McClash v. Fla. Dep't of Transp.

• Decision Date: 05 August 2022
• Docket Number: 8:20-cv-543-AEP
• Parties: JOSEPH MCCLASH, et al., Plaintiffs, v. FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

JOSEPH MCCLASH, et al., Plaintiffs, v. FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

No. 8:20-cv-543-AEP

United States District Court, M.D. Florida, Tampa Division

August 5, 2022

ORDER

Anthony E. Porcelli United States Magistrate Judge

Plaintiffs Joseph McClash (“McClash”), Joe Kane (“Kane”), Linda Molto (“Molto”), and Jane von Hahmann (“von Hahmann”) (collectively “Plaintiffs”) initiated this action seeking declaratory and injunctive relief relating to the proposed replacement of a drawbridge with a fixed-span bridge, at a height of 65 feet (the “65-foot High-Level Fixed-Bridge Alternative”), rather than another drawbridge, at a height of 35 feet, near the Village of Cortez, located in Manatee County, Florida (the “Cortez Bridge Replacement Project”) (Doc. 1). Plaintiffs initially named several state and federal governmental entities and officials as defendants. Following dismissal of the federal governmental entities and officials, Plaintiffs now seek declaratory and injunctive relief only against Kevin J. Thibault, in his official capacity as Secretary of the Florida Department of Transportation, and the Florida Department of Transportation (collectively, “Defendants” or “FDOT”), pursuant to the Administrative Procedure Act (“APA”) for a violation of the National Environmental Policy Act (“NEPA”) (Doc. 84). Specifically, Plaintiffs challenge FDOT's decisions to (1) replace a 17-foot drawbridge with a 65-foot, fixed-span bridge; (2) forgo both an Environmental Impact Statement (“EIS”) and Environmental Assessment (“EA”) and proceed instead with a Categorical Exclusion (“CE”) to NEPA; and (3) apply a CE that they contend is patently inapplicable to the proposed project (Doc. 84, ¶2). In essence, Plaintiffs contend that FDOT violated NEPA by arbitrarily and capriciously relying on an inapplicable CE to exempt a “major Federal action” - i.e., the construction of the 65-foot High-Level Fixed-Bridge Alternative - from FDOT's obligation to perform either an EIS or an EA. Currently before the Court are the parties' cross-motions for summary judgment (Docs. 86, 92). For the following reasons Plaintiffs' Motion for Summary Judgment (Doc. 86) is denied, and Defendants' Motion for Summary Judgment (Doc. 92) is granted.

I. Background

Congress enacted NEPA to “encourage productive and enjoyable harmony between man and his environment” and “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321; see 40 C.F.R. § 1500.1(a) (indicating that NEPA “is a procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process”).^[1] NEPA “is not a substantive environmental statute which dictates a particular outcome if certain consequences exist,” but rather consists of a procedural statute that “creates ‘a particular bureaucratic decisionmaking process.'” Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1214 (quoting Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989)); see 40 C.F.R. § 1500.1(a). NEPA does not mandate particular results, but merely prescribes the necessary process for assessing environmental effects and consequences of proposed agency actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Notably, “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Id.

To that end, NEPA establishes procedures for agencies to follow before taking any action, with the Council on Environmental Quality (the “CEQ”) promulgating regulations to address environmental-impact issues and procedures. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008); see 40 C.F.R. § 1501.1 et seq. The CEQ's “NEPA regulations authorize the use of exclusions for those categories of actions ‘which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations.'” Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of Eng'rs, 374 F.Supp.2d 1116, 1138 (S.D. Fla. 2005) (quoting 40 C.F.R. § 1508.4). Under the CEQ regulations, each federal agency is tasked with developing criteria for determining the appropriate level of environmental types of actions and establishing procedures and criteria for determining whether their proposed actions require an EIS or EA or whether such actions qualify as a CE, which, by their nature, do not require an EIS or EA. Fla. Keys Citizens Coal., Inc., 374 F.Supp.2d at 1138; 40 C.F.R. § 1507.3(b)(2). When deciding which class the anticipated action falls within, the agency must first determine whether the anticipated action constitutes a “major Federal action,” which is an action that significantly affects the quality of the human environment. Van Antwerp, 526 F.3d at 1360; 42 U.S.C. § 4332(C). If the agency concludes that its proposed activity constitutes a major Federal action that will significantly affect the environment, the agency must discuss specific issues in an EIS; conversely, if the agency concludes that its proposed activity does not constitute a major Federal action that will significantly affect the environment, the agency must produce a finding of no significant impact (“FONSI”), which briefly presents the reasons why the action will not pose a significant effect on the human environment. Van Antwerp, 526 F.3d at 1360 (citing 40 C.F.R. §§ 1508.13, 1508.18).

The Federal Highway Administration (“FHWA”) regulations delineate three classes of actions that prescribe the level of documentation required in the NEPA process: an EIS (Class I), a CE (Class II), or an EA (Class III). 23 C.F.R. § 771.115(a)-(c). Actions that significantly affect the environment require production of an EIS. 23 C.F.R. § 771.115(a). On the other hand, a CE involves actions that do not individually or cumulatively have a significant environmental effect and are therefore excluded from the requirement to prepare an EIS or EA. 23 C.F.R. § 771.101(b). Any actions that do not involve EISs or CEs are EAs, which includes actions for which the FHWA has not clearly established the significance of the environmental impact. 23 C.F.R. § 771.115(c).

For FHWA actions, a list of CEs normally not requiring NEPA documentation is set forth in 23 C.F.R. § 771.117(c), but, when appropriately documented, additional projects may also qualify as CEs pursuant to 23 C.F.R. § 771.117(d). FHWA specifically identified bridge rehabilitation, reconstruction, or replacement projects as categorically excluded from the class of actions for which an EIS or an EA is required, unless the project involves:

(1) An acquisition of more than a minor amount of right-of-way [(“ROW”)] or that would result in any residential or non-residential displacements;

(2) An action that needs a bridge permit from the U.S. Coast Guard [(“USCG”)], or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors act of 1899;

(3) A finding of “adverse effect” to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of “may affect, likely to adversely affect” threatened or endangered species or critical habitat under the Endangered Species Act;

(4) Construction of temporary access or the closure of existing road, bridge, or ramps that would result in major traffic disruptions;

(5) Changes in access control; (6) A floodplain encroachment other than functionally dependent uses (e.g., bridges, wetlands) or actions that facilitate open space use (e.g., recreational trails, bicycle and pedestrian paths); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.

23 C.F.R. § 771.117(c)(28) & (e)(1)-(6). As the Cortez Bridge Replacement Project required a bridge permit from the USCG (AR 10-11, 54-55, 6028-6050), FDOT could not proceed with a CE under 23 C.F.R. § 771.117(c)(28). Instead, FDOT contends that the 65-foot High-Level Fixed-Bridge Alternative qualified for a CE under 23 C.F.R. § 771.117(a) and (d) as FDOT appropriately analyzed and documented findings demonstrating that the project would not have any significant impact to the natural or human environment.

Under Florida law, FDOT maintains “responsibility for coordinating the planning of a safe, viable, and balanced state transportation system serving all regions of the state.” Fla. Stat. § 334.044(1). In carrying out its responsibilities for coordinating the planning of a safe, viable, and balanced state transportation system, FDOT oversees the operation of State Road (“SR”) 684, or Cortez Road (see AR 124). Importantly, SR 684 spans the Gulf Intracoastal Waterway across the Cortez Bridge; is an east-west “Urban Principal Arterial (Other)” road that provides one of three vehicular access routes to Anna Maria Island; and has been designated as an evacuation route by the Florida Division of Emergency Management, State Emergency Response Team (AR 124).

As Plaintiffs recognize, after entering into a Memorandum of Understanding (“MOU”) with the United States Department of Transportation (“USDOT”) and FHWA on December 14, 2016, FDOT additionally assumed responsibility for compliance with the requirements of NEPA (AR 607-28). See 23 U.S.C....