AVERN COHN, District Judge.
TABLE OF CONTENTS
I. Introduction..................................................................841
II. Background....................................................................842
A. General Background........................................................842
B. The Parties and Overall Positions.........................................843
C. The DRIC Planning Process.................................................844
D. The Draft Environmental Impact Statement (DEIS) ..........................846
E. The Final Environmental Impact Statement (FEIS)...........................847
F. The Record of Decision (ROD) .............................................847
III. Procedural History/Complication of the AR ....................................847
IV. The Motion Papers.............................................................848
V. Legal standards...............................................................848 A. APA.......................................................................848 B. Federal Statutes..........................................................849 VI. The Bridge Company's Standing.................................................850 VII. Discussion....................................................................850 A. The Bridge's Company's Arguments .........................................850 1. Selection of the Preferred Alternative................................850 a. Consideration of Alternatives.....................................851 b. Canadian Review Process ..........................................853 c. Rejection of No Build Alternative ................................853 d. Rejection of the Second Span as Encroaching on the Bridge Company's Franchise Rights......................................854 2. Purpose and Need .....................................................855 a. The FHWA's Traffic Methodology....................................855 b. Investment Grade Traffic Forecast.................................856 c. Customs Processing................................................857 d. Redundancy........................................................857 3. Procedural Arguments..................................................858 4. Conclusion on the Bridge Company's Arguments..........................859 B. EASED and Other Organizational Plaintiffs' Arguments......................859 1. The Right to Judicial Review..........................................859 2. Environmental Justice.................................................860 3. Procedural Completeness ..............................................860 4. Conclusion on LASED's Alignments......................................862 C. Amicus' Arguments.........................................................862 VIII. Conclusion....................................................................863
APPENDIX — List of Acronyms
EXHIBIT 1 — Reports and Studies Underlying the DRIC record
EXHIBIT 2 — Aerial Photograph
This is case under the Administrative Procedure Act (APA),
While the process is further explained below, attached as Exhibit 1 is an exhibit prepared by the FHWA (Doc. 68-2) entitled Reports and Studies Underlying the DRIC record which captures the depth and breadth of the NEPA process in a nutshell. This documents lists 103 reports and studies on varied relevant topics which comprise the heart of the NEPA process. These documents include, but are not limited to, the illustrative alternatives, need and feasibility analysis, traffic analysis, air quality analysis, cultural analysis and archeological resources, engineering analysis, and impacts analysis. This exhaustive process lead to the selection of the preferred location for the United States side of a new crossing in Delray. It was a reasoned process and a reasoned decision.
To further orient the reader, attached as Exhibit 2 is an aerial photograph of the area studied during the DRIC process, with the location of the new bridge indicated. The FHWA submitted it following the Court's request at the hearing on its motion to affirm (Doc. 110-2). The photograph is not a part of the administrative record and is used for illustrative purposes only.
This decision affects only the NEPA process, which is just one of the steps required before construction of a new bridge takes place as envisioned by the DRIC project.
That being said, now before the Court is the FHWA' Motion to Affirm the Decision of the Michigan Division Administrator of the Federal Highway Administration (Doc. 68). For the reasons that follow, the motion will be granted.
As will be explained in more detail below, the DRIC planning process officially began in 2001 when representatives from the Michigan Division of the FHWA, the Michigan Department of Transportation (MDOT), Transport Canada, and the Ontario Ministry of Transportation (collectively "the agencies") met to discuss border transportation needs. The agencies commissioned a planning study ("Planning Needs and Feasibility Study") which was completed in January 2004. The Planning Needs and Feasibility Study concluded that additional capacity was needed for the border crossing between Detroit, Michigan and Windsor, Ontario. According to the FHWA, the purpose and need for the new project was to "provide safe, efficient and secure movement of people and goods across the U.S.-Canadian border and to support the economies of Michigan, Ontario, Canada, and the United States."
The agencies considered several bridge, customs plaza, and associated highway connection proposals as well as the environmental effects that would result from each alternative. In March 2003 the FHWA published a Notice of Intent to prepare an Environmental Impact Statement (EIS). A Draft Environmental Impact Statement (DEIS) was published in February 2008. After the public was given an opportunity to comment on the DEIS, a Final Environmental Impact Statement (FEIS) was published on November 21, 2008. On January 4, 2009 the FHWA published the ROD approving a proposed bridge crossing, customs plaza,
In 2010, seven plaintiffs filed suit against the FHWA challenging the ROD. Plaintiff Detroit International Bridge Company (Bridge Company), a Michigan corporation with its principal place of business in Warren, Michigan, owns and operates the Ambassador Bridge. Plaintiff Latin Americans for Social and Economic Development (LASED) is a non-profit organization in Southwest Detroit. Plaintiff Citizens with Challenges is a non-profit organization whose director is a lifelong resident of Delray. Plaintiff Detroit Association of Black Organizations is a federation of over 130 black and non-black organizations. Plaintiff Detroiters for Progress is an organization run by Adolph Mongo. Plaintiff MANA de Metro de Detroit is a local chapter of MANA, a national Latina organization. Plaintiff Mexican Patriotic Committee of Metro Detroit is a volunteer organization with ties to Southwest Detroit.
As noted above, plaintiffs sued three federal defendants: the Federal Highway Administration, the Administrator of the FHWA, and James J. Steele, the former Michigan Division Administrator of the FHWA. Steele signed the ROD on behalf of the FHWA.
At bottom, the Bridge Company's position is that the DRIC environmental review process was fatally flawed because it eliminated an alternative proposed second span of the Ambassador Bridge too early in the process. The Bridge Company also says that the agency failed to give a no build alternative, where no federal funds would be used but rather would be a privately funded endeavor, sufficient consideration.
The position of LASED and the other organizational plaintiffs is essentially that the DRIC study process was flawed in that the selection of Delray did not properly account for environmental justice because Delay is an economically depressed and minority community. LASED in particular says that the agency should have selected a "downriver" location for the new crossing.
Amicus Dietrich Bergman
The FHWA says that none of the plaintiffs take issue with the agency's finding that there is a need for increased mobility and capacity for the flow of traffic and good from the United States and Canada in the DRIC study area. Rather, the FHWA says that the parties simply disagree on how best to accomplish these ends. The FHWA further says that a disagreement as to the ultimate decision, i.e. selection of the location of a proposed
In 2001, representatives of the Michigan Division of the FHWA, MDOT, and two Canadian governmental entities met to discuss border transportation needs. ROD at 1. A partnership between FHWA, MDOT, Transport Canada, and the Ontario Ministry of Transportation was formed to consider a new crossing. The purpose and need for a new border crossing was to "provide safe, efficient and secure movement of people and goods across the U.S.-Canadian border and to support the economies of Michigan, Ontario, Canada, and the United States and to support homeland security for a period of thirty (30) years." ROD at 9.
The United States and Canada have the largest bilateral trading partnership in the world. FEIS 5-3. The United States is Canada's largest export market and the United States International Trade Administration identified Canada as the largest export market for 38 of the 50 states. Seventy percent of the U.S.-Canada trade moves by truck. FEIS 5-4. In December 2001, the United States and Canada signed a "Smart Border Declaration," which was accompanied by a 30-point action plan that placed emphasis on border security and infrastructure. Id. Over the past 30 years, bilateral trade in goods and services has grown faster than the gross domestic product. FEIS 5-5.
The current bridge, the Ambassador Bridge, is more than 80 years old. The Ambassador Bridge is two lanes in each direction. Id. Huron Church Road is the access road to the Ambassador Bridge in Canada and connects the bridge to Highway 401, which is a limited-access highway similar to a U.S. Interstate Highway. There are approximately 17 signalized intersections on Huron Church Road between the Ambassador Bridge and Highway 401. Many of these signalized intersections are approaching capacity, with several movements already at or near critical levels. Id.
The DRIC project sought to address mobility requirements across the U.S.-Canada border in order to (1) provide new border crossing capacity to meet long-term demand; (2) improve system connectivity; (3) improve operations and processing capability; (4) and provide reasonable and secure crossing options in the event of maintenance, congestion or other disruptions. With these goals in mind, the partnership between the U.S. and Canada determined that an "end-to-end" — a connection from the proposed crossing to a major highway — solution should be evaluated. ROD at 9.
In March 2003, the FHWA published a Notice of Intent to prepare an Environmental Impact Statement. Id. The DRIC planning process first explored in detail several potential corridors for a border crossing site, as part of the preparation of the Planning Needs and Feasibility Study in 2004. FEIS 2-1. The Planning Needs and Feasibility Study found the need for additional transportation capacity in the Detroit-Windsor corridor. FEIS ES-4. That study further identified five corridors in the Detroit-Windsor area that could host a new border crossing. FEIS 2-1; FEIS ES-7.
The partnered governments then began to consider several bridge proposals and the environmental effects their associated roadway connections would have on various sites in Eastern Michigan. They adopted a common set of evaluation criteria for both sides of the border:
Several federal agencies joined the FHWA as cooperating agencies that commented and participated in the DRIC analysis process, including: U.S. Army Corps of Engineers; U.S. Coast Guard; U.S. Environmental Protection Agency; U.S. Fish and Wildlife Service; U.S. General Services Administration; U.S. Department of Homeland Security and U.S. Department of State. FEIS, ES-4.
In July 2005, the FHWA published a Scoping Report, which commenced the full environmental review for the DRIC. The report identified three "broad areas" in which illustrative alternatives were being considered: Downriver study area, Central study area, and Belle Isle study area. The report explained that the "evaluation process begins with a determination by the Partnership Steering Committee, with input from the Working Group and Consultants, of only those options that will meet the project's purpose and need. These are then to be compared to the No Action ... option." DRIC001220. The Scoping Report stated that each alternative would be scored based on the seven evaluation criteria as well as on cost effectiveness, and then the alternatives would be examined according to how well each addresses the objective of providing mobility across the U.S.-Canada border consistent with the purpose and need so that the best "end-to-end proposals can be `short listed' as Practical Alternatives." DRIC001232.
On August 31, 2005, the cooperating agencies and a larger group of agencies attended a kick-off scoping meeting in Detroit. FEIS ES-4. The DRIC analysis began with a list of 51 potential Illustrative Alternatives in the U.S., including combinations of highway connectors, plazas and border crossing. FEIS ES-7. Several of the identified alternatives had fatal flaws that removed them from consideration. These included reasons such as inability to tunnel, highly contaminated areas, or major industrial operations, the latter meaning it was too costly to relocate those operations to make way for a new crossing. Id.
In November 2005, Steele, on behalf of the FHWA, publically announced that twinning the Ambassador Bridge — the addition of a second span — was not a practical alternative for further study on the U.S. side. As reflected in the record, although the twinning of the Ambassador Bridge had originally ranked high on the United States side, it ranked very low on the Canadian side when scored against the agreed-upon criteria between the United States and Canada. FEIS 2-14-2-15. The twinning option would create significant community disruptions and environmental impacts both in the development of an expanded plaza and the rebuilding of the roadway to make it a freeway-to-freeway connection on the Canadian side. Id. Steele concurred with the Canadian evaluation and agreed with the Canadian decision not to pursue further study of this alternative. Id. Twinning of the Ambassador Bridge also failed to satisfy the full complement of project needs for the United States, including redundancy and economic security.
The DRIC team evaluated 15 crossing locations coupled with a variety of plaza and connector corridors totaling approximately 37 "illustrative alternatives." In November 2005 the majority of the "illustrative alternatives" were eliminated as not adequately addressing the evaluation criteria. The area between Zug Island and the Ambassador Bridge was identified as the "area of continued analysis," as well as the No Build Alternative.
The analysis of preliminary practical alternatives began in December 2005 and continued for almost two years, to July 2007. FEIS ES-6. Using the two possible river crossings, over a dozen different alternatives were developed through combinations of river crossings, plazas and interchanges with I-75. Id. As will be explained, the FHWA involved the public in the evaluation of these preliminary practical alternatives. The General Services Administration (GSA), a division of the U.S. Department of Homeland Security and other cooperating agencies were also involved in the initial analysis of practical alternatives. Id. A series of workshops were held from December 2005 to March 2006 to determine, in concert with the public, the acceptable plaza locations within the two crossings. Id. The plazas and interchanges were developed to connect to I-75 and those alternatives, along with their impacts, were presented to the public in December 2006.
Further analysis of the alternatives revealed that several alternatives would have required the use of land from historic Fort Wayne. Other alternatives were deemed impractical based on public, agency and engineering review. These alternatives were subsequently rejected. ROD 10; DEIS ES 4-6.
In February 2008, the FHWA published the DEIS. The DEIS analyzed nine alternatives for the DRIC crossing, and a "No-Build alternative." ROD at 11. The no-build alternative did not include a new crossing built by the government. Rather, it considered a proposal by the Bridge Company to build a six-lane span to replace the existing, four-lane Ambassador Bridge. DEIS 2-36. The nine alternatives for a brand new crossing site were all located in Southwest Detroit. Federal, state, and local agencies and the public reviewed and commented on the DEIS. ROD at 11.
From 2005 to 2008, in order to provide greater level of detail than could be provided in the DEIS or FEIS, the FHWA and MDOT produced a series of 13 technical reports plus accompanying volumes. FEIS Forward. The separate technical reports included:
On November 21, 2008, the FEIS was issued. The FEIS identified a preferred crossing for the DRIC in Delray. FEIS 3-9. This location would convert 160 acres of the community to transportation uses. FEIS ES-30.
Approximately 1500 parcels of land in Delray are vacant. Many of these parcels are owned by the City of Detroit due to the former owners' failure to pay taxes. Many of the homes, some built over one hundred years ago, are in need of major repairs. Id. Although the land use is predominately residential in Delray, the effects of industrial abandonment in Southwest Detroit are most noticeable in Delray. In the 1930s, Delray was a thriving neighborhood of 21,000. Today, it is home to approximately 4,200 people, comprised of approximately a third of either African-American, Hispanic or White individuals. The Hungarian community, which at one time was predominant, has been dwindling rapidly over the last 30 years.
The FEIS concluded that the Delray site posed some potential adverse local effects, as did every proposed alternative. The impact on Delay included the relocation of 257 residences, 43 businesses and 9 non-profit entities. However, the FEIS found that this location best met the purpose and need for the transportation improvements while preserving the historical, cultural, and natural resources of Delray. FEIS 3-34-3-37.
Also of significance was The FEIS also concluded that without a new border crossing, Michigan could lose the opportunity to attract or retain 25,000 jobs. FEISES-28.
A Notice of Availability in connection with the FEIS was published in the Federal Register on December 8, 2008. ROD at 29. The wait period for comments closed on January 5, 2008. Id. Thirty-four comments were received. Id.
On January 4, 2009, the agency issued the ROD. The ROD selected the Delray location as the project location, i.e. the Preferred Alternative. In addition to the new border crossing, the project includes the creation of a plaza for tolls and customs inspections and an interchange connecting the plaza to I-75. ROD at 3-4. It is the basis for this final decision which the Bridge Company and the organizational plaintiffs challenge in this case.
On May 14, 2009 plaintiffs filed this action in the United States District Court for the District of Columbia (Case No. 09-00897). On November 23, 2009 the FHWA lodged a certified AR with that court. On November 25, 2009 plaintiffs filed a Motion for Discovery to Assure Completeness of the Administrative Record
At a February 19, 2010 status conference with the Court, the FHWA stated that it desired to supplement the AR. A certified AR was filed on April 16, 2010 (Doc. 14). The FHWA filed errata sheets on April 22, 2010, (Doc. 15), and June 25, 2010 (Doc. 20) correcting errors in the certified AR. It took some time to compile the administrative record in a manner making its components readily accessible and understandable. See Notice by All Defendants Concerning Description of the Process by Which the Administrative Record was Compiled (Doc. 32); Defendants' Notice of Lodging Certified Administrative Record for the Detroit River International Crossing Project (Doc. 66); Defendants' Notice of Supplement to Lodging of Administrative Record [Filing of Affidavit], Dkt. # 66 (Doc. 67); and Defendants' Notice of Supplement to Lodging of Administrative Record, Dkt. # 66 (Doc. 90). Plaintiffs, particularly the Bridge Company, further complicated the process by filing motions to take discovery, motions to supplement the AR and the strike the ROD, all of which were denied. See Doc. 109. The AR is now final and complete.
The pertinent motion papers consist of the following:
In addition, the FHWA filed a statement of material facts not in dispute (Doc. 69), to which plaintiffs filed responses (Doc. 71, 75).
The APA provides the authority for judicial review of agency decision under the NEPA. See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir.2006). When an agency decision is challenged under the APA, a court must set it aside if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(b). In so doing, a court should consider whether:
Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A reviewing court may not engage in de novo review of an issue before an agency, but must engage in a "thorough, probing, in-depth review" of the agency's decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Such review must be based on "the full administrative record before the [agency decisionmakers] at the time [they] made [their] decision" and cannot incorporate
It is not this Court's function to choose among competing proposals, methodologies, or expert opinions in evaluating the agency's compliance with federal law. On these matters, the Court must defer to the "informed discretion" of deciding agencies. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). The Court's inquiry is to determine whether the administrative record reveals a rational basis for the agency's decisions. Manufactured Hous. Inst. v. U.S. E.P.A., 467 F.3d 391, 398-99 (4th Cir.2006).
Congress enacted NEPA to establish a consistent process through which federal agencies must consider the consequences of their actions on the environment. See 42 U.S.C. §§ 4321-4370f. NEPA requires analysis and public disclosure of significant environmental effects in order to ensure informed public decision making but does not require that agencies select any particular decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA prescribes the procedures by which agencies must consider the environmental impacts of their actions but it does not dictate substantive results. Marsh v. ONRC, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); City of Riverview v. Surface Transp. Bd., 398 F.3d 434, 442 (6th Cir.2005). Although NEPA requires courts to ascertain that the agency took a "hard look" at a project's environmental impacts, Marsh, 490 U.S. at 374, 109 S.Ct. 1851, the court's role "in reviewing the sufficiency of an agency's consideration of environmental factors is a limited one." Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); see also Sierra Club v. Slater, 120 F.3d 623, 633 (6th Cir.1997); Mason County Med. Ass'n v. Knebel, 563 F.2d 256, 264-65 (6th Cir.1977).
Section 4(f) of the Department of Transportation Act protects "publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge, of national, State or local significance, or land of an historic site of national, State or local significance" by permitting the Secretary of Transportation to "approve a transportation program or project ... requiring the use of" such land only if: "(1) there is no prudent and feasible alternative to using the land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use." 49 U.S.C. § 303(c) (2007). The Secretary has delegated the authority to grant § 4(f) approvals to the FHWA. 49 C.F.R. § 1.45(a)(4). If no feasible and prudent alternative is available, FHWA must find that the project plans minimize the harm to the protected 4(f) resources. Druid Hills Civic Ass'n v. Fed. Highway Admin., 772 F.2d 700, 716 (11th Cir.1985).
The NHPA is designed to take into account the effect of a proposed "undertaking" on properties eligible for or listed on the National Register of Historic Places (National Register). 16 U.S.C. § 470f (Section 106); Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 (1st Cir.2003). Similar to NEPA, the NHPA is a procedural statute. Nat'l Mining Ass'n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003). Rather than imposing a substantive mandate, the NHPA requires that federal agencies make a reasonable and good faith effort to identify historic properties, engage the State Historic Preservation
The FHWA's amended response contains for the first time an argument that the Bridge Company lacks standing. (Doc. 94). To establish Article III standing, a plaintiff must show that: (1) they have suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the defendant's challenged action; and (3) that it is likely, as opposed to merely speculative, that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009). A plaintiff who brings a claim under the APA for a violation of NEPA does not have prudential standing to sue unless the interests he seeks to vindicate are within the "zone of interests" protected by NEPA. Valley Forge Christian College v. Ams. United for Separation of Church & State, 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Club Italia Soccer & Sports Organization, Inc. v. Charter Tp. of Shelby, Mich., 470 F.3d 286, 291 (6th Cir. 2006)
FHWA argues that the Bridge Company lacks standing because it has not shown that its alleged injuries fall within the "zone of interests" Congress sought to protect in enacting NEPA. Club Italia, 470 F.3d at 291. FHWA says that the Bridge Company's arguments show that its injury is solely to its economic interests. The Bridge Company says that it does have standing because its challenge is intertwined with economic and environmental interests.
Although adverse economic impact is usually sufficient to demonstrate injury for the purposes of Article III, courts consistently hold that economic injury alone is not within NEPA's zone of interests, no matter how artfully dressed in other clothing it may be. ANR Pipeline Co. v. Fed. Energy Regulatory Comm'n, 205 F.3d 403 (D.C.Cir.2000) (holding that economic interest of a competitor did not satisfy prudential standing requirements); Nev. Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 715 (9th Cir.1993) ("The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions.").
Here, while the Bridge Company's interest in challenging the ROD has an undeniable economic component, the Court is satisfied that the Bridge Company has also alleged an environmental injury in terms of the alleged adverse affect on air quality and noise in the Delay area where the Bridge Company does business. As such, the Court will not dismiss the Bridge Company for lack of standing.
The Bridge Company's principal challenge to the DRIC's NEPA process focuses
As an initial matter, the task of determining what alternatives merit consideration is one for the agency in the first instance. Vt. Yankee, 435 U.S. at 551, 98 S.Ct. 1197. Courts inquire only whether the level of consideration given to an alternative was an "abuse of discretion." Kentucky ex rel., Beshear v. Alexander, 655 F.2d 714, 718 (6th Cir.1981); Isle Royale Boaters Ass'n v. Norton, 154 F.Supp.2d 1098, 1127 (W.D.Mich.2001); 40 C.F.R. § 1502.14.
Here, the FHWA considered a reasonable range of alternatives and did not act arbitrarily and capriciously when it considered, but rejected, other alternatives in favor of the Preferred Alternative. As set forth in detail above, a comprehensive evaluation process guided the agency's consideration of alternatives. In November 2005, the agency produced a technical report entitled Evaluation of Illustrative Alternatives on U.S. Side of the Border, Volume 1: Summary. That summary was preceded by four volumes of technical reports providing analysis on potential routes, plazas and crossings. The FHWA identified 51 combinations of connectors, plazas and crossings that were potential illustrative alternatives, including four proposals by the private sector.
After alternatives with fatal flaws or other unique circumstances were eliminated, the agency evaluated 15 crossing locations coupled with a variety of plaza and connector corridors totaling approximately 37 "illustrative alternatives." ROD-9. In November 2005 the majority of the "illustrative alternatives" were eliminated as not adequately addressing the evaluation criteria, the Delray area was identified for further evaluation. Subsequently, a number of practical alternatives, as well as the No Build Alternative, were developed in
On November 10, 2005, FHWA officially eliminated the Ambassador Bridge Second Span from further consideration as an alternative because it would have unacceptable impacts on the Canadian side and failed to satisfy the full complement of project needs on the U.S. side — efficiency via freeway-to-freeway access and redundancy. FEIS 2-14-15. To that end, it was "the Partnership's position from the outset of the study [] that no one country would bear the brunt of impacts for a crossing system...." The Preferred Alternative was identified in the FEIS. Its selection was the end result of an U.S.-Canadian collaboration. FEIS ES-16. All of this shows a reasoned deliberative process in selecting among several alternatives.
The Bridge Company takes issue with this finding, contending that the DRIC will have significant impacts on Delray in contrast to the Second Span, which is a "no impact" crossing. The Bridge Company further says that the agency ignored the potential negative impacts from the DRIC. The record belies this assertion. See DRIC005527 (noting that "[t]he study process would not find a place for a crossing without impacts") (emphasis in original); see also DRIC124001 (noting that both the Second Span and the DRIC will involve public monies). The FHWA compared the No Build Alternative to the Preferred Alternative in two dozen impact categories as part of its Protection, and other federal and state agencies. FEIS ES-6; FEIS 2-5. The FHWA found that Canada "correctly identified significant community disruption and environmental impacts" from twinning and it agreed with "the Canadian decision to not pursue further study of this alternative." DRIC067462. For example, expanding the plaza and construction of a new freeway in the Huron Church Road Corridor would entail disrupting international traffic in an important trade corridor and had high impacts to the historic Sandwich town community in Canada. FEIS 2-14.
Simply put, both countries agreed to respect each other's environmental review processes and to select a Preferred Alternative that would not unduly burden one country. The Bridge Company, however, argues that the there was no agreement in place between the countries but rather the parties pursued an "unwritten, possibly illegal `gentleman's agreement.'" Doc. 95 at 24. The AR shows quite the opposite. In 2001, the United States, Michigan, Canada and Ontario entered into a border partnership agreement, which although not a binding agreement, memorialized the consensus between the parties. DRIC081521-81524; see also DRIC005909. There is nothing in NEPA or the Bridge Company's arguments to suggest that principles of comity are inconsistent with NEPA.
The FHWA compared the Second Span to the Preferred Alternative in several categories, including the impact on Delray. NEPA does not require selecting the least expensive or least damaging alternative, but only requires that agencies "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a). Agencies need not consider every conceivable alternative. See Beshear, 655 F.2d at 718. Rather, only a "reasonable" range of alternatives has to be analyzed. 40 C.F.R. § 1502.14(a); see also Mason Cnty., 563 F.2d at 263-64; Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 347 (6th Cir.2006). If the agency has adequately identified and evaluated the adverse environmental effects
Feasible alternatives may be rejected "if they present `unique problems' or cause extraordinary costs and community disruption." Communities, Inc. v. Busey, 956 F.2d 619, 627 (6th Cir.1992); see N. Ala. Env'l Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir.2006) (Importantly, NEPA does not require consideration of alternatives that are "infeasible, ineffective, or inconsistent with the basic policy objectives") (citations omitted); see also Vt. Yankee Nuclear Pow. Corp. v. NRDC, 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (NEPA is bounded by a notion of feasibility).
Here, the ROD shows that the FHWA considered all of the alternative and the competing interests before determining that the Preferred Alternative was the best option in light of all the considerations. The Second Span option was rejected in light of objections from Canada, whose shores would also host the proposed twinning of the Ambassador Bridge. The Second Span also did not meet the need for system connectivity, redundancy, capacity, or economic security needs. The rejection of all other proposed alternatives, including in particular the Second Span, had a reasoned basis. That is what NEPA requires and that is what was done.
The Bridge Company also argues that it was arbitrary and capricious to select the Preferred Alternative because FHWA "abrogated its [ ] responsibility to Canada" and allowed Canada to ignore NEPA when it rejected the Second Span. Doc. 95 at 3, 38, 45. This lacks merit. The Bridge Company provides no authority for the notion that NEPA applies to the Canadian environmental review process. Rather, Canada reviewed the DRIC under its own environmental review process pursuant to Canadian law. Principles of comity dictate that this Court affords deference to that review process. Universal Consol. Companies, Inc. v. Bank of China, 35 F.3d 243, 244 (6th Cir.1994) ("American courts historically gave considerable deference to foreign sovereigns, not as a requirement of constitutional law but as an act of comity under customary international law."). Canada made an independent determination under its environmental laws about the impacts of various alternatives on its side of the river. See DRIC038518-DRIC038539 (draft guidelines for the Canadian evaluation of the DRIC under the Canadian Environmental Assessment Act); DRIC043145.
Moreover, as noted at the hearing, even if the United States believed that a second span of the Ambassador Bridge was the best alternative, the fact that Canada believed it would have too great an adverse impact on its side of the crossing, that essentially had to end the matter. Indeed, without Canada's agreement as to the location of a new crossing, no bridge can be built.
The Court will not use NEPA to second-guess the merits of Canada's determination that the proposed Second Span of the Ambassador Bridge was not acceptable. To the extent the Bridge Company takes issue with the Canadian environmental review process, they must do so within the confines of Canada.
The Bridge Company also says that the FHWA did not seriously consider the No Build Alternative. The Court disagrees. In requiring consideration of a no-action alternative, the Council on Environmental Quality (CEQ) "intended that agencies
First, there is some confusion in the record regarding what is meant by the No Build Alternative. The No Build Alternative considered in the ROD was not, as the Bridge Company suggests, the four-lane Ambassador Bridge plus the proposed 6-lane Second Span. Rather, the No Build Alternative did not include a second crossing. ROD 11; FEIS, ES-6. FHWA considered a privately funded six-lane "Second Span" to replace the existing, four-lane bridge as a "variation of the No Build Alternative." It considered this variation in its analysis of cumulative impacts. (FEIS, ES-6; FEIS 2-39); (FEIS 3-216-3-222) (considering cumulative effects — U.S. and Transboundary — of Build and No Build Alternative including mobility, economic impacts, air quality and cultural resources). As the DEIS, FEIS and ROD make clear, the agency relied on a definition of a "No Build Alternative" that would maintain the status quo. FHWA sensibly assumed as a variation of the No Build Alternative a six-lane "Second Span" to replace the existing, four-lane bridge. (FEIS 1-14; FEIS, ES-6; FEIS 2-39). The FHWA also reasonably found that the Second Span alone would not provide sufficient crossing capacity in the long-term in this important trade corridor. DRIC116380. DRIC124002, DRIC124003.
The record also shows that the FHWA gave serious consideration to the No-Build Alternative, considering its relative impacts on the community (FEIS 3-21), environmental justice populations (FEIS 3-31), jobs and the economy (FEIS 3-14), (48-49), land use (FEIS 3-52), traffic (FEIS 3-71, FEIS 3-81, FEIS 3-102), non-motorized transportation and bus service (FEIS 3-109), air quality (FEIS 3-119, FEIS 3-129), noise (FEIS 3-141), wetlands (FEIS 3-149), archeological resources (FEIS 3-153), aboveground resources (FEIS 3-157), cultural resources (FEIS 3-160), parkland impacts (FEIS 3-168), visual landscape (FEIS 3-177), lighting (FEIS 3-182), contaminated properties (FEIS 3-185), safety and security (FEIS 3-231), soils and geological resources (FEIS 3-238), permits (FEIS 3-242), energy (FEIS 3-244), long-term productivity (FEIS 3-251), and the irretrievable commitment of resources (FEIS 3-252). The FHWA also considered the indirect impacts, cumulative impacts and trans-boundary impacts from the No Build Alternative. (FEIS 3-191; FEIS 3-221-223; FEIS 3-229). The FHWA's assessment of 24 different kinds of impacts in relation to the No Build Alternative, in the Court's view, constitutes a "hard look" under NEPA.
The Bridge Company's argument that FHWA's process was deficient because, in eliminating the Second Span/twinning option, it did not consider (1) the "rights" the Bridge Company received from Congress, or (2) a settlement agreement that the Bridge Company had with Canada. This argument is not well-taken. Franchise rights have nothing to do with the environment and nothing do with NEPA. The Bridge Company cites no authority to the contrary. However, the FHWA considered the Bridge Company's asserted franchise rights at the initial phases of the DRIC study process. DRIC-SUPP003266. The FHWA also took into
Overall, the Bridge Company's arguments that the NEPA process was flawed based on the selection of the Preferred Alternative fall short. The ROD shows a careful and deliberative process in considering and selecting the Preferred Alternative for the DRIC project.
The Bridge Company next attacks the Purpose and Need for the project on both substantive and procedural grounds, contending that: (1) the FHWA's traffic methodology was flawed; (2) the agency failed to consider an investment grade traffic forecast; and (3) redundancy is not a supportable rationale for the Purpose and Need. Each argument is addressed in turn below.
The Bridge Company says that the FHWA's traffic data is flawed, contending that if they used more current actual traffic volumes, there would be no grounds supporting the Purpose and Need of the project. This argument is not well taken. First, the Bridge Company used the DRIC traffic forecasts to support its analysis advocating the construction of the Second Span. The Bridge Company, however, now says these DRIC traffic forecasts, are "flawed" and "grossly exaggerated." Doc. 95 at 5.
Second, the FHWA's technical methodologies, including its traffic projections, are entitled to substantial deference and are subject only to a reasonableness review. As the Second Circuit observed, the courts are "neither required, equipped or inclined to resolve fervid disagreements between the parties over technical analyses forming the basis for the Highway Department's recommendation that construction of the proposed expressway is the most viable solution to projected travel needs in the future." Citizens for Balanced Env't and Transp. v. Volpe, 650 F.2d 455, 462 (2d Cir.1981). A reviewing court thus "does not sit as a super-agency empowered to substitute its scientific expertise or testimony presented to it de novo for the evidence received and considered by the agency which prepared the EIS." Id. (quoting Suffolk v. Sec'y of Interior, 562 F.2d 1368, 1383 (2d Cir.1977)).
Here, the FHWA produced four separate working papers to support its traffic models and considered over 24 reports on traffic models and projections. See Doc. 68, Ex. 1 (chart listing all reports traffic-related reports and studies); and weighed the effects of the economic downturn and the declining automobile industry in its forecasts. DRIC004166-004168. The AR also contains testimony from the Southeast Michigan Council of Governments, the Brookings Institute, Chrysler and Ford, among others, established a consensus that the DRIC traffic forecasts were reasonable. DRIC005068.
Third, despite the Bridge Company's suggestion to the contrary, the "actual" traffic volumes submitted by the Bridge
The Bridge Company's argument that FHWA's traffic projections are "grossly exaggerated" likewise ignores the long modeling process that accounted for a variety of developments, including the recession and its impact on traffic, through its risk analysis. DRIC110250; DRIC060992-060996; DRIC058458-058464; DRIC005137-005141; DRIC082258-082260; DRIC109363-109369; DRIC059421; DRIC122760. During the traffic modeling process, MDOT analysts took a hard look at the initial traffic projection data and expressed concerns that the traffic projections looked high for the DEIS when compared to the projections considered for the Planning, Need and Feasibility report. DRIC062081-062092. Although the FHWA recognized that traffic modeling inevitably "must start with a base year that is likely going to be several years old by the time the environmental processes are completed," it found that no "freshening" was required because no "circumstances have introduced changes that require a rethinking of the basic assumptions that underlie the modeling process." DRIC060995; DRIC129273. Although the 2008 traffic volumes were lower than anticipated due to a strike, the Gateway Project and the depressed economy, the 2007 traffic volumes were within low range of the DRIC forecast. DRIC060994-DRIC060995. Independent traffic forecasts also supported the DRIC models. DRIC057025; DRIC129273.
Based on the AR, the Bridge Company's challenge to the FHWA's traffic projections as arbitrary and capricious fails. Not only did the Bridge Company rely upon the very same traffic forecasts to support a proposal for the Second Span, but the AR shows that the FHWA's traffic data resulted from a reasoned process.
In the end, the Bridge Company may disagree with FHWA's traffic projections but it has not established that the FHWA's reliance on its traffic models to support the Purpose and Need of the DRIC was unreasonable.
The Bridge Company also takes issue with the ROD because the FHWA did not include the investment grade traffic forecast in the AR. While the FHWA did not rely on the investment grade forecast to support the project's Purpose and Need, the AR shows that Transport Canada commissioned the confidential investment
The Bridge Company next argues that there is no need for the DRIC because customs processing, not capacity, is the core problem. The FHWA says that this argument conflates immediate congestion issues with long-term capacity needs. The Court agrees. In support, the Bridge Company relies on the Taylor Report. See Doc. 39. The Taylor Report concluded that while present delays were a function of facilities and staffing "capacity will be available for several more years than originally envisioned [in the Canadian Consultant's URS Report], existing crossings will still reach capacity well within the 30 year window for the needs assessment on this Project." Doc. 39, at 6. Thus, the Taylor Report states that a new crossing is needed. The Bridge Company's challenge to the Purpose and Need on this ground fails.
The Bridge Company next challenges the Purpose and Need of the project by arguing that redundancy is a false rationale and that the new crossing would not provide redundancy in any event. These arguments do not carry the day.
Courts afford agencies considerable discretion to define the purpose and need of a project. Alliance for Legal Action v. FAA, 69 Fed.Appx. 617, 622 (4th Cir.2003); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C.Cir.1991). A court evaluates a statement of purpose and need under a reasonableness standard. E.g., Alliance for Legal Action, 69 Fed. Appx. at 622 ("we defer to the agency if the statement is reasonable").
Here, the Purpose and Need statement is as follows:
ROD at 9.
Redundancy was one component of the larger Purpose and Need for the project. To that end, in setting the Purpose and Need, the agency could reasonably conclude that a new crossing would provide redundancy by providing a crossing option
The Bridge Company relies on a State Department letter in which the Department noted that proximity of the proposed crossing to the Ambassador Bridge means that a significant disruption at the Ambassador Bridge could spill over to any of the centrally-located crossings. Doc. 95 at 34-35. The State Department, however, merely pointed out that in the event of a significant terrorist attack, a crossing that was not centrally-located could provide additional safeguards. The State Department did not, as the Bridge Company suggests, say the DRIC would not provide redundancy. DRIC014766. The State Department in fact agreed in the designation of the Preferred Alternative. DRIC116902; DRIC003818.
Overall, deference to the agency's definition of Purpose and Need is appropriate. The Court finds nothing in the Purpose and Need statement which is unreasonable.
The Bridge Company also attacks the DRIC study process on several procedural grounds, including that the FHWA illegally "accelerated" its environmental review, that there were incidents of "fraud," and that the AR is deficient. None of these arguments have merit. The FHWA fully addressed these arguments in its brief (Doc. 99 at pp. 36-46) the Court finds they require less attention.
First, the Bridge Company contends that the multi-year study leading up to the ROD was flawed because FHWA accelerated the NEPA process to avoid criticism from cooperating agencies. The AR shows that the seven cooperating agencies
Second, the Bridge Company's suggestion that there was an illegal "cover up" is fatuous. In support, the Bridge Company selectively cites out of context three quotes from documents in the AR to argue that the FHWA committed fraud and is thus not entitled to deference under the APA. All of this is fully explained in the FHWA's amended reply brief (Doc. 99) at p. 37-39. Suffice it to say that the Bridge Company's argument of manipulation does not withstand scrutiny.
Third, the Bridge Company says that the ROD should be set aside because it is disorganized and prevents a "fulsome" review of the NEPA process is not well-taken. While compilation of the AR has been challenging, the Court took an active role in ensuring the AR was complete and in a comprehendible form. The Bride Company has not shown that the state of the AR renders the ROD arbitrary and capricious by reason of the compilation of the AR.
While the Bridge Company believes that the FHWA got it wrong when it selected the Preferred Alternative and/or concluded there was a Purpose and Need for the DRIC, that disagreement does not render the agency's determination unreasonable under NEPA. As set forth above, the FHWA thoroughly evaluated reasonable alternatives and reasonably established the project's Purpose and Need. The DRIC NEPA process meets the "hard look" standard. See Mason County, 563 F.2d at 264-65 (NEPA hard look requirement is tempered by a practical rule of reason); Nat'l Res. Def. Council, Inc. v. Tenn. Valley Auth., 502 F.2d 852, 853-54 (6th Cir. 1974).
LASED argues that FHWA's selection of Delray as the host community for the DRIC was predetermined because it a poor and minority neighborhood. As an initial matter, as the FHWA points out, LASED has still not addressed Executive Order 12898's clear prohibition on judicial review. Executive Order (E.O.) 12898 instructs federal agencies to "identif[y] and address[ ], as appropriate, disproportionately high and adverse human health or environmental effects ... on minority populations and low-income populations in the United States." E.O. No. 12,898, 59, Fed. Reg. 7,629-33 (Feb. 11, 1994). The E.O. is clear that it "shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, its agencies, its officers, or any other person with this order." 59 Fed.Reg. 7629, 7633 (1994). LASED has not cited any controlling authority
Putting aside whether LASED has the right to mount an EJ challenge under NEPA, the argument that the FHWA "predetermined" the location of the DRIC is not borne out by the AR. The AR shows an extensive process leading up to the selection of the Delray location. See e.g., DRIC016080-016083 (ROD 1-4); DRIC002294-002296; DRIC001084-001088. Moreover, LASED's suggestion that FHWA failed to take a "hard look" at the community impacts of locating the DRIC in Delray is wrong. Once Delray was identified as a potential site for the DRIC, the agency engaged in an extensive EJ analysis, which incorporated an intensive community involvement effort. Throughout the DRIC analysis, MDOT consulted with community leaders and groups on a monthly basis, held almost 100 public meetings, hearings and workshops as well as small group or one-on-one interviews in an effort to identify minority and low-income populations. FEIS 3-31; FEIS 6-1. Approximately 10,000 residences and businesses were sent mailings about each meeting. FEIS ES-5. In addition, the FHWA opened a Study Field Office at the Delray Community Center and held meetings to clarify community demographics and address community concerns. Id.; (FEIS 3-29-3-31). The Court would be hard pressed to say that the FHWA failed to satisfy its EJ obligations. This is explained more fully below.
LASED also argues that the decision was "pretextual" and not based on a thorough analysis. In support. LASED cites an announcement — in advance of the official FHWA announcement — by then Michigan Governor Jennifer Granholm ("Granholm"), that the Belle Isle and Downriver alternatives were no longer under consideration. LASED argues that Governor Granholm's premature announcement shows that the "fix was in" to select Delray as the host community for the proposed bridge. This argument misses the mark.
LASED's suggestion that the timing of Granholm's announcement in October 2005 establishes that the Downriver and Belle Isle options were prematurely and impermissibly eliminated from FHWA review is belied by the record. Extensive data was gathered for the area from Grosse Isle to Belle Isle from March to May 2005. DRIC005443. Between August and September, the agency, along with Canada, compared and scored the potential alternatives. Id. The Downriver and Belle Isle alternatives were not top performers as they were among those with "least potential to be implemented with minimal impacts and on a timely basis." DRIC057191; DRIC112634. Thus, the technical evaluation information showing that Belle Isle and Downriver options scored poorly and could not advance as alternatives was available before the Governor's announcement. DRIC005443; DRIC004182; DRIC016482: DRIC057200; DRIC112643.
LASED also contends that Delray was targeted because it is primarily Hispanic. The AR shows otherwise. The FHWA subjected all the alternatives, including the downriver alternatives, to the same analysis and evaluation process as Delray. DRIC057200; DRIC109000-109005. Indeed, other areas where the agency was considering locating the DRIC, such as River Rouge and Belle Isle, have higher concentrations of low income and minority populations than Delray. DRIC127610; DRIC003364.
LASED's argument that the FHWA failed to consider community issues is also
Throughout the NEPA study process, the FHWA took a careful look at impacts to low income and minority communities. To this end, in November 2007, the agency and MDOT prepared a 130-page Community Inventory Technical (CIT) Report, DRIC006838-006968, that discussed community issues and concerns, and summarized interviews with hundreds of local residents in almost two dozen groups. DRIC006847; DRIC006912-DRIC006968. The CIT Report was designed to provide a "basic understanding of the community which will most experience the effects of a proposed crossing of the Detroit River." DRIC006847.
In addition to the CIT report, in the FEIS, MDOT discloses that there would be disproportionately high and adverse effects on minority and low-income population groups in the study area. Since the Illustrative Analysis phase and the DEIS, MDOT had conducted additional population studies and the field-collected data indicated that approximately 75 percent of relocation candidates are minorities, not 58 percent as the Census data had indicated. Id.
Further, the FEIS disclosed that the Preferred Alternative would affect low income and minority population groups in the study area by relocating 257 households; potentially relocating 685 jobs; losing up to five local places of worship; eliminating two resources eligible for listing on the National Register of Historic Places; affecting Berwalt Manor residents by building a ramp near the apartment building; eliminating the closed South Rademacher community center and playground; disrupting normal traffic patterns and rerouting two bus lines. FEIS 3-34-3-37. The FEIS further compared the relative impacts of the No Build and Preferred Alternative on Delray. FEIS ES-28-ES-29.
Although the FEIS concluded that the project would have disproportionately high and adverse impacts on minority and low-income population groups, the FHWA developed a community and mitigation enhancement plan to avoid or minimize those effects. FEIS 3-37. The FHWA further employed an intensive community effort and performed a cumulative analysis to determine the cumulative impact of the DRIC project and other projects in the area on the community. ROD 35.
Finally, despite LASED's suggestions to the contrary, there were no "downgraded promises" as to potential mitigation measures. The proposed mitigation and community enhancement measures in the ROD include: replacement housing for displaced homes and business; avoiding the Berwalt Manor apartments; minimizing the noise impacts to Berwalt Manor residents by offering certain improvements; reducing the number of dwelling units to be displaced; replacing the pedestrian bridges over I-75 near their original locations; avoiding impacts to a center that serves
There is simply no probative evidence that the agency "downgraded" the mitigation measures or that it otherwise misled the community. In fact, the Delray Community Council, Southwest Detroit Environmental Vision and People's Community Services wrote to their representative urging that the DRIC process continue as it was critical to the safety and growth of the community. DRIC130079-130082.
The is nothing in the AR establishing that the FHWA's EJ study was deficient in its approach, choice of methodology or that the proposed mitigation measures are somehow inadequate. See Radio Ass'n on Defending Airwave Rights, Inc. v. U.S. Dept. of Transp., Fed. Highway Admin., 47 F.3d 794, 802-03 (6th Cir.1995) (agency should be afforded deference in its choice of methodology). The AR in fact shows that the FHWA was mindful of EJ issues early in the environmental review process and that the FHWA engaged the Delray neighborhood to identify and mitigate adverse impacts from the DRIC.
Amicus' argues that the NEPA process is flawed because the FHWA failed to seriously consider non-highway alternatives and, in particular, intermodal rail. The AR shows otherwise. The FHWA did consider non-highway alternatives, including the intermodal rail options, and found that they did not eliminate the need for a new international bridge. DRIC040498; DRIC043171, DRIC043297; DRIC056975-056976; DRIC075714. In a report on Feasible Transportation alternatives, the FHWA identified and considered several transportation planning alternatives including: (1) improvements to border processing; (2) transportation demand management; (3) new and/or improved rail alternatives including a new and/or expanded international rail crossing; (4) new and/or improved transit services; (5) new and/or improved marine services; (6) new and/or improved road alternatives with a new or expanded international road crossing; and (7) combinations of the above. DRIC040485-40489.
After analyzing each of the proposed alternatives on six metrics, the FHWA concluded:
DRIC040502 (emphasis in original).
The intermodal option simply did not meet the project's identified needs. In a March 2003 memorandum from a consultant analyzing the potential diversion of truck traffic to intermodal rail and marine, the consultant found that the net impact of diversion to intermodal would be a 4.4% reduction in truck trips at the Ambassador Bridge in 2010, increasing to 8.9% in 2030. DRIC043297. In the travel demand forecast in 2005, the FHWA concluded that even assuming an optimistic 44% diversion of current truck traffic, the impact would be to postpone capacity shortfalls by only two years. DRIC015196. Although the FHWA found that "improvements to rail
The FHWA also concluded that the intermodal was not a feasible global alternative, noting that "the auto industry use of intermodal rail is relatively mature and the significant proportion of the machinery and electronics goods that are transported at the border crossing, which are not conducive to intermodal rail." Id.; see also DRIC015145.
In short, the FHWA reasonably concluded that although non-highway alternatives such as intermodal rail were a component of the long-term border congestion strategy, a new international bridge was necessary to fulfill the Purpose and Need of the project.
Amicus also contends that the NEPA process was flawed because MDOT's contract with the project consultant violated NEPA and the agency failed to consult with all necessary agencies. These arguments fail. First, Amicus' argument that MDOT's contract with the project consultant, the Corradino Group, violates NEPA because it limited the work to highway alternatives is contrary to the AR. The Scope of the Work for he contract was clear that Corradino's analysis could include non-highway alternatives. See Doc 83, Ex. E at 173-74. There was no predetermined conclusion that only highway alternatives would be analyzed as part of the DRIC process. Second, as explained above, the FHWA meaningfully included all necessary agencies in the NEPA study process. Even if the Federal Railroad Administration (FRA) and Federal Transit Administration (FTA) were not among the cooperating agencies, as Amicus appears to suggest they should have been, they did have an opportunity for meaningful participation; both were provided a draft of the DEIS and FEIS for comment. FEIS 8-1; DEIS 8-1. Neither agency chose to comment.
An agency's decision must be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency." Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008), overruled in part on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
The DRIC planning process began in 2001 and took almost eight years before the ROD was issued in January 2009. It included the issuance of a DEIS in February 2008 and a FEIS in November 2008 which formed the basis for the ROD. The AR consists of over 130,000 pages of documents evidencing environmental review, consideration of alternatives, public comments, various studies, detailed analyses and discussion. The FHWA considered all relevant environmental impacts that the selection of the Preferred Alternative would have on Delray.
On the record before it, the Court concludes that the FHWA acted in an reasoned and deliberative fashion when it approved the proposed new international bridge crossing in the Delray neighborhood. The assertion of plaintiffs that the FHWA acted arbitrarily and capriciously has no merit. The FHWA's motion to affirm is GRANTED. The ROD is AFFIRMED.
SO ORDERED.
# Topic Date Name Sponsor Bates# Acronym 2005-10-01 DRIC Evaluation of Illustrative 1 Illustrative Alternatives 10/1/2005 Alternatives - Volume 3A Plaza Technical Data CONSULTANT DRIC001300 2005-10-01 Evaluation of Illustrative Alternatives - 2 Illustrative Alternatives 10/1/2005 Volume 3B Crossing Technical Data CONSULTANT DRIC001496 2005-10-01 Evaluation of Illustrative Alternatives - 3 Illustrative Alternatives 10/1/2005 Volume 3C Route Technical Data CONSULTANT DRIC001685 2005-11-01 Evaluation of Illustrative Alternatives - 4 Illustrative Alternatives 11/1/2005 Volume 1 Summary CONSULTANT DRIC001894 2005-11-01 Evaluation of Illustrative Alternatives - 5 Illustrative Alternatives 11/1/2005 Volume 2 Technical Analysis CONSULTANT DRIC001960 2005-11-01 Generation and Assessment of 6 Illustrative Alternatives 11/1/2005 Illustrative Alternatives Report (DRAFT) CONSULTANT DRIC003103 Evaluation of Illustrative Alternatives on U.S. Side 7 Illustrative Alternatives 10/1/2007 of Border Technical Report Volume 1: Summary MDOT DRIC008089 Evaluation of Illustrative Alternatives Technical 8 Illustrative Alternatives 10/1/2007 Report Volume 2: Technical Analysis MDOT DRIC008160 Evaluation of Illustrative Alternatives Technical 9 Illustrative Alternatives 10/1/2007 Report Volume 3A: Plaza Technical Data MDOT DRIC008397 Evaluation of Illustrative Alternatives Technical 10 Illustrative Alternatives 10/1/2007 Report Volume 3B: Crossing Technical Data MDOT DRIC008598 Evaluation of Illustrative Alternatives Technical 11 Illustrative Alternatives 10/1/2007 Report Volume 3C: Route Technical Data MDOT DRIC008792 2008-02-01 Level 1 Traffic Analysis of the 12 Illustrative Alternatives 2/1/2008 Illustrative Alternative Technical Report MDOT DRIC013242 2005-07-27 Test Application of Methodology Evaluation of Illustrative Alternative on U.S. Side 13 Illustrative Alternatives 7/27/2005 of Border (DRAFT) CONSULTANT DRIC046834 Planning, Need & Feasibility 14 Analysis 1/1/2004 PNF Environmental Overview Report DRIC045442 PNF
Planning, Need & Feasibility PNF Existing and Future Travel Demand Working 15 Analysis 1/1/2004 Paper DRIC045604 PNF Planning, Need & Feasibility PNF Feasible Transportation Alternatives Working 16 Analysis 1/1/2004 Paper DRIC045530 PNF Planning, Need & Feasibility PNF Strategic and Geographic Area Overview 17 Analysis 1/1/2004 Working Paper DRIC045361 PNF Planning, Need & Feasibility 18 Analysis 1/1/2004 PNF Study Report FINAL DRIC015441 PNF Planning, Need & Feasibility PNF Travel Demand Analysis Process Working 19 Analysis 1/1/2004 Paper DRIC045869 PNF Planning, Need & Feasibility 20 Analysis 3/12/2007 PriceWaterhouse Coopers Strategic Risk Analysis DRIC055277 2008-02-01 Level 1 Traffic Analysis of the 21 Traffic Analysis 2/1/2008 Illustrative Alternative Technical Report MDOT DRIC013242 DRIC Traffic Analysis Report for Illustrative 22 Traffic Analysis 9/8/2005 Alternatives MDOT DRIC122738 Detroit River International Crossing Study 23 Traffic Analysis 9/12/2005 Validation of U.S. Portion Travel Demand Model CONSULTANT DRIC121989 DRIC Project Technical Reports: Indirect and 24 Traffic Analysis 10/5/2007 Cumulative Impacts Analysis MDOT DRIC123807 Freeway Density Speed 2035 Alternative 03 (AM 25 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126301 Freeway Density Speed 2035 Alternative 05 (AM 26 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126304 Freeway Density Speed 2035 Alternative 07 (AM 27 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126307 Freeway Density Speed 2035 Alternative 09 (AM 28 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126310 Freeway Density Speed 2035 Alternative 11 (AM 29 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126313 Freeway Density Speed 2035 Alternative 14 (AM 30 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126316 Freeway Density Speed 2035 Alternative 16 (AM 31 Traffic Analysis 10/26/2007 Peak) MDOT DRIC126319 Freeway Density Existing Conditions plus Gateway 32 Traffic Analysis 10/26/2007 Project (AM Peak) MDOT DRIC126322
33 Traffic Analysis 10/26/2007 Freeway Density Speed 2035 No Build (AM Peak) MDOT DRIC126325 2008-02-01 Level 1 Traffic Analysis of the 34 Traffic Analysis 2/1/2008 Illustrative Alternative Technical Report MDOT DRIC013242 Level 2 Part 2 Traffic Analysis Techical Report 35 Traffic Analysis 2/1/2008 Highway Cap Analysis & Microsim Modeling MDOT DRIC013107 Level 2 Part 1 Traffic Analysis Techical Report 36 Traffic Analysis 2/13/2008 Travel Demand Model MDOT DRIC012953 DRIC126706, DRIC - 37 Traffic Analysis 3/20/2008 Annual One Way Volumes by Year MDOT SUPP006288 38 Traffic Analysis 5/22/2008 Annual Traffic Chart (2005-2007) MDOT DRIC127475 BORDER TRANSPORTATI ON 39 Traffic Analysis 8/4/2008 Summary of Travel Demand Base Forecast PARTNERSHIP DRIC129973 40 Traffic Analysis 12/1/2008 Level 3 Traffic Analysis Technical Report MDOT DRIC011968 DRIC012102, DRIC012129, Level 3 Traffic Analysis Technical Report DRIC012130, 41 Traffic Analysis 12/1/2008 Appendices D, E, F, & G MDOT DRIC012943 Level 3 Traffic Analysis Report (TAR) Networks & 42 Traffic Analysis 12/1/2008 Model Output MDOT DRIC012952 43 Induced Demand Analysis 10/5/2007 DRIC Technical Reports: Induced Demand MDOT DRIC123800 44 Induced Demand Analysis 10/5/2007 DRIC Project Technical Reports: Induced Demand MDOT DRIC123810 45 Induced Demand Analysis 10/16/2007 Induced Demand Technical Report MDOT DRIC124211 46 Air Quality Analysis 5/31/2007 2007-05-31 Air Quality Analysis Protocol Draft OTHER DRIC020323 Air Quality Impact Analysis Technical Report 47 Air Quality Analysis 2/1/2008 February 2008 MDOT DRIC006514 2008-03 Canadian DRIC Final Air Quality 48 Air Quality Analysis 3/1/2008 Monitoring Report CONSULTANT DRIC033989
BORDER TRANSPORTATI 2008-05 Draft Canadian Practical Alternatives ON 49 Air Quality Analysis 5/1/2008 Working Paper - Air Quality Impact Assessment PARTNERSHIP DRIC030915 BORDER 2008-12 Canadian Air Quality Impact Assessment - TRANSPORTATI Technically and Environmentally Preferred ON 50 Air Quality Analysis 12/1/2008 Alternative & The Recommended Plan Analysis PARTNERSHIP DRIC020437 2007-06 Canadian DRIC 2nd Interim Air Quality 51 Air Quality Analysis 6/1/2007 Monitoring Report CONSULTANT DRIC037923 2007-08 Draft Canadian Practical Alternatives Evaluation Working Paper - Air Quality Impact 52 Air Quality Analysis 8/1/2007 Assessment CONSULTANT DRIC035553 2007-09 Canadian DRIC 3rd Interim Air Quality 53 Air Quality Analysis 9/1/2007 Monitoring Report CONSULTANT DRIC036948 54 Noise Study 11/1/2007 Noise Study Technical Report MDOT DRIC007807 Wetlands, Threatened and Endangered Species, and Coastal Zone Management Wetland, Threatened and Endangered Species 55 Study 11/1/2007 and Coastal Zone Management Technical Report MDOT DRIC007699 Cultural Analysis/ 56 Aboveground Resources 2/1/2008 DRIC Above-Ground Resources Survey Volume I MDOT DRIC009216 Cultural Analysis/ 57 Aboveground Resources 2/2/2008 DRIC Above-Ground Resources Survey Volume II MDOT DRIC009522 BORDER TRANSPORTATI Cultural Analysis/ 2007-08 Draft Canadian Practical Alternatives ON 58 Archeological Resources 8/1/2007 Evaluation Working Paper - Archaeology PARTNERSHIP DRIC035831 Cultural Analysis/ 59 Archeological Resources 2/1/2008 DRIC Archaeological Phase I and II Investigations MDOT DRIC009006 BORDER TRANSPORTATI Cultural Analysis/ 2008-03 Draft Canadian Practical Alternatives ON 60 Archeological Resources 3/1/2008 Evaluations Working Paper - Archaeology PARTNERSHIP DRIC033340 BORDER 2008-12 Canadian Archaeology Assessment - TRANSPORTATI Cultural Analysis/ Technically and Environmentally Preferred ON 61 Archeological Resources 12/1/2008 Alternative & The Recommended Plan Analysis PARTNERSHIP DRIC020790
2006-05-31 DRIC Study Impacts from Brine Well Brine Well Cavity Investigation and MDEQ Permit Needs Bore Hole 62 Investigation Program 5/31/2006 Drilling Program OTHER DRIC061035 Brine Well Cavity DRIC Brine Well Cavity Investigation Program 63 Investigation Program 2/1/2008 Technical Report CONSULTANT DRIC010259 Brine Well Cavity 2/9/2007 - Canadian Weekly Summary Report Brine Well DRIC048099 - 64 Investigation Program 5/4/2007 Investigation (19) CONSULTANT DRIC048117 Brine Well Cavity 2/4/2006 - US Weekly Summary Report Brine Well DRIC048118 - 65 Investigation Program 8/12/2007 Investigation (35) CONSULTANT DRIC049072 Brine Well Cavity 1/15/2007 - Daily Field Report Brine Well Investigation (114 [DRIC048158 - 66 Investigation Program 7/5/2007 entries) CONSULTANT DRIC049857] Brine Well Cavity 2008-01-25 DRIC Drilling Program Forward 67 Investigation Program 1/25/2007 Modeling Study MDOT DRIC048221 DRIC048429 DRIC048533 DRIC048549 DRIC048563 DRIC048581 Brine Well Cavity 3/1/2007 - 2007-03-01 Shift Report Summary Daily Field CONSULTANT DRIC048613 68 Investigation Program 3/14/2007 Report Brine Well Investigation (12) DRIC048644 DRIC048672 DRIC048684 DRIC048697 DRIC048721 DRIC048736 Initial Site Assessment/ Preliminary Site Initial Site Assessment and Preliminary Site 69 Investigation 11/1/2007 Investigation Technical Report MDOT DRIC006969 DRIC Conceptual Engineering Report Volume 1 - 70 Conceptual Engineering 2/1/2008 Sections 1-6 MDOT DRIC009867 DRIC Conceptual Engineering Report Volume 2: 71 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC009952 DRIC Conceptual Engineering Report Volume 2: 72 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC009953 DRIC Conceptual Engineering Report Volume 2: 73 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC009980 DRIC Conceptual Engineering Report Volume 2: 74 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010100
DRIC Conceptual Engineering Report Volume 2: 75 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010124 DRIC Conceptual Engineering Report Volume 2: 76 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010163 DRIC Conceptual Engineering Report Volume 2: 77 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010172 DRIC Conceptual Engineering Report Volume 2: 78 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010198 DRIC Conceptual Engineering Report Volume 2: 79 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010220 DRIC Conceptual Engineering Report Volume 2: 80 Conceptual Engineering 2/1/2008 Bound Appendices MDOT DRIC010222 DRIC Brine Well Cavity Investigation Program 81 Conceptual Engineering 2/1/2008 Technical Report MDOT DRIC010259 82 Conceptual Engineering 11/1/2007 DRIC Bridge Conceptual Engineering Report MDOT DRIC011200 83 Conceptual Engineering 11/1/2008 DRIC Engineering Report Volume 1 Main Report MDOT DRIC011251 DRIC Engineering Report Volume 2 Bound 84 Conceptual Engineering 11/1/2008 Appendices MDOT DRIC011355 DRIC Engineering Report Volume 3 Local 85 Conceptual Engineering 11/1/2008 Interchange Road Plans MDOT DRIC011486 DRIC Engineering Report Volume 4 Interchange 86 Conceptual Engineering 11/1/2008 Structure Studies MDOT DRIC011576 DRIC Engineering Report Volume 5 Main Bridge 87 Conceptual Engineering 11/1/2008 Structure Study MDOT DRIC011675 DRIC Engineering Report Volume 6 Detroit River 88 Conceptual Engineering 11/1/2008 Bridge Structure Study Appendix D - Geotechnical MDOT DRIC011763 Community Inventory Technical Report November 89 Community Inventory 11/1/2007 2007 MDOT DRIC006838 CIT 90 Community Inventory 11/9/2007 Community Inventory Technical Report DRIC MDOT DRIC123931 CIT 91 Community Inventory 11/9/2007 Community Inventory Technical Report (DRIC) MDOT DRIC123937 CIT 92 Community Inventory 11/9/2007 Community Inventory Technical Report (DRIC) MDOT DRIC123943 CIT 93 Community Inventory 11/9/2007 Community Inventory Technical Report (DRIC) MDOT DRIC123949 CIT
Indirect/Cumulative Indirect & Cumulative Impact Analysis Technical 94 Impacts Analysis 1/1/2008 Report January 2008 MDOT DRIC006366 95 Indirect/Cumulative 11/9/2007 Indirect and Cumulative Impacts Analysis MDOT DRIC123933 Indirect/Cumulative Indirect and Cumulative Impacts Analysis 96 Impacts Analysis 11/9/2007 Technical Report MDOT DRIC123939 Indirect/Cumulative Indirect and Cumulative Impacts Analysis 97 Impacts Analysis 11/9/2007 Technical Report MDOT DRIC123945 Indirect/Cumulative Indirect and Cumulative Impacts Analysis 98 Impacts Analysis 11/9/2007 Technical Report MDOT DRIC123951 Indirect/Cumulative DRIC Project Technical Reports: Indirect and 99 Impacts Analysis 10/5/2007 Cumulative Impacts Analysis MDOT DRIC123797 100 General Analysis 2/2/2007 Value Planning Study Report MDOT DRIC004444 101 Final Decision Document 2/18/2008 Draft Environmental Impact Statement MDOT DRIC073051 DEIS 102 Final Decision Document 12/1/2008 Final Environmental Impact Statement MDOT DRIC014252 FEIS 103 Final Decision Document 1/14/2009 Record of Decision MDOT DRIC016074 ROD
