United States Court of Appeals, District of Columbia Circuit
Friends of the Capital Crescent Trail, et al., Appellees/Cross-Appellants
Federal Transit Administration, et al., Appellants/Cross-Appellees State of Maryland, Intervenor-Appellant/Cross-Appellee
November 1, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-01471)
W. McArdle, Attorney, U.S. Department of Justice, argued the
cause for appellants/cross-appellees Federal Transit
Administration, et al. With him on the briefs were Jeffrey H.
Wood, Acting Assistant Attorney General, Eric Grant, Deputy
Assistant Attorney General, Matthew Littleton and Erika
Kranz, Attorneys, Paul M. Geier, Assistant General Counsel,
U.S. Department of Transportation, and Charles E. Enloe and
Joy K. Park, Attorneys.
Goldstein, James M. Auslander, and Gus B. Bauman were on the
brief for amicus curiae American Road & Transportation
Builders Association in support of
M. Ferlo argued the cause for
intervenor-appellant/cross-appellee State of Maryland. With
him on the briefs were Eric D. Miller, William G. Malley,
Brian E. Frosh, Attorney General, Office of the Attorney
General for the State of Maryland, and Julie T. Sweeney,
Assistant Attorney General. Linda DeVuono, Assistant Attorney
General, entered an appearance.
M. McCarthy and Milton E. McIver were on the brief for amicus
curiae Prince George's County, Maryland.
P. Markovs was on the brief for amicus curiae Montgomery
R. Glitzenstein argued the cause for
appellees/cross-appellants Friends of the Capital Crescent
Trail, et al. With him on the briefs was David W. Brown.
William S. Eubanks, II, entered an appearance.
Before: Garland, Chief Judge, and Rogers and Srinivasan,
Rogers, Circuit Judge
case concerns multiple challenges under the National
Environmental Policy Act to Maryland's proposed
"Purple Line" light rail project. Two orders of the
district court are principally at issue. In the first order,
the district court directed the Federal Transit
Administration ("FTA") to prepare a supplemental
Environmental Impact Statement ("SEIS") to analyze
the effects of Metrorail's recent safety and ridership
problems on the Purple Line's environmental impact and
purpose; it also vacated FTA's Record of Decision pending
completion of the SEIS. In the second order, the district
court rejected other challenges to FTA's final
Environmental Impact Statement ("FEIS"). For the
following reasons, we reverse the order directing the
preparation of a SEIS and vacating the Record of Decision,
and we affirm the order rejecting the three challenges to the
FEIS presented on appeal.
over two decades, beginning as early as 1990, the Maryland
Transit Administration ("Maryland") has developed
plans to construct the "Purple Line" - a 16-mile
public transit project that would connect communities in
Maryland's Montgomery and Prince George's counties
with each other and with other regional transit systems,
including the Washington Metropolitan Area Transit
Authority's Metrorail system. In 2003, Maryland applied
for funding under the "New Starts" program
administered by FTA, see 49 U.S.C. §
5309(b)(1); 49 C.F.R. pt. 611, to defray part of the Purple
Line's construction costs. Notice of Intent to Prepare an
EIS, 68 Fed. Reg. 52, 452, 52, 454 (Sept. 3, 2003). Designed
to "foster the development and revitalization of public
transportation systems, " 49 U.S.C. § 5301(a), the
"New Starts" program proceeds in three phases.
First, FTA and the applicant together conduct an
environmental review, including an analysis under the
National Environmental Policy Act ("NEPA"), and
develop and compare project alternatives. Id. §
5309(d)(1); 23 C.F.R. § 771.109(c)(2). This review
culminates in a Record of Decision ("ROD") in which
FTA identifies the alternative chosen and demonstrates the
project's compliance with NEPA. See id. §
5309(d)(2)(A). In the next two phases, FTA evaluates the
project's compliance with other statutory and regulatory
criteria not relevant here, finalizes the project's
engineering and design, and addresses the project's
financial aspects, ultimately deciding whether or not to
enter into a grant agreement with the applicant that commits
federal funding to the project. Id. . §
42 U.S.C. § 4321 et seq., imposes a set of
procedural requirements on federal agencies to "ensure
that the[y] will not act on incomplete information, only to
regret [their] decision after it is too late to
correct." Marsh v. Or. Nat. Res. Council 490
U.S. 360, 371 (1989). It also requires "broad
dissemination of information . . . [to] permit the public
and other government agencies to react to the effects of a
proposed action at a meaningful time." Id.
Thus, planned actions that would have an impact on the
physical environment will be "fully informed and
well-considered." Del. Riverkeeper Network v.
FERC, 753 F.3d 1304, 1309-10 (D.C. Cir. 2014) (quotation
marks and citation omitted). Among other things, NEPA
requires federal agencies proposing to undertake "major
Federal actions significantly affecting the quality of the
human environment" to prepare an environmental impact
statement ("EIS") that compares in detail the
foreseeable environmental effects of project alternatives. 42
U.S.C. § 4332(C); see also Metro. Edison Co. v.
People Against Nuclear Energy, 460 U.S. 766, 772 (1983).
This requires an agency to "take a hard look at
environmental consequences" of its proposed action,
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989) (quotation marks and citation omitted),
thus ensuring that it will "consider every significant
aspect of the environmental impact of a proposed action"
and "inform the public" of its analysis and
conclusion. Balt. Gas & Elec. Co v. NRDC, Inc.,
462 U.S. 87, 97 (1983). Completion of the EIS, however, does
not always mark the end of the NEPA process. If "new
information" arises that presents "a
seriously different picture of the environmental
landscape, " then the agency must prepare a supplemental
EIS ("SEIS"). City of Olmsted Falls v.
FAA, 292 F.3d 261, 274 (D.C. Cir. 2002) (citation
2003 and 2008, FTA and Maryland jointly prepared a draft EIS
("DEIS"). See 23 U.S.C. § 139(c)(3);
23 C.F.R. §§ 771.109(c)(2), 771.111(a). The DEIS,
which was released for public comment in October 2008,
discussed eight project design alternatives for the Purple
Line. Six were "build" alternatives, contemplating
new construction of a light rail or bus rapid transit system
at varying investment levels. The seventh was a
"transportation systems management" alternative in
which there is no new construction but various improvements
are made to existing systems. The eighth was the
"no-build" alternative, in which no action is
taken. See 40 C.F.R. § 1502.14(d). The DEIS
compared these alternatives on various grounds, including
environmental impact, stating that because "the
alternatives generally follow existing roadways and railroad
rights-of-way . . ., the environmental and community impacts
are relatively minor in type and degree for projects of this
nature." DEIS, ch. 6, at 6 (Oct. 2008). The DEIS
therefore concluded that "[b]ecause all the alternatives
would have similar alignment characteristics, [their] impacts
on parks, wetlands, historic properties, business properties,
and other environmentally sensitive sites would be similar .
. ., and are thus unlikely to be a differentiating factor
among the[m]." Id.
the close of the comment period, Maryland publicly identified
in August 2009 a modified version of the medium- investment
light rail option as its "locally preferred
alternative" for the Purple Line. See 49 U.S.C.
§ 5309(d)(2)(A)(i). Although acknowledging that the bus
rapid transit option would be more cost-effective than light
rail, Maryland identified offsetting benefits underlying its
choice of light rail: greater expected ridership (and ability
to expand capacity to meet future demand), greater
opportunities for local economic development, faster travel
times, and (importantly) local government support. Purple
Line Locally Preferred Alternative, at 4 (Aug. 2009).
further study by Maryland and FTA, and public involvement,
FTA issued the Purple Line's final EIS ("FEIS")
in August 2013. The FEIS sets ...