DONOVAN W. FRANK, District Judge.
Plaintiffs The Saint Paul Branch of the National Association for the Advancement of Colored People (the "NAACP"), Community Stabilization Project, Aurora/Saint Anthony Neighborhood Development Corporation, Shear Pleasure, Inc., Metro Bar & Grill, Inc. d/b/a Arnellia's, Carolyn Brown, Deborah Montgomery, Michael Wright, Leetta Douglas, and Gloria Presley Massey (together, "Plaintiffs") bring this action against United States Department of Transportation ("US DOT"), Federal Transit Administration ("FTA") (together, "Federal Defendants"), and the Metropolitan Council (collectively, "Defendants" or "Agencies").
Plaintiffs claim that Defendants violated the National Environmental Policy Act, 42 U.S.C. § 4331, et seq. ("NEPA"), and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), by preparing a deficient Final Environmental Impact Statement ("FEIS") for the Central Corridor Light Rail Transit project ("CCLRT Project" or "Project").
The Central Corridor refers to the area that links the central business districts of downtown Minneapolis and St. Paul, Minnesota. (FTA 3516.)
The portion of the Central Corridor that Plaintiffs describe as their community is referred to in the environmental documents as the Midway East segment. Midway East comprises the area in St. Paul along University Avenue between Rice Street and Snelling Avenue. Midway East comprises much of what was, at one time, the Rondo neighborhood and presently contains some of the highest concentrations of minority and low-income populations in the metro area.
This case involves alleged inadequacies in the planning of the proposed CCLRT Project. The Project involves approximately 11 miles of light rail line, 9.7 miles of which will run between downtown Minneapolis and downtown St. Paul. (FTA 2-4.) The Project will connect five major activity centers in the Twin Cities, including downtown Minneapolis, the University of Minnesota, the Midway area, the State Capitol complex, and downtown St. Paul. Approximately 1.2 miles of the line will use the existing Hiawatha LRT alignment in downtown Minneapolis and will connect with five existing stations. (Id. 3, 5.) The
The purpose of the CCLRT Project is "to meet the future transit needs of the Central Corridor LRT study and the Twin Cities metropolitan region and to support the economic development goals for the Central Corridor LRT study area." (FTA 3-4.) The introduction of "fixed-guideway transit to the Central Corridor" was proposed as a "cost-effective measure aimed at improving mobility by offering an alternative to auto travel for commuting and discretionary trips." (Id.)
Over the past three decades, the Central Corridor has been the subject of several transportation studies that have analyzed the feasibility of mass transit options in the area. (Id. 3516.) For example, in 1999, the Ramsey County Regional Railroad Authority ("RCRRA") initiated the Central Corridor Transit Study to explore transit options for the corridor. (Id. 3516.) The study evaluated cost effectiveness, mobility and accessibility, and the community and environmental benefits of several transit options. (Id.) This study relied on previous transit studies and outlined goals and options for the Central Corridor. Tiered screening resulted in three potential options: University Avenue Light Rail Transit ("LRT"), University Avenue Busway/Bus Rapid Transit, and I-94 LRT Alternative. (Id. 7166, 5057.)
In 2001, the RCRRA prepared and issued the Central Corridor Scoping Booklet, the purpose of which was to identify transportation alternatives to be evaluated in an EIS. (Id. 7162.) The scoping decision eliminated the I-94 LRT option and advanced the following options for environmental review: (1) No-Build; (2) Transportation Systems Management; (3) Busway/Bus Rapid Transit; and (4) University Avenue LRT. (Id. 7162-7163.)
In April 2006, the Agencies published the Central Corridor Alternatives Analysis and Draft Environmental Impact Statement ("AA/DEIS"). The AA/DEIS proposed two build alternatives—a LRT or Busway Rapid Transit for the Central Corridor. (Id. 5056.) The AA/DEIS contained an analysis of the purpose of and need for such a project, alternatives to the two projects, and the environmental, economic, and social impacts of the projects. Specifically, the AA/DEIS noted that the project goals of the CCLRT were: (1) economic opportunity and investment; (2) communities and environment; and (3) transportation and mobility. (Id. 5059.) After the publication of the AA/DEIS, there was a public comment period.
Upon completion of the public hearings, the Metropolitan Council (who replaced the RCRRA as the lead agency on the CCLRT Project) adopted the AA/DEIS Locally Preferred Alternative for the Central Corridor—the University LRT Alternative. On February 25, 2008, the Agencies published a notice of intent to prepare a Supplemental DEIS ("SDEIS"). The SDEIS was intended to communicate changes to the CCLRT, including the potential additional/infill stations at Hamline Avenue, Victoria Street, and/or Western Avenue. (FTA 3513, 3519-3524.) The Agencies again received public comments, including comments that addressed the displacing effect of the CCLRT, business interruption, and potential cumulative impacts on the Rondo community. The comment period for the SDEIS occurred during summer 2008, during which three public hearings took place. The Agencies received approximately 70 comments on the SDEIS. The comments led to, among other things, the addition of below-grade infrastructure for three infill stations at Hamline Avenue, Victoria Street, and Western Avenue. (Id. 6.)
The CCLRT Final EIS ("FEIS") was published on June 26, 2009. (FTA 7.) The FEIS totals approximately 2,800 pages and incorporates both the AA/DEIS and SDEIS by reference. (Id. 636.) The FEIS considered three alternatives: (1) No-Build Alternative; (2) Baseline Alternative (reflecting the "best that can be done" to improve transit without major capital investment); and (3) the Preferred Alternative consisting of a LRT system in the Central Corridor. (Id. 4, 685-86.) In the FEIS, the Agencies considered the impacts of the LRT option and the other alternatives, including potential social effects on land use and socioeconomics; neighborhoods, community services, and community cohesion; displacement and relocation; cultural resources; parklands and recreation areas; visual quality and aesthetics; safety and security; and environmental justice populations.
The FEIS also noted that numerous comments were received from public entities, community groups, non-profit organizations, private entities, public officials, regulatory agencies, and the general public. (FTA 7-12.) With respect to environmental justice, the Agencies noted that the "USEPA recommended specific plans for loss of on-street parking, completion of the three additional stations at Hamline Avenue, Victoria Avenue and Western Avenue, and continued discussions with the Rondo community about cumulative impacts of the project on community cohesion and function." (FTA 8.) The FEIS also noted that following publication of the AA/DEIS, "numerous comments were received concerning access and mobility within and particularly across the corridor, with particular concerns raised about the possibility of the LRT creating a physical barrier between neighborhoods on either side of University Avenue." (Id. 885.) In response to community concerns, a number of accommodations were made to the project to enhance community cohesion. (Id. 886.)
The FEIS also outlined accommodations and mitigation measures related to potential impacts, including impacts to communities in Midway East. These measures included plans to minimize noise and vibration impacts and to relocate traction power substations. (Id. 882, 887.) In addition, measures were taken to mitigate loss of on-street parking. (Id. 884.) With respect to the environmental justice community, the FEIS noted measures taken to mitigate a decreased level of bus service. (Id. 889-890.)
Ultimately, after conducting the NEPA analysis, the Agencies concluded that the CCLRT would provide, among other things, increased transit access to employment and activity centers, significant travel time savings, and the creation of jobs through new development along the LRT route. (Id. 18.) In addition, the Agencies concluded that "substantial benefits that will accrue to the minority, low-income, and transit dependent populations more than offset nearly all of the potential adverse impacts of the Project." (Id.; see also 887-888 (noting offsetting benefits).) Moreover, the Agencies concluded that the AA/DEIS, SDEIS, and FEIS all indicated "that there are no disproportionately `high and adverse' effects on minority and/or low-income populations." (Id. 17-18.) Instead, the Agencies noted that the "potential adverse effects are not predominantly borne by a minority or low-income populations [sic]," but rather that "the potential adverse effects are shared by all populations along the proposed route, including non-minority and non-low-income populations." (Id.)
On August 2009, the FTA issued its Record of Decision ("ROD"). In it, the Agencies noted that:
(FTA 3-4.) Appendix C of the ROD contains the Agencies' responses to comments received during the FEIS period. (FTA 84-111.) These comments include, but are not limited to, concerns regarding business impacts during construction, as well as the potential for gentrification and dislocation of existing communities. (Id. 88-89.)
In their Complaint, Plaintiffs allege a single count under NEPA. Plaintiffs assert that they are entitled to summary judgment because: (1) the FEIS fails to adequately analyze the cumulative impact of displacement/gentrification caused by the CCLRT, construction of the I-94, and urban renewal policies of the 1970s; (2) the FEIS fails to adequately analyze and consider mitigation of the business interruption caused by the construction of the CCLRT; (3) the FEIS does not adequately analyze or consider mitigating the displacement of Central Corridor residents and businesses; and (4) the FEIS lacks the requisite scope because it does not analyze the entire CCLRT Project.
Defendants oppose Plaintiffs' motion and move for summary judgment on Plaintiffs' claims, asserting that the FEIS adequately considered the cumulative effects of past actions, adequately identified business impacts and considered mitigation, adequately discussed mitigation for businesses and residences that may be adversely impacted, and did not require supplementation. Defendants further argue that even if the Court determines that there has been a NEPA violation, an injunction would be unjustified under the present circumstances.
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir.1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 1).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to
Plaintiffs' claims are brought under the judicial review provisions of the APA. Under the APA, the reviewing court must affirm an agency decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). See also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court considers whether Defendants considered the relevant factors and whether they made a "clear error of judgment." Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. This standard of review is narrow and gives agency decisions a high degree of deference. Sierra Club v. Envtl. Prot. Agency, 252 F.3d 943, 947 (8th Cir.2001). An agency's rule is arbitrary and capricious if it (1) relied on factors Congress did not intend it to consider; (2) "entirely failed to consider an important aspect of the problem"; (3) offered an explanation that runs counter to the evidence before the agency; or (4) "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856.
NEPA requires federal agencies to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Sierra Club v. U.S. Forest Serv., 46 F.3d 835, 837 (8th Cir.1995). An agency may first prepare an environmental assessment ("EA") to determine whether an EIS is required. 40 C.F.R. § 1508.9(a)(1). An EA is a "concise, public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact." Id. An EA must include "brief discussions" regarding the need for the proposed action, alternatives, the environmental impacts, and a listing of agencies consulted. 40 C.F.R. § 1508.9(b). If an EIS is not required, the agency may issue a finding of no significant impact ("FONSI").
If an EIS is required, it must contain a "detailed statement" on the environmental impact of the proposed action, any unavoidable adverse environmental effects of the proposed action, and the alternatives to the proposed action. See Kleppe v. Sierra Club, 427 U.S. 390, 401-02, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). NEPA requires that an EIS consider the potential direct, indirect, and cumulative impacts
"Direct impacts" "are caused by the action and occur at the same time and place." 40 C.F.R. § 1508.8(a). "Indirect impacts" are those effects caused by the action that are reasonably foreseeable but later in time or farther removed in distance. 40 C.F.R. § 1508.8(b). A "cumulative impact" is
40 C.F.R. § 1508.7. Effects under NEPA include "ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative" effects. 40 C.F.R. § 1508.8.
A cumulative impacts analysis "must be sufficiently detailed to be `useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts and must rely on some quantified or detailed information.'" Habitat Educ. Ctr., Inc. v. Bosworth, 363 F.Supp.2d 1070, 1079 (E.D.Wis.2005) (quoting Lands Council v. Vaught, 198 F.Supp.2d 1211, 1245 (E.D.Wash.2002)).
The EIS must also discuss "means to mitigate adverse environmental impacts." 40 C.F.R. § 1502.16(h), 1508.25(b)(3). Mitigation includes:
40 C.F.R. § 1508.20.
"[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized." Marsh, 490 U.S. at 373-74, 109 S.Ct. 1851. Instead, an EIS need only be supplemented if substantial changes are made to the proposed action or new information arises that will affect the quality of the human environment "in a significant manner or to a significant extent not already considered." Id. at 374, 109 S.Ct. 1851.
The requirements imposed by NEPA are procedural and do not impose substantive results on agencies. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (NEPA prohibits uninformed, not unwise, agency action). Plaintiffs bear the burden of demonstrating that Defendants' actions violate NEPA and the APA. South Dakota v. U.S. Dept. of Interior, 423 F.3d 790, 800 (8th Cir. 2005). Notably, NEPA does not allow a court to substitute its judgment for that of an agency as to the environmental consequences of the agency's actions. A court's review is only to "insure that the agency has taken a `hard look' at the environmental consequences." Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. 2718.
Plaintiffs argue that the Defendants' environmental review of the CCLRT Project violates NEPA in four ways: (1) failing to adequately analyze the cumulative impact of displacement/gentrification caused by the CCLRT, construction of the I-94, and urban renewal policies of the 1970s; (2) failing to adequately analyze and consider mitigation of the business interruption caused by the construction of the CCLRT;
Plaintiffs allege that the FEIS fails to adequately identify or consider the cumulative impacts of the construction of I-94 and the current CCLRT Project on Plaintiffs' community. Plaintiffs' community includes the African-American community of the Central Corridor as well as St. Paul's Rondo community. Plaintiffs assert that they asked the Metropolitan Council to consider prior government actions that have impacted the neighborhood, but that the FEIS did not consider the issue of the past dislocation of the Central Corridor African-American community. In particular, Plaintiffs assert that the construction of I-94 brought direct physical displacement to the Rondo neighborhood and that the CCLRT now brings indirect displacement.
As explained above, the cumulative impacts analysis must be sufficiently detailed to be "useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts and must rely on some quantified or detailed information." Lands Council, 198 F.Supp.2d at 1245. In a 2005 memorandum, the Council for Environmental Quality ("CEQ") provides additional guidance on the disclosure of cumulative impacts under NEPA:
See http://ceq.hss.doe.gov/nepa/regs/ Guidance_on_CE.pdf. (Emphasis added.)
Defendants assert that the FEIS, in large part, addressed the effects of the I-94 construction on the Rondo community when it considered the existing conditions. Plaintiffs contend that this analysis arbitrarily limited the required cumulative impacts analysis. The Court respectfully disagrees. The CEQ allows agencies to focus on current aggregate effects of past actions. The Court looks to that analysis when determining whether the overall analysis of cumulative impacts is "sufficiently
Here, the administrative record demonstrates that Defendants were well aware of the negative consequences that the construction of I-94 had on the Rondo neighborhood.
(FTA 5100 (emphasis added).) In addition, the FEIS stated:
(FTA 885.) The FEIS further indicated that "[t]he stakeholders that are engaged in the planning for the Central Corridor LRT remain committed to ensuring such disproportionate impacts are not borne again by this community." (Id.) Further, in the Dale Station Area report for the CCLRT, the history of the area is set forth, noting that the Summit-University area was home to the Rondo neighborhood, the heart of St. Paul's African-American community prior to construction of I-94, and that many former residents still live in the Summit-University area. (FTA 9157.)
(FTA 1310-1311 (emphasis added).)
Aware of the concerns regarding the Rondo neighborhood, the FEIS examined the economic and social impacts that the CCLRT Project would have under existing conditions. This examination considered the past activities in the Rondo neighborhood. For example, in its discussion of indirect and cumulative impacts of the CCLRT Project, the FEIS evaluated the effects of the CCLRT Project on the quality and cohesion and community services of the twelve neighborhoods adjacent to the proposed light rail line, including the Midway East neighborhood. (FTA 750-788.) The record reveals that neighborhoods in and around Midway East were examined, such as Thomas-Dale, Summit-University, and Hamline-Midway. Features and characteristics of Midway East are referenced repeatedly in the FEIS. With respect to Midway East, the FEIS noted that the CCLRT "is not expected to have long-term adverse impact [sic] on neighborhood cohesion or identity," that the "LRT should act as a catalyst for greater pedestrian activity," that "the project will reconstruct the street and sidewalks and provide a unified, clean landscape," and that the "stations are expected to become additional foci of activity and neighborhood assets." (Id. 751.) The FEIS also considered, at the neighborhood level, issues of income and poverty, housing and employment, racial and ethnic diversity, landmarks and community facilities, schools, places of worship, and public and subsidized housing. (See generally FTA 739-782.)
The FEIS explained that neighborhood concerns are also being addressed by other governmental bodies, such as the City of St. Paul, which adopted the Central Corridor Development Strategy ("CCDS"). The FEIS indicated that the CCDS is a key document used for planning and the FEIS referenced the CCDS in response to community concerns regarding neighborhood cohesion:
(Id. 1310.)
In addition, the FEIS acknowledged that the LRT alignment in the middle of University Avenue raised concerns about "connectivity between neighborhoods north and south of the tracks." (Id. 784.) In response, the FEIS explained that "no visual barrier, however, will be placed across University Avenue" and that "most currently legal pedestrian crossings will be maintained, and in many cases, will be enhanced." (Id. 784.) The FEIS also explained that:
(FTA 1311.)
Chapter 3 of the FEIS discussed related social conditions in the corridor and potential effects of the LRT. Specifically, this chapter addressed potential impacts on socioeconomics, neighborhoods, community service and cohesion, cultural resources, and environmental justice. In its discussion on environmental justice, the FEIS relied on population data to identify minority and low-income populations in the CCLRT area. (FTA 870-872.) The FEIS used this data to identify potential disproportionate adverse impacts of the CCLRT. (Id. 880.)
In its discussion of potential environmental justice issues, the FEIS examined both long-term implications for environmental justice communities and short-term construction impacts. (Id. 868.) The FEIS compared the effects of each alternative to protected population on air quality, noise, vibration, parking, traffic accessibility, community cohesion, acquisitions and displacements, and placement of system components. (Id. 881.)
Chapter 9 of the FEIS examined the indirect and cumulative impacts of the CCLRT Project. (FTA 1242-1278.) The FEIS explained that this analysis takes into account the "[e]xisting condition of each potentially affected resource and how it has been affected by other actions (public or private) described in previous chapters of the FEIS" and the "[s]tatus/viability and historical context of each potentially affected resource and how these may affect the potential for indirect and cumulative impacts." (FTA 1244.) This examination includes an analysis of the impacts on the environmental justice communities. Specifically, the FEIS examined the "existing condition" of environmental justice communities and how they have been affected by "other actions" and "present and reasonably foreseeable future actions." (FTA 1260.)
(Id.)
The FEIS goes on to discuss a number of accommodations added to the project to enhance community cohesion in direct response to community concerns. (Id. 886.) These accommodations include the addition of "non-signalized pedestrian crossings" to "ensure that pedestrians will be able to cross University Avenue at virtually every legal crossing that currently exists," the reconstruction of sidewalks along University Avenue, and the addition of associated streetscape elements. (Id. 866-67.) Additional adjustments were made to the CCLRT Project to account for potential adverse impacts to Plaintiffs' community. For example, the FEIS noted the inclusion of noise and vibration minimization, noted proportionately less loss of parking in environmental justice areas, and rejected the option of widening an intersection to avoid the demolition of existing minority businesses. (FTA 882, 883, 885-886, and 887.)
The FEIS also found that the CCLRT Project is consistent with several Neighborhood Plans, including plans in Midway East. These Plans indicated the neighborhoods' desires to maintain their diversity, to encourage development that is compatible with the neighborhood, and to limit gentrification. (FTA 715, 744, 747-48.)
Based on its careful review of the record, the Court concludes that the FEIS complies with NEPA's requirements with respect to its cumulative impact analysis. The record demonstrates that Defendants took a "hard look" at the cumulative impacts of the proposed action and did not act arbitrarily or capriciously in its consideration of the cumulative impacts of past activities in the Rondo neighborhood. The administrative record demonstrates that the Agencies acknowledged and were cognizant of the fact that the Rondo neighborhood had been negatively impacted and nearly destroyed by the construction of I-94. The administrative record also demonstrates that the Agencies considered the comments and concerns directed at any such cumulative impacts, and considered issues of community cohesion and connectivity as they relate to the Rondo area. Finally, the Agencies considered the potential adverse impacts of the CCLRT project on the Rondo neighborhood and concluded that despite these potential impacts, the CCLRT will provide substantial
In so holding, the Court reminds the Agencies of their commitment to "working toward resolution of community concerns that don't rise to the level of state or federal standards of adverse impacts." (FTA 1260.) While the Court concludes that the Agencies have not violated NEPA in their environmental analysis of cumulative impacts, this does not diminish the valid concerns of those in the affected neighborhoods, and in particular the Rondo neighborhood that was devastated by the construction of I-94, regarding the future of their communities. The Court hopes and expects that the Agencies will continue to honor their commitment to resolving community concerns going forward, despite their technical compliance with NEPA.
Plaintiffs also assert that the FEIS does not adequately address or consider mitigation of the business interruption caused by the construction of the CCLRT. Specifically, Plaintiffs assert that the FEIS fails to analyze the duration, quality, or scope of construction-related impacts, and that the FEIS fails to adequately identify or analyze diminished business revenue as an adverse impact. Plaintiffs also assert that Defendants failed to adequately discuss mitigation of these impacts.
Defendants argue that the FEIS adequately identified business impacts from the CCLRT, addressed Plaintiffs' business interruption concerns, and considered appropriate mitigation measures.
In the chapter addressing potential social effects of the CCLRT Project, the FEIS discussed short-term construction effects:
(FTA 786). The FEIS also discussed mitigation strategies with respect to air quality impacts, noise impacts, vibration impacts, and electromagnetic field impacts. (FTA
(FTA 88-89.) Defendants also provide an overview of construction mitigation measures:
(FTA 10689.)
In the Chapter discussing Public and Agency Coordination Comments, the
(FTA 1306-1307.)
In the ROD, the FTA found that the Metropolitan Council took "all reasonable, prudent and feasible means to avoid or minimize impacts from the Preferred Alternative." (FTA 14.) In addition "FTA will require that the Metropolitan Council periodically (quarterly) submit written reports on their progress in implementing required mitigation measures." (Id.)
The crux of the parties' dispute over the adequacy of the FEIS's analysis of construction impacts on local businesses relates to whether Defendants appropriately identified and analyzed diminished business revenue as an adverse impact. The Metropolitan Council asserts that the FTA properly addressed business interruption, relying on the record discussed above. The Metropolitan Council asserts that the potential loss of business revenue is speculative and, even so, that Defendants
The Court first considers whether NEPA requires, in this case, an analysis of potential impacts on business revenues. Federal Defendants rely on four cases for the proposition that NEPA does not require such an analysis. These cases, however, are all distinguishable because they address the issue of whether a party suffering exclusively economic harm has standing to sue under NEPA.
For example, in Nevada Land Action Association v. United States Forest Service, the Court held that a ranchers' association lacked standing to challenge a national forest plan that would result in decreased grazing levels because the association's interest was not within the "zone of interests" protected by NEPA. 8 F.3d 713, 716 (9th Cir.1993). The Ninth Circuit Court of Appeals noted that the association challenging the forest plan alleged both economic and "lifestyle" injuries, but that the association did not allege that the increased grazing levels that they sought would benefit the environment. Id. The Ninth Circuit explained that the association "cannot invoke NEPA to prevent `lifestyle loss' when the lifestyle in question is damaging to the environment." Id.
Similarly, in Ashley Creek Phosphate Co. v. Norton, the Ninth Circuit Court of Appeals held that a phosphate company that held leases that were approximately 250 miles away from the affected area lacked standing to bring a NEPA challenge to a land management plan. 420 F.3d 934, 938-939 (9th Cir.2005). With respect to prudential standing, the Ninth Circuit explained that the company's interest was "purely financial" and not linked to the physical environment being impacted. Id. at 939-40. See also Town of Stratford v. Federal Aviation Admin., 285 F.3d 84, 88-89 (D.C.Cir.2002) (holding that the petitioner lacked standing to assert a NEPA claim challenging the FAA's decision to approve an airport reconstruction plan; explaining that petitioner lacked an environmental interest because petitioner did not link its claimed economic injury to any environmental effect); Taubman Realty Group Ltd. P'shp., 320 F.3d 475, 481 (2003) (affirming the dismissal of a NEPA for lack of standing where the plaintiff's grievance did not fall within the "zone of interests").
Unlike the plaintiffs in the above cases, here there is no dispute that the Plaintiffs are within the "zone of interests." There is no question that the CCLRT will produce substantial environmental impacts in the Central Corridor and that Plaintiffs reside in that corridor. The record also supports the conclusion that these environmental impacts will be connected to economic impacts; namely that businesses directly impacted by the environmental effects of constructing the CCLRT will likely experience a decline in business revenue. The Court concludes that the impact of lost business revenue, therefore, is directly related to the environmental impacts (i.e., physical disruption of the environment) of the CCLRT Project. The Court also concludes that these impacts must be discussed in the FEIS.
Plaintiffs argue that the FEIS does not sufficiently analyze or consider mitigation of the CCLRT Project's displacement of businesses and residents due to resulting increased property taxes and rents on properties within walking distance of the light rail line. The Federal Defendants submit, and the Court agrees, that Plaintiffs' argument relates to the "gentrification" of the area.
While the FEIS indicated that the CCLRT is expected to benefit the communities in the Central Corridor by, for example, increasing transit services, improving streetscape environment, increasing commercial and residential development, and increasing employment opportunities, the FEIS also recognized that these benefits will not be without costs. The FEIS explained that "the Central Corridor Development Strategy (CCDS) and station area plans have been created to guide development generated by construction of the LRT in the Central Corridor, which include efforts to minimize the potentially adverse effects of market forces ...." (FTA 787 (emphasis added).) In addition, in its discussion of Economic Effects, the FEIS acknowledged that property values along the Central Corridor, at least for properties within 1/2 mile of a station, are expected to increase. (FTA 1079-1080.) Moreover, in its discussion of cumulative impacts, the FEIS identified gentrification as a potential effect of development along the Central Corridor:
(FTA 1257.) In addition, in its responses to comments regarding environmental justice, the FEIS again recognized the potential impacts on low-income individuals due to property value increases and referred, again, to the City of St. Paul's housing strategy aimed to mitigate potential displacement.
(Id. 888.) Further, the FEIS provided:
(FTA 1260.)
The FEIS also noted that many comments were received regarding small businesses and "increases in rent, land value or taxes" (FTA 1306) and potential impacts on property values:
(FTA 1308.) The ROD also addressed the "Potential for Gentrification to Dislocate Community and Affect Community Cohesion." In particular, the ROD explained:
(FTA 89.) The ROD also noted that the City and the Metropolitan Council have provided grants for affordable housing and redevelopment along the Central Corridor and summarized the Metropolitan Council's funding to support such affordable housing activities. The FEIS explained that:
(FTA 89-90.) The FEIS also documented funding provided by the City of St. Paul for affordable housing activities. (Id. 90.)
After careful review of the FEIS and the administrative record as a whole, the Court concludes that the FEIS' discussion of the potential displacement of existing businesses and residents through gentrification, and the related mitigation measures, was sufficient. The record demonstrates that Defendants took a "hard look" at the potential impacts of gentrification and did not act arbitrarily or capriciously in its consideration of these impacts or the related mitigation measures.
Finally, Plaintiffs assert that the FEIS lacks the requisite scope because it omits at least one light rail station entirely.
The initial AA/DEIS for the CCLRT project included a proposed University Avenue LRT route. The FEIS noted that in response to concerns of both residents and stakeholders regarding the spacing of stations between Rice Street and Lexington Parkway in St. Paul, the SDEIS evaluated three additional "future infill stations" to be built along University Avenue at Hamline Avenue, Victoria Street, and Western Avenue. (FTA 679, 696.) These additional stations were aimed at increasing access to the neighborhoods
(Id. 679.)
After the ROD was published, a commitment for local funding was received to build one above-grade infill station in Midway East—at Hamline Avenue, Victoria Street, or Western Avenue. (FONSI 4.) Because the FEIS analyzed the impacts of the below-grade infrastructure but not the above-grade stations, Defendants initiated an EA to determine whether building out the stations would have a significant environmental effect and if any such effects differed from those already considered in the FEIS. (FONSI 10-13.) The Infill Station EA analyzed the purpose and need for the proposed action, alternatives considered, as well as the social, economic, environmental, transportation, and the indirect and cumulative effects of constructing the three stations. (FONSI 18-59.) In its analysis, the EA relies on the FEIS and noted that:
(FONSI 13.) The EA concluded that:
(FONSI 17.) In particular, the EA explained:
(FONSI 14.) And with respect to environmental justice, the EA explained:
(FONSI 15.) The Infill Stations EA further notes that the three infill stations will be constructed "in accordance with the design features and mitigation measures for the other stations in the Midway East segment, as detailed in the ROD and the FEIS" and that the above-ground construction is not anticipated to add to the duration of the CCLRT Project. (FONSI 309.)
Plaintiffs assert that because the additional infill stations are not included in the FEIS, the FEIS is deficient as a matter of law. In addition, Plaintiffs argue that rather than preparing the Infill Stations EA, Defendants were required under NEPA to prepare a supplemental EIS for the entire project.
As explained above, NEPA requires federal agencies to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An agency may, however, first prepare an EA to determine whether an EIS is required. 40 C.F.R. § 1508.9(a)(1). Moreover, after preparing an EIS, an agency may prepare EAs for smaller, subsequent actions included within the broader program. Newton, 141 F.3d at 809. An agency is required to supplement the EIS if substantial changes are made to the proposed action or new information arises that will affect the quality of the human environment "in a significant
Here, the Court concludes that Defendants' decision not to prepare a supplemental EIS for the three additional infill stations, but instead to prepare an EA for these stations, was neither arbitrary nor capricious. The record supports the Agencies' conclusion that the three stations would not have a significant impact in a manner not already addressed in the FEIS.
Plaintiffs assert that the appropriate remedy on the facts of this case is an injunction compelling compliance with NEPA before further construction of the CCLRT. The traditional four-factor test applies to requests for injunctive relief in a NEPA case. Monsanto Co. v. Geertson Seed Farms, ___ U.S. ___, 130 S.Ct. 2743, 2761, 177 L.Ed.2d 461 (2010). Accordingly, an injunction is warranted where a plaintiff demonstrates (1) it is likely to suffer irreparable harm; (2) remedies at law are not adequate; (3) the balance of equities weigh in plaintiff's favor; and (4) the injunction is in the public interest. Id. at 2756. See also Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir.2005). "[A]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course." Monsanto, 130 S.Ct. at 2761.
Here, Plaintiffs have succeeded on one of their NEPA claims. Particularly, Plaintiffs have demonstrated that the FEIS is inadequate insofar as it fails to address the loss of business revenues as an adverse impact of the construction of the CCLRT. Accordingly, Defendants must supplement its analysis of business interruption impacts. Plaintiffs have not, however, demonstrated that injunctive relief is warranted. Construction in the Midway East area of the corridor is not imminent and Plaintiffs have not made a showing that the agency will be unable to remedy the FEIS prior to the commencement of construction in that area. In addition, Plaintiffs have not demonstrated that the insufficiency in the FEIS cannot be remedied by further NEPA analysis and consideration of additional mitigation measures. Finally, and perhaps most importantly, Plaintiffs have not established that the balance of harms favors Plaintiffs or that the injunction would benefit the public interest. Indeed, the contrary appears to be the case. The record demonstrates that, despite Plaintiffs' concerns with the sufficiency of the FEIS, there are significant public benefits to the CCLRT project. At this stage, the Court concludes that the interest of the general public to keep this important project moving forward outweighs the harm to Plaintiffs. Accordingly, the Court declines to vacate the ROD or to enjoin the CCLRT project. Instead, the Court directs Plaintiffs to comply with NEPA requirements consistent with this Order.
The Court has concluded that the FEIS was deficient in its consideration of lost business revenue as an adverse impact of the construction of the CCLRT. The Court has also concluded that the FEIS is not deficient in its analysis of cumulative impacts of prior projects or the potential displacement of existing businesses and residents due to the gentrification of the area. Despite the latter rulings, the Court recognizes the validity and magnitude of Plaintiffs' concerns with respect to the impact
The Court is hopeful that with further discussions and negotiations between the parties, along with the implementation of the mitigation measures discussed in the record, Plaintiffs' racially, ethnically, and culturally diverse community will avoid disproportionate impacts from—and will experience the anticipated benefits of—the CCLRT Project. The communities within the Central Corridor deserve no less.
Based on the files, records, and proceedings herein, and for the reasons set forth above,
1. Plaintiffs' Motion for Summary Judgment (Doc. No. [24]), Federal Defendants' Motion for Summary Judgment (Doc. No. [39]), and the Metropolitan Council's Motion for Summary Judgment (Doc. No. [32]) are
Plaintiffs submitted materials, such as post-agency-decision affidavits, that are outside of the Administrative Record. The Court has read the submissions, but they played no part in the Court's decision. Instead, the Court limited its review to the Administrative Record. Review of agency action is normally confined to the agency's administrative record and Plaintiffs have not presented any compelling reason to supplement the record. See, e.g., Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 766 (8th Cir.2004) (explaining that the administrative record may be supplemented only under "extraordinary circumstances"); Newton County Wildlife Assoc. v. Rogers, 141 F.3d 803, 807 (8th Cir.1998).
(FTA 11607.) The parties dispute the impact of this review. The Court relies on the review only to the extent that it demonstrates that the Agencies were aware of potential negative impacts on minority and low-income areas.
