Price Road Neighborhood Ass'n, Inc. v. U.S. Dept. of Transp.

• Decision Date: 27 May 1997
• Docket Number: No. 97-15196,97-15196
• Parties: 133 Lab.Cas. P 1877, 27 Envtl. L. Rep. 21,169, 97 Cal. Daily Op. Serv. 3934, 97 Daily Journal D.A.R. 6795 PRICE ROAD NEIGHBORHOOD ASSOCIATION, INC., a voluntary incorporated neighborhood association, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Rodney F. Slater, * in his official capacity as Secretary of the United States Department of Transportation; Federal Highway Administration; Jane Garvey, ** in her official capacity as Acting Administrator of the Federal Highway Administration; Julie Ann Cirillo, in her official capacity as Regional Administrator, Region 9, of the Federal Highway Administration; Arizona Department Of Transportation; Larry Bonine, in his official capacity as Director of the Arizona Department of Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1505

113 F.3d 1505

133 Lab.Cas. P 1877, 27 Envtl. L. Rep. 21,169,

97 Cal. Daily Op. Serv. 3934,

97 Daily Journal D.A.R. 6795

PRICE ROAD NEIGHBORHOOD ASSOCIATION, INC., a voluntary

incorporated neighborhood association, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Rodney F.

Slater, ^* in his official capacity as

Secretary of the United States Department of Transportation;

Federal Highway Administration; Jane Garvey,^**

in her official capacity as Acting

Administrator of the Federal Highway Administration; Julie

Ann Cirillo, in her official capacity as Regional

Administrator, Region 9, of the Federal Highway

Administration; Arizona Department Of Transportation;

Larry Bonine, in his official capacity as Director of the

Arizona Department of Transportation, Defendants-Appellees.

No. 97-15196.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 1997.

Decided May 27, 1997.

Myron Scott, Tempe, Arizona, for plaintiff-appellant.

Joe Acosta, Jr. James R. Redpath and Ron J. Aschenbach, Assistant Attorneys General, Phoenix, Arizona, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding. D.C. No. CV-96-02327-EHC.

Before: NOONAN, TROTT, Circuit Judges, and MOSKOWITZ, District Judge. ^***

OPINION

TROTT, Circuit Judge.

Overview

The Price Road Neighborhood Association ("PRNA"), an association of residents living near a proposed freeway interchange, appeals the district court's grant of summary judgment in favor of the Arizona Department of Transportation ("ADOT") and the U.S. Department of Transportation ("USDOT"). The PRNA claims that the defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, as well as the procedural requirements mandated by the Council on Environmental Quality ("CEQ") and the Federal Highway Administration ("FHWA") regulations by failing to conduct a supplemental Environmental Assessment after the defendants modified the original design of the interchange. We must determine whether NEPA and the regulations require the FHWA to perform a supplemental Environmental Assessment in light of proposed design changes, or whether they authorize the agency first to conduct an environmental reevaluation in order to determine if the new design's environmental impacts are significant or uncertain and thus warrant further documentation. Because we conclude that a reevaluation is an appropriate vehicle to determine whether a design change will produce significant or uncertain impacts calling for further assessment, we affirm.

The PRNA also contends that the agencies failed to afford adequate public participation opportunities and that the agencies' conclusions, based on an inadequate reevaluation, were arbitrary and capricious. We conclude that these contentions are without merit.

Background

This dispute arises out of the partial redesign of a federally-funded freeway interchange, the "Price Interchange," being built by the ADOT at the intersection of U.S. 60, the Superstition Freeway, and S.R. 101, the Price Freeway or the Outer Loop Highway. The interchange is located in a Tempe, Arizona residential area and includes eight interchange ramps.

In 1987-1988, pursuant to NEPA regulations, the ADOT conducted an Environmental Assessment ("EA") of the interchange proposal. On September 7, 1988, the FHWA completed its review of the EA and issued a Finding of No Significant Impact ("FONSI"), indicating the proposal would have no significant effect on the human environment. The preferred design at that time was a four-level, fully-directional interchange, which included two below-ground, fully-enclosed tunnels. The tunnels were chosen partially to allay concerns of nearby residents about the original design's total ramp height of 50-feet above-ground. The tunnels reduced the total ramp height to 25-feet above-ground (one-level).

In January 1995, the ADOT informed the FHWA that it wanted to use two fully-directional loop ramps rather than the two tunnel ramps. The primary reason for the proposed change was cost savings in construction and maintenance. The FHWA required the ADOT to prepare a Change of Access Report ("CAR") and to conduct an environmental reevaluation in order to determine the continuing validity of the original EA/FONSI.

The ADOT conducted a public meeting on April 5, 1995 to inform the public of the proposed modification. FHWA officials reported significant public opposition to the redesign. Subsequent to this meeting, two citizens, James Peterson and Rick Schuster, submitted alternative designs for the two ramps. The ADOT modified its proposal and adopted a semi-directional ramp design based on the Peterson plan. A second public meeting was held on June 14, 1995 to discuss the modified design as well as other alternatives, including the Schuster plan. The Schuster plan proposed 50-foot below-ground, fully-directional, unenclosed tunnel ramps.

On June 11, 1996, the ADOT submitted its final CAR, which included as Appendix B the Environmental Reevaluation, comparing the environmental impacts of the original design with those of the proposed redesign. The preferred design called for two semi-directional, open-air loops, placed between the ground and 25-foot below-ground levels. The overall height of the interchange did not increase. On June 14, 1996, the FHWA approved the CAR and the Environmental Reevaluation, making the following findings:

The Environmental Reevaluation clearly demonstrates that there are no discernible differences in the level of environmental impacts when comparing the original configuration, with two ramps in tunnels, with the revised configuration incorporating the semi-direct ramps in place of the tunnels.

We conclude that positive design features outweigh the negative design features; and concur that there are no discernible difference in the environmental impacts.

On October 9, 1996, the PRNA filed a complaint against the USDOT, the ADOT, and certain officials of each agency, seeking declaratory and injunctive relief. The PRNA also filed a motion for a preliminary injunction. The defendants opposed the preliminary injunction and moved for summary judgment.

The district court denied the preliminary injunction, held that extra-record material submitted by the PRNA (an air quality and noise study by their expert, Goddard & Goddard Engineering) was not admissible, and granted summary judgment in favor of the USDOT and the ADOT. The PRNA appeals. The PRNA also filed an emergency motion for injunction pending appeal; this Court denied the motion but ordered the appeal expedited.

Standard of Review

Two standards govern our review of an agency's NEPA actions. We review factual disputes, which implicate substantial agency expertise, under the arbitrary and capricious standard. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 1859-61, 104 L.Ed.2d 377 (1989); Greenpeace Action v. Franklin, 14 F.3d 1324, 1330-31 (9th Cir.1992). We review legal disputes under the reasonableness standard. Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 727 (9th Cir.1995).

Discussion

I

There is no question that the FHWA must determine whether the proposed project change will have significant impacts on the environment. Moreover, there is no question that, if the environmental impacts resulting from the design change are significant or uncertain, as compared with the original design's impacts, a supplemental EA is required. The dispute, then, centers around what vehicle the FHWA may use to make the initial significance determinations. The NEPA-implementing regulations require supplemental documentation only if a project change meets a certain threshold standard; they further provide a reevaluation procedure to assess the continuing validity of prior environmental impact determinations. We conclude that conducting an environmental reevaluation is an appropriate procedure for the FHWA to determine the significance of the impacts produced by the modified design and whether a supplemental EA is required.

Section 102 of NEPA requires that all agencies prepare an environmental impact statement ("EIS") for major federal actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA "does not mandate particular substantive results, but instead imposes only procedural requirements." Laguna Greenbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9th Cir.1994). NEPA requires an agency to take a "hard look" at the potential environmental consequences of proposed projects before taking action. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). NEPA also imposes a continuing duty to supplement previous environmental documents. Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1463 (9th Cir.1984).

The CEQ regulations, supplemented by the FHWA regulations, implement NEPA. For a freeway interchange project, such as the Price Interchange, the regulations require the FHWA to prepare an EA. 40 C.F.R. § 1501.4(b); 23 C.F.R. § 771.115(c) (requiring EAs in "[a]ctions in which the significance of the environmental impact is not clearly established"). Based on the significance determinations made in the EA, the agency must then prepare either an EIS or a FONSI. 40 C.F.R. § 1501.4(c), (e). Here, the FHWA issued a FONSI.

An agency's NEPA responsibilities do not end with the initial assessment; supplemental documentation "is at times necessary to satisfy the Act's 'action-forcing' purpose." Marsh, 490 U.S. at 371, 109 S.Ct. at 1857-58. Recognizing NEPA's goal of focusing government and public attention on the environmental effects of agency action, the Supreme Court has stated:

It would be incongruous with this approach to environmental protection, and with the Act's manifest...