JOHN G. HEYBURN, District Judge.
The Court now considers a variety of motions concerning the Louisville-Southern
Plaintiff, Coalition for the Advancement of Regional Transportation ("CART"),
The Court's Memorandum Opinion is based upon the extensive Administrative Record that details all that has occurred in the past twenty years leading up to the ultimate selection of the Project's design. In the course of this Opinion, the Court will not address every issue raised in the media and elsewhere concerning the Project, nor will the Court speculate about future issues or concerns. It will, however, address each of CART's general and specific claims. Though reasonable minds could certainly disagree about the necessity of the Project and various decisions made in furtherance of it, it is not the role of the Court to endorse one opinion over the other. Rather, the Court has been careful to distinguish policy disagreements from Defendants' obligations to follow certain statutory procedures and refrain from taking actions found to be arbitrary and capricious.
Currently, three bridges provide transit across the Ohio River between Jefferson County in Kentucky and Clark County in Southern Indiana. Beginning with the western-most bridge, the Sherman Minton Bridge carries I-64 traffic between West Louisville and New Albany, Indiana. About four miles to the east is the downtown George Rogers Clark Memorial
Over the course of a decade, Defendants investigated cross-river traffic issues and the possibility of alleviating problems by building a fourth bridge in East Louisville and reconstructing the existing transportation infrastructure. This culminated in the Project, which is a roughly $2.6 billion construction and transportation management program designed to improve mobility across the Ohio River between Louisville and Southern Indiana. The Project addresses current cross-river traffic congestion and safety needs, provides better navigability within the existing transportation system, and improves cross-river mobility, especially in light of existing and anticipated population and employment patterns in the region. In its current iteration, the Project includes the following five major elements:
Since the Project's conception, Defendants have undergone various phases of planning and implementation. For purposes of this Memorandum Opinion, the Court will briefly summarize the pertinent events bearing on the Court's decision.
From 1991 to 1994, Kentucky and Indiana sponsored the Metropolitan Louisville Ohio River Bridge Study, which examined four potential cross-river bridge locations. The study recommended further evaluation of two bridge locations in the "Near East" (near the terminus of I-264) and in the "Far East" (near the termini of KY 841 and S.R. 265). In 1995, based on that preliminary study, the Kentuckiana Regional Planning and Development Agency initiated the Ohio River Major Investment Study ("ORMIS"). That study evaluated a wide range of potential transportation schemes to improve cross-river mobility. Ultimately, ORMIS recommended a two-bridge solution, which entailed
To pursue this recommendation, the States sought federal assistance. To receive federal funding for transportation projects, the FHA must verify that applicants comply with the National Environmental Protection Act ("NEPA").
The FHA initiates the NEPA process by publishing a Notice of Intent to prepare an environmental impact statement ("EIS"). 40 C.F.R. § 1508.22. Following the issuance of the Notice of Intent, the agency prepares a Draft EIS. 40 C.F.R. § 1502.9. The EIS must provide a "full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. Alternative actions, including a No Action Alternative required to be considered by 40 C.F.R. § 1502.13(d), are measured against the Purpose and Need Statement, which explains why the agency is proposing to spend federal money on an action that potentially results in significant environmental impacts. 40 C.F.R. § 1502.13 ("The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.").
Once the agency publishes the Draft EIS, the public may submit comments in response. Next, the agency must issue a Final EIS, which accounts for public comments, addresses opposing views not already discussed in the Draft EIS, and incorporates any further information necessary to justify implementation of the proposed project. 40 C.F.R. § 1502.9. Finally, the FHA will issue a Record of Decision ("ROD") approving the final proposed action prior to its implementation. Occasionally, the FHA must prepare a supplemental EIS to respond to "substantial changes in the proposed action that are relevant to environmental concerns" or "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Id. If the agency issues a supplemental EIS after the ROD, the agency must prepare a revised ROD. 23 C.F.R. § 771.127(b).
On March 27, 1998, the FHA published the Notice of Intent to prepare an EIS based on the ORMIS recommendation. Next, in preparing the Draft EIS, Defendants
The FHA published the Draft EIS in November 2001, and a 101-day public comment period followed. The FHA then published the Final EIS in September 2003, reflecting consideration of public input, potential environmental impacts, and possible adaptions to reduce residual problems.
The Final EIS initially screened a variety of alternatives that can be categorized into five major groups:
Following the initial screening, Defendants advanced three groups of alternatives that most closely met the tenets of the Purpose and Need Statement: the Transportation Demand Management Alternatives, the Bridge/Highway Alternatives in three locations (Far East, Near East, and Downtown), and the legally required No Action Alternative.
In its secondary analysis, Defendants further evaluated Bridge/Highway Alternatives as to the three proposed bridge locations. Defendants engaged in an investigation of nine potential highway and bridge alignments, each of which included either a One Bridge/Highway or a Two Bridges/Highway Alternative.
The Final EIS then advanced four primary alternatives for the Project: the No Action Alternative, the Transportation Management Alternatives, One Bridge/Highway Alternatives, and Two Bridges/Highway Alternatives. Ultimately, Defendants concluded that a Two Bridges/Highway Alternative, called the Selected Alternative, would best meet the Purpose and Need Statement because this
In September 2003, the FHA issued the ROD, which ratified the Selected Alternative. That scheme entails construction of the East End and Downtown Crossings, and incorporates various transportation management strategies, including enhanced bus service. At that time, Defendants estimated that the Project would cost $4.068 billion.
Having chosen the Selected Alternative, Defendants next focused on funding the Project. In October of 2007, the States submitted the Project's Initial Financial Plan ("IFP") to the FHA, which proposed to entirely fund the Project with traditional federal and state revenue sources. However, by 2009, the relevant parties discovered that only $1.9 billion would be available from traditional sources, leaving a funding shortfall of $2.2 billion.
In response, the Kentucky General Assembly enacted legislation establishing the Louisville and Southern Indiana Bridges Authority (the "Bridges Authority") empowered to create and oversee financial planning for the Project. The Bridges Authority, working with the States, explored various alternative funding methods. In 2010, it submitted an updated IFP, listing tolls as a potential funding option. The Bridges Authority projected revenue from tolling to generate between $800 million and $1.2 billion in additional funding, which when combined with traditional funding sources, would satisfy the Project's funding requirements. In early 2011, the States presented design modifications believed to be capable of reducing the total cost of the Project by $1.2 billion.
As a result of comprehensive changes to the design and funding of the Project and public concern over potential tolling, the FHA and the States decided to prepare a Supplemental EIS for public review and comment. The Supplemental EIS included updated transportation forecasts and demographic data based on a new "time of day" model that forecasts traffic and congestion at key times of the day. The new modeling indicated that while some traffic volumes and congestion rates had changed, the basic needs for the Project were still valid. The Supplemental EIS formulation process resulted in the public circulation of an Alternatives Evaluation Report, which re-assessed the alternatives analyzed in the Final EIS in light of the updated data. The report considered the implementation of One Bridge/Highway Alternatives without tolls. Importantly, that evaluation confirmed that One Bridge/Highway Alternatives failed to address the full range of cross-river mobility needs identified in the reaffirmed Purpose and Need Statement. Consequently, Defendants did not conduct an in-depth financial feasibility analysis of those alternatives.
Ultimately, Defendants affirmed the Selected Alternative as the preferred option. However, Defendants acknowledged that non-tolled alternatives alone would be insufficient to fund the Project. Therefore, Defendants recommended a new alternative, the Modified Selected Alternative, which incorporated financing from both traditional sources and toll-based revenues, the States' proposed cost-saving design changes, and the originally selected bridge locations.
In November 2011, the FHA issued the Supplemental Draft EIS for public comment. On April 20, 2012, the FHA published
Turning to the substance of the Supplemental Final EIS, NEPA requires an EIS to evaluate the Project's environmental consequences. 40 C.F.R. § 1502.10. The Supplemental Final EIS includes a chapter entitled, "Environmental Consequences", which discusses the potential environmental impacts of each alternative, including impacts on socioeconomics, water quality, wetlands, air quality, wildlife, endangered species, land use, historic resources, noise, and aesthetics. 40 C.F.R. § 1502.16. The FHA consulted federal and state agencies in preparing this chapter. Specific to the Project's anticipated locale, the Supplemental Final EIS summarizes the existing water quality in the area, including Harrods Creek and the Wellhead Protection Area. It also considered the adverse impacts to water quality resulting from the Project, most notably analyzing the effects of potential sources of pollution such as de-icing compounds; herbicides and pesticides; oil, grease, and various heavy metals from vehicles; and spillage of toxic chemicals. The analysis concluded that the amount of vehicular pollutants from roadway runoff will be small and cause no material adverse impacts.
Next, the Supplemental Final EIS evaluates potential air quality impacts, describing existing air quality conditions in the Louisville Metropolitan area and the region's compliance with the National Ambient Air Quality Standards for certain pollutants. The Supplemental Final EIS recognizes potential emissions of greenhouse gases, but acknowledges the inherent limitations in evaluating Project-specific greenhouse gas emissions due to the global nature of these emissions. In the end, it concludes that the emissions likely to result from the Project will conform to the applicable air quality standards.
In the Supplemental Final EIS, Defendants also evaluated the Project's potential impact on low income and minority populations. Defendants' analysis relies on 2010 demographic data to identify the affected "environmental justice" populations. It contains a summary of current cross-river travel as illustrated in the Ohio River Bridges User Study, including use of the existing Ohio River bridges by minority and low income individuals. Further, the Supplemental Final EIS evaluates the economic impacts of tolling by analyzing the average cost per trip for travel originating in all Louisville communities.
The Supplemental Final EIS concludes that tolling and other effects of the Project do not disproportionately impact any specific population to a material degree, because all cross-river travelers collectively bear the burden of tolls and the Project would not displace any residents within specific communities. However, the FHA concedes that based on average cost per trip data, the Project is likely to cause a disproportionately high and adverse effect on some low income and minority populations, because the user cost would represent a greater comparative economic burden.
Defendants have considered strategies for mitigating the possible economic effects of tolling on minority populations, including a commitment to develop a tolling policy that is sensitive and responsive to low income and minority populations.
In July of 2012, Defendants, in conjunction with the Indiana Finance Authority and the Kentucky Public Transportation Infrastructure Authority, entered into an agreement (the "Toll Agreement") authorizing the Downtown and East End Crossings as tolled facilities. The Toll Agreement asserts that the Project complies with the FAHA, which permits federal participation in the construction of a new toll bridge that is not part of the Interstate System (here, the East End Crossing) and the reconstruction of an existing non-tolled Interstate bridge converted to a tolled facility (allegedly, the Downtown Crossing).
Ten days later, the FHA approved an update to the 2010 IFP. The 2012 IFP includes detailed estimates of the cost to complete the Project with a summary of costs incurred to date, presents key cost-related assumptions, and breaks down costs by year, state, and type of expenditure. Based on an estimated $2.6 billion cost, the update reflects a financing strategy utilizing conventional state and federal transportation funds and toll-based revenues. It evaluates potential financing risk factors, such as the availability of traditional transportation funds, sufficiency of toll revenues, and access to capital markets for toll revenue bonds. Further, it provides mitigation strategies to manage the risk and discusses the anticipated impacts of the Project on each State's transportation programs, budgets, and other projects. The IFP will be updated each year.
CART advances twenty claims
Several dispositive motions are before the Court, but of immediate focus is the parties' cross motions for summary judgment, which will ultimately dispose of all remaining legal claims associated with the Project.
The Court reviews claims brought pursuant to NEPA, DTA, CWA, CAA and FAHA under the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 701-06; Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. U.S. Dep't of Transp., 524 F.Supp.2d 642, 660 (D.Md.2007).
Under the APA, an agency action 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); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). This highly deferential standard asks whether "the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The Court's inquiry should "`be searching and careful,' but `the ultimate standard of review is a narrow one.'" Id. (quoting Overton Park, 401 U.S. at 416, 91 S.Ct. 814).
The Court will not substitute its judgment for that of the agency or express a view about the Project. Overton Park, 401 U.S. at 416, 91 S.Ct. 814; Neighbors Organized to Insure a Sound Env't, Inc. v. McArtor, 878 F.2d 174, 178 (6th Cir.1989); see Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (stating that courts should defer to the agency's qualified experts "even if, as an original matter, a court might find contrary views more persuasive"). "The Court will instead look to see if an agency has examine[d] the relevant data and articulate[d] a satisfactory explanation for its action and may not supply a reasoned basis for the agency's action that the agency itself has not given." MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503, 518 (Fed.Cl.2011) (internal quotations omitted). Deference is especially appropriate where the action involves matters within the agency's area of technical expertise. Marsh, 490 U.S. at 377, 109 S.Ct. 1851; Nat'l Wildlife Fed'n. v. U.S. Envtl. Prot. Agency, 286 F.3d 554, 560 (D.C.Cir.2002). Therefore, as government agencies, if Defendants' interpretation of its own regulation is reasonable, the Court should defer to it. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).
Lastly, a court's review of agency decision making is generally confined to the administrative record before the agency at the time of the decision. Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997). As the Supreme Court emphasized, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp, 411 U.S. at 142,
Most, if not all, claims advanced implicate NEPA, which is a procedural statute designed to "ensure[] that federal agencies will consider significant environmental impacts of federal action, make available the relevant information, and open to public scrutiny their decision making process." Audubon Naturalist, 524 F.Supp.2d at 660-61. To meet this end, NEPA prescribes the necessary process an agency must follow when it undertakes "major federal action [] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). However, "it is ... well settled that NEPA itself does not mandate particular results." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
NEPA does not "require agencies to elevate environmental concerns over other appropriate considerations." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). If the proposed action results in adverse environmental effects that are "adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Robertson, 490 U.S. at 350, 109 S.Ct. 1835. Still, the agency must take a "hard look" at the environmental consequences of its decision to satisfy the requirements of NEPA. Baltimore Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246.
An agency satisfies the hard look requirement when it "obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny and responds to all legitimate concerns that are raised." Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir.1999) (citing Marsh, 490 U.S. at 378-85, 109 S.Ct. 1851). Though agencies should seriously consider comments elicited from the public and other entities, they need "not necessarily have to defer to them when it disagrees." Id.
In reviewing agency decision making, the Court must apply a "`rule of reason' standard, which allows for a deferential review of an agency's compliance with the NEPA requirements." Audubon Naturalist, 524 F.Supp.2d at 662; see Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 346 (6th Cir.2006). Under this standard, if the agency's objectives and actions are reasonable, the Court should not disturb the agency's judgment. In sum, "[t]he role of the courts is simply to ensure that the agency has [complied with NEPA by] adequately consider[ing] and disclos[ing] the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246.
With this analytical framework in place, the Court will evaluate each of CART's claims, and when appropriate, give deference
The Court will first examine CART's assertions that Defendants violated various NEPA procedural requirements. In all, eight of CART's claims seem to fit this category. After careful review, the Court finds that none of the claims advanced convincingly challenge Defendants compliance with NEPA.
In its first claim, CART makes its broadest assertion: that Defendants improperly joined the East End and Downtown Crossings to create a "mega project" in violation of 40 C.F.R. §§ 1502.4(a), -1508.25 and 23 U.S.C. § 109(h). CART argues that the two major bridge projects will affect distinct geographic areas, each having diverse local transportation needs and likely having different environmental, social and economic impacts. As such, CART maintains that the NEPA regulations required Defendants to proceed with each project independently. CART also asserts that as a result of improperly joining the ventures, Defendants did not adequately address reasonable alternatives particular to each location, thus bypassing the NEPA mandate to fully identify, consider and analyze alternatives to the proposed action.
In deciding to pursue an action implicating NEPA, the agency must first determine the scope of proposed actions. 40 C.F.R. § 1508.25. "Scope consists of the range of actions, alternatives, and impacts to be considered in an [EIS]." Id. "Connected Actions" should be addressed in the same EIS if the actions, "when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography." 40 C.F.R. § 1508.25(a)(3); Ocean Mammal Inst. v. Cohen, 1998 WL 2017631, *7 (D.Haw. Mar. 9, 1998) ("For actions to be `connected' under NEPA there must be more than mere relatedness or tangential association."). NEPA regulations state that Connected Actions "(i) [a]utomatically trigger other actions which may require environmental impact statements; (ii) [c]annot or will not proceed unless other actions are taken previously or simultaneously; and (iii) [a]re interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R § 1508.25(a)(1).
CART contends that the Project does not meet the definitional requirements of Connected Actions because neither bridge project automatically triggered the other and each project has a distinct, localized justification. The Court finds that CART misconstrues NEPA's definition of Connected Actions and that the decision to incorporate both bridges into a single EIS was reasonable and proper.
The decision of whether to pursue a single EIS or to connect the actions "requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies." Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). The Purpose and Need Statement focuses on the region's overall need for improved cross-river mobility. This focus inevitably led Defendants to explore new bridge locales in the region, including East Louisville, which presently does not have an easily accessible crossing, and to reconstruct existing Ohio River bridges. Defendants reasonably concluded that the region's cross-river mobility needs are so interrelated that a comprehensive evaluation of the range of potential actions necessarily included various one-and two-bridge
In fact, had Defendants divided the Project into smaller component parts, the extent of environmental impacts within each EIS might have seemed less significant, effectively reducing the degree of the overall environmental impacts. See Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1182 (10th Cir.2002) (noting that NEPA's regulations are designed to prevent separate analyses of two related projects to ensure that "significant cumulative impacts are not to be made to appear insignificant by breaking a project down into smaller components parts"). Thus, by joining the actions in a single EIS, Defendants probably faced a greater probability of not receiving approval. Cf. Cohen, 1998 WL 2017631, at *7 (stating that an agency may improperly opt to "segment" a project by breaking down a larger action into smaller pieces to evade preparation of a more comprehensive EIS).
For these reasons, the Court finds that the East End and Downtown Crossings constitute Connected Actions and that the decision to combine them into a single EIS was proper. Therefore, Defendants are entitled to summary judgment on Claim 1.
In Claims 14 and 20, CART advances challenges to the Purpose and Need Statement. NEPA mandates that every EIS "briefly specify the underlying purpose and need to which [it] is responding in proposing the alternatives included the proposed action." 40 C.F.R. § 1502.13. The Purpose and Need Statement is critical as it dictates the reasonable range of alternatives the agency will consider. Stop the Pipeline v. White, 233 F.Supp.2d 957, 971 (S.D.Ohio 2002) ("The purpose and need statement simply defines the goals of the project to allow for the review of an appropriate range of alternatives."). Courts afford agencies considerable discretion in defining the proposed action's purpose and need, and must evaluate it under a reasonableness standard. Friends of Se. `s Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir.1998).
However, an agency may not define its objectives so narrow as to confine its range of alternatives since doing so would eviscerate NEPA's mandate to rigorously explore and evaluate all reasonable alternatives. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). Rather, in defining the action's purpose and need, the agency must take a hard look at factors relevant to the action's objective, such as "the needs and goals of the parties involved" and "the views of Congress, expressed, to the extent that the agency can determine them, in the agency's statutory authorization to act, as well as in other congressional directives." Id. After doing so, the agency "must define goals for its action that fall somewhere within the range of reasonable choices." Id.
Here, Defendants undertook a widespread, rigorous evaluation of the region's existing transportation infrastructures, travel demands and projected population growth. They sought input from the States, resource agencies and the general public. Throughout the planning and implementation of the Project, the requisite NEPA documents included updated transportation inputs and demographic data, and evidenced a continued need for improved
In Claim 14, CART contends that the Purpose and Need Statement is drawn too narrowly and thus not made in the public's best interest in violation of 23 C.F.R. § 771.105(b) and FHA Order 6640.23.
Finally, Claim 20 asserts that the Final EIS's Purpose and Need Statement is deficiently based on outdated social and environmental considerations, and that it failed to take into account public comments. Again, the record rebuts this challenge. In the Supplemental Final EIS, the Defendants reevaluated the Final EIS's Purpose and Need Statement to ensure that the Project's objectives remained the same in light of new information. Defendants did not merely re-adopt their previous finding; rather, Defendants conducted a comprehensive reassessment of the Project's purpose and need to determine whether the previous Purpose and Need Statement remained valid. Additionally, Defendants made available to the public the Supplemental Final EIS's Purpose and Need Statement before the FHA issued the Revised ROD. Thus, Defendants complied with the procedural mandates of NEPA and allowed for public review and comment.
For all these reasons, the Court concludes that Defendants did not act arbitrarily or capriciously in defining the Project's Purpose and Need Statement. Accordingly, Claims 14 and 20 are dismissed.
CART brings two claims that specifically question the adequacy of Defendants'
In its EIS, an agency must discuss reasonable alternatives to the proposed action. 42 U.S.C. § 4332(2)(C)(iii). The alternative analysis demands that an agency give "a balanced consideration" of transportation and safety factors, environmental impacts, and the local, state and national environmental protection goals. 23 C.F.R. § 771.105(b).
In drafting its EIS, an agency "must make the initial determination [of] which alternatives are feasible and merit consideration."
Again, the action's Purpose and Need Statement informs the range of alternatives an agency must consider. See Audubon Naturalist, 524 F.Supp.2d at 667 (stating that courts are to "evaluate the agency's choices of reasonable alternatives in light of the objectives and goals of the federal action") (internal quotation omitted). Thus, given the purpose of the proposed action, courts must determine whether the agency identified a reasonable range of alternatives, and whether the agency aptly explored each. Id. As previously stated, a court's review is limited and entitled to some deference. See id. ("[T]he Court's review is not of the agency's substantive judgment, but of the sufficiency of the agency's consideration of the reasonable alternatives.").
Given the Project's Purpose and Need Statement, the Court holds that Defendants considered an adequate number of
With respect to Claim 3, in its evaluation of alternatives, Defendants took a hard look at the likely impacts of tolling, including the impact of the tolling period on low income and minority populations. Defendants are not required to select the most benign alternative, but must take a hard look at environmental, social and economic impacts in its consideration of alternatives. The Court is satisfied Defendants met this burden.
Concerning Claim 9, the Administrative Record includes a discussion of a Downtown Crossing-only alternative and an East End Crossing-only alternative. Defendants declined to pursue a single-bridge alternative because it would not achieve the Project's long-term objective to improve overall cross-river mobility. Specifically, in the Alternatives Evaluation Report, Defendants found that a non-tolled, single-bridge alternative would not meet the Project's purpose and need, and therefore, a further in-depth analysis of that alternative was unnecessary. In that decision, and in overall reasonable alternative analysis, Defendants adequately considered the impacts to Title IV populations. While CART is entitled to disagree with Defendants' decision to adopt the Modified Selected Alternative, NEPA does not control the agency's choice among alternatives. Rather, it only requires that the agency consider and disclose to the public reasonable alternatives and their evaluation thereof. Given the deferential standard of review the Court must apply, the Court finds that Defendants gave due evaluation to a reasonable range of alternatives. As a result, the Court must dismiss Claims 3 and 9.
In Claim 7, CART argues that Defendants violated 40 C.F.R. §§ 1500.1(b) and 1507.1 when they allegedly "pre-selected" the route for the East End Crossing before disclosing its environmental impact. CART alleges that Defendants contracted with the Soterion Corporation to select the particular East End Crossing location. As a result, according to CART, Soterion Corporation purchased land in the area in February 2000 for $2.9 million and years later sold it to Kentucky for a $5.4 million profit.
To the extent that CART's claim alleges fraud or bad faith, the Court dismisses that contention outright. CART's allegations to this end are vague and unsubstantiated.
In Claim 8, CART contends that the Supplemental Final EIS is defective because it fails to adequately address the placement and disposal of an estimated 350,000 tons of material excavated from the tunnel leading to the Kentucky entrance of the East End Crossing. CART maintains that this issue is "significant" for purposes of NEPA, see 40 C.F.R. § 1508.27, and Defendants' failure to rigorously review and disclose the environmental impact of tunnel spoil violates 40 C.F.R. § 1500.1(b).
The Revised ROD discusses the issue of excavated tunnel spoil and states that "[a]ll excavated materials not utilized for roadway embankment or disposed of off-site will be hauled for storage to an upland site and secured in such a manner as to prevent runoff from entering streams." Revised ROD, at 46. Further, Defendants conceded that "[b]orrow sites and excess material sites for disposal of construction spoil have not been determined at this time. Excess material and borrow sites will be investigated later when a determination is made on how construction phasing will progress." Id. CART argues that such a concession violates the NEPA requirement for concurrent review of environmental impacts in NEPA disclosures. See 40 C.F.R. § 1500.1(b) ("NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.").
Nothing in the Administrative Record suggests that Defendants discounted the impacts of tunnel spoil. Rather, Defendants acknowledged the environmental impact of tunnel spoilage and have proffered several ideas to properly manage excess. That Defendants have not precisely determined a site for disposal of excess construction spoil does not invalidate their analysis. The sites will be investigated further when contractors decide on the schedule of construction; presently, Defendants have committed to coordinate with U.S. Fish and Wildlife Service when sites are identified, and have required contractors to develop plans detailing methods to transport and partition the excavated materials. Lastly, contractors are charged with creating restoration plans for excess material not used in the Project.
The Court finds that Defendants have addressed the issue of tunnel spoilage to the most practical degree at this stage in the Project. The Administrative Record evidences that Defendants took the required hard look at the issue of spoilage excavation and have made arrangements that seem reasonable at this point. Accordingly, Claim 8 is dismissed.
Finally, in Claim 17, CART contends that Defendants violated NEPA when they failed to prepare a second supplemental
Once an EIS is finalized, "an agency need not supplement [it] every time new information comes to light." Marsh, 490 U.S. at 373, 109 S.Ct. 1851. However, the agency must supplement when it "makes substantial changes in the proposed action that are relevant to environmental concerns[,]" 40 C.F.R. § 1502.9(c)(1)(i), or where "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(ii). The decision of whether to prepare a supplemental EIS
Marsh, 490 U.S. at 374, 109 S.Ct. 1851 (quoting 42 U.S.C. § 4332(2)(C)). An agency's determination of whether the information is significant enough to require supplementation is "a classic example of a factual dispute the resolution of which implicates substantial agency expertise." Id. at 376, 109 S.Ct. 1851. An agency's analysis of new information "requires a high level of technical expertise," and as such, courts "must defer to `the informed discretion of the responsible federal agencies.'" Id. at 377, 109 S.Ct. 1851 (quoting Kleppe, 427 U.S. at 412, 96 S.Ct. 2718)).
CART alleges that a press release announcing the selection of bridge contractors stated that the overall cost of the Project was $1.6 billion. This is not a fair statement. The $1.6 billion figure represents the cost projections of the two primary construction contracts for the East End and Downtown Crossings; the figure does not represent the entire cost of the Project. Many other costs are involved such that the actual estimated total cost is $2.6 billion. Prior to the bids, the 2012 IFP estimated that the two primary construction contracts as costing $1.9 billion. Thus, the contractor bids will result in savings of $300 million, not the more than $2 billion that CART alleges. Therefore, the change in cost is not significant.
The maximum funding available from traditional federal and state sources remains $1.9 billion. Since the Project's estimated
For these reasons, the Court finds that the Defendants' decision not to prepare a second supplemental EIS was not arbitrary or capricious, and as such, Claim 17 must be dismissed.
The next group of claims broadly attack Defendants' financial planning and funding selection for the Project. Once again, the Court concludes that Defendants have considered numerous funding alternatives and have made reasonable decisions concerning financing for the Project.
Claim 2 concerns the Toll Agreement, which approved federal financial assistance for the Project.
The Downtown Crossing has two dependent bridge components: the Kennedy Bridge, which will be reconstructed and reconfigured to carry only I-65 southbound traffic, and a new parallel I-65 crossing, which will be constructed to carry only I-65 northbound traffic. Together, the bridges comprise parallel crossings for all cross-river I-65 traffic. In the Court's view, this part of the Project merely alters and expands an existing, open traffic pattern. It does not create a new traffic pattern previously unavailable.
Under FAHA, federal assistance may be provided for the "reconstruction or replacement of a toll-free bridge or tunnel and conversion of the bridge or tunnel to a toll facility." 23 U.S.C. § 129(a)(1)(E). The Toll Agreement is based upon a sound and reasonable conclusion: the parallel I-65 crossing is not an initial construction of an interstate bridge, but rather a component
Next, CART alleges that the use of tolls to finance the Project violates the fiscal constraint requirement imposed under 23 U.S.C. § 134(j)(3)(D) and 23 U.S.C. § 135(g)(5)(E). Both provisions demand, as a condition of federal participation in a proposed transportation project, that "full funding can reasonably be anticipated to be available for the project within the time period contemplated for completion of the project."
The Court finds no common sense or legal support for such an argument. The Project's mixed funding, ranging from federal financing to debt financing, is common for such complex construction projects. Since part of the Project's funding is debt financing, a future obligation is created that is outside the Project completion schedule. Toll revenue, among other purposes, helps to ensure that future debt payment obligations can be met. Simply because present day funding is subject to amortization is no basis to conclude that full funding is unavailable for the Project. The Court finds that Defendants have presented an adequate plan to fully fund the Project. As a result, Claim 5 cannot go forward.
Claims 4 and 6 allege that Defendants' financial disclosures lack transparency and detailed explanations in violation of FAHA. Pursuant to 23 U.S.C. § 106(h), recipients of federal assistance for "major projects" must prepare and submit two financial plans, a project management plan (here, the Tolling Agreement) and a financial plan (here, the IFP). The IFP must be based on "detailed estimates of the cost to complete the project." 23 U.S.C. § 106(h)(3)(A).
The 2012 IFP memorializes Defendants' financial plan, providing a detailed Project cost estimate and an explanation of its methodology consistent with the Project's construction schedule. Further, the IFP
In Claim 4, CART argues that the IFP's cost-to-complete estimates improperly rely upon speculative toll revenues and governmental appropriations. The substance of the IFP, however, refutes this charge. An entire section is devoted to risk identification, including future availability of state and federal funding and toll-based revenue. It squarely addresses risks that may affect the ability to finance the Project, including the operation and maintenance of the Project over time. For each identified risk, the IFP provides a corresponding mitigation plan to address the particular contingency should it arise. Though CART may not agree with these plans or believe them to be adequate, Defendants easily met the applicable FAHA requirements.
In Claim 6, CART alleges that Defendants failed to explain $214 million in oversight costs. Once again, the IFP defeats this assertion. It details the allocation of oversight and design costs provided for during Project construction, including the hiring and support of experts. Given the Project's size, the need for oversight is obvious, at the very least to promote public confidence in its integrity. Taken as a whole, the IFP provides an exhaustive account of the Project's financial considerations. The Court finds no reasoned or legal basis for questioning the oversight costs.
While CART is entitled to believe the IFP lacks sufficient detail to satisfy 23 U.S.C. § 106(h)(3)(A), the Court does not reach the same conclusion. Defendants' analysis is neither arbitrary nor capricious. The Court finds the IFP to be sufficiently detailed, and in compliance with 23 U.S.C. § 106(h)(3)(A). Consequently, the Court must dismiss Claims 4 and 6.
CART's next group of claims assert broad allegations that Defendants failed to comply with various water, air, and other environmental quality standards. For the reasons that follow, the Court concludes that Defendants have adequately considered and addressed all required environmental concerns in its development of the Project.
In 1972, Congress amended the Federal Water Pollution Control Act with the CWA to provide the structure for regulating pollutants from point sources that may contaminate bodies of water within the United States. In furtherance of that goal, the CWA permits individuals to bring lawsuits to enforce the Act against the government pursuant to its citizen suit provision, 33 U.S.C. § 1365. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Necessarily, a major infrastructure project such as this one implicates CWA regulations. Claims 10 and 11 allege direct and indirect violations of the CWA.
As a preliminary matter, the Federal Defendants argue that § 1365 of the CWA allows only a limited waiver of sovereign immunity to bring citizen suits against the government. They maintain that that CART failed to adhere to the jurisdictional prerequisites necessary to bring CWA claims imposed in § 1365. The Court agrees.
First, the CWA allows for citizen suits for alleged violations of "(A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator
Second, the CWA requires a citizen to provide notice of the alleged violation to the Environmental Protection Agency ("EPA"), the state in which the alleged violation occurs, and any alleged violator, sixty days prior to filing a complaint. 33 U.S.C. § 1365(b). This is not a mere technicality. The purpose of the notice requirement "is to give [the alleged violator] an opportunity to bring itself into complete compliance with the Act and thus ... render unnecessary a citizen suit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Gwaltney, 484 U.S. at 60, 108 S.Ct. 376). CART concedes it did not timely provide such notice.
Neither of these reasons persuades the Court to ignore the CWA notice requirement. The Sixth Circuit has interpreted the CWA notice requirement to be a "jurisdictional prerequisite to recovery under the [CWA]." Bd. of Trs. of Painesville Twp. v. City of Painesville, 200 F.3d 396, 400 (6th Cir.1999). The Supreme Court has strictly enforced a substantially similar jurisdictional notice provision. Hallstrom v. Tillamook Cty., 493 U.S. 20, 24, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (holding that the notice provision in the Resource Conservation and Recovery Act plainly mandated strict compliance).
This does not end the inquiry into Claims 10 and 11, because CART also alleges NEPA and APA violations in each. In Claim 10, CART asserts that Defendants violated NEPA by failing to model or calculate reasonably foreseeable adverse environmental impacts from discharged concentrations of certain toxins and by failing to take a hard look at present environmental impacts of highway pollutants. Additionally, CART contends that Defendants' selection of best management practices for water quality protection was arbitrary and capricious.
The Administrative Record clearly rebuts these charges as the Project's environmental analyses show that Defendants took a hard look at the Project's potential impacts on water quality in both Harrods Creek and in the Wellhead Protection Area. See, e.g., Final EIS, at 4-182-201. The Supplemental Final EIS includes careful considerations of potential mitigation measures and proposals for ensuring that the Project's final design will protect water resources in the Project area. See Supplemental Final EIS, at 5-214-5. The Administrative Record also indicates that these conclusions do not derive from stale information: the Supplemental Final EIS references numerous factors contributing to its conclusions beyond studies from 1997, including various pollution investigations pertaining to the Project-area water sources from more recent years. See, e.g., Supplemental Final EIS, at 5-229-231. The Court finds that Defendants' analyses of the significant environmental impacts on water quality amounted to a hard look as mandated by NEPA and were therefore reasonable for purposes of the APA. Accordingly, Defendants are entitled to summary judgment on those claims.
CART also alleges several CAA violations. This statute outlines a joint federal and state program for protecting and improving air quality and the stratospheric ozone layer. Initially, CART asserted claims under the CAA, NEPA and the APA. After reviewing the relevant law, however, CART withdrew its allegations that this Court maintained jurisdiction over the CAA claims pursuant to the citizen lawsuit provisions within the statute.
Defendants argue that their only duty under NEPA concerning analysis of air quality impacts is to follow CAA guidelines. The CAA requires that certain transportation projects comply with its policy and regulatory goals.
CART has not identified any requirement under the CAA or elsewhere mandating the examination of ultrafine particulates. The NAAQS only determine the national standards for fine particulate, and the record evidences that Defendants studied this matter. See Supplemental Final EIS, at 4-148. In addition, the CAA requires detailed and demanding conformity analyses of critical impacts to air quality as defined by the EPA, an agency with considerable expertise and institutional knowledge on the subject. The Court concludes that performing and completing the conformity analyses described in the CAA satisfies Defendants' hard look requirements for air quality issues under NEPA, and Defendants completed this task. See Supplemental Final EIS, at 4-145-152. The regulatory framework does not require specific consideration of ultrafine particulates, so Defendants' failure to conduct a thorough investigation of this matter is excused. Defendants' consideration of air pollution issues was reasonable.
Finally, Defendants contend, and CART does not dispute, that the EPA permitted the use of MOBILE 6.2 and MOVES to perform emissions analyses commenced before December 20, 2012. See Revised ROD, at 77; EPA Notice of Availability, 75 Fed.Reg. 79370-07 (Dec. 20, 2010) ("EPA is approving the latest version of the MOVES model ... for official use for ... hotspot analyses.... This notice also announces a two-year grace period before the MOVES2010a emissions model is required to be used in quantitative CO and PM hot-spot analyses for project-level conformity determinations outside California."). That the EPA permitted the use of the MOBILE 6.2 model during the time at issue supports its reasonableness. Agencies are entitled to select their own reasonable methodologies, which supports the conclusion that Defendants' decision to use the MOBILE 6.2 model was not arbitrary and capricious. See BP Exploration & Oil, Inc. v. United States Envtl. Prot. Agency, 66 F.3d 784, 792 (6th Cir.1995). Accordingly, the Court finds that Defendants' decision in this regard does not violate NEPA or the APA.
For these reasons, the Court will dismiss Claims 12 and 13.
In Claim 16, CART alleges that Defendants purposely withheld from the NEPA process certain greenhouse gas emission findings, improperly dismissed EPA comments, and mislead the public about the extent of greenhouse gas emissions likely to result from the Project, all in violation of 40 C.F.R. §§ 1502.1.-.16 and 42 U.S.C. § 4332(C).
In the Environmental Chapter of the Supplemental Final EIS, Defendants discuss the Project's environmental impact in conjunction with greenhouse gas emissions and climate change. Supplemental Final EIS, at 5-139. Defendants, citing Massachusetts v. United States Environmental Protection Agency, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), emphasize that "while [greenhouse gas] emissions are
CART fails to proffer any evidence, in the form of regulatory mandates or national environmental standards, to suggest that the failure to analyze greenhouse emissions under NEPA renders a Supplemental Final EIS or Revised ROD arbitrary or capricious. Sierra Club v. Federal Highway Admin., 715 F.Supp.2d 721, 741 (S.D.Tex.2010) (holding that, in the absence of an regulatory mandate, an agency's failure to consider greenhouse gas emissions was not arbitrary or capacious and did not render the Final EIS inadequate); N.C. Alliance for Transp. Reform v. U.S. Dep't of Transp., 713 F.Supp.2d 491, 521 (M.D.N.C.2010) (holding that agency's decision to not evaluate greenhouse gas emissions in the EIS did not violate NEPA).
Although consideration of greenhouse gas emissions is patently important, the Court agrees that Project-specific quantification of greenhouse gas emissions, and their effect on climate change, would be largely uninformative and speculative. The Court is satisfied that the Defendants took a hard look at environmental impacts and was not arbitrary or capacious in concluding that a Project-level analysis of greenhouse gas emissions would not be useful in the NEPA process. Accordingly, the Court must dismiss Claim 16.
Claims 18 and 19 both challenge the Supplemental Final EIS on grounds that Defendants improperly applied for CWA Section 401 Water Quality Certification ("Section 401 application") for the East End Crossing after completing the Supplemental Final EIS and issuing the Revised ROD, in violation of 42 U.S.C. § 4332(2)(C) and 40 C.F.R. § 1502.24. CART contends that Defendants purposely delayed filing the Section 401 application so that certain disclosures required for Section 401 application approval would not be discussed in the Supplemental Final EIS, thus rendering it inadequate.
Specifically, Claim 18 alleges that the Section 401 application discloses the construction of a massive spoil embankment and two 10,000 gallon storm water storage vaults with discharge outlets to Harrods Creek. CART argues that these revelations raise concerns about the possibility of de-icing pollutant contaminating Harrods Creek and other water resources. In addition, CART asserts that Defendants violated NEPA by excluding relevant stream monitoring findings, which demonstrate
In essence, these claims challenge the adequacy of Defendants' analyses of environmental impacts in the Supplemental Final EIS under NEPA standards. See 42 U.S.C. § 4332(2)(C), 40 C.F.R. § 1502.24. Contrary to CART's position, Defendants do not appear to have excluded various considerations of significant environmental impacts from the Supplemental Final EIS. For instance, Defendants did discuss and analyze the potential impact of de-icing fluids and tunnel excavation drilling fluids. See Supplemental Final EIS, at 5-211. Additionally, the Supplemental Final EIS suggests several mitigation strategies aimed at alleviating the effect of de-icing and drilling runoff that could potentially contaminate aquatic habitats. Id. The Court is satisfied that Defendants conducted a thorough analysis of potential environmental consequences of the Project and therefore, the Court concludes that Defendants took a hard look at impacts of bridge construction on the environment, including Harrods Creek and other water resources. Consequently, the Court will dismiss Claim 18.
As to Claim 19, the Court has already concluded that Defendants analyzed a reasonable range of alternatives in selecting the Modified Selected Alternative. Several of the alternatives considered alignments that would span Harrods Creek and thus, not require pilings or piers. However, after testing each alternative against the Project's purpose and need, the Court finds that Defendants reasonably selected a proposal that will require such a structure. Again, the Court is not in the position to opine on the propriety of the final selection. Rather, the Court need only ensure that Defendants considered a reasonable range of alternatives. As found in Section C of Part III, the Court is satisfied that Defendants met this burden. Accordingly, the Court will dismiss Claim 19.
As a general matter, CART alleges that various elements of the Project violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
CART concedes that these claims cannot lie against the FHA and the federal officers named in their official capacities.
Initially, Defendants argue that CART lacks standing to pursue their Title VI claims. The doctrine of standing requires
Id. Here, the principal issue is whether CART's members would otherwise have standing to sue in their own right.
A member of an organization has standing to sue "when he has suffered a concrete and particularized injury in fact that is fairly traceable to the defendant's actions and a favorable decision would redress his injury." Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 540 (6th Cir.2004). The injury must be particular to the plaintiff, rather than generalized averments or conclusory allegations. Friends of the Earth, 528 U.S. at 184, 120 S.Ct. 693. When the injury is based on fear of future injury, a plaintiff must show a reasonable probability that the defendant's continuous and pervasive conduct would cause the injury. Id. Plaintiffs may satisfy these standing requirements through affidavits that specifically name the affected members and explain their particularized injuries. See Summers v. Earth Island Inst., 555 U.S. 488, 498-99, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).
Here, CART has not articulated a particularized injury to any individual members of its organization.
Again, due to the public nature of this suit and the import of CART's Title VI claims, the Court will nevertheless address their substance.
Title VI claims are of a very different nature than the other statutory causes of action in this case. Title VI claims must
CART alleges in Claim 3 that the Project's imposition of tolls will have significant and prolonged adverse impacts to protected low income minorities. Additionally, CART contends that traffic diversion from drivers avoiding tolled routes will lead to increased travel through West Louisville due to drivers preferring the non-tolled Sherman Minton Bridge. With more vehicles driving through West Louisville, air quality in that area will suffer. CART's Claim 9 proposes that Defendants' approval of the Downtown Crossing, and specifically the decision not to vigorously explore One Bridge/Highway Alternatives, causes disproportionate impacts upon Title VI populations.
Claims 3 and 9 do not complain about the inability of CART or its members to receive the benefits of federal funding on account of their race, color or national origin. Title VI contains no substantive provisions requiring the type of consideration and review CART proposes in these claims. Cf. Madison-Hughes v. Shalala, 80 F.3d 1121, 1124 (6th Cir.1996). Therefore, upon a careful reading of the complaint, the Court concludes that Claims 3 and 9 do not actually assert Title VI violations. Rather, CART refers to Title VI in these claims merely to support its objections to Defendants' reasonable alternative analysis. The Court already addressed CART's reasonable alternative analysis challenges in Section C of Part III of this Memorandum Opinion.
Claims 14 and 17 fall short of stating Title VI claims as well. In Claim 14, CART contends that Defendants' 2003 Purpose and Need Statement, revalidated in 2012 even after state representatives filed a Title VI complaint, failed to incorporate certain Title VI population socioeconomic data and impact analyses, resulting in an overly narrow Purpose and Need Statement. In Claim 17, CART argues that Defendants failed to initiate a supplemental EIS after contractors reduced construction cost projections. CART essentially alleges that the reduction in cost projections eliminated the need for tolling, and Defendants should have undergone a supplemental EIS process to reevaluate the Project's implementation of tolls given the adverse impacts of tolling on Title VI populations. Both of these claims are actually accusations of NEPA violations, contesting Defendants' decision making processes rather than a resulting inability of minority populations to access the benefits of a federally funded program. Accordingly, these are not properly alleged Title VI claims, and the Court refuses to analyze them as such. These claims are dismissed in Section B of Part III for the reasons stated therein.
Like Claims 3 and 9, CART refers to Title VI in Claims 14 and 17 to bolster its arguments that Defendants' NEPA decisions were arbitrary and capricious, but does not assert distinct Title VI claims. To the extent CART does intend to assert
Finally, CART asserts two related NEPA implicating Title VI claims in Claim 15. Specifically, CART asserts that Defendants' failed to take a hard look at West Louisville socioeconomic factors in the scoping process and that Defendants' proposed mitigation plans do not benefit Title VI populations, both in violation of NEPA. Again, these claims are not proper Title VI claims, so the Court must examine them under NEPA standards.
As stated often throughout this opinion, NEPA is a procedural statute that does not mandate particular results. Sw. Williamson Cnty. Cmty. Ass'n, Inc. v. Slater, 243 F.3d 270, 278 (6th Cir.2001). Courts need only determine whether Defendants took a hard look at the environmental impacts of their decision. The Final EIS, Supplemental Final EIS, and Revised ROD identify and address the Project's adverse effects on minority populations. Defendants analyzed a number of studies examining adverse impacts to minorities, encouraged input from low income and minority community representatives, and adopted various mitigation strategies to address the potential for disparate impacts. Consequently, Defendants did take the necessary hard look at the consequences of the Project to Title VI communities, and their decisions in investigating socioeconomic impacts and in choosing the Modified Selected Alternative did not violate NEPA.
To the extent CART asserts NEPA claims in Claim 15, those claims are dismissed.
Finally, the Court turns to CART's true Title VI claim.
Buchanan, 99 F.3d at 1356 (internal citations omitted). The parties agree that discriminatory intent can be proven in the manner prescribed in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)
Id. at 266-68, 97 S.Ct. 555 (internal citations and footnotes omitted). CART argues that disproportionate impact, the historical background of the decision, and the Administrative Record evidence a discriminatory intent. Defendants vigorously oppose this contention.
Most notably, CART alleges that the tolling facilities will disproportionately burden low income areas, resulting in a disparate impact upon minority communities. Defendants concede that the imposition of tolls will burden low income communities greater than other more affluent communities. Indeed, the disparate impact of bridge tolls is a mathematical fact, but is not an indication of discriminatory
The United States Supreme Court had said that evidence of a discriminatory impact "may provide an important starting point," and absent the rare circumstances where the impact evidences "a clear pattern, unexplainable on grounds other than race, ... impact alone is not determinative, and the Court must look to other evidence." Id. at 266, 97 S.Ct. 555. The case at bar is unlike the cases cited in Village of Arlington Heights, where discriminatory impact of an action is severe enough to undercut any other reasonable justification for the action. See Horner v. Ky. High Sch. Athletic Ass'n, 43 F.3d 265, 276 (6th Cir.1994) ("The [Supreme] Court has made clear that the type of impact sufficient in itself to prove intentional discrimination is that which is significant, stark, and unexplainable on other grounds.").
CART's asserted impacts are vague, unsupported, and speculative. Non-tolled alternatives for cross-river travel, such as the Sherman Minton Bridge, are accessible to citizens residing or working in West Louisville. Non-automobile alternatives also service West Louisville, including the bus and trolley transit systems. Moreover, CART has not presented evidence or even alleged that citizens of West Louisville will use the Downtown or East End Crossings with any regularity, especially considering the location of the Sherman Minton Bridge. Allegations that any significant traffic diversion into West Louisville will result from automobile drivers attempting to avoid tolls have no statistical or other evidentiary support in the record.
Moreover, the Administrative Record fails to demonstrate other evidence of discriminatory intent associated with the imposition of tolls sufficient to buttress the allegations of discriminatory impact so as to establish discriminatory intent. Defendants did not target minority communities, and nothing in the record suggests that a higher percentage of Title VI communities will pay tolls relative to other communities. Defendants clearly adopted tolling as a revenue source to fund the Project, not with any intent to burden minority populations. See, e.g., Revised ROD, at 10-11; Supplemental Final EIS, at 5-28-38. Accordingly, the impact of and purpose behind tolling do not establish discriminatory intent for purposes of Title VI liability.
In support of this claim, CART advances two other allegations of discriminatory impact resulting from tolling. First, CART argues that the Project will shift Louisville's economic gravity further from poorer and minority populations, although CART is unclear as to how or why tolling would lead to this end. However, CART fails to present any evidence other than baseless conclusions that Defendants intended to shift economic growth away from West Louisville through the Project. The shift in economic gravity is merely derivative of the economic growth that will likely ensue as a result of the Project.
Second, CART alleges that criminal prosecutions arising from the failure to pay tolls will have a disproportionate effect on minority populations. Not only are these arguments purely speculative, they do not even remotely support a discriminatory intent argument. That minorities may be incarcerated at higher rates than majority populations as to entirely different crimes does not suggest Defendants' discriminatory animus concerning bridge
CART contends that Defendants purposely formulated a narrow Purpose and Need Statement in an effort to eliminate public transit alternatives, which would arguably benefit low income minorities more than the Modified Selected Alternative. The Court, as always, is not obliged to accept conclusory allegations, and CART fails to proffer any evidence or support from the Administrative Record to prove that Defendants purposefully eliminated public transit options. Rather, the Administrative Record emphasizes that Defendants designed the Project to enhance cross-river mobility for the Louisville Metropolitan Area. See, e.g., Final EIS, at 2-6; Revised ROD, at 6-7. The history of the decision convincingly demonstrates that Defendant harbored nondiscriminatory motivations in pursuing the Modified Selected Alternative. This precludes an inference of discriminatory intent.
In fact, Defendants did examine the development of alternative transportation systems and determined that these systems would not meet the region's commuting needs. CART admits that Defendants considered alternate transportation systems, including light rail, but rejected the alternative because of the high cost of implementation and low ridership projections. Inherent in such findings is an evaluation of the propriety of a light rail system. See Final EIS, at 3-10-12, 36-38. Though CART may have a different view of transportation priorities, these policy choices do not evidence discriminatory intent.
CART next argues that by promoting the Project, Defendants somehow intended to crowd out the competing T2 light rail project. However, CART fails to connect the T2 project to the Project. The Transit Authority of River City ("TARC") initiated the exploration into the development of a light rail transit system for the Louisville Metropolitan area. It engaged in a completely separate EIS process under the Federal Transit Authority, not the FHA. In the end, TARC decided not to further pursue the T2 project. TARC is an entity distinct from the Bridges Authority. Further, Defendants intended the Project to enhance cross-river mobility, which was not the aim of the T2 project. Therefore, Defendants' involvement in the Project is unrelated to the T2 project. CART has presented no evidence to the contrary, aside from conclusory allegations. Accordingly, this argument does not evidence discriminatory intent Defendants in pursuing and implementing the Project.
CART also asserts that Defendants ignored certain socioeconomic conditions in order to perpetuate the status quo in Title VI areas and maintain a pool of arrestees to support the law enforcement and judicial systems. CART fails to support these averments with any evidence.
The Administrative Record demonstrates that Defendants carefully considered the benefits and burdens that the numerous alternatives would bestow upon Louisville as a whole and the individual communities within the greater metropolitan area. Defendants and the Administrative Record cite to studies investigating Project impacts on low income minorities. CART can argue that the studies were improvident, but the issue here is whether
In sum, these arguments are speculative and unsupported in the record, and lacking in any reasonable suggestion of discriminatory intent.
Finally, CART asserts that the $20 million appropriation for the Trolley Barn Rehabilitation Project was wasteful and did not improve the transportation needs borne by Title VI populations. Defendants state that they did not adopt the Trolley Barn rehabilitation effort to mitigate impacts to low income or minority communities, but rather to promote the area's architectural history by restoring Trolley Barn Buildings and adapting them to a more culturally enriching functionality. See Final EIS, at 8-29; Supplemental Final EIS, at 1-8.
Regardless of the purpose behind the Trolley Barn Rehabilitation Project, CART's assertion here is devoid of any evidence of racial or otherwise discriminatory intent. The Court is in no position to determine whether the $20 million appropriation for this effort was wasteful, but even if it was, CART fails to connect the wastefulness to a discriminatory purpose. CART's position that Defendants advanced this venture, and other mitigation efforts, in order to placate those opposing the Project on Title VI grounds is baseless and speculative. Moreover, that the Trolley Barn Rehabilitation Project does not in fact improve the needs of Title VI areas does not mean the mitigation effort is designed to discriminate. This claim, even if true, does nothing to further CART's Title VI claim.
Accordingly, CART has not proven that Defendants acted with discriminatory intent in approving and implementing the Project, and its Title VI claims must fail.
The discussion and debate over the Project, and specifically building a new bridge, has extended for several decades. Various interested parties have expressed every conceivable alternative, from doing nothing to demolishing and completely rebuilding our highway system.
No doubt Defendants have driven the investigation and planning of action to address the region's transportation needs. No doubt along the way they reached conclusions about the Project scope and design. Defendants, as representatives of elected officials, are entitled to make such judgments, so long as they follow the rules of responsible inquiry and so long as the actual facts and opinions of record reasonably support those judgments.
The Court, and anyone associated with the Project, will concede that interested persons could reach different conclusions concerning the region's transportation needs and their appropriate resolution.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Federal Defendants' Motion for Judgment on the Pleadings (ECF No. 174) is SUSTAINED, and CART's claims for relief directly under the Clean Air Act, Clean Water Act, and Title VI as asserted against the Federal Defendants are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Kentucky's Motion for Summary Judgment (ECF No. 191), Indiana's Cross Motion for Summary Judgment (ECF No. 193), and Federal Defendants' Cross Motion for Partial Summary Judgment (ECF No. 201) are SUSTAINED and all remaining claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that CART's Motion for Trial (ECF No. 179) and Motion for Summary Judgment (ECF No. 178) are DENIED as moot.
This is a final order.
The Federal Defendants also filed a motion for judgment on the pleadings as to Claims 10 through 15. ECF No. 174.
United States v. Jewelry House Corp., 2011 WL 3501839, *1 (W.D.Ky. Aug. 10, 2011) (quoting Fritz v. Charter, 592 F.3d 718, 722 (6th Cir. 2010)).
Second, new or expanded highway projects may be subject to a conformity analysis at the project level, where the project must comply with the transportation plan, the transportation improvement program, and meet "hot spot" analysis requirements. Hot spot analyses are devised to determine the transportation project's impact on future localized pollutant concentrations and to compare those concentrations to the relevant NAAQS.
CART does not mention § 1983 or the Equal Protection Clause in the amended complaints, and CART fails to argue in favor of its § 1983 claims in any subsequent briefings. Rather, in its motion for trial de novo as to the Title VI claims, CART makes a legal conclusion that the FHA's "approval of a mega-project strategy in the SFEIS, selection of alternatives, and the RROD ... violated ... equal protection rights." However, in the introductory section of that brief, CART states that it cannot maintain its § 1983 claims against the Federal Defendants. The Court agrees. Accordingly, the Court finds that CART has dismissed any § 1983 claims against Federal Defendants.
In the ensuing portions of the motion for trial de novo, CART does not argue that the State Defendants are liable under § 1983 for Equal Protection Clause violations. CART itself implies that the only discrimination claims it maintains are Title VI claims against the State Defendants. See ECF. No. 179-1 ("CART agrees that 42 U.S.C. § 1983 does not provide a right of action against FHWA Defendants. CART argues that the Court has jurisdiction on its claims for intentional race discrimination brought under Title VI against the named state officials."). Thus, CART seems to abandon these claims against State Defendants as well. Moreover, the complaint do not set out a proper Equal Protection Clause claim under § 1983 against the State Defendants. Therefore, the Court must dismiss these claims, as the Court has no basis from which to evaluate potential Equal Protection Clause violations.
