Southwest Williamson County Community v. Slater

• Decision Date: 10 September 1999
• Docket Number: No. 3:97-0734.,3:97-0734.
• Citation: 67 F.Supp.2d 875
• Parties: SOUTHWEST WILLIAMSON COUNTY COMMUNITY ASSOCIATION, INC. v. Rodney E. SLATER, et al.
• Court: U.S. District Court — Middle District of Tennessee

67 F.Supp.2d 875

SOUTHWEST WILLIAMSON COUNTY COMMUNITY ASSOCIATION, INC. v. Rodney E. SLATER, et al.

No. 3:97-0734.

United States District Court, M.D. Tennessee, Nashville Division.

September 10, 1999.

Joe W. McCaleb, Hendersonville, TN, Richard Parrish, Charlottesville, VA, for plaintiff.

Michael Roden, Nashville, TN, Donald Corlew, Nashville, TN, for defendant.

MEMORANDUM

CAMPBELL, District Judge.

I. Introduction

Pending before the Court are Plaintiff's Motion For Preliminary Injunction (Docket No. 83) and Plaintiff's Motion To Strike (Docket No. 100). The Court held a hearing on these Motions on August 30, 1999. For the reasons set forth below, the Motions are DENIED.

II. Factual and Procedural Background

A. Procedural Background

Plaintiff, a non-profit corporation formed of members who live and work in Williamson County, brought this action in July, 1997, seeking to enjoin the continued construction of the 840 South Highway Project,¹ pending the completion of a final environment impact statement regarding the Project. Named as Defendants are Rodney Slater, Secretary of the United States Department of Transportation; Jane F. Garvey, Acting Administrator of the Federal Highway Administration ("FHWA"); James Scapellato, Division Administrator of the Federal Highway Administration; and John Bruce Saltsman, Sr., Commissioner of the Tennessee Department of Transportation. In its original Complaint, Plaintiff alleged that the Defendants failed to comply with certain provisions of the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), and the Intermodal Surface Transportation Efficiency Act, 23 U.S.C. §§ 134, 135 ("ISTEA"). Plaintiff asserted federal jurisdiction, in part, based on the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq. ("APA").

Ruling on motions filed by the Defendants, the Court dismissed the NEPA claims as barred by the applicable statute of limitations (Docket Nos. 41, 42). The Court dismissed the ISTEA claim because the statute provides no private right of action, and declined to exercise supplemental jurisdiction over a state law claim based on the Petroleum Products And Alternative Fuels Tax Act, Tenn.Code Ann. § 67-3-2003.

On appeal, the Sixth Circuit affirmed the Court's dismissal of the NEPA claims on statute of limitations grounds, except as to an Environmental Assessment ["EA"] prepared by the State² upon which the FHWA had taken no action. With regard to this NEPA claim, the appeals court remanded the case "for a determination as to whether the project is a `major federal action' requiring FHWA to issue a FONSI [Finding of no significant impact] or an EIS [Environmental Impact Statement] in response to the third EA [regarding a corridor of the highway]." Southwest Williamson County Community Association v. Slater, 173 F.3d 1033, 1037 (6th Cir. 1999) (footnote omitted). The court also reversed the dismissal of the ISTEA claim, and directed the Court to revisit its decision to decline supplemental jurisdiction in light of the potential continued viability of the federal claims.³

On remand, the Plaintiff filed an Amended Complaint that asserted only the NEPA claim regarding the corridor, and the state law claim. (Docket No. 74). Plaintiff has abandoned the ISTEA claim. No federal claims are pending against the State Defendant.

B. The 840 South Highway Project

The 840 South Highway Project is a proposed 77-mile highway connecting the western Middle Tennessee area with the eastern Middle Tennessee area through a route south of Nashville from Interstate 40 West to Interstate 40 East. The Project is divided into three segments. The first segment, which begins at the I-40E interchange and ends at the I-24 interchange, has been completed. Portions of the second segment, which begins at the I-24 interchange and ends at the I-65S interchange, are under construction. As for the third segment, beginning at the I-65S interchange and ending at the I-40W interchange, only construction on the western end has begun.

Although the State initially, in November, 1991, sought federal funding for the Project, it is undisputed that construction of the Project has been funded solely by the State. Notwithstanding the lack of federal funding, Plaintiff contends that the Project is effectively controlled by agencies of the federal government.

III. The Preliminary Injunction Motion

A. Factors to consider.

Plaintiff requests that the Court enjoin the continued construction of 840 South pending the completion of a Final EIS for the highway. In determining whether to issue a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure, the Court is to consider: (1) whether the movant has shown a strong or substantial likelihood of success on the merits; (2) whether irreparable harm will result without an injunction; (3) whether issuance of a preliminary injunction will result in substantial harm to others and (4) whether the public interest is advanced by the injunction. Michigan State AFL — CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir.1997).

B. Likelihood of success on the merits

1. The NEPA claim⁴

NEPA was designed to ensure that federal agencies take a "hard look" at the effect of their actions on the environment. Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). To fulfill this purpose, NEPA requires federal agencies to consider the environmental consequences of "major Federal actions significantly affecting the quality of the human environment ..." 42 U.S.C. § 4332(2)(C). If the significance of the environmental consequences of a proposal is not apparent, the agency may prepare an environmental assessment to determine whether to prepare an environmental impact statement or a finding of no significant impact. 40 C.F.R. §§ 1501.3, 1501.4, 1508.9. If the agency issues a finding of no significant impact, NEPA compliance is complete. 40 C.F.R. § 1501.4; Sierra Club v. Slater, 120 F.3d at 635.

NEPA does not require a particular outcome, but simply imposes a particular process designed to ensure that agencies consider the environmental impact of their decisions. Kleppe, 96 S.Ct. at 2730 n. 21. That process must be followed, however, only if a project constitutes a "major federal action."

Thus, the threshold issue in this case is whether the 840 South Highway Project is a major federal action.⁵ Plaintiff concedes that the Federal Defendants have not funded this project. But, as the Sixth Circuit stated in remanding this case, "the `absence of federal funding is not necessarily dispositive in determining whether a highway project is imbued with a federal character.'" 173 F.3d at 1037 (quoting Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 990 (6th Cir. 1989)). Plaintiff contends that the 840 South Highway Project is a major federal action within the meaning of NEPA, based on the following actions taken by agencies of the federal government in connection with the project:

1. Federal approval of the design, construction, location and alignment of 840 South with existing interstate highways (Two EAs/FONSIs) [The interchange approvals];

2. FHWA consultation with TDOT [Tennessee Department of Transportation] and the National Park Service to determine where 840 South will cross the federally-protected Natchez Trace Parkway;

3. The Secretary of the Interior's permission, control and approval of a right-of-way across the federally-protected Natchez Trace Parkway including mitigation to historic properties pursuant to Section 106 of the National Historic Preservation Act and mitigation and consultation to protect the Eggert sunflower pursuant to the Endangered Species Act (Draft EA has been issued);

4. Secretary of the Army's review, approval and permitting three separate crossings of waters of the United States including filling wetlands along the 840 South route (Two EA/FONSIs issued);

5. FHWA approval of the Nashville Long Range Transportation Plan Conformity Redetermination required by the Clean Air Act Amendments of 1990 without which the continued construction of 840 would not be allowed 6. The FHWA funding of a study resulting in the Air Quality Conformity Redetermination mentioned above; FHWA funding of the NMPO's [Nashville-Metropolitan Planning Organization] Unified Planning Work Programs from 1995 through 1999 which included three traffic capacity analysis for interchanges in Wilson County, Rutherford County and Williamson County; and

7. The formal application by the State Defendant to the Federal Defendant in November, 1991, for federal interstate status, subsequently withdrawn for two principal reasons: (1) The State did not want to comply with NEPA; and (2) The State can build 840 South, then apply for interstate status at a later time, which would be granted after only a simple inspection to determine whether or not the road was built according to geometric designs.

(Memorandum In Support Of Plaintiff's Motion For Preliminary Injunction, at 20-21 (Docket No. 82)).

Plaintiff urges that the Court define the phrase "major federal action" based on regulations issued by the Council on Environmental Quality ("CEQ"), and the Fourth Circuit's opinion in Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir.1986).

The CEQ regulations define "major federal action" as

"Major Federal action" includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (§ 1508.27).⁶ Actions include the circumstance where the responsible officials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action.⁷

40 C.F.R. § 1508.18.

In Gilchrist, which was decided in 1986, the plaintiff sought to enjoin the construction of a county highway designed to pass...