Case Law Updates on the Environment (CLUE)
Case Law Update Details
Beverly Hills Unified School District v. FTA
U.S. District Court - California
West Side Subway Extension
The West Side Subway Extension would extend the Los Angeles subway’s Purple Line nine miles and add seven new stations. The Los Angeles County Metropolitan Transportation Authority (Metro) first considered the project in 2007 as part of a broad study that included several transit modes and more than 17 possible subway alignments. Roughly 2.5 miles of the proposed subway line extension would pass through the City of Beverly Hills. The project would also involve tunneling under Beverly Hills High School (a historic property) and would have air quality and noise impacts on the school during construction. Metro and FTA issued a DEIS in September 2010. After receiving public comments on the DEIS, Metro conducted additional seismic and ridership studies. The city and the school district also commissioned their own consultants to prepare seismic studies. The agencies issued the FEIS in March 2012, and FTA issued a ROD in August 2012.
The City of Beverly Hills and the Beverly Hills Unified School District challenged the project in separate lawsuits that were later consolidated. In this tentative ruling (which was made final in a separate ruling on August 12, 2016), the court rejected many of the plaintiffs’ NEPA, Clean Air Act, and Section 4(f) challenges. The court remanded for the agencies to analyze health impacts associated with elevated nitrogen oxide levels during construction, seismic risks, and the risk of a potential methane explosion. The court also ordered the agencies to conduct a Section 4(f) analysis regarding the project’s potential “use” of the high school.
Air Quality. The plaintiffs argued that the analysis of construction impacts on air quality was flawed because the FEIS only reported gross air pollutant load and compared that projection to regional thresholds. The plaintiffs claimed that the agencies should have performed dispersion modeling to compare local air pollution near the construction site to the NAAQS. The court stated that even though the agencies could have provided a more complete justification for their methodology, it would be inappropriate for the court to override the agencies’ technical judgment and to require the agencies to perform dispersion modeling. The court concluded that the agencies had sufficiently considered most air quality impacts through a regional conformity analysis. The court also tentatively held, however, that the agencies did not adequately discuss the health impacts associated with nitrogen oxide (NOx) levels that would exceed applicable thresholds during construction. The court explained that, notwithstanding the temporary nature of the NOx health impacts, a “more significant discussion” of public health impacts may be required.
Tunneling - Disclosure of Potential Catastrophic Risks. The plaintiffs claimed that the FEIS had failed to disclose the potential presence of subsurface methane deposits and abandoned oil wells, along with the potential for explosions to occur when tunneling through methane deposits located in abandoned oil wells or seismic faults. The court rejected the argument that the agencies had failed to disclose sufficiently the presence of abandoned oil wells, finding that such information was not “essential to a reasoned choice among alternatives” because the agencies had concluded that they could safely tunnel through such areas if they existed. Nonetheless, the court tentatively found that the agencies had not sufficiently considered the potential risk of a methane explosion and had not properly responded to the school district’s comments on this issue, noting that agencies are required in some circumstances to consider “events with potentially catastrophic consequences even if their probability of occurrence is low.”
Seismic Risk. There was much dispute throughout the environmental review process over the seismic risk studies for two possible station locations. The agencies had ruled out one of the two locations because they concluded that it was in an active fault zone. The plaintiffs claimed that the FEIS did not properly discuss the incompleteness and scientific uncertainty of the information underlying its seismic risk analysis. The court held that the agencies had conducted a reasonably thorough investigation of seismic risks, sufficient to meet the “hard look” standard under NEPA, but also found that the agencies did not adequately discuss the uncertainties associated with this analysis and the incomplete nature of the information regarding seismic risks. The court explained that the agencies were required to discuss the limitations of the seismic risk analysis and the consequences of proceeding with the project without more complete information. In reaching this conclusion, the court noted that while an agency is not required to disclose every uncertainty, the “uncertainties surrounding seismic risks would be key uncertainties with regard to the subway siting decision in Century City.” (emphasis in original). The court also noted that “the Agencies certainly knew that additional seismic studies were in the pipeline and knew that the seismic conditions in the area were a key driver of the ultimate decision as to the proper station location.”
The city alleged that the agencies did not adequately consider alternative alignments that would have avoided tunneling under the high school. The city had submitted three alternative alignments after the agencies issued the FEIS but before FTA issued the ROD. The court held that FTA “had no obligation to analyze, or respond to, the City’s specific alternatives that were proposed many months after issuance of the FEIS.” (emphasis in original). Furthermore, the court noted that the DEIS and FEIS discussed multiple alignments for the area in question, including alignments that would avoid the high school.
The school district claimed that the agencies had made a predetermined decision to locate a station near the high school. Although the court agreed with the school district that “the analysis certainly appears to have been slanted in one direction,” and stated that it was “troubled by certain aspects of the Agencies’ decision-making process,” it held that the agencies’ behavior did not violate NEPA under the Ninth Circuit’s standard for predetermination. The court explained that there was no NEPA violation because the agencies had not made a “binding commitment or irreversible commitment of resources” to the preferred alternative prior to completion of the NEPA process.
The plaintiffs argued that the agencies should have prepared a supplemental EIS to address additional post-DEIS and post-FEIS seismic studies. The post-DEIS seismic studies related to seismic risks as the Santa Monica station, a location that was included in the ‘base’ alternative in the DEIS but ultimately was not included in the preferred alternative in the FEIS. FTA responded that the new information did not require an SEIS because it related to a rejected alternative and, while the information was new, it did not change the agency’s conclusion (namely, that the station location involved seismic risks). The court agreed with the plaintiffs that the new information in the studies was significant because, while the DEIS had disclosed the seismic risks at that station location, it had not indicated that those risks were disqualifying – and in fact, that location was identified as part of the ‘base’ alignment for the project in the DEIS. The new information that became available following the DEIS confirmed the seismic risks at that location, and caused the agencies to select a different station location (one that required tunneling under the high school). Given the effect of this new information on the agencies’ decisions regarding station siting, the court held that the studies constituted “significant new information” and therefore required a Supplemental DEIS. The court also held that supplementation of the FEIS was required to consider post-FEIS and post-ROD studies regarding seismic risks at both the rejected station location and the selected station location.
Use. The plaintiffs alleged that the agencies should have performed a proper Section 4(f) analysis regarding the project’s use of the high school. FTA claimed that the project would not use the school because the tunneling would be more than 55 feet underground. Under FHWA and FTA’s joint Section 4(f) regulations, use occurs “when land is permanently incorporated into a transportation facility.” FTA explained that it has adopted FHWA’s interpretation, as reflected in FHWA’s Section 4(f) Policy Paper, that subsurface tunneling activity constitutes a use of a historic site only if it “substantially impairs the historic values of the historic site.” The court explained that the extent of the impacts from tunneling had no bearing on whether there was a use; the FTA’s position was “plainly at odds” with the regulation:
[T]he Court also agrees with Plaintiffs that an interpretation that necessarily excludes tunneling from the definition of “use,” when one of those definitions specifically indicates that “use” occurs “[w]hen land is permanently incorporated into a transportation facility,” 23 C.F.R. § 774.17, is plainly at odds with regulatory guidance. As such, in reaching that conclusion here
... , the FTA acted arbitrarily and capriciously. The FTA’s explanations for why it believes the tunneling will not have a significant impact or substantial effect on the High School and its future plans is irrelevant (except as to the question of whether “all possible planning to minimize harm” has occurred) because a direct impact will be present here ....
Thus, the court held that FTA had failed to prepare a sufficient analysis of the potential for tunneling under the school to result in a "use" of that historic property.
FTA disputed the city’s standing to bring its claim challenging the agencies’ Clean Air Act conformity determination. FTA argued that the city did not identify a proprietary interest that air quality could impact. The city had submitted a declaration by its city manager, which described anticipated harm to the city’s residents and businesses, as well as the city’s ability to provide public services and maintain public facilities. Citing a Ninth Circuit case in which a similar declaration was held to adequately demonstrate a city’s injury, the court concluded that the city had shown that it had standing in this case.
Statute of Limitations
The city alleged that there was no basis for the agencies’ Clean Air Act conformity determination. The city’s claim was first raised in its amended complaint, which was filed beyond the 180-day statute of limitations. The city argued that its Clean Air Act claim was timely under a legal principle that allows additional claims to be filed after the deadline if they “relate back” to issues raised in the original pleading. The court explained that relation back is permissible if the original pleading gave notice of the particular set of facts giving rise to the claims. The court held that nothing in the original complaint gave notice to the agencies that the city would challenge the conformity determination. Thus, the court held that the city’s Clean Air Act claim did not relate back to its original pleading, and was time barred.
The court held that one of the city’s Section 4(f) claims (involving Reeves Park) was waived because the city never raised the topic in its comments on either the DEIS or the FEIS, or at any other time prior to the litigation. In addition, the city waived the issue because it was not raised in the complaint or amended complaint. The amended complaint only referenced a “public park” when it quoted from Section 4(f)’s statutory language; nowhere in the complaint did the city specifically identify Reeves Park.