Maiden Creek Assocs., L.P. v. U.S. Dep't of Transp.
| Decision Date | 20 August 2015 |
| Docket Number | CIVIL ACTION No. 15–242 |
| Citation | 123 F.Supp.3d 638 |
| Parties | Maiden Creek Associates, L.P., and Board of Supervisors of Maidencreek Township, Plaintiffs, v. United States Department of Transportation, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Daniel R. Utain, Marc B. Kaplin, Kaplin, Stewart, Meloff, Reiter and Stein, P.C., Blue Bell, PA, Eugene Orlando, Jr., Orlando Law Offices, P.C., Reading, PA, for Plaintiffs.
Susan Dein Bricklin, U.S. Attorney's Office, Philadelphia, PA, Kenda Jo M. Gardner, PA Department of Transportation, Harrisburg, PA, for Defendants.
Plaintiffs Maiden Creek Associates, L.P. and the Board of Supervisors of Maidencreek Township bring this action against the United States Department of Transportation (USDOT), Federal Highway Administration (FHWA), Pennsylvania Department of Transportation (PADOT), and their agents. They seek to enjoin proposed changes to Pennsylvania State Road Route 222 because the defendants allegedly did not follow appropriate procedures under the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA). The defendants have moved to dismiss based on a lack of standing. The plaintiffs moved for leave to amend their complaint to add facts that may cure any deficiencies. For the reasons stated below, I will grant the defendants' motion to dismiss and deny the plaintiffs leave to amend their complaint.
Route 222 is a state highway that runs through Berks County, connecting Allentown, Pennsylvania to Lancaster, Pennsylvania. The defendants are all involved with the Route 222 Corridor Improvement Project. The Project plans to make several changes to Route 222: 1) widening the roadway to include two lanes in each direction and a center turning lane; 2) improving an existing traffic signal at the intersection of Routes 222 and 73; 3) constructing a dual lane roundabout at the intersection of Tamarack/Genesis Drive; and 4) constructing a dual lane roundabout at the intersection of Route 222 and Schaeffer Road. The roundabout at Tamarack/Genesis will replace an existing traffic signal. The roundabout at the Schaeffer intersection will replace a standard "T" intersection without a traffic signal.
PADOT plans to use about $14.5 million dollars in federal funds to complete the Project. The FHWA is an agency of the USDOT and is the lead agency on the Project. The PADOT is serving as the FHWA's delegated agent. FHWA is funding the Project while PADOT is constructing it.
Plaintiff Maiden Creek Associates, L.P. (MCA) is a Pennsylvania limited partnership. MCA owns approximately 85 acres of commercially-zoned land located adjacent to Route 222, between Tamarack Boulevard and Evansville Road in Maidencreek Township, Berks County. MCA has proposed developing that parcel into a commercial shopping center. The Board of Supervisors of Maidencreek Township (Board) is the governing body for Maidencreek Township, a second class township of the Commonwealth of Pennsylvania in Berks County, Pennsylvania.
MCA's property is located directly across from Schaeffer Road on Route 222. As part of its shopping center plans, MCA has proposed adding a traffic signal to the intersection of Route 222 and Schaeffer Road. The Route 222 Project will require the defendants to take part of MCA's property in order to widen the road and construct the Schaeffer roundabout. MCA had several meetings with PADOT and provided its officials with information about its proposed shopping center and traffic counts. Both MCA and the Board have voiced their disapproval of the Project's proposed design.
NEPA requires federal agencies to consider the environmental impacts of any major federal action.2 See 42 U.S.C.A. § 4332. Three levels of review may be required depending on the extent of environmental impact: 1) Class I (EISs): actions that significantly affect the environment require an Environmental Impact Statement (EIS); 2) Class II(CEs): actions the do not individually or cumulatively have a significant environmental effect are entitled to a Categorical Exclusion from preparing an EIS or Environmental Assessment (EA); and 3) Class III(EAs): actions in which the significance of the environmental impact is unclear and which do not fall in the other two classes must prepare an Environmental Assessment. 23 C.F.R. § 771.115.
An EIS is a detailed written statement concerning the environmental impacts of a proposed action which must consider alternatives that would result in less detrimental environmental effects. An EA is a concise public document which provides evidence and analysis for whether an EIS is needed. Categorical Exclusion projects "do not individually or cumulatively have a significant effect on the human environ ment...." 40 C.F.R. § 1508.4. Therefore, they require neither an EA nor an EIS. Id.
The USDOT has promulgated rules about when its projects require a certain level of review under NEPA. See 23 C.F.R. § 771.115. For an FWHA project to be considered a Categorical Exclusion, it cannot: 1) "induce significant impacts to planned growth or land use for the area;" 2) "require the relocation of significant numbers of people;" 3) "have a significant impact on any natural, cultural, recreational, historic or other resource;" 4) "involve significant air, noise, or water quality impacts;" 5) "have significant impacts on travel patterns;" or 6) "either individually or cumulatively, have any significant environmental impacts." 23 C.F.R. § 771.117(a).3
On August 6, 2014, FHWA and PADOT approved a Categorical Exclusion (CE) for the Project. Because the CE was approved, the defendants have not conducted an EIS. They will not be required to conduct further environmental review of the Project under NEPA before it is funded and constructed. Public meetings about the Project have been held. MCA's counsel has been involved and expressed comment as part of these meetings. See id. at ¶ 52.
On January 20, 2015, the plaintiffs filed this action against the USDOT, Secretory of the USDOT Anthony Foxx, the FHWA, Administrator of the FHWA Gregory Nadeau, the PADOT, and the Secretary of the PADOT Barry Schoch.4 The plaintiffs claim that the CE did not comply with NEPA and was based on inaccurate and incomplete information supplied by PADOT.5 As a result, the approval of the CE was arbitrary, capricious, and abuse of discretion under the Administrative Procedures Act (APA).6 The plaintiffs request that the defendants be required to conduct a full EIS in order to comply with NEPA. They seek declaratory judgment that the Approved CE is invalid and an injunction on any further construction on the Project until the EIS has been prepared. They essentially want the court to compel the defendants to restart the process under NEPA: withdraw the approved Categorical Exclusion, enjoin further construction and funding, and require the defendants to prepare an EIS and hold new public hearings.
The defendants answered the complaint. They then moved to dismiss the complaint under Rule 12(b)(1), claiming that the plaintiffs lack standing.7 The crux of their motion is that the plaintiffs have not alleged an injury covered by NEPA. In additional to filing a response in opposition to the motion, the plaintiffs also moved for leave to file an amended complaint. Their amended complaint purports to cure deficiencies regarding their possible lack of standing. The defendants argue the amended complaint still fails to confer jurisdiction; its filing would be futile.
Article III of the United States Constitution limits the scope of this court's jurisdiction to "cases" and "controversies." U.S. Const. art. III, § 2. In order for a court to hear a "case" or "controversy," the party asserting a claim must have "standing" or the right to bring the action.See Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 356–57 (3d Cir.2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "A motion to dismiss for want of standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter." Constitution Party, 757 F.3d at 357 (quoting Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.2007) ). The allegations contained in the plaintiffs' complaint must be accepted as true and all reasonable inferences must be viewed in the light most favorable to the plaintiffs. See id. at 358.8
The plaintiff has the burden to establish jurisdiction. Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). To establish standing, a plaintiff must establish three elements: 1) "injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," 2) "a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court," and 3) "that the injury will [likely] be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Plaintiffs asserting jurisdiction based on a violation of the APA also have the burden of showing prudential standing. See Bennett v. Spear, 520 U.S. 154, 161–62, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The plaintiff must demonstrate that its complaint falls within the "zone of interests" to be protected or regulated by the statute in question. Id. at 162–63, 117 S.Ct. 1154 (discussing Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ). The "zone of interest" test "seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further...
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