Ware v. U.S. Fed. Highway, CIVIL ACTION NO. H-11-0848
| Decision Date | 30 March 2016 |
| Docket Number | CIVIL ACTION NO. H-11-0848 |
| Parties | WILLIAM A. WARE, Plaintiff, v. UNITED STATES FEDERAL HIGHWAY, ADMINISTRATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
In 2011, William Ware sued the U.S. Federal Highway Administration, the U.S. Department of Transportation, and various agency officials under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., challenging the noise impact of a large highway-construction project. The Texas Department of Transportation ("TxDOT") intervened as a defendant. After five years of litigation, Ware has one remaining claim: he alleges that in 2013, the defendants failed to comply with § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, and § 18(a) of the Federal-Aid Highways Act, 23 U.S.C. § 138, in assessing the impacts of the challenged highway-construction project on a nearby park and arboretum. Ware asks this court to issue a declaratory judgment finding a violation and to issue an order compelling the defendants to conduct an environmental-impact analysis under Section 4(f).
The project Ware challenges involves 38 miles of construction along Highway 290 to Interstate Highway Loop 610 in Houston, Texas. It is referred to as the Highway 290 project. The project is currently under construction. It has been changed over time, in part responding to information about environmental and noise impacts. The defendants have analyzed the Highway 290 project's environmental effects and issued a series of environmental-impact statements. TxDOT first evaluated the environmental impacts of the project in 2010, issuing a Final Environmental Impact Statement in May of that year. (Docket Entry No. 32, Administrative Record (AR) 839-41). The Federal Highway Administration issued a Record of Decision approving TxDOT's Final Environmental Impact Statement in August 2010. (Docket Entry No. 32, AR 945).
In March 2011, TxDOT completed its first reevaluation of the Final Environmental Impact Statement, focused on the first phase of the project. In July 2012, TxDOT completed a second reevaluation, focused on the area covered by the first part of the second project phase. In October 2012, TxDOT completed a third reevaluation of the Final Environmental Impact Statement, focused on the area in the second part of the second phase. TxDOT completed its latest Final Environmental Impact Statement reevaluation, the fourth, in August 2013.
In this last reevaluation, TxDOT studied the Highway 290 project's noise impacts and how they might be mitigated. TxDOT used the most recent traffic-noise model, TNM 2.5, that the Federal Highway Administration had approved. In the earlier reevaluations, TxDOT had used TNM 2.1, the then-approved traffic-noise model. TNM 2.5 replaced TNM 2.1 in April 2012. TxDOT's fourth and last reevaluation also examined the project's interim design phase, minor design changes, the use of reversible lanes to accommodate peak traffic, tolling options, managed lanes, detention ponds, lighting, right-of-way changes, and schematic adjustments. (Docket Entry No. 85, Exs. 1-4 (Record of Decision and Appendices)).
The Federal Highway Administration issued a Revised Record of Decision in September2013, approving the fourth TxDOT reevaluation of the Final Environmental Impact Statement. (Docket Entry No. 85). The 2013 Revised Record of Decision proposed "additional and revised noise walls" to benefit certain residential areas and restaurants with outdoor seating. (Docket Entry No. 85, Ex. 1 at p. 24). The Federal Highway Administration relied on the results of the TxDOT noise-impact study to conclude that "the impact of projected traffic noise levels of the proposed highway project do not exceed the [federal] noise abatement criteria as contained in 23 C.F.R. § 772, Table 1." (Docket Entry No. 85, Ex. 1 at p. 13). The Revised Record of Decision specifically addressed the question at issue here, whether the noise impacts on the park and arboretum would exceed permissible levels because of increased traffic from the project. The Revised Record of Decision stated that "any park that is located approximately 400-500 feet or more from the edge of pavement would experience noise levels below the noise abatement criteria for parks . . . ." (Id.). It is undisputed that the park and the arboretum are more than 400 to 500 feet from the edge of the roadway pavement.
After completing the Revised Record of Decision, the federal defendants notified the court of the final agency action. (Docket Entry No. 85). This action, which had been administratively closed, was reinstated to the active docket. (Docket Entry No. 88).
Ware appears to challenge the 2013 Revised Record of Decision's conclusion, and the process by which it was reached, that "any park that is located approximately 400-500 feet or more from the edge of pavement would experience noise levels below the noise abatement criteria for parks." He contends that the defendants acted "unreasonably" as a matter of law when they issued the 2013 Revised Record of Decision because they did not comply with the procedures in Section 4(f). Ware alleges that if the defendants had complied with Section 4(f), they would have allowedpublic notice and comment, conducted hearings or other procedures to analyze the risk of increased noise levels in the nearby park and arboretum, and obtained written consent from the Houston City Council for the unspecified "work." Although construction on the project is ongoing, and although Section 4(f) is premised on the evaluations occurring before relevant construction starts, Ware seeks an order compelling the defendants to perform another evaluation at this advanced project stage.
The defendants counter that they complied with Section 4(f) in concluding that noise levels at the park and the arboretum would not exceed the relevant standards and that no further environmental-impact analysis was required. To the extent Ware challenges the conclusions they reached, the defendants argue that the record shows that they did not act arbitrarily and capriciously. The defendants also contend that Ware lacks standing to assert his claim under the APA because increased noise in the park and arboretum—the two locations Ware invokes as the basis for his standing to sue—is not a concrete, particularized, and actual or imminent injury; is not fairly traceable to the agency inaction Ware challenges; and is not redressable with an order compelling a Section 4(f) evaluation.
Ware moved for summary judgment that the defendants' decision not to perform a complete environmental-impact analysis on the park and arboretum noise levels violated Section 4(f). (Docket Entry No. 133). The defendants cross-moved, seeking summary judgment that Ware lacked standing to sue and that the 2013 Revised Record of Decision was not arbitrary and capricious. (Docket Entry Nos. 139, 140). Ware responded and moved to supplement the administrative record. (Docket Entry Nos. 142-44). The defendants moved to strike the extra-record evidence Ware sought to submit. (Docket Entry No. 145). Based on a review of the motions, the briefs and submissions, the pleadings, the administrative record, and the applicable law, the court grants thedefendants' cross-motions for summary judgment, denies Ware's motion, denies the motion to supplement, and grants the motion to strike. An order of dismissal is separately entered.
The reasons for these rulings are explained below.
"Summary judgment is required when 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). "A genuine dispute of material fact exists when the 'evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Nola Spice Designs, LLC v. Haydel Enters., Inc.,783 F.3d 527, 536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). "The moving party 'bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.'" Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
"Where the non-movant bears the burden of proof at trial, the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Id. (quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536,540 (5th Cir. 2005). "A fact is 'material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
"Once the moving party [meets its initial burden], the non-moving party must 'go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.'" Nola Spice, 783 F.3d at 536 (quoting EEOC, 773 F.3d at 694)....
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