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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Coalition of Concerned Citizens To Make Art Smart v. FTA

Case No.

843 F.3d 886

Court

U.S. Court of Appeals - 10th Circuit

State

New Mexican

Date

12/13/2016

Project

Albuquerque Rapid Transit (ART)

Project Type

Transit

Project Description

This case involved the proposed construction of a bus rapid transit system, known as Albuquerque Rapid Transit (ART), within the street median on Central Avenue in Albuquerque, New Mexico. The project required several changes to Central Avenue, including a reduction in the number of general-purpose lanes, changes in traffic signal timing to prioritize buses, and a reduction in the number of intersections at which left turns and U-turns were allowed. The project area included four historic districts and more than 100 individual historic properties. The project sponsor, the City of Albuquerque, applied to the FTA for federal funding under the Small Starts program, which necessitated compliance with NEPA and other laws. FTA determined that the project qualified for a CE under NEPA and, with concurrence from the SHPO, FTA determined that the project would have no adverse effect on historic properties.

Case Summary

The plaintiffs in this case included a non-profit organization as well as several businesses and individuals that owned property along the project route. Generally, the plaintiffs claimed that FTA and the City had understated the project’s effects on traffic patterns and pedestrian movements along Central Avenue; they challenged FTA’s CE determination under NEPA and its no-adverse effect determination under the NHPA. After filing their lawsuit, the plaintiffs filed a motion for a preliminary injunction to prevent the project from moving forward while the lawsuit was pending. In July 2016, the district court issued an order denying the plaintiffs’ request for a preliminary injunction. In this decision, issued in December 2016, the U.S. Court of Appeals for the 10th Circuit upheld the district court’s decision denying the preliminary injunction.

Key Holdings

NEPA

CE Approval - Reliance on City’s Submissions. The plaintiffs claimed that FTA had simply relied on documentation submitted by the City, rather than conducting its own independent analysis of the environmental data.  The court found that the plaintiffs had waived this argument by failing to raise it in the district court.  Further, the court held that this argument lacks merit because NEPA case law “expressly recognizes that it is permissible for an agency to rely on reports prepared by outsiders or applicants,” as long as the agency independently evaluates that information.  Based on testimony by an FTA official at the preliminary injunction hearing, the court found that FTA had independently evaluated the information submitted by the City.

CE Approval - "Substantial Controversy".  The plaintiffs claimed that this case did not qualify for a CE because, among other reasons, it involved “substantial controversy on environmental grounds,” which is listed in FTA’s regulations as an “extraordinary circumstance” that can preclude use of a CE.  See 23 C.F.R. § 771.118(a), (b)(2).  The court held that this argument relied on concerns about socio-economic impacts, and it is well-settled in NEPA case law that “socioeconomic impacts, standing alone, do not constitute significant environmental impacts cognizable under NEPA.”

NHPA

Definition of the Area of Potential Effects.  The plaintiffs claimed that the FTA defined the Area of Potential Effects (APE) too narrowly because the APE boundary omitted areas in which indirect effects would occur; they also claimed that the SHPO’s concurrence in the APE boundary did not necessarily mean that the APE had been defined correctly.  The court held that FTA was entitled to give weight to the SHPO’s concurrence when determining the adequacy of the APE, and it held that the APE was in fact defined to encompass indirect as well as direct effects of the project.   Therefore, the court rejected the plaintiffs’ challenge to the APE.

Adverse Effects – Traffic Diversion. The plaintiffs challenged FTA’s finding of no adverse effect for the project, arguing that FTA had failed to consider the potential adverse effects resulting from traffic diversion into historic neighborhoods surrounding the project area.  The court found that the plaintiffs had failed to present this argument to the district court, so the argument could not be raised on appeal.  Further, the court held that this argument lacked factual support, because nothing in the record indicated that traffic diverted from Central Avenue would directly or indirectly cause alterations to the character or use of historic properties.

Eligibility for the National Register.  The plaintiffs challenged FTA’s reliance on the views of a historic preservation expert who had concluded that the portion of Central Avenue in downtown Albuquerque was not eligible for the National Register as a part of historic Route 66.  In support of this argument, the plaintiffs claimed that the expert had mischaracterized or overlooked conclusions in a historic property survey report.  The court found that the historian had provided a rational explanation for his conclusions and that FTA had reasonably relied on those conclusions.

Consultation and Public Involvement.  The plaintiffs claimed that FTA had violated the consultation requirement in Section 106 by failing to consult with anyone other than Indian tribes before making the no-adverse-effect determination.  The court noted that Section 106 regulations require an opportunity for public involvement, but leave the agency official (in this case, FTA) with discretion to determine how to do so, based on “the nature and complexity of the undertaking and its effects on historic properties.”  The record showed that FTA and the City had conducted an extensive public involvement program, including door hangers, neighborhood meetings, other public meetings, and various other modes of outreach.  The court held that these efforts were sufficient under Section 106.

Litigation Procedure

Preliminary Injunction Standards.  The plaintiffs argued that the district court had erred in its application of the standards for granting a preliminary injunction.  The appellate court held that the district court had properly denied the injunction after finding that the plaintiffs were unlikely to prevail on the merits of the case, had failed to establish that an injunction was needed to prevent irreparable harm, and had failed to show that the public interest required an injunction.  In particular, the court found:

·       The “only potential harms identified by plaintiffs were largely economic in nature and mostly speculative at that.”  The court found that, under NEPA case law, such economic harms are typically insufficient to support issuance of a preliminary injunction.

·       The court found that the public interest weighed against issuance of a preliminary injunction, because the injunction would stop the project from moving forward and would therefore “keep the City from building a project to revitalize the area and address pedestrian safety and improve transit efficiency.”  The court also considered the economic impacts of an injunction, noting that delaying ART would lead to increased construction costs of up to $7,500 per day.

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