Japanese Vill., LLC v. Fed. Transit Admin.
| Decision Date | 06 December 2016 |
| Docket Number | No. 14-56973,No. 14-56837,14-56837 |
| Citation | 843 F.3d 445 |
| Parties | Japanese Village, LLC, a California Limited Liability Company, Plaintiff–Appellant, v. Federal Transit Administration; Carolyn Flowers, in her official capacity as Acting Administrator of the Federal Transit Administration; Leslie T. Rogers, in his official capacity as Regional Administrator of the Region IX Office of the Federal Transit Administration; U.S. Department of Transportation; Anthony Foxx, in his official capacity as Secretary of the U.S. Department of Transportation; Los Angeles Metropolitan Transportation Authority, a California–chartered Regional Transportation Planning Agency, Defendants–Appellees. Today's IV, Inc., DBA Westin Bonaventure Hotel and Suites, a California Corporation, Plaintiff–Appellant, v. Federal Transit Administration; Carolyn Flowers, in her official capacity as administrator of the Federal Transit Administrator; Leslie T. Rogers, in his official capacity as Regional Administrator of the Federal Transit Administrations Region IX Office; United States Department of Transportation; Anthony Foxx, in his official capacity as Secretary of the United States Department of Transportation; Los Angeles County Metropolitan Transportation Authority, a public entity; Arthur T. Leahy, in his official capacity as Chief Executive Officer of the Los Angeles County Metropolitan Transportation Authority, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert D. Crockett (argued), Courtney Vandreuil, and Chase Tajima, Crockett & Associates, Santa Clarita, California, for Plaintiff–Appellant Japanese Village, LLC.
Christopher Sutton (argued), Law Office of Christopher Sutton, Pasadena, California; Robert P. Silverstein and Bradly S. Torgan, The Silverstein Law Firm APC, Pasadena, California, for Plaintiff–Appellant Today's IV, Inc.
Erika B. Kranz (argued), J. David Gunter, II, and Jared Pattinato, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Federal Defendants–Appellees.
Whitman F. Manley and Tiffany K. Wright, Remy Moose Manley LLP, Sacramento, California; Mark J. Saladino, County Counsel; Charles M. Safer, Assistant County Counsel; Ronald W. Stamm, Principal Deputy County Counsel; Los Angeles County Counsel, Los Angeles, California; for Defendant–Appellee Los Angeles County Metropolitan Transportation Authority.
Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Ronald M. Whyte,** District Judge.
Appellants Japanese Village, LLC and Today's IV, Inc. dba Westin Bonaventure Hotel ("Bonaventure") appeal from the district court's grant of summary judgment in favor of Appellees on Appellants' claims under the National Environmental Policy Act, 42 U.S.C. § 4321 ("NEPA"). Appellants argue that Appellees'1 environmental impact analysis for a new underground light rail line project in downtown Los Angeles was inadequate. We affirm.
Metro plans to construct the Regional Connector Transit Corridor Project ("the Project"), a 1.9-mile light rail extension line in downtown Los Angeles, with federal funding from the Federal Transit Administration. The Project is intended to meet increased demand for public transit and improve transit service in the region by connecting the light rail Gold Line to the Blue and Expo Lines. The route for the extension line begins at 7th and Flower Streets and travels north on Flower Street to 2nd Street. It then continues east on 2nd Street to Central Avenue, where it turns north to intersect the Gold Line at 1st and Alameda Streets as shown below:
Appellants Japanese Village and Bonaventure own real property near the Project. The Japanese Village Plaza is a shopping center and office complex in the Little Tokyo area at the eastern end of the proposed line, and the Westin Bonaventure Hotel occupies the block bounded by Flower, 4th, 5th, and Figueroa Streets in the Financial District.
The National Environmental Policy Act requires a federal agency to prepare an Environmental Impact Statement ("EIS") for any "major Federal action [ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA applies to state transportation projects with significant federal funding. Rattlesnake Coal. v. EPA , 509 F.3d 1095, 1101 (9th Cir. 2007). The EIS must include a detailed statement regarding, inter alia : (i) "the environmental impact of the proposed action"; (ii) "any adverse environmental effects which cannot be avoided should the proposal be implemented"; and (iii) "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C). Once an agency determines that an EIS is required, it must prepare a draft EIS ("DEIS"). See 40 C.F.R. § 1502.9(a). The agency then releases the DEIS to the public and other agencies for comment. Id. § 1503.1(a). After the public comment period, the agency prepares a final EIS ("FEIS"), in which it must respond to comments made during the DEIS comment period. Id. § 1502.9(b). After the FEIS is released, the agency has the option to request comments before making a final decision. Id. § 1503.1(b).
If the agency "makes substantial changes in the proposed action that are relevant to environmental concerns" or there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts," then the agency must prepare a supplemental DEIS or FEIS. Id. § 1502.9(c).
The agency ultimately produces a record of decision ("ROD") that explains the rationale for agency's decision. Id. § 1505.2. The ROD must include an assessment of all practicable measures for mitigating environmental harm. See id. § 1505.2(c).
In the instant case, the FTA published a Draft Environmental Impact Statement for public comment in September 2010. Metro had initially identified two build alternatives for the Project: a light rail primarily operating above ground (the "At-Grade Emphasis Alternative") and a light rail that was primarily underground (the "Underground Emphasis Alternative").2 During the DEIS drafting process, Appellees established a Little Tokyo Working Group, made up of leaders of the Little Tokyo Community Council and Metro staff, to discuss the impact of the Project on the community. The Little Tokyo community had concerns about the negative construction and operation impacts of both the At-Grade Emphasis Alternative and the Underground Emphasis Alternative. To address these concerns, the Little Tokyo Working Group collaborated on the development of the "Fully Underground Alternative," which Metro staff recommended in the DEIS. After the period for public comment on the DEIS, Metro's Board of Directors voted to designate the Fully Underground Alternative as the Locally Preferred Alternative.
Appellees continued to refine the Locally Preferred Alternative and addressed the impact of the refinements in a Supplemental Environmental Assessment/Recirculated Sections of the DEIS ("SEA") released in July 2011. The refinements included reductions in the use of "cut and cover construction" for tunnel excavation, replaced by the use of "Tunnel Boring Machine" or "TBM" excavation.
Cut and cover construction entails excavating down from the ground surface using temporary excavation support to stabilize the ground before excavation begins. Temporary concrete decking is placed over the "cut" to allow traffic to pass above during construction; once the tunnel is complete, the excavated trench area is backfilled and the temporary decking is replaced by permanent surface. A tunnel-boring machine is a large-diameter horizontal drill that is used to excavate circular tunnel sections. Compared to the cut and cover method, tunnel boring is far less disruptive to surface traffic and adjacent land uses.
The Project refinements addressed in the SEA extended the use of TBM south along Flower Street from 2nd Street to 4th Street. The Project route was also realigned to eliminate the use of cut and cover construction on 2nd Street in Little Tokyo in favor of Closed Face TBM construction. The new route required Metro to purchase an easement for tunneling below the Japanese Village shopping center and office complex. The period for public comment on the SEA closed on September 6, 2011.
On January 20, 2012, Appellees issued a Final Environmental Impact Statement and included responses to the public comments on the SEA. Appellees then accepted additional public comment on the FEIS and conducted a series of meetings with community stakeholders between February and April 2012. These efforts resulted in Metro staff recommending that the use of Closed-Face TBM be extended even farther south along Flower Street from 4th Street to 5th Street, budget permitting. Metro also conducted additional analysis of the extent to which mitigation measures could reduce noise and vibration in Japanese Village. In advance of the meeting to approve the Project, Metro staff recommended that the Board adopt additional mitigation measures for Japanese Village.
On April 26, 2012, the Metro Board adopted the staff's recommendations and voted to approve the project. The FTA issued its Record of Decision approving federal funding for the Project on June 29, 2012. The ROD includes a mitigation monitoring and report plan ("MMRP") as Attachment A.
Japanese Village, Bonaventure, and a third plaintiff filed complaints challenging Appellees' NEPA compliance in January 2013. The parties brought cross-motions for summary judgment. The district court granted summary judgment...
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