Sensible Traf. Alternatives v. Fed. Transit Admin.
| Decision Date | 19 February 2004 |
| Docket Number | Civil No. 03-00628 SOM-LEK. |
| Citation | 307 F.Supp.2d 1149 |
| Parties | SENSIBLE TRAFFIC ALTERNATIVES AND RESOURCES, LTD., Plaintiff, v. FEDERAL TRANSIT ADMINISTRATION OF THE U.S. DEPARTMENT OF TRANSPORTATION; Administer of the Federal Transit Administration of the U.S. Department of Transportation; Department of Transportation Services of the City & County of Honolulu; Director of the Department of Transportation Services of the City & County of Honolulu, et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Harry Yee, Assistant United States Attorney, Office of the United States Attorney, Honolulu, HI, for Defendants Federal Transit Administration, U.S. Department of Transportation; Administrator of the Federal Transit Administration of the U.S. Department of Transportation.
John Manaut, Carlsmith Ball LLP, Honolulu, HI, for Defendants Transportation Services, City and County of Honolulu; Director of the Department of Transportation Services for the City and County of Honolulu.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CITY & COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT FEDERAL TRANSIT ADMINISTRATION'S JOINDER THEREIN
How traffic congestion on Oahu should best be addressed is a matter that touches nearly everyone. The subject has generated heated debate for years within the community. While this case concerns an attempt by the City & County of Honolulu ("City") to address the problem, this case clearly does not call upon this court to take on the political task of resolving the problem. Instead, this case presents the narrow question of whether the City has complied with applicable environmental protection laws as it prepares to move forward with what it says will be the first phase of a "Bus Rapid Transit" ("BRT") system intended to alleviate traffic congestion.
The BRT system, if fully implemented, will run from Kapolei to Waikiki and the University of Hawaii at Manoa. In proceeding with the BRT system, the City had to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370e ("NEPA") and the Hawai'i Environmental Policy Act, ch. 343, Hawaii Revised Statutes ("HEPA"). The City and the Federal Transit Administration ("FTA") prepared draft and supplemental environmental impact statements for the entire system, noting that it would be built in phases, beginning with an In-Town BRT.
To comply with HEPA, the City then issued a final environmental impact statement ("State FEIS") for the entire system. The then-Governor accepted the State FEIS.
In contrast to the State FEIS, the final environmental impact statement required by NEPA ("Federal FEIS") discussed the impact of the entire BRT system but then focused on a single segment, the Initial Operating Segment ("IOS"), described as the first phase of construction of the system. The FTA issued a Record of Decision ("ROD") accepting only the portion of the Federal FEIS that pertained to the IOS and leaving the remainder of the Federal FEIS for later review and acceptance.
The construction of the IOS is at the heart of this case. Plaintiff Sensible Traffic Alternative and Resources, Ltd., dba The Alliance for Traffic Improvement ("ATI"), arguing that HEPA and NEPA are falling victim to politics, files this lawsuit alleging that those laws have been violated.
The City, joined by the FTA, has moved for summary judgment on all claims.1 The court grants the motion in part and denies it in part. The court grants summary judgment against ATI on its HEPA claims (Counts III, VII, and X), as those claims are barred by Haw.Rev.Stat. § 343-7. The court also dismisses, for lack of standing by ATI, ATI's claims that NEPA was violated because no joint environmental impact statement was prepared (Count VI) and because there was allegedly no coordinated environmental review (Count VIII). The court denies the remainder of the motion as it pertains to ATI's NEPA claims, as the City has not demonstrated that issue and/or claim preclusion applies and as the City has not met its initial burden of demonstrating that it is entitled to summary judgment on those claims.
The factual background for this motion is largely undisputed. It was previously set forth in this court's order denying ATI's request for a temporary restraining order. That factual background is incorporated herein by reference and is modified and supplemented here only as necessary.
On or about August 16, 2000, in an attempt to comply with the requirements of HEPA and NEPA, the City, through its Department of Transportation Services ("DTS"), and the FTA submitted a Major Investment Study/Draft Environmental Impact Statement ("MIS/DEIS") for the "Primary Corridor Transportation Project." See MIS/DEIS (Aug. 16, 2000) (attached as Ex. 1 to Opposition). After rejecting various alternatives, including a light rail alternative, the MIS/DEIS explored three alternatives: (1) a "No Build" alternative; (2) a Transportation System Management ("TSM") alternative; and (3) a BRT alternative. Id. at S-5, 2-58. The MIS/DEIS noted that the BRT system would be built in phases: Id. at S-18.
In March 2002, after choosing the BRT system as the locally preferred alternative ("LPA"), the City, through DTS, together with the FTA, submitted, pursuant to NEPA and HEPA, a Supplemental Draft Environmental Impact Statement ("SDEIS") for the Primary Corridor Transportation Project. See SDEIS (attached to Opposition as Ex. 3). The SDEIS discussed a refinement to the MIS/DEIS that added "a new In-Town BRT branch (Kakaako Makai Branch) running from the Iwilei Transit Center through downtown Honolulu, the Aloha Tower Marketplace, and Kakaako Makai en route to Waikiki." SDEIS (second page of Ex. 3); see also SDEIS at P-1. The Kakaako Makai Branch described in the SDEIS is nearly identical to the IOS described in the Federal FEIS. Compare SDEIS at 2-18 through 2-19 with Federal FEIS at IOS-11. The SDEIS noted that Id. at S-16. The SDEIS provides for construction of the Kakaako Makai Segment of the In-Town BRT from 2002 through 2005. See SDEIS, Figure 2.5-1 at 2-27.
Although the MIS/DEIS and the SDEIS were prepared jointly by the City and the FTA, two final environmental impact statements were prepared. The first was issued by DTS on or about November 25, 2002, to comply with HEPA. See State FEIS (Nov. 25, 2002) .2 The State FEIS discusses the Refined LPA. It also discusses the part of the Refined LPA that constitutes the IOS, nearly identically describing it but calling it not the IOS, but the Kakaako Makai Branch, a branch of the In-Town BRT System. Compare State FEIS, Kakaako Makai Branch (described at 2-31 and depicted in Figure 2.2-5 on 2-32) with Federal FEIS, IOS Routing (described at IOS-11 and depicted in Figure IOS 2-1B on IOS-10). Like the MIS/DEIS and the SDEIS, the State FEIS notes that State FEIS at S-16. The State FEIS includes a schedule for the Refined LPA, which notes that it would "be implemented by DTS as separate projects," and demonstrates that construction would begin with the In-Town BRT system. See id. at 2-45 (Figure 2.5-2). Figure 2.5-2 of the State FEIS indicates that the "Iwilei-Waikiki Segment" would be constructed between 2003 and 2005.
The then-Governor of the State of Hawaii accepted the State FEIS on or about November 29, 2002. See Letter from Benjamin J. Cayetano to Cheryl D. Soon (Nov. 29, 2002) (accepting the adequacy of the State FEIS, but not endorsing the project).
A second final environmental impact statement was issued by the FTA and the City in July 2003 to comply with NEPA. See Federal FEIS (July 23 and 25, 2003) (attached to Hamayasu Aff. Ex. B). Like the MIS/DEIS, SDEIS, and the State FEIS, the Federal FEIS notes that Federal FEIS at S-30. The Federal FEIS has an extensive discussion of the IOS, see id., IOS Chapter, noting that "[i]mplementation of the Refined LPA will be phased over 14 years, the first phase consisting of construction of the Initial Operating Segment (IOS), which is scheduled to begin with award of a construction contract in Calendar Year 2003." Id. at 6-3; 2-53 ( ); and IOS-7 ( ...
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