Shudde Fath v. Texas Dept. of Transportatio , 924 F.3d 132 ( 2018 )


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  •      Case: 17-50683   Document: 00514558211     Page: 1   Date Filed: 07/17/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 17, 2018
    No. 17-50683
    Lyle W. Cayce
    Clerk
    SHUDDE FATH; SAVE BARTON CREEK ASSOCIATION; FRIENDS OF
    THE WILDFLOWER CENTER; CAROLE KEETON; FRANK CLOUD
    COOKSEY; JERRY JEFF WALKER; SUSAN WALKER; DOCTOR LAURIE
    DRIES; SAVE OUR SPRINGS ALLIANCE, INCORPORATED; MOPAC
    CORRIDOR NEIGHBORS ALLIANCE; THE FRIENDSHIP ALLIANCE OF
    NORTHERN HAYS COUNTY, INCORPORATED; CLEAN WATER
    ACTION,
    Plaintiffs - Appellants
    v.
    TEXAS DEPARTMENT OF TRANSPORTATION; CENTRAL TEXAS
    REGIONAL MOBILITY AUTHORITY,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    Before JOLLY, JONES, and HAYNES, Circuit Judges.
    PER CURIAM:
    Plaintiffs challenge Texas’s plans for three highway projects in Austin.
    They argue Texas violated the National Environmental Policy Act (“NEPA”)
    by treating the projects as separate projects in studying their environmental
    impact, instead of as a single project, and also by not studying “cumulative
    impact.” The district court held that Texas complied with NEPA. For the
    reasons set forth below, we AFFIRM.
    Case: 17-50683        Document: 00514558211          Page: 2     Date Filed: 07/17/2018
    No. 17-50683
    I. Factual and Procedural Background
    Texas has proposed several new highways to alleviate horrific traffic
    in Austin. It wants to build overpasses where Texas State Highway Loop 1
    (colloquially known as “MoPac”) intersects with two existing streets, so that
    MoPac would pass under those streets. It is also in the midst of extending
    State Highway 45 West by about four miles, with a tolled freeway that will
    run from MoPac’s southern tip and down into bordering Hays County.
    Finally, it has plans to add express lanes on eight miles of MoPac.
    For the overpass project, the Texas Department of Transportation
    (“TxDot”) conducted an initial NEPA review, known as an Environmental
    Assessment. 1 Based on studies prepared between 2014 and 2015, TxDot
    concluded that the overpass project would not cause any significant
    environmental effects and so no further study was needed under NEPA.
    Separately, TxDot, along with the Central Texas Regional Mobility
    Authority, studied the Highway 45 project pursuant to state environmental
    law; the agencies did not study it under NEPA because the state is not
    receiving federal aid for the project, so they concluded NEPA did not apply.
    The agencies are still in the initial phase of reviewing the envisioned express
    lanes on MoPac.
    Plaintiffs, including environmental groups and local residents, filed
    this suit under NEPA and the Administrative Procedure Act, challenging
    the highway studies. They raise concerns about the potential combined
    impact of the highways on the Edwards Aquifer and endangered or protected
    1  TxDot took responsibility for NEPA compliance under an agreement with the
    Federal Highway Administration pursuant to 23 U.S.C. § 327(a)(2)(A) and (c). We therefore
    apply the same environmental and administrative law standards to TxDot here as we apply
    to federal agencies in this context. See 
    id. § 327(a)(2)(C)
    (“A State shall assume responsibility
    under this section subject to the same procedural and substantive requirements as would
    apply if that responsibility were carried out by the Secretary.”).
    2
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    No. 17-50683
    species, including the golden-cheeked warbler and the Barton Springs and
    Austin blind salamanders. The district court denied Plaintiffs’ motion for a
    preliminary injunction, and this court affirmed on the sole issue presented,
    which was whether the district court used the right regulatory framework.
    After a subsequent bench trial, the district court concluded that TxDot
    complied with NEPA and all applicable regulations. Plaintiffs now appeal.
    II. Standard of Review
    We review the district court’s legal conclusions de novo. Fritiofson v.
    Alexander, 
    772 F.2d 1225
    , 1240 (5th Cir. 1985), abrogated on other grounds by
    Sabine River Auth. v. U.S. Dep’t of Interior, 
    951 F.2d 669
    (5th Cir. 1992). When
    a district court sits as the initial reviewing court of an administrative agency’s
    decisions, “we must give great deference to the district court’s conclusions” and
    “hesitate to reverse” if the district court based its judgment on lengthy
    evidentiary    proceedings,    factual   inferences,   and    witness    credibility
    determinations. See Sabine 
    River, 951 F.2d at 678
    –79 (quoting in part N.
    Buckhead Civic Ass’n v. Skinner, 
    903 F.2d 1533
    , 1539 (11th Cir. 1990)).
    Otherwise, we review de novo, which entails asking whether an agency’s
    actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in
    accordance with law.” See 
    id. at 679;
    5 U.S.C. § 706. Under this highly
    deferential standard, we have the “least latitude in finding grounds for
    reversal.” Sabine 
    River, 951 F.2d at 678
    (quoting N. Buckhead Civic 
    Ass’n, 903 F.2d at 1538
    ). The test is ordinarily met only
    if the agency has relied on factors which Congress has
    not intended it to consider, entirely failed to consider
    an important aspect of the problem, offered an
    explanation for its decision that runs counter to the
    evidence before the agency, or is so implausible that it
    could not be ascribed to a difference in view or the
    product of agency expertise.
    3
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    No. 17-50683
    Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 43
    (1983).
    III. Discussion
    A. Separate Environmental Studies
    Plaintiffs first contend that TxDot violated NEPA by studying the
    three highway projects as separate projects, instead of as a single project, to
    determine their environmental impacts. The alleged violations consist of
    (1) studying the projects separately without first considering whether the
    projects are “cumulative actions” under 40 C.F.R. § 1508.25(a)(2), and
    (2)   improperly segmenting the highway projects under 23 C.F.R.
    § 771.111(f).
    NEPA requires federal agencies to take a “hard look” at the
    consequences of their actions in preparing detailed studies for projects that
    will significantly impact the environment and in deciding how much study
    is required. See Robertson v. Methow Valley Citizens Council, 
    490 U.S. 332
    ,
    349–50 (1989) (quoting Kleppe v. Sierra Club, 
    427 U.S. 390
    , 410 n.21 (1976));
    Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Pierce, 
    719 F.2d 1272
    ,
    1282 (5th Cir. 1983); see also 42 U.S.C. § 4332(2)(C). In doing so, agencies
    must comply with regulations by the Council on Environmental Quality
    (“CEQ”). See 42 U.S.C. §§ 4342–44; 40 C.F.R. 1500.3. The Federal Highway
    Administration (“FHWA”), like many other federal agencies, has also issued
    regulations, which “supplement[]” the CEQ’s regulations specifically for
    highway projects. 23 C.F.R. § 771.101.
    Agencies generally should not “segment,” or “divide artificially a major
    Federal action into smaller components to escape the application of NEPA to
    some of its segments.” Save Barton Creek Ass’n v. Fed. Highway Admin., 
    950 F.2d 1129
    , 1140 (5th Cir. 1992) (per curiam) (internal quotation marks
    omitted). Both the CEQ and FHWA have regulations that govern whether
    4
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    No. 17-50683
    agencies may treat multiple projects as separate projects in studying their
    environmental impacts. Under CEQ regulations, agencies must treat multiple
    projects as “in effect, a single course of action” if they are “connected actions,”
    “cumulative actions,” or “similar actions.”            See 40 C.F.R. §§ 1502.4(a),
    1508.25(a). 2 TxDot admits that it did not comply with this rule. But it argues,
    and the district court agreed, that for highway projects, agencies only have to
    comply with the FHWA’s regulation, 23 C.F.R. § 771.111(f).
    We likewise agree that, in highway cases, the FHWA’s regulation
    controls.   When deciding if agencies improperly treated multiple highway
    projects as separate projects under NEPA, we, along with our sister circuits,
    have only considered § 771.111(f). See Save Barton 
    Creek, 950 F.2d at 1141
    –
    42 (concluding that challenged highway segments “fully comport[ed] with both
    case law and FHWA’s regulations” and “satisfie[d] the FHWA’s standards”
    without discussing the CEQ regulations); see also 
    id. at 1140
    & n.15
    (explaining that our test for this issue consists of factors embodied in
    § 771.111(f)); see also Del. Riverkeeper Network v. FERC, 
    753 F.3d 1304
    , 1314
    –15 (D.C. Cir. 2014); Highway J Citizens Grp. v. Mineta, 
    349 F.3d 938
    , 962–63
    (7th Cir. 2003); Ross v. Fed. Highway Admin., 
    162 F.3d 1046
    , 1049 & n.3 (10th
    Cir. 1998); Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps
    of Eng’rs, 
    87 F.3d 1242
    , 1247–48 (11th Cir. 1996); Vill. of Los Ranchos de
    Albuquerque v. Barnhart, 
    906 F.2d 1477
    , 1483 & n.4 (10th Cir. 1990); Coal. on
    Sensible Transp., Inc. v. Dole, 
    826 F.2d 60
    , 68, 70–71 (D.C. Cir. 1987).
    These cases are in line with the principle that courts apply a “specifically
    tailored” and “better fitted” statute over a “more general” one. See EC Term of
    2  Although §§ 1502.4 and 1508.25 refer only to the required scope of a full-scale
    environmental study, known as an Environmental Impact Statement, courts apply the
    regulations in the context of Environmental Assessments as well. See, e.g., 
    Fritiofson, 772 F.2d at 1242
    –43, 1245–47; see also DANIEL R. MANDELKER ET AL., NEPA LAW AND LITIGATION
    § 9.12 (2d ed. 2017).
    5
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    Years Tr. v. United States, 
    550 U.S. 429
    , 433–34 (2007) (quoting in part Brown
    v. Gen. Servs. Admin., 
    425 U.S. 820
    , 834 (1976)). Given the precedents above
    and the lack of highway cases suggesting otherwise, we read § 771.111(f) as
    having tailored the general policy of § 1508.25(a) to the specific question of
    whether multiple highway projects are “in effect, a single course of action.” See
    40 C.F.R. § 1502.4(a); see also DANIEL R. MANDELKER ET AL., NEPA LAW AND
    LITIGATION § 9.12 (2d ed. 2017) (“CEQ regulations provide only general
    guidance on when related actions or proposals should be considered together
    in a single impact statement.          More detailed regulations are provided by
    individual agency regulations, such as the regulations applicable to highway
    projects, and by case law.”). As a result, TxDot did not act arbitrarily and
    capriciously by not complying with § 1508.25(a)(2).
    Having decided that § 771.111(f) governs, we must determine whether
    TxDot followed it. 3 TxDot treated the proposed overpasses on MoPac as a
    standalone project in an Environmental Assessment. Under § 771.111(f), to
    treat a highway project as a standalone project for NEPA purposes, the project
    must:
    (1) Connect logical termini and be of sufficient length
    to address environmental matters on a broad scope;
    (2) Have independent utility or independent
    significance, i.e., be usable and be a reasonable
    3 Plaintiffs argue that TxDot not only improperly applied § 771.111(f) but also
    improperly considered other factors beyond § 771.111(f) in deciding to study the project
    individually, namely, the Capital Area Metropolitan Transportation Planning Organization’s
    Regional Transportation Plan and Texas’s Transportation Improvement Plan, both of which
    identify the highway projects as separate projects. This argument lacks merit, as the record
    shows that TxDot performed its own § 771.111(f) analysis and so did not “rel[y] on factors
    which Congress has not intended it to consider.” Motor Vehicle 
    Mfrs., 463 U.S. at 43
    .
    6
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    expenditure even if no additional transportation
    improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other
    reasonably foreseeable transportation improvements.
    Plaintiffs argue that TxDot wrongly found that the overpass project
    meets § 771.111(f)(1)’s criteria by looking only at whether the project has
    “logical termini” and without asking whether it is “of sufficient length.” We
    disagree, as this court and other circuits have similarly condensed
    § 771.111(f)(1) into a test about logical termini. See Save Barton 
    Creek, 950 F.2d at 1141
    (“[B]oth the segment of the Austin Outer Loop as well as MoPac
    South fully comport with both case law and FHWA’s regulations requiring that
    segments have independent utility, connect with logical termini, and do not
    foreclose the opportunity to consider alternatives.” (emphasis added)); see also
    Highway J Citizens 
    Grp., 349 F.3d at 962
    –63; Pres. Endangered Areas of Cobb’s
    
    History, 87 F.3d at 1247
    ; Conservation Law Found. v. Fed. Highway Admin.,
    
    24 F.3d 1465
    , 1472 (1st Cir. 1994).
    It makes sense to conclude that a project is “of sufficient length” when it
    connects logical termini. Here, for example, TxDot identified the overpass
    project’s logical termini at the points where MoPac intersects with the two
    streets it would pass under. It is hard to imagine what other termini would be
    logical, as this project simply builds overpasses for these intersections, and
    Plaintiffs offer no alternative termini. Indeed, “crossroads” are precisely the
    sort of logical termini the FHWA contemplated in issuing § 771.111(f)(1). See
    Conservation Law 
    Found., 24 F.3d at 1472
    (citing 37 Fed. Reg. 21,809, 21,810
    (Oct. 14, 1972), which defines “highway section” as “a substantial length of
    highway section between logical termini,” including “major crossroads,
    population centers, major traffic generators, or similar major highway control
    7
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    elements”). The district court correctly concluded that TxDot complied with
    § 771.111(f)(1). 4
    The case law likewise does not support Plaintiffs’ view that TxDot
    wrongly found that the overpass project meets § 771.111(f)(2)’s criteria by
    looking only at whether the project will be “useable” and not also at whether it
    will be “a reasonable expenditure.” In Save Barton Creek, we did not address
    § 771.111(f)(2)’s “reasonable expenditure” language; instead, we focused on the
    standalone usefulness of a proposed highway. 
    See 950 F.2d at 1142
    (concluding
    that a highway segment “satisfie[d] the FHWA’s standards for proper
    segmentation” as to independent utility because it increased the utility of a
    roadway network; provided improved access to business, residential, and
    recreational features; and would relieve traffic); see also Def. of Wildlife v. N.
    Carolina Dep’t of Transp., 
    762 F.3d 374
    , 395 (4th Cir. 2014); Highway J
    Citizens 
    Grp., 349 F.3d at 963
    ; Stewart Park & Reserve Coal., Inc. v. Slater,
    
    352 F.3d 545
    , 559–60 (2d. Cir. 2003); Pres. Endangered Areas of Cobb’s 
    History, 87 F.3d at 1248
    ; Coal. on Sensible 
    Transp., 826 F.2d at 69
    –70. That approach
    reflects the unexceptional view that a highway is likely a reasonable
    expenditure if, by itself, it “serves a significant purpose.” See Save Barton
    
    Creek, 950 F.2d at 1141
    . The district court, therefore, correctly concluded that
    TxDot also complied with § 771.111(f)(2).
    4  We also agree with the district court that § 771.111(f)(1)’s “logical termini” factor
    gets less weight here than § 771.111(f)(2)’s “independent utility” factor. The logical termini
    factor has had more bearing when the purpose of a highway project was to connect cities and
    so “segments shorter than the full length of the highway had no independent purpose” and
    therefore were not of sufficient length. See Piedmont Heights Civic Club, Inc. v. Moreland,
    
    637 F.2d 430
    , 440 (5th Cir. 1981); see also Save Barton 
    Creek, 950 F.2d at 1140
    . Here, the
    overpass project does not connect two cities.
    8
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    B. Cumulative Impact
    Plaintiffs next argue that TxDot violated NEPA because the overpass
    project’s Environmental Assessment contains no analysis of the project’s
    “cumulative impact” as required by 40 C.F.R. § 1508.25(c).        “‘Cumulative
    impact’ is the impact on the environment which results from the incremental
    impact of the action when added to other past, present, and reasonably
    foreseeable future actions . . . .” 40 C.F.R. § 1508.7; see also § 1508.25(c)
    (requiring consideration of cumulative impacts in determining the scope of an
    environmental review under NEPA).
    TxDot contends that a full analysis is unnecessary where, as here, it does
    not expect a project to have any significant environmental impact that can
    “accumulate” with the impacts of other actions. We agree. “[I]nherent in NEPA
    and its implementing regulations is a ‘rule of reason,’” which relieves agencies
    from preparing exhaustive reports that “would serve ‘no purpose’ in light of
    NEPA’s regulatory scheme as a whole.” See Dep’t of Transp. v. Pub. Citizen,
    
    541 U.S. 752
    , 767 (2004); cf. Miss. River Basin All. v. Westphal, 
    230 F.3d 170
    ,
    175–76 (5th Cir. 2000) (analyzing the sufficiency of a cumulative impacts
    analysis in a supplemental Environmental Impact Statement under the “rule
    of reason” and arbitrary and capricious standard). The aim of NEPA is to make
    agencies “carefully consider[] detailed information concerning significant
    environmental impacts” while providing information useful to the public
    decision-making process. See Pub. 
    Citizen, 541 U.S. at 768
    ; see also 40 C.F.R.
    § 1500.1(c) (“NEPA’s purpose is not to generate paperwork—even excellent
    paperwork—but to foster excellent action.”).
    A full cumulative impact analysis here would not serve these purposes.
    The proposed overpasses are a two-mile project in an area that is already
    heavily developed and trafficked.     After conducting a number of detailed
    technical studies, TxDot concluded that the project would not significantly
    9
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    impact the environment. We cannot say TxDot’s finding was arbitrary and
    capricious on these facts. If the project would have no significant impact by
    itself, it is unlikely to change the environmental status quo when “added” to
    other actions. See Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, No.
    18-30257, 
    2018 WL 3339539
    , at *8–9 (5th Cir. July 6, 2018) (holding that a full
    cumulative   impact    analysis   was    unnecessary    where     Environmental
    Assessments concluded that a project would have no incremental impact and
    “hence, there could be no cumulative effects”); see also Minisink Residents for
    Envtl. Pres. & Safety v. FERC, 
    762 F.3d 97
    , 113 (D.C. Cir. 2014) (concluding
    that no cumulative impact analysis was needed where “the [Environmental
    Assessment] concluded that because the . . . Project itself was expected to have
    minimal impacts, no significant cumulative impacts were expected to flow”); N.
    Plains Res. Council, Inc. v. Surface Transp. Bd., 
    668 F.3d 1067
    , 1082 (9th Cir.
    2011) (concluding that “where a proposed project has ‘virtually no effect’ on
    water quality, the agency is not required to examine cumulative impacts from
    other projects because it would not provide an informed analysis” (quoting Nw.
    Envtl. Advocates v. Nat’l Marine Fisheries Serv., 
    460 F.3d 1125
    , 1140 (9th Cir.
    2006))).
    Plaintiffs argue that Fritiofson requires otherwise. In Fritiofson, we
    concluded that an agency failed to adequately analyze cumulative impacts in
    its Environmental Assessment for a project that would consume acres of
    wetlands because the record did not show consideration of “other past, present,
    and reasonably foreseeable future actions” on the island. 
    See 772 F.2d at 1234
    ,
    1247. But Fritiofson was “undoubtedly an unusual case,” owing to “the unique
    and fragile nature of wetland areas” and the rapid increase in Galveston Island
    commercial development. See 
    id. at 1246–47.
    As we explained, “[t]he extent
    of [a cumulative impact] analysis will necessarily depend on the scope of the
    area in which the impacts from the proposed action will be felt and the extent
    10
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    of other activity in that area.” 
    Id. at 1246;
    see also Sabine 
    River, 951 F.2d at 677
        (“The   [Environmental   Assessment]     is   ‘a   rough-cut,   low-budget
    environmental impact statement designed to show whether a full-fledged
    environmental impact statement—which is very costly and time-consuming to
    prepare and has been the kiss of death to many a federal project—is
    necessary.’” (quoting Cronin v. U.S. Dep’t of Agric., 919, F.2d 439. 443 (7th Cir.
    1990))); 40 C.F.R. §1508.9(a)(1) (defining an Environmental Assessment as a
    “concise public document” that “[b]riefly provide[s] sufficient evidence and
    analysis”). Here, given the overpass project’s limited scope and location over
    busy urban intersections, it was not arbitrary and capricious for TxDot to limit
    its cumulative impact analysis where the record supports its finding that the
    project will have no significant direct or indirect impact.
    AFFIRMED.
    11
    

Document Info

Docket Number: 17-50683

Citation Numbers: 924 F.3d 132

Judges: Jolly, Jones, Haynes

Filed Date: 7/17/2018

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (19)

sabine-river-authority-and-texas-water-conservation-association , 951 F.2d 669 ( 1992 )

EC Term of Years Trust v. United States , 127 S. Ct. 1763 ( 2007 )

vieux-carre-property-owners-residents-and-associates-inc-v-samuel-r , 719 F.2d 1272 ( 1983 )

Ross v. Federal Highway Administration , 162 F.3d 1046 ( 1998 )

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State ... , 103 S. Ct. 2856 ( 1983 )

Eva Fritiofson v. Clifford Alexander, Jr., Secretary of the ... , 772 F.2d 1225 ( 1985 )

village-of-los-ranchos-de-albuquerque-and-rio-grande-valley-preservation , 906 F.2d 1477 ( 1990 )

northwest-environmental-advocates-v-national-marine-fisheries-service , 460 F.3d 1125 ( 2006 )

save-barton-creek-association-we-care-austin-and-austin-crossroads , 950 F.2d 1129 ( 1992 )

Preserve Endangered Areas of Cobb's History, Inc. v. United ... , 87 F.3d 1242 ( 1996 )

William Cronin v. United States Department of Agriculture , 919 F.2d 439 ( 1990 )

Conservation Law Foundation v. Federal Highway ... , 24 F.3d 1465 ( 1994 )

highway-j-citizens-group-v-norman-mineta-in-his-official-capacity-as , 349 F.3d 938 ( 2003 )

Northern Plains Resource Council, Inc. v. Surface ... , 668 F.3d 1067 ( 2011 )

Coalition on Sensible Transportation, Inc. v. Elizabeth Dole , 826 F.2d 60 ( 1987 )

north-buckhead-civic-association-a-nonprofit-community-benefit , 903 F.2d 1533 ( 1990 )

Department of Transportation v. Public Citizen , 124 S. Ct. 2204 ( 2004 )

Mississippi River Basin Alliance v. Westphal , 230 F.3d 170 ( 2000 )

Robertson v. Methow Valley Citizens Council , 109 S. Ct. 1835 ( 1989 )

View All Authorities »