Utahns for Better Transp. v. U.S. Dept. of Transp., s. CIV.1:01-CV-0007J, CIV.1:01-CV-0014J.

Citation180 F.Supp.2d 1286
Decision Date11 August 2001
Docket NumberNos. CIV.1:01-CV-0007J, CIV.1:01-CV-0014J.,s. CIV.1:01-CV-0007J, CIV.1:01-CV-0014J.
PartiesUTAHNS FOR BETTER TRANSPORTATION, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants. Sierra Club, v. United States Department of Transportation, et al., Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Court of Utah

Lisa A. Kirschner, Craig D. Galli, Michael J. Malmquist, Henry D. Owens, Parsons Behle & Latimer, Robert W. Adler, University of Utah, College of Law, Steven W. Dougherty, Anderson & Karrenberg, Joro Walker, Land & Water Fund of the Rockies, Salt Lake City, UT, Patrick Gallagher, Aaron Isherwood, Alex B. Levinson, Joanne Spalding, Sierra Club Environmental Law Prog., San Francisco, CA, George A. Tsiolis, Snell & Wilmer, Phoenix, AZ, Bradley R. Cahoon, Snell & Wilmer LLP, Salt Lake City, UT, for plaintiffs.

Carlie Christensen, U.S. Attorney's Office, Margaret N. Strand, Venable Baetjer Howard & Civilett LLP, Washington, DC, Alan David Greenberg, U.S. Department of Justice, Environmental Defense, Denver, CO, Daniel Wade Pinkston, Department of Justice, Denver, CO, Clay Samford, U.S. Department of Justice, Environment & Natural Resource Division, Washington, DC, Thomas A. Mitchell, Utah Attorney General's Office, Salt Lake City, UT, Kenneth W. Yeates, Mark A. Wagner, Van, Cott, Bagley, Cornwall & McCarthy, Salt Lake City, UT, David M. Friedland, Gus B. Bauman, David M. Williamson, Beveridge & Diamond, Washington, DC, W. Cullen Battle, Fabian & Clendenin, Salt Lake City, UT, for defendants.

DECISION

JENKINS, Senior District Judge.

Plaintiffs Utahns for Better Transportation, Mayor Rocky Anderson and the Sierra Club commenced this consolidated proceeding pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C.A. §§ 702 et seq. (1996). They ask the Court to vacate the Record of Decision ("ROD") of the United States Army Corps of Engineers granting a Clean Water Act Section 404(b) Permit (January 9, 2001), and the Record of Decision of the Federal Highway Administration approving the Request for Additions and Modifications of Access Points on I-215 and I-15 (October 31, 2000), both of which approve the construction of the Legacy Parkway. They also ask the Court to send back the Legacy Parkway Final Environmental Impact Statement ("EIS") for supplementation or revision on the theory that the EIS as prepared by the Utah Department of Transportation ("UDOT") and its contractors and adopted by the two federal agencies did not comply with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C.A. 4321-4370d (1994). Plaintiffs contend that the EIS fails to give adequate consideration to alternatives to, and to the impacts of the proposed Legacy Parkway "Preferred Alternative,"1 and they seek to have the agencies conduct further environmental impact analysis:

We do not seek a ruling by the court that the Legacy Parkway can never be built or that the policies of UDOT are somehow misguided or that the defendants cannot take into consideration desires of local planners in Davis County regarding the location of new highways and their growth plans.

Rather the plaintiffs seek vacatur and a remand so that these federal agencies can undertake the required analysis under NEPA and the Clean Water Act of impacts and alternatives.

(Transcript of Hearing, dated July 26, 2001, at 6:5-13 (Mr. Galli)).2

Under the APA, the Court may grant the relief plaintiffs seek, but only if the plaintiffs demonstrate that the agencies' actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...." 5 U.S.C.A. § 706(2)(A). It is the plaintiffs' burden to show that an agency action fails to meet this statutory standard.

Thus, the question presented here proves to be a very narrow one. The Court is not called upon to decide anew whether the FHWA highway access approval or the § 404(b) permit should be granted, or whether the Legacy Parkway will be built, or whether it should be built at all. These matters have already been entrusted to the Federal Highway Administration and the Army Corps of Engineers, and to policymakers and executive agencies at the state and local level who have been empowered by the voters to make those kinds of policy decisions.

The sole question presented here is whether in performing their respective functions, these two federal agencies have complied with the law.

To assist in resolving that question, the Court has been furnished an Administrative Record of some 60,000 pages, including an EIS of some 1,600 pages, and "briefs" which together weigh in excess of 6 pounds. The parties have furnished a comprehensive index to the administrative record, and plaintiffs have supplemented the record with some few additional documents intended to assist the Court in this task.

The Court was favored as well with oral argument, which ran a day-and-a-half.

Having reviewed the briefs, the RODs and the EIS with some care, having perused selected portions of the record cited by the parties, and having heard and considered the arguments of counsel, the Court now rules as follows.

I

Plaintiffs assert that the agencies failed to give adequate consideration to two alternatives to the proposed project: (1) the so-called "Denver & Rio Grande Alignment," and (2) an alternative calling for a much narrower and less damaging configuration for the Legacy Parkway, limiting construction to the width needed for the highway itself. Either alternative, plaintiffs submit, would result in fewer adverse environmental impacts, and both alternatives, plaintiffs insist, were rejected on grounds that do not satisfy NEPA and Clean Water Act requirements.

Plaintiffs correctly point out that the NEPA statute and the regulations and case law surrounding the statute impose a series of obligations on federal agencies considering significant actions that may have environmental impacts. NEPA requires agencies to take a "`hard look' at the environmental consequences of proposed actions," utilizing public comment and the "best available" scientific information. Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir.1999). At the heart of these statutory obligations is the duty to consider alternatives. Plaintiffs also point out that NEPA imposes a continuing duty upon the agencies to evaluate new and changed information, and to supplement earlier analysis with the consideration of more recent data. See 40 C.F.R. § 1502.9(c)(1)(ii) (2000).

Plaintiffs argue that the agencies failed to satisfy NEPA requirements as to the D & RG Alignment by failing to respond in a "meaningful and thoughtful" way to comments made during the preparation of the EIS, and by summarily rejecting that D & RG Alignment alternative based upon considerations of estimated cost. Cost should be determinative, plaintiffs insist, only if cost renders the D & RG Alignment infeasible based upon accurate and objective cost data, and the data relied upon by the EIS, plaintiffs insist, is questionable at best. Plaintiffs also argue that the EIS proves deficient in its treatment of impacts on growth — particularly increased vehicle traffic bound for Salt Lake City — as well as impacts on wetlands and wildlife (over an area exceeding 20,000 acres), its estimate of the increased carbon monoxide burden upon the surrounding environment, and its evaluation of mass transit alternatives to the single occupant automobile. The EIS, plaintiffs submit, is grounded upon inadequate data, flawed modeling and defective analysis.

The defendants — both federal and state agencies — acknowledge that "full disclosure ... presenting a full picture" is the agencies' obligation under NEPA. They respond that all of the plaintiffs' objections, reservations, criticisms, and concerns find detailed reflection in the administrative record, and that these were duly considered by both the Federal Highway Administration and the Corps of Engineers. The two agencies, defendants insist, formulated legally sufficient responses embodied in the final EIS, the agency Records of Decision, and appurtenant documents. Defendants suggest that plaintiffs challenge the NEPA process because they are dissatisfied with the outcome, not because the NEPA process itself was legally deficient.

With respect to particular alternatives, the agencies assert that the D & RG Alignment was considered during the NEPA process, and that it is "crystal clear" from the record that apart from cost, the D & RG Alignment was "screened out" because it was understood to be reserved for rail transit. Moreover, the D & RG Alignment goes "right down the middle of the most heavily developed part of Davis County," where local communities would disfavor such construction. (Transcript of Hearing, dated July 26, 2001, at 118:14-15 (Ms. Strand).) The width of the Legacy Parkway, defendants submit, is determined not only by the required width of the traveled lanes, but also by a vegetated median strip required to address water quality concerns; it also serves the full range of project purposes disclosed in the administrative record, including the placement of the Bear River Pipeline. The defendants assert that the agencies compared alignment alternatives using the full width, recognizing that it serves desirable project purposes, including mitigation.

In this matter, the multitude of interested parties — individuals, groups of various kinds such as cities and towns, land developers, government associations, contractors, economic development directors, scenery appreciators, visionaries, concerned environmentalists, government agencies (some with competing and antagonistic points of view), bird-watchers, public officeholders, scientists and duck hunters, as well as the general public — all had the opportunity to comment and suggest during the preliminary information-gathering process. Comments received run into the thousands of pages. Many...

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  • Utah Dep't of Transp. v. Coalt Inc.
    • United States
    • Utah Court of Appeals
    • 4 August 2016
    ...EIS did not comply with federal environmental law and sought to vacate the permit. See generally Utahns for Better Transp. v. United States Dep't of Transp. , 180 F.Supp.2d 1286 (D. Utah 2001). When the court ruled in UDOT's favor, the public interest litigants filed an appeal with the Tent......

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