Litigation Procedure Standing. The defendants claimed that two property owners – Bonaventure and Flower Associates – lacked standing to bring their NEPA claims. The court addressed these issues separately. Property Owner. Bonaventure owned several of the properties along Lower Flower Street. The court found that Bonaventure had standing as an adjacent landowner, because the administrative record included facts showing that the project would have noise, dust, vibration, and other impacts to Bonaventure’s properties. Tenant. Flower Associates was a former owner of several properties along Lower Flower Street; it no longer owned the properties, but it remained a tenant and served as the property manager for several properties. The court held that Flower Associates could not rely on the principle of “associational standing” because – unlike a tenants’ association – the property manager was merely a business entity that managed the properties; it was not an association formed by tenants to express their interests. Nonetheless, the court found that Flower Associates had standing as a tenant, because it had submitted a declaration showing that construction impacts would interfere with its activities as property manager, including “its ability to provide its officers, visitors and consultants with a “clean, quiet, and safe work place” and its mission to “maintain attractive, clean, and vibrant public spaces and streetscapes adjacent to and near the Flower Street Property.” Waiver. The defendants claimed that the plaintiffs had waived their challenges to the range of alternatives for tunneling methods, because the plaintiffs themselves had not specifically challenged the adequacy of the tunneling analysis in their comments on the DEIS. The court agreed that the plaintiffs had not raised this issue, but found that they still had not waived their ability to raise the issue in litigation: “Plaintiffs’ comments regarding TBM were not sufficient to alert the Defendants of the need to analyze open-face tunneling methods. However, Metro had independent knowledge of the issue [based on reports from Metro’s own experts]…. Furthermore, the issue of the use of openface methods was raised by other stakeholders during the FEIS comment period. Thus, the issue was not waived.” NEPA Range of Alternatives. The plaintiffs claimed that the EIS did not sufficiently consider alternatives to cut-and-cover tunneling along Lower Flower Street. In particular, they claimed that (1) the reasons given for rejecting TBM were not adequate and (2) other tunneling methods, such as Sequential Excavation Method (SEM) and the “Open–Face Shield” method, should have been considered. Basis for Rejecting the TBM Alternative. The use of the TBM method along Lower Flower Street was rejected primarily because of concerns that “during construction approximately 400 tiebacks would be encountered on the Lower Flower Segment.” Plaintiffs disputed the presence of tiebacks along this section, but the court found that the presence of tiebacks was adequately established by the record. The court also found that FTA had cited additional reasons for rejecting the use of TBM in this section. The plaintiffs also claimed that FTA and Metro had later acknowledged the feasibility of using the TBM method in the Lower Flower Segment, and argued that the defendants’ admission of feasibility required the alternative to be re-considered. The court rejected this argument as well, stating “That Defendants later may have reached a different substantive decision as to the potential feasibility of TBM does not show that the FEIS was procedurally deficient.” Consideration of Other Tunneling Methods. The EIS considered two tunneling methods for Lower Flower Street – the closed-face TBM and the cut-and-cover method. FTA and Metro conceded that the SEM and Open-Face Shield methods were not addressed in the EIS, but maintained that they were not required to consider them in the EIS because they were determined to be infeasible in technical studies. The plaintiffs argued that FTA could not rely upon those technical studies because they were never referenced in the EIS or made available to the public during the NEPA process. The court held that the EIS was inadequate because it did not include even a brief explanation of the reasons why those tunneling methods were not considered: “In the FEIS, Defendants were required, ‘for alternatives which were eliminated from detailed study … briefly [to] discuss the reasons for their having been eliminated.’ … Here, the FEIS fails to address why neither Open–Face Shield nor SEM tunneling was considered for the Lower Flower Segment. Thus, the FEIS did not include any discussion, even a summary one, of ‘the reasons for their having been eliminated.’ … And … the FEIS did not address a similar alternative. SEM or Open–Face Shield Tunneling is materially different from the closed-face tunneling alternative that was briefly addressed and rejected in the FEIS. That alternative was rejected because of the inability of TBMs to cut through tiebacks, an issue that may be remedied by SEM or the Open–Face Shield Method. Therefore, a separate discussion of SEM or Open–Face Shield was required.” Geotechnical Risks and Mitigation. The EIS included an analysis of geotechnical risks and included a commitment to conduct a pre-construction ground survey prior to construction as the basis for determining whether additional support would be required for nearby structures. The plaintiffs claimed that the pre-construction ground survey should have been conducted as part of the NEPA process rather than being “deferred” until after NEPA completion. The court held that EIS included sufficient discussion of geotechnical risks and mitigation: “Defendants conducted sufficient analyses of the baseline geotechnical and subsidence conditions to show that they took a ‘hard look’ at the likely impacts of the Project. In this context, a mitigation measure providing for a pre-construction survey does not amount to the impermissible deferral of analysis.” Vibration Impacts. The EIS included an analysis of vibration impacts on historic buildings along Lower Flower Street; the analysis found that several historical buildings may be affected by the vibration and included mitigation commitments for those impacts, including preparation of a vibration monitoring plan. The plaintiffs contended that more detailed mitigation measures should have been developed, rather than simply including a commitment to develop a vibration monitoring plan. The court concluded that, in light of the detailed impacts analysis in the EIS, the discussion of mitigation was sufficient. Traffic Impacts. The EIS included an extensive traffic impacts analysis, supported by a 160-page traffic technical report. The traffic analysis did not include an analysis of traffic impacts resulting from a “grade separation” between the steel decking used during cut-and-cover construction and the adjacent sidewalks and driveways. The plaintiffs claimed that the traffic analysis should have discussed the impacts of this grade-separation. The court rejected this argument because “[a]lthough Defendants did not expressly address the impact of the grade separation, Plaintiffs’ claim that the grade separation will have significant impacts on traffic is not supported by substantial evidence.” Emergency Ingress and Egress. The court also briefly considered and rejected a challenges to the analysis of impacts on emergency ingress and egress during construction. Construction Noise Impacts and Mitigation. The EIS analyzed construction noise impacts and concluded that, with mitigation, those impacts would not be significant. The plaintiffs challenged this conclusion, and the court interpreted the plaintiffs’ argument as a challenge to the adequacy of the noise mitigation measures. The court rejected the challenge to the sufficiency of the mitigation measures, holding that: “NEPA, of course, does not require that these harms actually be mitigated. Rather, it requires only that an EIS discuss mitigation measures, with sufficient detail to ensure that environmental consequences have fairly been evaluated. NEPA is a procedural, rather than a substantive, statute. Here, Defendants have met their procedural burden by analyzing the likely impacts of construction on the Japanese Village and identifying mitigation measures.” Operation Noise Impcts and Mitigation. The EIS considered operational noise impacts and also concluded that, with mitigation, those impacts would not be significant. This finding was based on a technical analysis by an expert who assisted in preparing the EIS. The plaintiffs submitted a separate report from an expert who disputed FTA’s finding of insignificance. The court upheld FTA’s determination, finding that “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive.” Parking Impacts. The EIS included an analysis of impacts on on-street and off-street parking, acknowledging that “approximately half of the off-street parking that would be removed is in Little Tokyo and is therefore a disproportionate impact when compared to the remainder of the study area.” The EIS included several mitigation commitments for parking impacts during construction, including a commitment to provide new parking areas during construction within one block of the land uses that rely on those spaces. The plaintiffs also claimed that the EIS did not sufficiently address permanent parking impacts and did not include enough mitigation for those impacts. The court held that, while the discussion of permanent parking impacts “is not extensive,” it was sufficient to satisfy NEPA. Impacts on Future Development. The EIS included a discussion of indirect and cumulative impacts; the plaintiffs claimed it was inadequate because it did not acknowledge that the project may preclude future development at one privately owned site. The court held that “even if NEPA requires an analysis of the potential impact of the Project on the possible future development plans of a private landowner, NEPA requires only analysis of such ‘reasonably foreseeable’ indirect impacts. [The plaintiff] has not demonstrated that the claimed impact that it has identified was ‘reasonably foreseeable’ at the time that the FEIS was finalized.” Subsidence Impacts. The EIS acknowledged that tunneling “would have the potential for adverse impacts related to ground settlement … immediately above the alignment as well as adjacent to structures including the historical buildings.” The EIS included mitigation commitments for these potential impacts, including a survey of potentially affected structures, a settlement monitoring plan, and advance grouting of the tunnel alignment “to provide adequate soil support and minimize settlement as geotechnical conditions require.” The court found that, while “a mitigation measure that provides for a deferred analysis of the geotechnical and subsidence risks is generally inadequate,” the EIS in this case was adequate because it included substantial analysis of subsidence risks and of the viability of measures to mitigate those risks. Mitigation Measures. The plaintiffs claimed that FTA and Metro had inappropriately deferred development of various mitigation measures, because the EIS included commitments to develop mitigation plans in the future (after completion of NEPA). The court rejected this argument: “In essence, Plaintiffs contend that any mitigation measure that includes plans for future analysis or development of a plan is inadequate under NEPA. This is incorrect. Mitigation plans may be ‘conceptual’ and remain ‘flexible to adapt or future problems.’” Supplemental EIS. The plaintiffs claimed that various changes to the project after the completion of the NEPA process required preparation of a supplemental EIS, including changes in the construction times (to allow night-time construction) and changes in the project route (to place it under the Japanese Village neighborhood). The court held that the change in construction time was not significant new information because the EIS had acknowledged the possibility of night-time construction, and any change in impacts was not significant. With regard to the change in route, the court noted that FTA had prepared a Supplemental EA for the shift, and the EA had shown that the shift “is qualitatively within the spectrum of alternatives that were discussed in the [EIS]” and “eliminates certain adverse impacts and leaves only impacts that have already been fully considered.” Therefore, the court determined that a supplemental EIS was not required. Injunctive Relief. The plaintiffs sought a permanent injunction prohibiting construction from beginning until after FTA had completed the additional alternatives analysis as required by the court. The court declined to issue the injunction, finding that “Plaintiffs have not shown that any immediate, alleged harm will result from the deficiencies in the conduct of the Defendants that are discussed in this Order because there is no showing that Defendants planned to commence construction immediately.” The court directed the parties to meet and confer regarding the terms of a potential injunction, leaving open the possibility that an injunction would be issued in the future in order to preserve the status quo while additional NEPA documentation was prepared.