Case Law Updates on the Environment (CLUE)
Case Law Update Details
Pacificans for a Scenic Coast v. California Department of Transportation
U.S. District Court - California
Highway 1 Widening
The project involved widening part of Highway 1 in Pacifica, California, adjacent to two units of Golden Gate National Recreation Area (GGNRA). The project area included habitat for two species that were listed and protected under the ESA. Pursuant to ESA Section 7, the California Department of Transportation (Caltrans) – acting in the capacity of FHWA under an assignment program, pursuant to 23 USC 327 – consulted with USFWS to ensure the project would not jeopardize the listed species or their critical habitat. Caltrans prepared a BA that described the project’s mitigation measures, which included preserving a 5.14-acre parcel owned by the City of Pacifica and enhancing habitat within a 5.46-acre parcel in part of GGNRA. Based on the BA, USFWS issued a BiOp concluding that the project would not jeopardize listed species. Caltrans and USFWS later learned that the City already had a legal obligation to preserve the 5.14-acre parcel, but the agencies did not reinitiate consultation. Caltrans also prepared an EA and issued a FONSI for the project.
The plaintiffs alleged that Caltrans and USFWS violated the ESA in that (1) Caltrans inaccurately described the project in the BA, (2) the BiOp was flawed because it relied on the inaccurate information in the BA, and (3) the agencies should have reinitiated consultation after learning that one of the mitigation measures described the BA was impossible. The plaintiffs also challenged the adequacy of the EA and the decision to issue a FONSI, and brought additional claims under the Coastal Zone Management Act (CZMA) and Section 4(f). The court ruled in favor of plaintiffs on the ESA claims, and ruled for the agencies on the NEPA, CZMA, and Section 4(f) claims. As a result, the court held that the agencies were required to reinitiate consultation, revise the BA with accurate information about mitigation measures, and issue a new BiOp before proceeding with the project. As of December 2016, both parties had appealed the district court's decision and the appeal was pending.
Ripeness. Caltrans argued that the claim for the agencies to reinitiate consultation were not ripe for review because the agency had not yet sought final approvals for the project. The ripeness inquiry considers whether a delay would cause hardship to plaintiffs, whether hearing the case would interfere with further administrative action, and whether the court would benefit from further factual development. The court disagreed with Caltrans, holding that the claim was ripe for review because it concerned an alleged procedural violation, rather than a claim of substantive harm to the species and their habitat. The procedural violation occurred at the time the agencies learned of the inaccurate information and failed to reinitiate consultation. At that point, all administrative action was over and there could be no further factual development, so it was ripe for review.
Mootness. The court also considered whether the claims were moot based on statements by Caltrans that the project lacked funding and was put on hold. The court held that “mere uncertainty” over whether the project would be carried out did not make the case moot; it would be moot only if Caltrans made an “unequivocal decision” to cancel the project entirely.
Judicial Review. Caltrans argued that the BA was not reviewable because it was not final agency action, and thus was not reviewable under the Administrative Procedure Act (APA). The court, however, noted that the claims challenging the BA were brought under the citizen-suit provision of the ESA, which is separate from the APA. Moreover, the court held that even if ESA citizen suits were subject to the APA, the BA would still be reviewable. The court explained that judicial review of final agency actions under the APA may also include review of all preliminary agency actions that led up to the final action, and for this project, those preliminary actions included the BA. Therefore, the court held, it could review the BA.
Biological Assessment. The plaintiffs claimed that Caltrans violated the ESA by including inaccurate information in the BA. The BA had proposed that, as “compensatory mitigation” for the project’s impacts on endangered species, “[a]n approximately 5.14-[acre] site owned by the City of Pacifica will be preserved in perpetuity.” The court found that preservation of the 5.14-acre parcel “could not be considered a new mitigation measure that was part of the project” because the “City of Pacifica, which owns the parcel, was already required to preserve it for reasons outside the scope of Caltrans’ project.” Because the BA had incorrectly assumed that this mitigation measure would only occur as part of the Caltrans project, the court held that Caltrans violated Section 7 of the ESA by overstating the actual mitigation measures in the BA.
Biological Opinion. The plaintiffs also claimed USFWS violated the ESA by issuing the BiOp based on the inaccurate information about the 5.14-acre parcel owned by the City. The court held that the BiOp was flawed because it relied on inaccurate information as the basis for assessing the net effects of the project:
[A]s the Fish and Wildlife Service (the expert agency) agreed at oral argument, a Biological Opinion assesses the net effect of the overall project, which includes not only adverse effects but also mitigation measures designed to offset them. If a mitigation measure is not actually part of the project, the net effect of the project changes. If a benefit is not actually being provided to offset a cost (because the benefit would exist regardless), then the overall cost of the project is higher than assumed.
... It may well be that the Fish and Wildlife Service could re-analyze Caltrans’ project with the understanding that the 5.14-acre parcel is already preserved, and still come to a similar conclusion about the project’s overall effects on listed species. But Caltrans’ project description was arbitrary and capricious because it ignored “an important aspect of the problem”—the fact that the 5.14-acre parcel was already preserved. This resulted in a faulty Biological Opinion, which in turn resulted in an invalid approval of the project under the Endangered Species Act by Caltrans.
The court also held that the BiOp was flawed in its reliance on the proposed habitat enhancement on the 5.46-acre parcel in GGNRA. The court noted that a BiOp may not rely on proposed mitigation measures unless there are “specific and binding plans” to implement the measures, including a “clear, definite commitment of resources” to cover implementation cost. With respect to the proposed habitat enhancement site in the GGNRA, the court found that this mitigation measure was only “conceptual” and that there was no definite plan or committed funding to implement this mitigation measure. Further, the court questioned whether even an Incidental Take Statement in a BiOp could truly make a mitigation measure binding, because the Incidental Take Statement applies to the federal action agency, not the project sponsor. Therefore, the court held that the proposed plans to enhance habitat in GGNRA were too vague and speculative to be relied upon as the basis for USFWS’s findings in the BiOp. The court summarized its conclusion as follows:
If agencies lack the power to guarantee the improvements in question, then the proper course is to exclude them from the analysis [in the BiOp] and consider only those actions that are in fact under agency control or otherwise reasonably certain to occur. Because the Biological Opinion relied on a vague and speculative mitigation measure that was not under Caltrans’ control, it violated the Endangered Species Act. The plaintiffs are therefore entitled to a declaration that the Biological Opinion violated the Administrative Procedure Act.
Consultation Procedures. The plaintiffs alleged that the agencies should have reinitiated consultation after learning that the 5-acre parcel, which they previously thought would be preserved as a mitigation measure, was already required to be preserved. The ESA requires that agencies reinitiate consultation if new information reveals that the project may impact listed species or critical habitat in a manner or to an extent not previously considered. The court held that this new information indicated that the project would impact listed species and critical habitat to an extent not previously considered, and thus triggered the agencies’ duty to reinitiate consultation. USFWS argued that only the action agency (i.e., Caltrans) had a duty to reinitiate consultation. The court rejected this argument, citing USFWS regulations and Ninth Circuit precedent that stated that both the action agency and the consulting agency have a duty to reinitiate consultation.
Adequacy of EA and Decision to Issue FONSI. The plaintiffs challenged the adequacy of the EA’s discussion of numerous environmental impacts, as well as the decision to issue a FONSI. The court, without discussing each impact individually in its opinion, concluded that the EA’s consideration of impacts was “detailed enough,” and that the decision to issue a FONSI was not shown to be arbitrary or capricious. The court also noted that the inaccurate information about the 5-acre parcel was not fatal to the EA (even though it was fatal to the BA and BiOp) because NEPA only requires a detailed discussion of proposed or tentative mitigation measures, notwithstanding whether each mitigation measure actually occurs exactly as described:
Because NEPA allows proposed mitigation measures to be general and tentative rather than specific and definite, it does not matter that Caltrans’ proposed mitigation could not occur exactly as described in the Draft Environmental Assessment that it circulated to the public. NEPA requires only “that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated,” and both the Draft Environmental Assessment and the Final Environmental Assessment adequately conveyed the basic thrust of Caltrans’ proposed mitigation plan: the 5.14-acre parcel would provide suitable snake and frog habitat, and would be connected via the 5.46-acre GGNRA parcel to the frog and snake populations near Sharp Park.
The plaintiffs argued that Caltrans violated CZMA. Under CZMA, as a prerequisite to federal agency activity affecting a state’s coastal zone, the federal agency must determine that the project is consistent with state coastal zone management programs. The definition of “federal agency activity” excludes issuing a federal license or permit and granting federal assistance. Because Caltrans (acting as FHWA under an assignment program) only granted federal assistance and issued a license or approval for the project, the court held that Caltrans was not required to comply with the CZMA.
The plaintiffs alleged that the project would constructively use the adjacent GGNRA, in that it would risk spreading invasive species and would impact views and wildlife. The court noted that Caltrans had analyzed these potential impacts in the EA and reasonably determined that the impacts would not be significant. The court explained that this was sufficient for compliance with Section 4(f), even if the agency did not include its analysis and determinations in a separate chapter or document solely dedicated to Section 4(f).