Nat'l Parks Conservation Ass'n v. Jewell

• Decision Date: 30 August 2013
• Docket Number: Civil Action No. 12–1690 (RWR).
• Citation: 965 F.Supp.2d 67
• Court: U.S. District Court — District of Columbia
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Plaintiffs, v. Sally JEWELL, et al., Defendants.

965 F.Supp.2d 67

NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Plaintiffs,

v.Sally JEWELL,¹ et al., Defendants.

Civil Action No. 12–1690 (RWR).

United States District Court, District of Columbia.

Aug. 30, 2013.

Abigail M. Dillen, Hannah Chang, Lisa Perfetto, Earthjustice, New York, NY, Jennifer C. Chavez, Earthjustice, Washington, DC, for Plaintiffs.

Barbara M.R. Marvin, Stacey Bosshardt, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief Judge.

The National Parks Conservation Association and nine other organizations ² brought this suit against the Secretary of the Interior and the Northeast Regional Director of the U.S. National Park Service (“NPS”) challenging NPS' decision to grant special use permits and an extended right-of-way for the construction of the Susquehanna to Roseland Transmission Line (“S–R Line”) through three national park areas—the Delaware Water Gap National Recreation Area, the Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail (collectively, “the Parks”). PPL Electric Utilities Corporation and Public Service Electric and Gas Company, the utilities companies that applied to NPS to build the S–R Line, intervened in this matter. Plaintiffs moved for summary judgment arguing that the NPS failed to properly review the environmental consequences of the S–R Line project in the environmental impact statement (“EIS”), in violation of the National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq., and that NPS unlawfully decided to grant the special use permits and an extended right-of-way, in violation of the NPS Organic Act, 16 U.S.C. § 1 et seq. and the Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. § 1271 et seq. The federal defendants and the intervenor defendant utilities companies cross-moved for summary judgment. Because NPS' actions were not arbitrary and capricious, the plaintiffs' motion for summary judgment will be denied and the defendants' cross-motions for summary judgment will be granted.³

BACKGROUND

The intervenor-defendants own a right-of-way through the Parks upon which the current 230 kilovolt (“kV”) Bushkill–to–Kittatinny transmission line (“B–K Line”) stands. Compl. ¶ 44; Pls.' Mem. of Law in Supp. of Mot. for Summ. J. (“Pls.' Mem.”) at 7; Def.-Intervenors' Mem. of P. & A. in Opp'n to Pls.' Mot. for Summ. J. and in Supp. of Def.-Intervenors' Cross–Mot. for Summ. J. (“Intervenor Defs.' Mem.”) at 7; Mem. in Supp. of Fed. Defs.' Cross–Mot. for Summ. J. and Opp'n to Pls.' Mot. for Summ. J. (“Federal Defs.' Mem.”) at 2. In 2007, PJM Interconnection, LLC, (“PJM”), which oversees the electrical transmission system in the region, identified electric grid reliability violations with the B–K Line. Intervenor Defs.' Mem. at 5; Federal Defs.' Mem. at 2; AR 73982, 78554. PJM decided that a 500–kV electric transmission line was the preferred solution for the reliability violations which had been identified. NPS Susquehanna to Roseland 500kV Transmission Line Right–of–Way and Special Use Permit Final Environmental Impact Statement (“FEIS”) at 4 (AR 47865); AR 73982. The intervenor defendants applied to NPS for a special use permit to allow for “construction, maintenance and operation of the S–R Line across [the Parks], the expansion of the existing [right-of-way], and the replacement of an existing 230–kV transmission line it owns.” FEIS at 4 (AR 47865); see also NPS Susquehanna to Roseland 500–kV Transmission Line Right–of–Way and Special Use Permit, Record of Decision (“ROD”) at 1 (AR 116587); Compl. ¶ 53. The proposed S–R Line would replace the existing B–K Line and include larger towers, an additional circuit, and a widened right-of-way to accommodate the changes. Compl. ¶ 53; FEIS at 4 (AR 47865); ROD at 1 (AR 116587).

NPS conducted an environmental review and published a Draft Environmental Impact Statement (“DEIS”) in 2011 that identified various alternative routes for building a replacement transmission line, identified mitigation measures, and discussed the environmental consequences of each alternative. See Federal Defs.' Mem. at 8; Intervenor Defs.' Mem. at 11; ROD at 21 (AR 116607). In January 2012, the applicants proposed a methodology for compensatory mitigation and estimated that $36,494,241 should be provided in compensatory mitigation for the project in their comments to the DEIS. AR 78239–48. After the public comment period closed, NPS issued the Final Environmental Impact Statement (“FEIS”) and identified NPS' preferred alternative as the applicant's proposed route. FEIS at vii (AR 47840); Federal Defs.' Mem. at 5. NPS then issued the Record of Decision (“ROD”) in October 2012 that granted the utilities companies' request for special use permits and an expanded right-of-way for the construction of the S–R Line. Pls.' Mem. at 26; Intervenor Defs.' Mem. at 13; Federal Defs.' Mem. at 6–7; ROD at 1–30 (AR 116586–616). In December 2012, NPS issued the special use permits to the utilities company for the project, and the utilities companies and the federal defendants entered into a Memorandum of Agreement that set forth details about the compensatory mitigation measures and establishedthe Middle Delaware Mitigation Fund (“the Fund”). Intervenor Defs.' Mem. at 16–17; Federal Defs.' Mem. at 7; see Federal Defs.' Opp'n to Pls.' Mot. for a Prelim. Inj., Ex. B, Memorandum of Agreement.

DISCUSSION

Summary judgment may be granted on a claim if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

In a case involving review of a final agency action under the APA, however, the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record.... “[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” ... Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.

Center for Food Safety v. Salazar, 898 F.Supp.2d 130, 138 (D.D.C.2012) (quoting Sierra Club v. Mainella, 459 F.Supp.2d 76, 89–90 (D.D.C.2006)); see also Flaherty v. Bryson, 850 F.Supp.2d 38, 47 (D.D.C.2012) (“Because this case involves a challenge to a final administrative decision, the Court's review on summary judgment is limited to the Administrative Record.”).

The complaint asserts eleven causes of action including eight ⁴ NEPA claims, one NPS Organic Act claim, and two WSRA claims. See Compl. at 33–41. Review of final agency actions under these statutes is governed by the arbitrary and capricious standard of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701– 706. See Nevada v. Dep't of Energy, 457 F.3d 78, 87 (D.C.Cir.2006) (stating that courts “apply the APA's arbitrary and capricious standard to a NEPA challenge”); Daingerfield Island Protective Soc'y v. Babbitt, 40 F.3d 442, 446 (D.C.Cir.1994) (finding that the NPS' exercise of discretion under the NPS Organic Act must be upheld unless it violated the APA's arbitrary and capricious standard); Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1176–77 (9th Cir.2000) (stating that review of the WSRA is governed by the APA). “Generally, ‘[t]he scope of review under the ‘arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.’ ” Pettiford v. Sec'y of Navy, 774 F.Supp.2d 173, 181 (D.D.C.2011) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “However, this deferential standard cannot permit courts ‘merely to rubber stamp agency actions,’ ... nor be used to shield the agency's decision from undergoing a ‘thorough, probing, in-depth review.’ ” Flaherty, 850 F.Supp.2d at 47 (quoting NRDC v. Daley, 209 F.3d 747, 755 (D.C.Cir.2000); Midtec Paper Corp. v. United States, 857 F.2d 1487, 1499 (D.C.Cir.1988)). “Courts ‘will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.’ ” Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.Cir.1993) (quoting Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)).

I. NATIONAL ENVIRONMENTAL PROTECTION ACT

“NEPA ‘requires that agencies assess the environmental consequences of federal projects by following certain procedures during the decision-making process.’ ” Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1, 13 (D.D.C.2009) (quoting City of Alexandria, Va. v. Slater, 198 F.3d 862, 866 (D.C.Cir.1999)). “[T]he twofold purpose of NEPA [is] to ensure that a federal agency considers environmental consequences in making its decision and to inform the public that the agency has done so.” Wilderness Soc'y v. Salazar, 603 F.Supp.2d 52, 65–66 (D.D.C.2009) (citing Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 143, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981)); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

A. Mitigation measures

NEPA requires a federal agency to prepare an EIS for “ ‘major Federal actions significantly affecting the quality of the human environment.’ ” Duncan's Point Lot Owners Ass'n v. Fed. Energy Regulatory Comm'n, 522 F.3d 371, 376 (D.C.Cir.2008) (quoting 42 U.S.C. § 4332(2)(C)). One of the purposes of the EIS is to “sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public.” 40 C.F.R. § 1502.14. The regulations of the Council on Environmental Quality ⁵ (“CEQ”) state that an EIS must “[i]nclude appropriate mitigation measures not already included in the proposed action or alternatives[,]” 40...