Karst Environmental Educ. and Prot. v. U.S. E.P.A.

• Citation: 403 F.Supp.2d 74
• Decision Date: 15 December 2005
• Docket Number: Civil Action No. 05-1190 (RMU).
• Parties: KARST ENVIRONMENTAL EDUCATION AND PROTECTION, INC. et al., Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY et al., Defendants, and Inter-Modal Transportation Authority et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

403 F.Supp.2d 74

KARST ENVIRONMENTAL EDUCATION AND PROTECTION, INC. et al., Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY et al., Defendants, and Inter-Modal Transportation Authority et al., Defendant-Intervenors.

Civil Action No. 05-1190 (RMU).

United States District Court, District of Columbia.

December 15, 2005.

COPYRIGHT MATERIAL OMITTED

David G. Bookbinder, Washington, DC, for Plaintiffs.

Sara Culley, U.S. Department of Justice, Washington, DC, Maria V. Gillen, Tennessee Valley Authority, Knoxville, TN, for Defendants.

George Ellard, Leboeuf, Lamb, Greene & MacRad, Washington, DC, for Defendant-Intervenors.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING DEFENDANTS EPA AND HUD'S MOTION TO DISMISS; GRANTING DEFENDANT TVA'S MOTION TO DISMISS; GRANTING THE DEFENDANT-INTERVENORS' MOTION TO DISMISS¹

I. INTRODUCTION

This matter comes before the court on defendants EPA and HUD's joint motion to dismiss, defendant TVA's motion to dismiss and the defendant-intervenors' motion to dismiss. The plaintiffs allege that the Environmental Protection Agency ("EPA"), the Department of Housing and Urban Development ("HUD") and the Tennessee Valley Authority ("TVA") violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706 et seq. According to the plaintiffs, the defendants permitted the Inter-Modal Transportation Authority ("ITA") to construct and develop the Kentucky Trimodal Transpark ("Transpark"), an industrial complex in Warren County, Kentucky. Specifically, the plaintiffs claim that the EPA and HUD violated the NEPA by not preparing an Environmental Impact Statement ("EIS") or designating a lead agency prior to the defendant-intervenors' development of Transpark. The plaintiffs also claim that TVA violated the NEPA and the NHPA when it granted money to a Transpark tenant. The plaintiffs further claim that TVA will commit future violations of the NEPA and the NHPA by granting additional funds to other Transpark tenants. Because the EPA did not take a major federal action and because HUD's actions in relation to Transpark do not constitute final agency action, the court grants the defendants' and defendant-intervenors' motions to dismiss. The court further concludes that the claims against TVA are moot and accordingly grants TVA's motion to dismiss.

II. BACKGROUND

A. Factual Background

Transpark is a proposed industrial complex spanning 4,000-6,000 acres in Warren County, Kentucky. Am. Compl. ¶ 1. Transpark is currently in its first phase of development. Def.-Intervenors' Mot. to Dismiss Am. Compl. ("Def.-Intervenors' Mot. to Dismiss") at 3. It is located a few miles from the Mammoth Cave National Park. Am. Compl. ¶ 11. The City of Bowling Green, located in Warren County, Kentucky, created ITA, a defendant-intervenor in this action, as part of its effort to support the development of this $80 million integrated road, air, and rail complex. Id. ¶¶ 11, 13. The ITA is a nonprofit Kentucky corporation with the "power to apply for and receive grants from all governmental bodies and agencies," including federal agencies. Id. ¶ 13.

The plaintiffs allege that the defendants have provided or will provide federal money to ITA to support the Transpark development. Id. ¶ 32. For example, the plaintiffs point to the $500,000 grant that TVA awarded to Bowling Green Metalforming ("Metalforming"), Transpark's first tenant, in September 2004. Id. ¶ 29; TVA's Mot. to Dismiss at 2. The purpose of the grant was to purchase "ancillary" electrical equipment for Metalforming's $170 million plant.² Id. at 4, 14. The plaintiffs also assert that a portion of the funds for construction of the Transpark includes federal money from the defendants. Am. Compl. ¶ 32. The plaintiffs recognize that "funding for a substantial portion of the demolition and construction that has occurred has come from local government loans or bonds or other local government obligations." Id. Nevertheless, the plaintiffs assert that the "local government entities intend to seek reimbursement from the defendants or other federal agencies, after the work has been completed." Id. Stated differently, the plaintiffs allege that the defendants will receive federal funds in the future.

In addition to alleging that ITA received money from the defendants to further the development of Transpark, id. ¶ 25, the plaintiffs also allege that ITA has demolished historic properties without seeking federal approval, id. ¶ 35. Further, the plaintiffs contend that ITA damaged an archaeological site during construction of an "HUD supported training center." Id. ¶ 36.

B. Procedural History

The plaintiffs oppose ITA's further construction and development of Transpark because they fear that it may damage the Mammoth Cave National Park and other natural resources in Warren County. Id. ¶ 3. After the plaintiffs filed an amended complaint, defendant TVA filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). TVA's Mot. to Dismiss for Lack of Subject Matter Jurisdiction ("TVA's Mot. to Dismiss") at 5-6. Defendants EPA and HUD filed a joint motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs. EPA and HUD's Mot. to Dismiss Pls.' Am. Compl. ("EPA/HUD's Mot. to Dismiss") at 10-11. ITA, Warren County, and the City of Bowling Green filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) in their capacity as defendant-intervenors. Def.-Intervenors' Mot. to Dismiss at 8. The court now turns to those three motions for dismissal.

III. ANALYSIS

A. Statutory Framework

1. National Environmental Policy Act

The purpose of the NEPA is to "encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. The Council on Environmental Quality ("CEQ"), an Executive Office agency, has promulgated binding regulations implementing the NEPA. 42 U.S.C. § 4342. Under the CEQ regulations, federal agencies must prepare an Environmental Impact Statement ("EIS") for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The EIS must examine the short-term and long-term "`environmental impact of the proposed action' and identify any possible alternative plans." Id. If the proposed action does not significantly affect the environment, it is classified as a "categorical exclusion," and the agency is not required to prepare an EIS. 40 C.F.R. § 1508.4.

"The application of NEPA to major governmental action is complicated where several federal agencies are involved in the same project." Silentman v. Fed. Power Comm'n, 566 F.2d 237, 240 (D.C.Cir.1977). Where several agencies are involved in the same project, the agencies may designate a lead agency to take the primary responsibility for preparing an EIS. Id.; 40 C.F.R. § 1508.16.

2. National Historic Preservation Act

The NHPA requires that federal agencies consider the impact of federal undertakings on historic resources of national significance. 16 U.S.C. § 470f. A federal undertaking is a project that "receives federal funding or a federal license." Sheridan Kalorama Historical Ass'n v. Christopher, 49 F.3d 750, 754 (D.C.Cir. 1995). A federal agency is only required to comply with the NHPA procedure if it is engaged in an undertaking. Nat'l Trust for Historic Pres. v. Blanck, 938 F.Supp. 908, 918 (D.D.C.1996). Although "federal authority to fund or to license a project can render the project an undertaking," thereby requiring compliance with the NHPA, a federal agency's "decision to fund or license a particular project is not itself an undertaking." Id.

The NEPA is a "close statutory analog" to the NHPA. San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir.2005). "Because of the operational similarity between the two statutes, courts generally treat `major federal actions' under the NEPA as closely analogous to `federal undertakings' under the NHPA." Sac and Fox Nation of Mo. v. Norton, 240 F.3d 1250 (10th Cir.2001). Accordingly, this court's NEPA analysis also applies to the plaintiffs' NHPA claims.

B. The Court Lacks Jurisdiction to Address the Claims Against the EPA and HUD

Defendants EPA and HUD argue that the court lacks subject matter jurisdiction under the APA because they have not taken final agency action with respect to the Transpark project. EPA/HUD's Mot. to Dismiss at 2. The plaintiffs, on the other hand, argue that the EPA and HUD have taken final agency action, and that they have failed to take required final agency actions. Pls.' Opp'n at 28. For the reasons that follow, the court grants EPA and HUD's joint motion to dismiss.

1. Legal Standard for Judicial Review of Agency Actions

Judicial review of agency actions under NEPA is governed by the APA. Tulare County v. Bush, 306 F.3d 1138, 1143 (D.C.Cir.2002). Judicial review of agency actions under the NHPA is also governed by the APA. Blanck, 938 F.Supp. 908, 915 (D.D.C.1996), aff'd, 1999 WL 1021932 (D.C.Cir.1999) (unpublished opinion).

The APA entitles "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... to judicial review thereof." 5 U.S.C. § 702. Under the APA, a reviewing court must set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001). In making this inquiry, the reviewing court "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations...