Case Law Updates on the Environment (CLUE)
Case Law Update Details
Beverly Hills Unified School District v. FTA
694 Fed. App'x 622
U.S. Court of Appeals - 9th Circuit
West Side Subway Extension
The West Side Subway Extension, undertaken by the Los Angeles County Metropolitan Transportation Authority (Metro), would extend the Los Angeles subway’s Purple Line nine miles and add seven new stations. 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 Draft EIS in September 2010. After receiving public comments on the Draft EIS, 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 Final EIS in March 2012, and FTA issued a ROD in August 2012.
On August 12, 2016, the district court ruled in favor of the plaintiffs on certain of their NEPA and Section 4(f) claims, and remanded to the agencies to prepare a supplemental EIS but did not vacate the ROD. While the agencies were still preparing a supplemental EIS, FTA and Metro executed a $1.187 billion full funding grant agreement in December 2016, and Metro planned to execute a design/build contract for Section 2 of the project in January 2017.
The City of Beverly Hills and Beverly Hills Unified School District challenged the project in separate lawsuits that were later consolidated. In a prior order on August 12, 2016, the district court ruled in favor of the plaintiffs on certain of their NEPA and Section 4(f) claims, and remanded to the agencies to prepare a supplemental EIS but did not vacate the ROD. While the agencies were still preparing a supplemental EIS, FTA and Metro executed a $1.187 billion full funding grant agreement in December 2016, and Metro planned to execute a design/build contract for Section 2 of the project in January 2017. The school district filed a motion for a preliminary injunction to nullify or enjoin the parties from executing those agreements. The district court denied the school district’s motion for a preliminary injunction. In this appeal, the U.S. Court of Appeals for the Ninth Circuit ruled that the district court lacked jurisdiction to issue the plaintiff’s requested relief because the grant agreement and design/build contract were not final agency actions that could be challenged.
Final Agency Action. The plaintiff argued that FTA and Metro violated NEPA by executing the agreements before completing the supplemental EIS, because the agreements would lead to a predetermined outcome. The court explained that only final agency actions may be challenged under the Administrative Procedure Act, and “[a] financial commitment is only a major federal action under NEPA where it constitutes an ‘irreversible and irretrievable commitment of resources.’” The court held that the agreements were not final agency actions that could be judicially challenged because they did not represent an “irreversible and irretrievable commitment of resources” to an alignment for the project. The court noted that FTA had represented that the agreements would not prevent it from making changes to the planned alignment in the future after completing the supplemental EIS. Therefore, it was premature for the plaintiff to bring its claim that FTA and Metro violated NEPA: “When the [district] court reviews the FTA’s supplemental EIS, it may evaluate whether the FTA’s commitments—including those made via the Grant Agreement and Design/Build Contract—in fact infected the FTA’s analysis of alternatives. At this point, however, the School District’s challenge is premature.”