Highlands Ranch Neighborhood v. Cater ( 2022 )

Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 18, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
HIGHLANDS RANCH
NEIGHBORHOOD COALITION, a
Colorado non-profit corporation,
Plaintiff - Appellant,
v. No. 19-1190
(D.C. No. 1:16-CV-01089-RM)
JOHN M. CATER, in his official capacity (D. Colo.)
as the Division Administrator, Colorado
Division of the Federal Highway
Administration; FEDERAL HIGHWAY
ADMINISTRATION; SHOSHANNA
LEW, in her official capacity as the
Executive Director of the Colorado
Department of Transportation;
COLORADO DEPARTMENT OF
TRANSPORTATION,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BACHARACH, and EID, Circuit Judges.
_________________________________
This appeal considers whether defendants-appellees, the Colorado Department
of Transportation and the Federal Highway Administration (“the Agencies”), violated
the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 2
Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., by implementing only
short-term measurements to assess the noise impact of a highway-expansion project.
For the following reasons, we affirm the district court’s order approving the
Agencies’ decision.
I.
Colorado is expanding a state highway through the southwestern part of the
Denver metropolitan area. Because the expansion project involves federal funds, the
Agencies must comply with applicable federal law. Specifically, NEPA regulations
require the Agencies to perform an Environmental Assessment (“EA”) to determine
whether noise from the expanded highway would significantly impact the
surrounding areas. 40 C.F.R. § 1501.5; see also WildEarth Guardians v. Conner, 920
F.3d 1245, 1251 (10th Cir. 2019) (requiring an agency to submit an assessment of
any action that may affect the environment, unless the answer to the initial inquiry of
“whether the proposed action will significantly affect the environment” is
“immediately apparent”).
To complete this assessment, Federal Highway Administration regulations
direct the Agencies to follow Colorado’s state-specific guidelines for evaluating
noise levels. See 23 C.F.R. § 772.7(b) (requiring state-highway agencies to develop
and implement noise-evaluation policies consistent with federal regulations). These
state-specific guidelines, found in Colorado’s 2015 Noise Analysis and Abatement
Guidelines (“the Guidelines”), require the Agencies to (1) identify the areas that will
be affected by traffic noise, (2) evaluate the noise using Traffic Noise Model (TNM)
2
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 3
software, and (3) validate the TNM with noise measurements. See App’x Vol. VI at
1282–92.
At the heart of this dispute is step three: noise validation. The Agencies
determined that sections 3.2.2 and 3.3 of the Guidelines permitted validation of the
TNM using short-term noise measurements. Section 3.2.2 addresses modifications to
existing roadways, and it requires the Agencies to perform at least two noise
measurements. This section does not require a particular measurement method;
instead, it requires only that the measurements “best illustrat[e] the existing traffic
noise environment.” Id. at 1288. Section 3.3 explains that in order to optimize the
TNM’s ability to “determine the worst-hour existing noise levels and predict . . .
future noise levels,” field measurements are compared to the TNM’s results. Id.Taking these sections together, the Agencies determined that short-term noise
measurements would best represent traffic noise.
After performing only short-term measurements, the Agencies drafted an EA
concluding that noise-mitigation measures would be needed only in select areas along
the highway. The Agencies then submitted the EA for public comment. During this
comment period, the public raised concerns about noise mitigation. In response, the
Agencies conducted long-term noise measurements. The Agencies did not
incorporate the long-term measurements in the final assessment, but they noted that
the results from the long-term measurements did not necessitate any changes. After
the close of the public-comment period, the Agencies released a Finding of No
3
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 4
Significant Impact (“FONSI”) with respect to the traffic noise and continued with the
expansion project. 1
Plaintiff-appellant, the Highlands Ranch Neighborhood Coalition (“the
Coalition”), is a group of residents who live in the areas along the highway that will
not receive noise-mitigation measures. The Coalition contends that the Agencies’
decision to use only short-term noise measurements violated NEPA. Specifically, the
Coalition points out that the Guidelines contain a 2006 Traffic Noise Model Users
Guide (“the Users Guide”) and argues that section 4.0 of the Users Guide requires
both short- and long-term noise measurements to validate the TNM. Accordingly,
the Coalition sought judicial review of the Agencies’ EA and FONSI.
The district court determined that the Agencies could rely on only short-term
noise measurements but needed to provide a rational basis for doing so. The district
court then issued two remand orders instructing the Agencies to outline and support
their rationale for using short-term measurements. After the second remand, the
district court affirmed the Agencies’ decision and determined that the Users Guide
was discretionary “by its own terms.” App’x Vol. V at 953. Thus, the Agencies need
only “consider[]” the Users Guide. Id. at 950 (emphasis in original). Because the
1
Under NEPA, if an agency’s EA indicates that the proposed action will not
significantly impact the environment, the agency issues a FONSI. 40 C.F.R.
§§ 1501.6(a), 1508.13. If the EA concludes that the proposed action will
significantly impact the environment, the agencies must prepare an environmental
impact statement, which requires more extensive analysis than the EA. Id.§§ 1501.5(c)(1), 1502 (detailing requirements for impact statements).
4
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 5
Agencies showed that they considered the Guide, the district court affirmed. The
Coalition appeals.
II.
The Coalition argues that the Agencies’ decision to use only short-term noise
measurements violated NEPA. Because NEPA does not provide a private right of
action, we evaluate the Agencies’ NEPA compliance according to the APA. See
High Country Conservation Advocs. v. U.S. Forest Serv., 951 F.3d 1217, 1222 (10th
Cir. 2020). Under the APA, we review the district court’s decision de novo and set
aside the Agencies’ NEPA determination only if it “fails to meet statutory,
procedural or constitutional requirements, or . . . is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. (quoting N.M. Cattle
Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001)).
We apply this standard “by asking whether [the Agencies’] method of
analyzing environmental effects ‘had a rational basis and took into consideration the
relevant factors.’” WildEarth Guardians, 920 F.3d at 1257 (quoting Utah Shared
Access All. v. U.S. Forest Serv., 288 F.3d 1205, 1212–13 (10th Cir. 2002)).
Ultimately, we are concerned only with whether the Agencies made a reasoned
decision, not whether the Agencies made the best decision. See High Country
Conservation Advocs., 951 F.3d at 1223. In performing this review, “we accord
agency action a presumption of validity; the burden is on the petitioner to
demonstrate that the action is arbitrary and capricious.” Copar Pumice Co. v.
5
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 6
Tidwell, 603 F.3d 780, 793 (10th Cir. 2010).
The Coalition challenges the Agencies’ decision to use only short-term
measurements on two grounds. First, the Coalition argues that the Agencies’
decision to use only short-term measurements contravenes section 4.0 of the Users
Guide. Second, the Coalition argues that the Agencies’ decision is not adequately
supported by the record.
a.
The Agencies relied on sections 3.2.2 and 3.3 of the Guidelines to perform
only short-term measurements, but the Coalition does not address these sections.
Instead, it focuses on the Users Guide, arguing that the Guide and the Guidelines
“must be read together.” Aplt. Br. at 18. Specifically, the Coalition points to section
4.0 of the Users Guide, which provides three “levels of validation” for validating the
TNM: (1) measurement results from similar projects, (2) short-term noise
measurements, and (3) short- and long-term measurements. App’x Vol. VI at 1356.
Section 4.0 then states that the third level applies to “large corridor projects.” Id.Therefore, the Coalition reasons, because the highway expansion is a large-corridor
project, the Users Guide requires both short-term and long-term measurements, and
the Agencies’ failure to conduct both types of measurements was arbitrary and
capricious.
The Agencies do not dispute that the documents can be read together. Instead,
the Agencies argue—consistent with the district court’s order—that the Users Guide
is discretionary, not mandatory. For support, the Agencies note that the introduction
6
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 7
to the Users Guide states that it “provides recommendations on the application of the
[TNM]” and also describes section 4.0 as providing “[r]ecommendations.” Id. at
1331. The Agencies also point out that section 4.0 frames the validation levels as
items “to consider,” not as binding requirements. Id. at 1356. On reply, the
Coalition does not address these arguments. Instead, the Coalition argues that if the
Agencies are not required to follow the validation methods in the Users Guide, then
the Guide becomes “essentially worthless.” Reply Br. at 13.
In our view, the Agencies accurately represent that the Guide provides
recommendations, not requirements. The Coalition does not dispute the plain
meaning of the Users Guide or explain why the methods laid out in the Guide should
be treated as requirements. Accordingly, the Coalition has not carried its burden of
showing that the Agencies acted arbitrarily and capriciously by declining to follow
the discretionary Users Guide.
b.
Since the Users Guide is discretionary, the remaining question is whether the
Agencies put forth enough evidence to justify performing only short-term
measurements. To answer this question, we ask whether the decision “had a rational
basis and took into consideration the relevant factors.” WildEarth Guardians, 920
F.3d at 1257 (quoting Utah Shared Access All., 288 F.3d at 1212–13).
The Coalition does little to undermine the Agencies’ decision. The Coalition
repeatedly notes that the Agencies had to follow state-specific guidelines for noise
evaluations. But the Coalition does not dispute that the Agencies did, indeed, follow
7
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 8
Colorado’s guidelines. As a result, the Coalition’s point about state-specific
guidelines does nothing to satisfy its burden of showing that the Agencies acted
arbitrarily and capriciously.
The Coalition also argues that the Agencies acted arbitrarily and capriciously
by ignoring the Users Guide. But the record belies this assertion. The Agencies did
consider the Users Guide; in fact, they described it as a “reference document” when
responding to public comments on the expansion. App’x Vol. I at 137. The
Coalition inaccurately equates the Agencies’ decision not to follow the Users Guide
with a decision to completely ignore the Guide.
Next, the Coalition argues that the Agencies’ decision to rely on only short-
term testing cannot be well-founded because the Users Guide is an authoritative
document that was developed after four years of studying noise-evaluation measures.
But our concern is whether the Agencies’ provided a well-reasoned decision, not
whether it implemented the best method. See WildEarth Guardians, 920 F.3d at
1256–57.
The Agencies argue that the short-term measurements from sections 3.2.2 and
3.3 of the Guidelines follow more recent methodology and guidance from the Federal
Highway Administration. For support, the Agencies point to the declarations of
Jordan Rudel, a Region 1 Environmental Program Manager at the Colorado
Department of Transportation, and Lawrence Sly, a Senior Project Manager at Jacobs
Engineering. According to both Rudel and Sly, short-term noise measurements
accurately provide data for highways with consistent traffic flow. Additionally,
8
Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 9
Stephanie Gibson, an Environmental Program Manager at the Federal Highway
Administration’s Colorado Vision Office, stated in her declaration that the Users
Guide served a limited purpose: to provide “‘standard validation practices’ . . . only
if the model fails to validate in any given noise analysis.” App’x Vol. V at 1039.
The Coalition does not respond to this testimony beyond reiterating its position that
the Agencies cannot justify deviating from the mandatory Users Guide.
The Agencies’ action withstands our de novo review. The use of short-term
measurements comports with the plain language of the Guidelines and the Users
Guide. It is also substantiated by declarations confirming that short-term noise
measurements are appropriate. Accordingly, the Agencies’ explanation for the use of
short-term measurements was neither arbitrary nor capricious.
III.
Because the Coalition failed to show that the Agencies acted arbitrarily and
capriciously by evaluating the highway noise using short-term measurements, we
AFFIRM the district court.
Entered for the Court
Allison H. Eid
Circuit Judge
9