RB Jai Alai, LLC v. Sec'y of the Fla. Dep't of Transp., Case No. 6:13–cv–1167–Orl–40GJK.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: PAUL G. BYRON, District Judge.
• Citation: 112 F.Supp.3d 1301
• Parties: RB JAI ALAI, LLC, et al., Plaintiffs, v. SECRETARY OF the FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Defendants.
• Docket Number: Case No. 6:13–cv–1167–Orl–40GJK.
• Decision Date: 30 June 2015

112 F.Supp.3d 1301

RB JAI ALAI, LLC, et al., Plaintiffs,
v.
SECRETARY OF the FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

Case No. 6:13–cv–1167–Orl–40GJK.

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

Signed June 30, 2015.

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James Marcus Jones, J. Marc Jones P.A., Michael D. Jones, Michael D. Jones & Associates, PA, Oviedo, FL, Jonathan Kalmuss–Katz, Mark A. Chertok, Sive, Paget & Riesel, P.C., New York, NY, for Plaintiffs.

Andrew J. Baumann, Robert P. Diffenderfer, Kathryn Barkett Rossmell, Lewis, Longman & Walker, PA, West Palm Beach, FL, Edwin A. Steinmeyer, Lewis, Longman & Walker, PA, Tallahassee, FL, Michelle Sayyar Andotra, Federal Highway Administration, Office of the Chief Counsel, Atlanta, GA, Ralph E. Hopkins,

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U.S. Attorney's Office, Orlando, FL, for Defendants.

ORDER

PAUL G. BYRON, District Judge.

This cause comes before the Court without oral argument on the following:

1. Plaintiffs' Motion for Summary Judgment and Consolidated Memorandum of Law (Doc. 105), filed November 5, 2014;

2. State Defendants' Cross–Motion for Summary Judgment and Response in Opposition to Plaintiffs' Motion for Summary Judgment (Doc. 112), filed November 24, 2014;

3. Federal Defendants' Cross–Motion for Summary Judgment (Doc. 114) and Combined Memorandum in Support (Doc. 115), filed November 24, 2014;

4. Plaintiffs' Brief in Opposition to Defendants' Cross–Motions for Summary Judgment and in Further Support of Plaintiffs' Motion for Summary Judgment (Doc. 117), filed December 15, 2014;

5. Federal Defendants' Supplemental Brief on Summary Judgment (Doc. 123), filed May 5, 2015;

6. State Defendants' Supplemental Brief in Opposition to Summary Judgment for Plaintiffs (Doc. 124), filed May 5, 2015; and

7. Plaintiffs' Response to Supplemental Brief on Summary Judgment (Doc. 125), filed May 12, 2015.

Upon consideration and review of the record, including all pleadings, affidavits, declarations, exhibits, the Administrative Record, and memoranda of counsel, the Court grants summary judgment in favor of Plaintiffs.

I. BACKGROUND

A. NEPA: Our National Charter for Protecting the Environment

Following nearly a century of rapid economic expansion, population growth, industrialization, and urbanization, it had become clear by the late 1960s that American progress had an environmental cost. See 42 U.S.C. § 4331(a) ; 115 Cong. Rec. 26,571 (1969) (remarks of Rep. John Dingell). A congressional investigation into the matter yielded myriad evidence indicating a gross mismanagement of the country's environment and resources, most notably at the hands of the federal government. S.Rep. No. 296, 91st Cong., 1st Sess. 8 (1969); Thomas O. McGarity, The Courts, the Agencies, and NEPA Threshold Issues, 55 Tex. L.Rev. 801, 805 (1977) (noting "a remarkable consensus of opinion" that the federal agencies contributed substantially to the country's degraded environmental state). As a result, lawmakers and the general public alike called for an urgent and sweeping policy of environmental protection.

Congress answered these calls by enacting the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 –4370h, which has now served for forty-five years as "our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). With NEPA, Congress mandated that federal agencies take a "hard look" at the environmental consequences of their actions and to engage all practicable measures to prevent environmental harm when engaging in agency action. Kleppe v. Sierra Club, 427 U.S. 390, 409, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (citing 42 U.S.C. § 4331(b) ). Furthermore, to remedy the widespread mistrust of the federal agencies, Congress incorporated within NEPA "action-forcing" provisions which require agencies to follow specific procedures in order to accomplish

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any federal project. Id. at 409 & n. 18, 96 S.Ct. 2718.

The cornerstone action-forcing provision within NEPA is the environmental impact statement ("EIS"). As an agency plans a major federal action, it is required to consider the environmental impacts of that action. 40 C.F.R. § 1500.1. Projects that are generally known by the agency through its experience to significantly affect the quality of the human environment necessitate the preparation of an EIS, which describes in detail both the positive and negative environmental impacts of the action and analyzes other alternatives that might provide the same benefits at a lower environmental cost. See id. §§ 1502.1–1502.25. Conversely, projects that are known by the agency through its experience to not significantly affect the human environment (either individually or cumulatively) can be classified as categorical exclusions ("CEs"), relieving the agency of the EIS requirement. Id. § 1508.4; see also id. § 1501.4(a). Finally, where an agency's regulations do not classify a major federal action as a CE or as one requiring an EIS, or where an agency is unsure of how a particular project should proceed, the agency will prepare an environmental assessment ("EA") to briefly and concisely determine whether an EIS is necessary. Id. §§ 1501.4(b), 1508.9. An EA will result in the agency either deciding to prepare a full EIS or filing a "finding of no significant impact," which, like a CE, dispenses with the EIS requirement. Id. § 1508.13.

Ultimately, NEPA does not mandate that an agency reach any particular decision, only that the agency follows NEPA's procedures to arrive at an informed decision. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). It is therefore well-settled that even environmentally harmful projects will satisfy NEPA as long as the appropriate procedures are followed. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In that sense, the rights NEPA provides are procedural, not substantive. Vt. Yankee, 435 U.S. at 558, 98 S.Ct. 1197.

Being the foundation of American environmental policy, NEPA also serves as the environmental backdrop to other federal statutes, which in turn require compliance with NEPA in order to pursue federal action under their provisions. Relevant to the instant case, the Federal–Aid Highway Act, ("FAHA"), 23 U.S.C. §§ 101 –170, requires federal agencies and state agencies who seek federal funding for proposed highway projects to conduct the appropriate environmental review under NEPA. Id. §§ 128, 139. Consequently, the failure to conduct adequate environmental review in violation of NEPA similarly violates FAHA.

B. Facts

The dispute in this case arises out of the construction of a multimillion dollar state—and federally-funded highway project in Casselberry, Florida¹ (hereinafter the "Flyover Project"). The Flyover Project consists of changing the existing at-grade intersection at U.S. 17–92 and SR 436 to an above-grade, elevated highway overpass which will allow traffic traveling on U.S. 17–92 to cross over SR 436 without interruption (see Figure 1). (AR 0405–0408).² The Flyover Project also involves adding frontage roads to allow access to local roadways, widening SR 436 to include additional left-turn lanes, and improving sidewalks, bicycle lanes, drainage systems,

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and landscaping. (Id. ). The impetus for the Flyover Project lies in the need "to provide adequate capacity to satisfy both existing and future traffic conditions" at the intersection, which currently operates at a failing level of service. (AR 0406).

In an effort to comply with NEPA and FAHA, Defendants conducted numerous studies of the potential impacts the Flyover Project may have on the environment, including a Cultural Resource Assessment Survey (AR 0201–0326), an Endangered Species Biological Assessment (AR 0327–0344), an Air Quality Report (AR 0345–0365), and a Noise Quality Report (AR 0366–0401). All of these studies concluded that the Flyover Project will not significantly impact the environment. Defendants also held a public hearing which yielded no notable concerns. (AR 0426–0615). As a result, in February 2004, Defendants approved the Flyover Project as a CE, exempting it from further environmental scrutiny. (AR 0402–0425).

The Flyover Project was re-evaluated twice prior to the start of construction. In 2005, Defendants conducted a re-evaluation to consider the environmental impacts of minor changes to safety and traffic flow issues. (AR 0616–0621). Defendants ultimately found these design changes would inflict no significant impact on the environment and affirmed the Flyover Project's status as a CE. (AR 0616). Defendants conducted a second re-evaluation in 2012 because of design changes to the length of the overpass and to the width of a median. (AR 0623–0637). Defendants determined that these changes would also have no

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significant impact on the environment and again affirmed the Flyover...