Case Law Updates on the Environment (CLUE)
Case Law Update Details
Beverly Hills Unified School District v. USDOT
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 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 agencies issued the FEIS in March 2012, and FTA issued a ROD in August 2012.
The City of Beverly Hills and Beverly Hills Unified School District challenged the project in separate lawsuits that were later consolidated. The plaintiffs alleged violations of NEPA, Section 4(f), NHPA, and the Clean Air Act. The court agreed with the plaintiffs on certain of their NEPA and Section 4(f) claims, and issued a Tentative Ruling on February 2, 2016. In this ruling, the court adopted the conclusions in its Tentative Ruling and remanded to the agencies to prepare additional analyses to cure the NEPA and Section 4(f) violations. The court concluded that a vacatur would be an inappropriate remedy because of its disruptive consequences for the project.
Vacatur. The court considered whether to vacate the FEIS and ROD. The court explained that although vacatur is the normal remedy for a violation of the Administrative Procedure Act, whether an agency action should be vacated depends on the seriousness of the agency’s errors and the disruptive consequences of a vacatur. The court concluded that there would be substantial harm to the project and to the public if it vacated the ROD, while absence of a vacatur would not have much adverse effect on the plaintiffs. The court found that a vacatur would delay the project’s public and environmental benefits, would disrupt ongoing contracts for pre-construction work, would jeopardize federal funding for the project, and would substantially increase the cost of the project. As a result, the court decided not to vacate the ROD while the agencies prepared additional analyses in accordance with its ruling.
Temporary Use. In its Tentative Ruling, the court had preliminarily concluded that temporary impacts – i.e., impacts occurring only during the construction phase of a project – cannot constitute a constructive use, regardless of the magnitude of those impacts. In its August 2016 order, the court backed away from that conclusion, stating that “the Court is no longer certain that its analysis on that issue is entirely correct and hence abandons it, but without prejudice to re-examining it later if necessary.” In a footnote, the court explained that “if such construction activity caused vibration levels which went unmitigated and in turn caused substantial impairment of protected activities on the Section 4(f) property, that temporary constructive use would qualify as a ‘use’ ... under Section 4(f).”