NEPA Predetermination. The plaintiff claimed that DDOT’s agreements with CSX committed DDOT to construction of the tunnel project, effectively predetermining the outcome of the NEPA process. The court acknowledged that DDOT’s agreements with CSX reflected support for the project, but found that DDOT’s support did not necessarily constitute “predetermination” for purposes of NEPA. The court held that the test for predetermination hinges on “the practical effects of agency’s conduct rather than whether the conduct suggests subjective agency bias in favor of the project.” The court reviewed each of DDOT’s agreements with CSX and found that each fell short of establishing predetermination: Expressions of Support. “DDOT’s general expressions of support for CSXT’s National Gateway Initiative and its submission of a federal planning grant application on the company’s behalf merely reflect its subjective preference for the project.” Promise to Issue Permit. “An agency’s promise to issue a permit for a project in the future, but only on the condition that the project receives NEPA approval, is not an irreversible commitment of resources.” Redesigning Neaby Project. “The agreement to redesign [a nearby project] was not an irretrievable commitment of resources to the VAT project because the bridge reconstruction had utility regardless of whether the VAT construction was approved.” Option to Purchase Property. ”DDOT’s acquisition of the option [to purchase certain CSX property] still does not represent an irretrievable commitment of resources towards the VAT. While the agreement might have caused DDOT to favor the selection of the Preferred Alternative, it does not bind DDOT to issue any permits or require it to invest any resources towards the project. Nor would DDOT have been in breach of the agreement, as the Committee suggests, if none of the build alternatives had been selected; it merely would have been unable to close on the option.” Further, the court noted that DDOT’s bias — even if it had been shown — would not constitute a violation of NEPA unless that bias could be attributed to FHWA. The court found that DDOT’s contracts with CSX did not commit DDOT to achieving a particular outcome in the NEPA process, nor was there any evidence that FHWA had sought to manipulate the NEPA process to achieve a particular outcome or to obscure evidence of bias; moreover, the record showed that FHWA had “independently considered the data underlying the EIS.” Therefore, the court found that “even if DDOT predetermined the NEPA outcome, the Committee has failed to identify sufficient evidence in the current record to attribute that predetermination to FHWA.” Contractor Bias. The court also rejected the argument that FHWA had improperly relied on three engineering reports submitted by a construction contractor that served as CSX’s lead contractor for construction of the tunnel project. The court held that there was no improper bias because “NEPA regulations permit a project proponent and its contractors to provide information on which an EIS is based.” The court noted that CSX’s contractor submitted only engineering reports, not environmental impact analyses, and that FHWA independently reviewed the reports. The court found that FHWA’s reliance on the reports was permissible under NEPA. Segmentation. The plaintiff argued that the project was improperly segmented from a larger package of improvements to the freight rail network in the Washington, D.C., area, known as the National Gateway Initiative. The plaintiff emphasized, in particular, that double-stacked trains could not use the tunnel unless numerous other improvements were made beyond the limits of the tunnel project. The court held that the project has logical termini, because the “[t]he EIS itself identifies three drawbacks of the current tunnel, two of which–the limits of the single track and ever-increasing maintenance needs and safety risks of the aging tunnel–would be immediately eliminated by the Preferred Alternative.” Therefore, the court rejected the plaintiff’s segmentation claim. Cumulative Effects. The plaintiff argued that the cumulative effects analysis was inadequate because it only considered the effects of tunnel construction, not the effects of ongoing tunnel operations. The court rejected this argument, finding that the EIS actually did consider tunnel operations as part of the cumulative effects analysis. Impacts of Accidents and Terrorist Attacks. The plaintiff argued that the EIS should have considered the potential impacts of rail accidents (derailments) or terrorist attacks. The court found that the plaintiff had not shown that the project would increase the risk of derailments, and noted that the project could actually reduce that risk by providing for safer operations through the modernized tunnel. Further, the court noted that “Assessing the marginal risk of an attack would be speculative in any event. As a result, courts generally have not required agencies to assess the potential for terrorist attacks in a NEPA analysis.” Therefore, the court held that there was no need for further analysis of derailments or terrorist attacks. Alternatives Analysis. The plaintiff claimed that the alternatives analysis should have included more detailed analysis of “re-routing” alternatives, which involved shifting the freight line entirely outside the District of Columbia. The court noted that those alternatives had been eliminated because “they had an ‘extremely high cost’ (ranging from $2 to $4.7 billion); would require planning across multiple jurisdictions; would require the construction of either a ‘deep bore’ tunnel under the city or a new bridge across the Potomac river south of Washington; would adversely affect diverse natural resources; or would include substantial diversion of freight volume to trucks with associated effects on highway congestion, fuel consumption, and pollution.” Based on these factors, the court held that FHWA had adequately justified the dismissal of the re-routing alternatives. Litigation Procedure Preliminary Injunction. The court found that the “removal of approximately 200 trees, most of which are on public property” may be sufficient to demonstrate that plaintiff would suffer irreparable harm if a preliminary injunction were not granted to maintain the status quo while the litigation was pending. Nonetheless, the court denied the request for a preliminary injunction, because it found that the plaintiff was unlikely to succeed on the merits of its claims, and because it found that the public interest weighed against issuance of the injunction.