Md. Chapter of the Sierra Club v. Fed. Highway Admin.

• Jurisdiction: United States,Federal,Maryland
• Court: U.S. District Court — District of Maryland
• Writing for the Court: DEBORAH K. CHASANOW, United States District Judge
• Docket Number: Civil Action DKC 22-2597
• Decision Date: 20 March 2024
• Parties: MARYLAND CHAPTER OF THE SIERRA CLUB, part of Sierra Club, Inc., et al. v. FEDERAL HIGHWAY ADMINISTRATION, et al.
• topic: Civil Rights,Administrative Law,Environmental Law,Public Sector Law,Transportation

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MARYLAND CHAPTER OF THE SIERRA CLUB, part of Sierra Club, Inc., et al. v. FEDERAL HIGHWAY ADMINISTRATION, et al.

Civil Action No. DKC 22-2597

United States District Court, D. Maryland

March 20, 2024

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge

These consolidated cases present challenges to the administrative decisions approving plans to replace the American Legion Bridge and widen and add toll lanes to Routes I-495 and I-270. Presently pending and ready for resolution are a joint motion for summary judgment filed by Plaintiffs the Maryland Chapter of the Sierra Club (the “Maryland Chapter”), Friends of Moses Hall (“Moses Hall”), National Trust for Historic Preservation (“National Trust”), National Resources Defense Council, Inc. (“NRDC”) (collectively “Non-Profit Plaintiffs”), and the Northern Virginia Citizens Association (“NVCA”), (ECF No 46); a crossmotion for summary judgment filed by Defendants the Federal Highway Administration (“FHA”) Stephanie Pollack, in her official capacity as Acting Administrator of the FHA, Gregory Murrill, in his official capacity as Maryland Division Administrator of the FHA (collectively, “Federal Defendants”), (ECF No. 47); and a cross-motion for summary judgment filed by Defendants the Maryland Department of Transportation (“MDOT”) and James F. Ports, Jr., in his official capacity as Secretary of MDOT (collectively, “State Defendants”), (ECF No. 48). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiffs' motion for summary judgment will be denied and Defendants' cross-motions for summary judgment will be granted.

I. Background

A. Factual Background^[1]

In response to extreme congestion on I-495 and I-270, the two most heavily traveled freeways in Maryland, FHA and MDOT (collectively, the “Agencies”) initiated the “I-495 & I-270 Managed Lanes Study” (the “Study”) in early 2018 by publishing a Notice of Intent to develop an Environmental Impact Statement (“EIS”) evaluating ways to mitigate traffic congestion in I-270 and I-495. (AR 242; AR 267; AR 35732; AR 55593-94 (Notice of Intent)). The Study considered alternatives to address congestion within a 48-mile corridor spanning from “I-495 from south of the George Washington Memorial Parkway in Fairfax County, Virginia, including improvements to the American Legion Bridge [(“ALB”)] over the Potomac River, to west of MD 5 and along I-270 from I-495 to north of I-370, including the East and West I-270 spurs” in Montgomery and Prince George's Counties. (AR 35732; AR 4). The Agencies coordinated with the Virginia Department of Transportation (“VDOT”), whose I-495 Express Lanes North Extension project (“I-495 NEXT”) proposes building toll lanes along I-495 in Virginia that would tie in with the Agencies' preferred alternative at the George Washington Memorial Parkway (“GWMP”) interchange. (See AR 163467; AR 189242-43).

On July 10, 2020, the Agencies published a Draft Environmental Impact Statement (“DEIS”). (AR 242). The DEIS screened fifteen preliminary alternatives, ultimately retaining six “Build” alternatives and a “No Build” alternative for further study. (Id.; see also AR 35768-70). The DEIS proposed building nested ramps instead of flyover ramps at the GWMP interchange. (AR 36029). The DEIS also considered impacts to historic properties, (AR 35892), air quality, (AR 35895), and environmental justice (“EJ”) communities, (AR 35957). The DEIS was available for public comment for 123 days. (AR 242).

After reviewing public comments on the DEIS, the Agencies selected their preferred alternative (the “Preferred Alternative”). (AR 27377). On October 1, 2021, the Agencies published a Supplemental DEIS (“SDEIS”), whose focus was limited to presenting new information related to the Preferred Alternative. (AR 242; AR 27360). The SDEIS included information on how the Preferred Alternative was selected, traffic modeling conducted by MDOT, anticipated impacts on the environment and historic properties, and mitigation tactics. (See AR 242; AR 27364-65; AR 27410-11). Apart from the changes attendant to the selection of the Preferred Alternation, the SDEIS incorporated the same improvements proposed in the DEIS-including those with respect to the GWMP interchange. (See AR 27827). The SDEIS was available for public comment for 75 days. (AR 242).

On June 17, 2022, the Agencies published a Final Environmental Impact Statement (“FEIS”). The FEIS presented the Agencies' response to public comments received on the DEIS and SDEIS. (AR 243). The Agencies' response noted that MDOT's traffic modeling was manually adjusted post-SDEIS because it previously reflected traffic volumes around the Greenbelt Metro Station that well exceeded roadway capacity. (AR 132). The FEIS also included final environmental analyses, a “Final Section 4(f) Evaluation,” as well as mitigation commitments for unavoidable impacts. (AR 243). The FEIS stated that the design at the GWMP interchange had been modified to align with proposed improvements in I-495 NEXT. (Id.).

After the end of the FEIS's 30-day availability period, the Agencies announced their approval of the Record of Decision (“ROD”) on August 25, 2022. (AR 57).

1. The Preferred Alternative

The Preferred Alternative proposes a two-lane, [high occupancy toll] [(“HOT”)] managed lanes network on I-495 and I-270 . . . On I-495, the Preferred Alternative consists of adding two, new HOT managed lanes in each direction from south of the [GWMP] to west of MD 187. On I-270, the Preferred Alternative consists of converting the one existing [high occupancy vehicle] lane in each direction to a HOT managed lane and adding one new HOT managed lane in each direction on I-270 from I-495 to north of I-370 and on the I-270 east and west spurs.

(AR 248). The Preferred Alternative is located in Montgomery County and Fairfax County. (See AR 4-5). The Preferred Alternative also proposes replacing the ALB. (Id.). The Agencies concluded that there was no feasible and prudent alternative to using land from properties protected by Section 4(f) of the Department of Transportation Act (“Section 4(f)”), 49 U.S.C. § 303(c), and the Preferred Alternative poses the least overall harm compared to other alternatives considered in the DEIS. (AR 255). While the Preferred Alternative uses land from the Washington Biologists' Field Club (the “Field Club”) on Plummers Island, it would avoid using any land from the Morningstar Tabernacle No. 88 Moses Hall and Cemetery (“Morningstar Moses Cemetery”).^[2] (See AR 539; AR 544).

The Field Club is a twentieth century naturalist club located on Plummers Island that conducts long-term scientific studies and serves as a gathering place for its membership of influential and accomplished scientists. (AR 403). The natural landscape of Plummers Island is a character-defining feature of the Field Club. (Id.). The Morningstar Moses Cemetery is an African-American burial ground established more than a century ago. (See AR 13938; AR 13952-54). The exact number of burials in the Morningstar Moses Cemetery, many of which are unmarked, remains unknown. (AR 13966; AR 13976; AR 14228; AR 161430). In order to determine whether the Preferred Alternative would use land from the Morningstar Moses Cemetery, MDOT engaged experts to define the Morningstar Moses Cemetery's historic boundaries through historical research, fieldwork, and ground-penetrating radar (“GPR”) surveys. (AR 13913; AR 13915). Some areas within the Preferred Alternative's limits of disturbance^[3] (“LOD”) remain uninvestigated, (AR 161430), the reasons for which include the fact that the Morningstar Moses Cemetery's channery soils and shallow bedrock can undermine the quality of GPR survey data, (AR 13916). Consequently, the Agencies deferred the final evaluation of the Preferred Alternative's effects on the Morningstar Moses Cemetery-as required by Section 106 of the National Historic Preservation Act (“Section 106”), 54 U.S.C. § 306108-via a May 17, 2022 programmatic agreement (“PA”) providing consultation and mitigation procedures for burials identified within the Preferred Alternative's LOD but outside of the Morningstar Moses Cemetery's historic boundary prior to final design and construction. (AR 94; AR 395-96).

Post-DEIS, the Agencies investigated three potential roadway alignments to accommodate replacement of the ALB while limiting impact to its neighboring Section 4(f) properties, such as Plummers Island: a new structure can be constructed on a minimally offset alignment to the east of the existing ALB (the “east shift alignment”), on a minimally offset alignment to the west of the existing ALB (the “west shift alignment”), or on the existing alignment (the “on-center alignment”). (AR 17690-92). MDOT convened an “ALB Strike Team” to develop and evaluate ALB replacement alternatives with the goal of avoiding impacts to Section 4(f) land. (AR 17698; AR 198357). The “ALB Strike Team” deemed the west shift and on-center alignments viable options. (AR 17698). Ultimately, the Agencies chose the on-center alignment for the Preferred Alternative. (See AR 17692).

B. Procedural Background

On October 11, 2022, Non-Profit Plaintiffs filed a complaint against Defendants asserting violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C §§ 4321, et seq., Section 4(f), 49 U.S.C. § 303(c), and Section 106 of the National Historic Preservation Act (“Section 106”), 54 U.S.C. § 306108. (ECF No. 1). On December 23, 2022, NVCA filed a complaint against Defendants asserting a violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. (Originally Case No. DKC 22-3336, now ECF No. 36). The cases were...