Case Law Updates on the Environment (CLUE)
Case Law Update Details
Center for Biological Diversity v. FHWA
U.S. District Court - California
Mid County Parkway
The Mid County Parkway is a proposed 16-mile six-lane limited-access freeway in Riverside County, California. As part of an earlier effort to improve east-west transportation in Riverside County, a Tier 1 Draft EIS had been prepared for transportation improvements in the county, but the Tier 1 process was not completed. Later, three agencies—FHWA, the California Department of Transportation, and the Riverside County Transportation Commission —prepared a Draft EIS just for the Mid County Parkway itself. The Draft EIS did not rely on the Tier 1 document because no Final Tier 1 EIS had been completed. The Draft EIS studied two no-project alternatives and five build alternatives for a 32-mile freeway. After receiving comments on the Draft EIS, the agencies decided to change the project’s western boundary, shortening the project from 32 miles to 16 miles in length. The agencies then issued a Supplemental Draft EIS, which included detailed study of two no-project alternatives and three modified build alternatives for the 16-mile portion. The agencies then issued a Final EIS, and FHWA issued a ROD approving the project.
The plaintiffs alleged that the agencies violated NEPA and Section 4(f) by inadequately describing the project, using improper baselines to compare alternatives, failing to analyze a reasonable range of alternatives, and wrongly determining that there were no prudent and feasible alternatives to avoid using Section 4(f) resources. The court first held that it could not consider some of the plaintiffs’ claims because the plaintiffs had not raised those issues with the agencies prior to filing the lawsuit. On the merits, the court held that the project description in the EIS was sufficiently detailed and that the alternatives analysis in the EIS met NEPA’s requirements. Accordingly, the court granted summary judgment for the agencies. As of February 2018, the case was on appeal to the U.S. Court of Appeals for the Ninth Circuit.
Project Description. The plaintiffs argued that the maps in the environmental documents were not detailed enough to show the precise route of the project. The court noted that the Final EIS included an appendix with maps of the proposed route and a list of addresses for each parcel that would be affected for the project. The court held that this information regarding the route was sufficiently detailed to satisfy NEPA’s requirements, and that its placement in an appendix was appropriate.
Range of Alternatives. The plaintiffs argued that the agencies did not consider a reasonable range of alternatives because the environmental documents (including the Final EIS) were based on alternatives for the 32-mile project that was originally planned. The plaintiffs also argued that the agencies should have considered alternatives that incorporated HOV lanes, road upgrades, and transit. The court rejected both arguments.
· New Alternatives for 16-Mile Project. First, the plaintiffs argued that the agencies should have developed a new set of alternatives after shortening the project from 32 miles to only the eastern 16 miles. In the Supplemental Draft EIS and Final EIS, each build alternative followed the same or similar alignment as the eastern half of the original 32-mile project, except Alternative 9 (the locally preferred route), which was modified to avoid a park and a fire station. The build alternatives also contained new improvements, including additional lane capacity, to I-215, which was the western terminus of the shortened 16-mile project. The court explained that shortening the project did not render it an entirely new project nor require the agencies to consider an entirely new set of alternatives, especially because the purposes of the 32-mile project and the 16-mile project were essentially the same. The court also noted that the alternatives in the Supplemental Draft EIS and Final EIS were not entirely the same alternatives that were originally studied in the Draft EIS, because they included new improvements to I-215 and Alternative 9 was modified.
· Additional Alternatives. Second, the court held that the agencies had sufficiently considered and explained why they rejected additional alternatives with HOV lanes, transit, and roadway upgrades. Those alternatives had been studied in the 2002 corridor study and Draft Tier 1 EIS, which were included in the administrative record. The Final EIS explained that those options were not included in the build alternatives because they would not meet the project’s purpose and need. In particular, the Final EIS explained that HOV lanes were not included because they did not anticipate traffic congestion on the Mid County Parkway through the project horizon in 2040. The agencies also explained that they rejected a transit option because it would not be able to meet the project’s purpose of moving goods, and because constructing rail tracks and stations would have significant environmental effects. The court concluded that the agencies “clearly did consider alternatives incorporating (or consisting of) HOV, transit, and roadway upgrades, and there is thus an obviously rational connection between the conclusions reached and the record.”
Exhaustion. The Administrative Procedure Act requires that a plaintiff exhaust available administrative remedies before filing a lawsuit. A court may decline to consider arguments that a plaintiff did not raise during the administrative process, except for legal violations that were so obvious that the agency had independent knowledge of them. In this case, the court found that the plaintiffs had adequately raised some issues before the agencies during the NEPA process, but had failed to properly raise other issues.
· Description of Project Route. The court concluded that the plaintiffs had adequately raised their arguments concerning the adequacy of the project’s route description. The court noted that the administrative record contained a number questions and concerns from residents regarding the impact of the project on their specific properties, as well as comments concerning the level of detail of the project route in the environmental documents. The court held that these comments were sufficient to preserve the issue for judicial review.
· Description of Project Width. The court concluded that the plaintiffs had not adequately raised their concerns regarding the description of the project’s width. The court found that the only comments in the administrative record concerning the project width description involved specific issues (such as bridges, culverts, and pipes) or standards that were not related to environmental review under NEPA. The court concluded that other statements in the administrative record that the plaintiffs cited were “so generally-stated as to be effectively useless to FHWA in attempting to address any perceived concerns.” The court explained:
“Plaintiffs’ failure to adequately articulate their ‘project width description’ challenge (other than in general, unspecified and non-apparent language such that the agencies would be able to understand Plaintiffs’ point) constitutes a failure to exhaust. Further, given their concession that the maps provided with the Final EIR/S (and, as found by this Court in the [Supplemental Draft EIS]) do indicate the approximate width of the MCP at various points in its route, the present situation does not fall within the ‘so obvious’ exception to the administrative exhaustion requirement.”
· Environmental Baselines. The court held that the plaintiffs had not adequately raised their concerns regarding the environmental baselines used in the NEPA document. In particular, the plaintiffs argued that FHWA used a hypothetical future baseline for one alternative but used the existing environmental baseline to analyze the impacts of another alternative. The court concluded that the plaintiffs never raised that issue prior to bringing the lawsuit; the only baseline issues that the plaintiffs raised during the administrative process concerned completely different alleged baseline problems. The court held that the plaintiffs’ general statements about the importance of accurate baselines were not enough to preserve this issue for litigation:
“Plaintiffs surely cannot sufficiently exhaust any and all issues having to do with any ‘baseline’ problem by simply pointing to comments concerning baseline problems other than the one specific baseline problem they now desire to litigate. Nor can Plaintiffs creatively spin their objections as a more general problem with ‘inflated future growth projections and baseline’ when they have specifically relied on one such alleged problem in their briefing and, as to that one purported problem, they have plainly failed to exhaust.”
· Section 4(f). The court held that the plaintiffs had not adequately raised their concerns regarding the agencies’ Section 4(f) analysis. The court noted that nothing in the administrative record showed that the plaintiffs had argued with any specificity how the agencies’ Section 4(f) analysis was flawed, other than general statements that the agencies did not properly analyze prudent and feasible avoidance alternatives. Moreover, the court held that it could not consider the plaintiffs’ Section 4(f) arguments because their complaint “failed to include any factual allegations concerning FHWA’s Section 4(f) obligations at all, simply restating the legal obligation to choose a prudent and feasible alternative that would avoid Section 4(f) resources.”