See 23 U.S.C. § 139(c)(3) ; 23 C.F.R. §§ 771.109(c)(2), 771.111(a). The DEIS, which was released for public comment in October 2008, discussed eight project design alternatives for the Purple Line. Six were "build" alternatives, contemplating new construction of a light rail or bus rapid transit system at varying investment levels. The seventh was a "transportation systems management" alternative in which there is no new construction but various improvements are made to existing systems. The eighth was the "no-build" alternative, in which no action is taken. See 40 C.F.R. § 1502.14(d). The DEIS compared these alternatives on various grounds, including environmental impact, stating that because "the alternatives generally follow existing roadways and railroad rights-of-way ..., the environmental and community impacts are relatively minor in type and degree for projects of this nature." DEIS, ch. 6, at 6 (Oct. 2008). The DEIS therefore concluded that "[b]ecause all the alternatives would have similar alignment characteristics, [their] impacts on parks, wetlands, historic properties, business properties, and other environmentally sensitive sites would be similar ..., and are thus unlikely to be a differentiating factor among the[m]." Id .

After the close of the comment period, Maryland publicly identified in August 2009 a modified version of the medium-investment light rail option as its "locally preferred alternative" for the Purple Line. See 49 U.S.C. § 5309(d)(2)(A)(i). Although acknowledging that the bus rapid transit option would be more cost-effective than light rail, Maryland identified offsetting benefits underlying its choice of light rail: greater expected ridership (and ability to expand capacity to meet future demand), greater opportunities for local economic development, faster travel times, and (importantly) local government support. Purple Line Locally Preferred Alternative, at 4 (Aug. 2009).

Upon further study by Maryland and FTA, and public involvement, FTA issued the Purple Line's final EIS ("FEIS") in August 2013. The FEIS sets forth the project's three purposes:

(1) Provide faster, more direct, and more reliable east–west transit service connecting the major activity centers in [Montgomery and Prince George's counties, including] Bethesda, Silver Spring, Takoma/Langley Park, College Park, and New Carrollton,

(2) Provide better connections to Metrorail services located in the corridor, and

(3) Improve connectivity to the communities in the corridor located between the Metrorail lines.

FEIS, ch. 1, at 1 (Aug. 28, 2013). With reference to these purposes, the FEIS compares in detail Maryland's preferred light rail alternative and the "no-build" alternative. It includes chapters on adverse environmental effects resulting from construction and operation, indirect effects, impacts on nearby historic properties, mitigation and minimization measures, FTA's responses to public comments, and technical reports on noise impacts, travel forecasts, and other issues. In addition, the FEIS compares the alternatives' transportation-related effects, including future ridership forecasts and impacts on low-income and minority communities. It also incorporates by reference the earlier analysis of alternatives contained in the DEIS.

Id. ch. 2, at 1. In total, including technical reports, the FEIS is over eight hundred pages.

Based on the FEIS, DEIS, and other supporting...