Nat'l Trust for Historic Preservation v. Fed. Hwy. Admin. ( 2014 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0608n.06
No. 13-6214
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
COALITION FOR THE ADVANCEMENT OF )
REGIONAL TRANSPORTATION, )
) FILED
Plaintiff-Appellant, ) Aug 07, 2014
) DEBORAH S. HUNT, Clerk
v. )
)
FEDERAL HIGHWAY ADMINISTRATION; )
VICTOR M. MENDEZ, In his Official Capacity as )
Administrator of the Federal Highway )
Administration; JOSE SEPULVEDA, In his Official )
Capacity as Division Administrator, Kentucky )
Division, Federal Highway Administration; KAREN )
BOBO, in her Official Capacity as Acting Indiana )
ON APPEAL FROM THE
Division Administrator, Federal Highway )
UNITED STATES DISTRICT
Administration, )
COURT FOR THE WESTERN
)
DISTRICT OF KENTUCKY
Defendants-Appellees, )
)
and )
)
INDIANA DEPARTMENT OF )
TRANSPORTATION; MICHAEL CLINE, In His )
Official Capacity as Commissioner, Indiana )
Department of Transportation; KENTUCKY )
TRANSPORTATION CABINET; MICHAEL W. )
HANCOCK, In His Official Capacity as Secretary, )
Kentucky Transportation Cabinet; KENTUCKIANS )
FOR PROGRESS, INC., )
)
Intervening Defendants-Appellees. )
No. 13-6214
Coalition for the Advancement of Regional Trans. v. Federal Highway Admin., et al.
BEFORE: GRIFFIN and DONALD, Circuit Judges; and GRAHAM, District Judge.
GRIFFIN, Circuit Judge.
Plaintiff Coalition for the Advancement of Regional Transportation alleges that
defendants failed to comply with the National Environmental Policy Act, 42 U.S.C. § 4321, et
seq., and violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), when they
approved the Louisville-Southern Indiana Ohio River Bridges Project, a $2.6 billion construction
and transportation management program designed to improve mobility across the Ohio River in
the Louisville metropolitan area. The district court granted summary judgment in favor of
defendants on all claims. We affirm.
I.
Plaintiff is a volunteer member, tax exempt 501(c)(3) organization, incorporated in 1993
in Louisville, Kentucky, for the purpose of promoting sustainable and equitable, regional,
modern transit planning. There are two categories of defendants in this case: the federal
defendants and the state defendants. The federal defendants include the Federal Highway
Administration (“FHA”); Victor Mendez, Administrator of the FHA; Karen Bobo, Indiana
Division Administrator of the FHA; and Jose Sepulveda, Kentucky Division Administrator of the
FHA. The state defendants include Kentucky; Michael W. Hancock, Secretary of the Kentucky
Transportation Cabinet; Indiana; and Michael B. Cline, Commissioner of the Indiana Department
of Transportation.

The Honorable James L. Graham, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
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The saga of the Louisville-Southern Indiana Ohio River Bridges Project (the “Project”)
spans over twenty years and includes an Administrative Record in excess of 150,000 pages. The
relevant background set forth by the district court is reproduced below:
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 Bridge, which carries U.S. 31 traffic
across the Ohio River. Finally, less than half a mile to the east of the Clark
Memorial Bridge lies the John F. Kennedy Memorial Bridge (“Kennedy Bridge”),
which carries I-65 traffic between downtown Louisville and Jeffersonville,
Indiana.
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:
 Downtown Crossing: Defendants will reconstruct, expand, and
reconfigure the Kennedy Bridge. The existing but reconstructed
Kennedy Bridge will carry six lanes of southbound I-65 traffic.
Defendants will construct a new bridge parallel to and
immediately upstream of the Kennedy Bridge, and this new span
will carry six lanes of northbound I-65 traffic. Defendants will
also reconstruct the downtown Louisville I-65/I-64/I-71 Kennedy
Interchange (“Kennedy Interchange”) and approach roadways in
Jeffersonville, Indiana.
 East End Crossing: Defendants will construct a new bridge
connecting KY 841 (Gene Snyder Freeway) in eastern Jefferson
County, Kentucky, with S.R. 265 (Lee Hamilton Highway) in
eastern Clark County, Indiana. The East End Crossing will not be
part of the Interstate system.
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 Tolling: Defendants will place electronic tolling facilities on the
expanded and reconstructed Downtown Crossing (both directions)
and the new East End Crossing to assist in financing the Project.
 Transportation Management: Defendants will provide enhanced
funding for bus service.
 Mitigation Commitments: Defendants will plan and implement
various mitigation strategies aimed at ameliorating potential
impacts on the natural and human environment resulting from the
Project’s implementation.
Since the Project’s conception, Defendants have undergone various phases of
planning and implementation. [ ] 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 the construction of a downtown bridge adjacent to the Kennedy Bridge,
reconstruction of the Kennedy Interchange, and construction of a bridge in the Far
East.
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”). NEPA
prescribes a process that federal agencies must follow before taking any action
that significantly affects the environment. [ ]
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.”).
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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 evaluated the region’s transportations issues to compose the Project’s
Purpose and Need Statement. [ ] Defendants then identified and analyzed a range
of alternatives that could possibly meet the Project’s objectives.
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:
 Transportation System Management Alternatives (e.g., traffic signal
timing and coordination and HOV lanes);
 Transportation Demand Management Alternatives (e.g., carpooling
and congestion pricing);
 Mass Transit Alternatives (e.g., rail transit and enhanced bus
service);
 Bridge/Highway Alternatives (including five potential cross-river
bridge and highway combinations, Kennedy Interchange
reconstruction, and a river tunnel alternative); and
 No Action Alternative
Following the initial screening, Defendants advanced three groups of alternatives
that most closely met the tenets of the Purpose and Need Statement: the
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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 inquiry analyzed traffic congestion and traffic safety problems on the existing
Ohio River bridges and within the Kennedy Interchange. The FHA considered
then-current economic conditions and growth projections based on historical
trends and local land use plans. Using this information, the Final EIS identified
specific performance measures to evaluate the alternatives and their potential to
meet the Purpose and Need Statement.
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 option would provide a feasible and prudent long-term solution to the
region’s cross-river mobility needs.
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
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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 the Supplemental Final EIS,
which evaluated the No Action Alternative, the Final EIS Selected Alternative,
and the Modified Selected Alternative based on updated socioeconomic and
environmental data. It identified the Modified Selected Alternative as the best
scheme to meet the Project’s purpose and need. Finally, on June 20, 2012, the
FHA issued the Revised ROD confirming the Modified Selected Alternative as
the preferred option.
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
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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. For instance, in the final tolling policy, the States have already
committed $20 million to the local bus transit system for enhanced bus service,
which will abate some of the effect of tolling on 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
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complies with the [Federal-Aid Highway Act (“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.
(Footnotes omitted.)
Plaintiff filed twenty claims against defendants, alleging that the Project violates NEPA,
certain FAHA funding regulations, the Clean Water Act (“CWA”), the Clean Air Act (“CAA”),
and discriminates against racial minorities in violation of Title VI. The federal defendants filed a
Rule 12(c) motion for judgment on pleadings on plaintiff’s CWA, CAA, and Title VI claims, and
a Rule 56 motion for summary judgment on all remaining claims. The state defendants
separately filed Rule 56 motions for summary judgment on all claims. Additionally, plaintiff
filed a Rule 56 motion for summary judgment on its NEPA claims and a “motion for trial de
novo” on its Title VI claims. The district court granted defendants’ motions and denied
plaintiff’s motions as moot. Plaintiff timely appealed.
II.
We begin by noting that plaintiff has narrowed its claims on appeal. Plaintiff has
expressly abandoned all CWA and CAA claims and conceded below that it has no Title VI
claims against the federal defendants. Also, plaintiff does not appeal the district court’s rejection
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of its FAHA claims. Thus, we only address the NEPA claims and remaining Title VI claims
against the state defendants. We now turn to the NEPA claims.
III.
A.
Plaintiff challenges under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et
seq., the FHA’s approval of the Supplemental Final EIS and the Revised ROD, which resulted in
a decision to provide federal funding to the Project. “When reviewing an administrative
agency’s final decision under the APA, we review the district court’s summary judgment
decision de novo, while applying the appropriate standard of review to the agency’s decision.”
Battle Creek Health System v. Leavitt, 498 F.3d 401, 408 (6th Cir. 2007) (internal quotation
marks and citation omitted). Summary judgment is proper when, viewing the evidence in the
light most favorable to the nonmoving party, there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Burley v.
Gagacki, 729 F.3d 610, 618 (6th Cir. 2013). And, the appropriate standard of review for the
agency action challenged in this case is that we will set aside the FHA’s approval only if it was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law[.]”
5 U.S.C. § 706(2)(A).
The arbitrary and capricious standard is the “least demanding review of an administrative
action,” and “requires the party challenging the agency’s action to ‘show that the action had no
rational basis or that it involved a clear and prejudicial violation of applicable statutes or
regulations.’” Coalition For Gov’t Procurement v. Federal Prison Indus., Inc., 365 F.3d 435,
475 (6th Cir. 2004) (quoting McDonald Welding v. Webb, 829 F.2d 593, 595 (6th Cir. 1987)). In
considering whether agency action is “arbitrary and capricious,” we may consider whether
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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. The reviewing court should not attempt itself to
make up for such deficiencies: [w]e may not supply a reasoned basis for the
agency’s action that the agency itself has not given.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1982) (internal
quotation marks and citation omitted). “Even when an agency explains its decision with less
than ideal clarity, a reviewing court will not upset the decision on that account if the agency’s
path may reasonably be discerned.” Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461,
497 (2004) (internal quotation marks and citation omitted).
As we recently stated, “[j]udicial review of NEPA compliance is limited in scope.”
Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers, 746 F.3d 698, 706 (6th
Cir. 2014) (internal quotation marks and citation omitted). “Because NEPA is a procedural and
not a results-driven statute, even agency action with adverse environmental effects can be
NEPA-compliant so long as the agency has considered those effects and determined that
competing policy values outweigh those costs.” Id. (internal quotation marks and citation
omitted). Thus, our review “ensures that the agency has adequately considered and disclosed the
environmental impacts of its actions and that its decision is not arbitrary or capricious.” Id.
(internal brackets, quotation marks, and citation omitted).
B.
Before considering the merits of plaintiff’s NEPA claims, we must address an evidentiary
issue. Below, plaintiff offered evidence in support of its NEPA claims that was not in the
Administrative Record. The district court refused to consider this new evidence because plaintiff
had not shown that defendants had acted in bad faith during the NEPA process, which if shown,
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might have warranted supplementation. The parties now dispute whether the court abused its
discretion in refusing to consider plaintiff’s new evidence.
We review a district court’s refusal to supplement the administrative record for an abuse
of discretion. Sierra Club v. Slater, 120 F.3d 623, 639 (6th Cir. 1997). “An abuse of discretion
is defined as a definite and firm conviction that the trial court committed a clear error of
judgment.” Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 773 (6th Cir. 2007) (internal
quotation marks and citation omitted).
In considering challenges to agency action under the APA, the “‘focal point for judicial
review should be the administrative record already in existence, not some new record made
initially in the reviewing court.’” Kroger Co. v. Reg’l Airport Auth. of Louisville & Jefferson
Cnty., 286 F.3d 382, 387 (6th Cir. 2002) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)).
However, “[s]everal reasons justify supplementation of the administrative record, such as when
an agency deliberately or negligently excludes certain documents, or when the court needs
certain background information in order to determine whether the agency considered all of the
relevant factors.” Slater, 120 F.3d at 638 (internal quotation marks and citation omitted). To
justify supplementation, courts have suggested that a plaintiff must make “a strong showing of
bad faith.” Id. (internal quotation marks and citation omitted).
The district court did not abuse its discretion in refusing to consider plaintiff’s new
evidence. First, plaintiff provides no explanation for why this late-discovered material could not
have been submitted for consideration during the NEPA process, which lasted about fourteen
years. Second, plaintiff had an opportunity to review the draft Administrative Record before it
was finalized and did not identify any information that was missing at that time. Third, the
district court properly rejected plaintiff’s numerous examples of “bad faith” because the evidence
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offered could not support a finding that defendants engaged in misconduct during the NEPA
process. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 175 (2004)
(“Allegations of government misconduct are easy to allege and hard to disprove, so courts must
insist on a meaningful evidentiary showing.”) (internal quotation marks and citation omitted).
Accordingly, the district court did not abuse its discretion by refusing to supplement the
Administrative Record. We now turn to the merits.
C.
The parties first dispute whether the scope of the Project’s Purpose and Need Statement
found in the Supplemental Final EIS was arbitrary and capricious. Under NEPA regulations,
each environmental impact statement “shall briefly specify the underlying purpose and need to
which the agency is responding in proposing the alternatives including the proposed action.” 40
C.F.R. § 1502.13. “Agencies enjoy considerable discretion in defining the purposes and needs
for their proposed actions, provided that they are reasonable.” Webster v. U.S. Dep’t of Agric.,
685 F.3d 411, 422 (4th Cir. 2012). However, they cannot define a project’s purpose and need so
narrowly that it contravenes NEPA’s mandate to evaluate reasonable alternatives. Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991). Agencies should consider
the factors relevant to the action’s objective, including “the needs and goals of the parties
involved” and the “views of Congress” as far as the agency can determine them and define a
purpose and need “somewhere within the range of reasonable choices.” Id. “Typically, a
purpose is unreasonable when the agency defines it so narrowly as to allow only one alternative
from among the environmentally benign ones in the agency’s power, such that the
[environmental impact statement] becomes essentially a foreordained formality.” Webster, 685
F.3d at 422 (internal quotation marks and citation omitted).
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The Purpose and Need Statement at issue in this case is not arbitrary and capricious. The
defined purpose—“to improve cross-river mobility between Jefferson County, Kentucky, and
Clark County, Indiana”—was based on five distinct needs: (1) “Inefficient mobility for existing
and planned growth in population and employment in the downtown area and in eastern
Jefferson and southeastern Clark Counties”; (2) “Traffic congestion on the Kennedy Bridge and
within the Kennedy Interchange”; (3) “Traffic safety problems within the Kennedy Interchange
and on the Kennedy Bridge and its approach roadways”; (4) “Inadequate cross-river
transportation system linkage and freeway rerouting opportunities in the eastern portion of the
Louisville Metropolitan Area (LMA)”; and (5) “Locally adopted transportation plans that call for
two new bridges across the Ohio River and the reconstruction of the Kennedy Interchange.” The
Purpose and Need Statement is reasonable because it is supported by detailed study of existing
traffic, safety, and other cross-river mobility problems, and described the use of extensive socio-
economic data and state-of-the-art modeling of future travel conditions to project future
transportation needs of the region. Moreover, because defendants justifiably found the various
cross-river mobility needs between Jefferson County and Clark County to be intertwined, they
reasonably defined the Purpose and Need Statement for the Project to be regional in scope.
Plaintiff’s arguments do not establish that the Purpose and Need Statement resulted from
an arbitrary and capricious decision-making process. First, plaintiff argues that the Purpose and
Need Statement improperly combined a two-site project (the Kennedy Bridge and East End
Bridge) into one “mega project.” No law or regulation prohibited defendants from crafting an
ambitious purpose and need statement designed to address regional, cross-river mobility
concerns, and defendants rationally explained their decision to create a “mega project” as
follows:
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Consideration of potential solutions to all of the cross-river mobility needs in one
EIS is consistent with the requirements of NEPA. Potential solutions to a portion
of those needs may affect solutions to other, related needs. In addition, the
potential solutions may have similar or cumulative environmental effects that
should be analyzed together in one EIS to allow an informed decision on any
ultimate solution(s). Because these needs are interrelated, and have arisen at the
same time and in the same geographic area, evaluation of the full range of
potential solutions, or combinations of solutions, in one EIS achieves the intent of
NEPA. That evaluation properly included various one- and two-bridge
combinations, as well as the no action alternative.
This analysis comports with 40 C.F.R. § 1508.25(a)(2), which states that “[c]umulative actions,
which when viewed with other proposed actions have cumulatively significant impacts and
should therefore be discussed in the same impact statement.” (emphasis added). The analysis
also complies with 40 C.F.R. § 1508.25(a)(3), which provides that agencies may analyze
“[s]imilar actions” in the “same impact statement” if those actions “have similarities that provide
a basis for evaluating their environmental consequences together, such as common timing or
geography.” (Emphasis added.) Further, the decision to combine a two-site project into one
regional “mega project” “requires a high level of technical expertise and is properly left to the
informed discretion of the responsible federal agencies. Absent a showing of arbitrary action, we
must assume that the agencies have exercised this discretion appropriately.” Kleppe v. Sierra
Club, 427 U.S. 390, 412 (1976) (internal citation omitted). On this record, plaintiff has not
shown that defendants crafted the Purpose and Need Statement without a rational basis.
Second, plaintiff argues that the Purpose and Need Statement is arbitrary and capricious
because it does not explicitly include aiding the minority population in West Louisville as a
purpose or need. No law or regulation required defendants to include a goal of benefiting
minority populations in the Purpose and Need Statement, and NEPA “does not substantively
constrain an agency’s choice of objectives[.]” City of Alexandria, Va. v. Slater, 198 F.3d 862,
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867 (D.C. Cir. 1999). Plaintiff’s policy disagreement regarding the scope of the Project as it
relates to socio-economic conditions of the minority population in the region provides no basis
for this court to conclude that the Purpose and Need Statement is arbitrary and capricious.
Moreover, the Final EIS and the Supplemental Final EIS considered and analyzed the impact of
the Project—and its alternatives—on low income and minority populations, including those in
West Louisville, and found the Project would not have negative impacts on those populations.
Finally, plaintiff argues that the Purpose and Need Statement is arbitrary and capricious
because defendants allegedly engaged in a “sham process” when it circulated the Purpose and
Need Statement from the Final EIS for additional public comment during the Supplemental Draft
EIS process. Specifically, plaintiff claims that defendants “pre-committed” to the Purpose and
Need Statement in the Final EIS before the public comment even began on the Supplemental
Draft EIS. Plaintiff bases its claim on an internal memorandum obtained from the state
defendants, dated before the public comment period opened, which stated that:
All of the elements of the original P&N remain valid, so there is no reason to
change the P&N. Due to the passage of time, there may be a need to refresh the
traffic data and other factual information in the P&N chapter. This can be done
without changing the P&N - i.e., the elements would remain the same, but the
supporting data would be more current.
Plaintiff also bases its claim on “secret meetings”—admittedly not included in the record—held
nearly one year before the public comment period opened, in which defendant Hancock agreed
to purchase real estate in the Project’s proposed construction path from a private seller.
Plaintiff’s evidence does not show that defendants “pre-committed” to the Purpose and
Need Statement in the Final EIS or that the public comment period was a “sham process.” The
statement in the internal memorandum, drafted by the state defendants in preparation for the
public comment period, was made in the context of an already approved highway project but
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was opened to new public comment simply because the funding structure had changed and
certain cost-savings methods were implemented that would change the Project’s total cost.
Moreover, the justifications to revalidate the original Purpose and Need Statement were set forth
in a comprehensive white paper on the issue, and the Purpose and Need Statement in the
Supplement Final EIS was updated with new information. Plaintiff’s citation to the internal
memorandum falls far short of demonstrating that the public comment period on the
Supplemental Draft EIS was a “sham process.” The same can be said for plaintiff’s claims of
“pre-commitment” through Hancok’s real estate transaction: these allegations are vague,
conclusory, and have absolutely no support in the record.
In sum, there is no basis in the record for this court to conclude that the scope of the
Purpose and Need Statement was arbitrary and capricious.
D.
Next, the parties dispute whether defendants’ review of “reasonable alternatives” to the
Project was arbitrary and capricious. NEPA requires agencies to evaluate reasonable alternatives
to the proposed action. 42 U.S.C. § 4332(2)(C)(iii); see also 40 C.F.R. § 1502.14(a) (agencies
shall “[r]igorously explore and objectively evaluate all reasonable alternatives, and for
alternatives which were eliminated from detailed study, briefly discuss the reasons for their
having been eliminated”). “As a general matter, the range of alternatives that must be discussed
under [NEPA] is a matter within an agency’s discretion.” Save Our Cumberland Mountains v.
Kempthorne, 453 F.3d 334, 342 (6th Cir. 2006) (internal quotation marks and citations omitted).
The reviewing court only determines whether the agency’s range of alternatives is outside the
“rule of reason,” based on the needs the proposed action is designed to address. Id. at 346.
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Here, through two lengthy NEPA reviews, consisting of over 140 pages of analysis,
defendants evaluated a wide range of alternatives to satisfy the Project’s Purpose and Need
Statement. These alternatives included transit options; reconstruction of existing infrastructure;
new crossings of various alignments; and traffic management programs—both individually and
in combination. That evaluation led to the rational selection of the Modified Selected
Alternative as the best option to solve the region’s cross-river mobility needs.
Plaintiff’s arguments do not show that defendants’ review of the “reasonable
alternatives” to the Project was arbitrary and capricious. Plaintiff primarily argues that
reasonable non-tolled alternatives were improperly excluded and that the “mega project” Purpose
and Need Statement was used to eliminate (1) a light-rail line and an East End Bridge “as stand-
alone options” and (2) a “two-site combination” consisting of a light-rail line and an East End
Bridge. The record undermines plaintiff’s contentions.
Although plaintiff claims defendants arbitrarily excluded reasonable non-tolled
alternatives, it offers no record citation to identify an alleged option that was reasonable but
ignored by defendants. And, in any event, it is apparent that no non-tolled alternative was both
financially feasible and able to meet the Project’s Purpose and Need Statement. See Latin
Americans for Soc. & Econ. Dev. v. Adm’r of Fed. Highway Admin., ___ F.3d ___, ___, 2014
WL 2782011, *18 (6th Cir. June 20, 2014) (“NEPA does not require [federal agencies] to pursue
alternatives that present unique problems, or are impractical or infeasible.”).
Furthermore, defendants evaluated both one- and two-bridge alternatives, and reasonably
concluded that only a two-bridge alternative would adequately address the region’s cross-river
mobility needs. Defendants also carefully considered, but ultimately rejected, a light-rail option.
The record shows that defendants rationally eliminated the alternatives preferred by plaintiff
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because those alternatives would not satisfy the regionally-focused Purpose and Need Statement.
Accordingly, defendants have discharged their duties under NEPA, and there are no grounds for
us to conclude that defendants’ evaluation of “reasonable alternatives” to the Project was
arbitrary and capricious.
E.
The parties’ final NEPA dispute concerns whether the Supplemental Final EIS was
arbitrary and capricious because it did not sufficiently address (1) greenhouse gas emissions;
(2) “ultra-fine” airborne particulates; (3) road runoff; (4) tunnel spoil; and (5) bridge piers.
NEPA requires agencies to consider significant environmental effects of federal action and
disclose them to the public; it does not require agencies to reach any particular decision.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); City of Riverview v.
Surface Transp. Bd., 398 F.3d 434, 442 (6th Cir. 2005). In enacting NEPA, Congress “did not
require agencies to elevate environmental concerns over other appropriate considerations.”
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). The
agency need only take a “hard look” at the environmental consequences of its decision. Id.;
Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 418 (6th Cir.
2004). “The role of the courts is simply to ensure that the agency has adequately considered and
disclosed the environmental impact of its actions and that its decision is not arbitrary or
capricious.” Baltimore Gas & Elec., 462 U.S. at 97–98. In other words, we do not sit as a
“super agency” and conduct a de novo review of the information received and considered by the
agency. Latin Americans, ___ F.3d at ___, 2014 WL 2782011, *13.
In this case, throughout 258 pages in the “Environmental Consequences” chapter of the
Supplemental Final EIS, defendants considered the potential environmental impacts of each
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proposed alternative, including impacts on socio-economics, water quality, wetlands, air quality,
endangered species, land use, historic resources, noise, and aesthetics. Over a number of years,
defendants consulted numerous federal and state agencies in connection with their preparation of
the Supplemental Final EIS. Given this record, we find that defendants fully discharged their
duties under NEPA.
First, defendants adequately considered greenhouse gas emissions. Although defendants
acknowledged that greenhouse gases, including those emitted by cars burning fossil fuels,
contribute to climate change, the Supplemental Final EIS explained that it did not analyze the
emission changes that would result from each proposed alternative in exhaustive detail because:
(1) the EPA has the authority to regulate greenhouse gases and has chosen to execute that
authority by directly regulating emissions from vehicles, rather than imposing requirements on
transportation projects; (2) given the global nature of climate‐change, decisionmakers would not
be better informed by a discussion of how the proposed alternatives might vary in their relatively
small contribution to a world-wide problem; and (3) the federal defendants are engaged in other
efforts to help reduce greenhouse gas emissions. In short, defendants cannot usefully evaluate
greenhouse gas emissions on a Project-specific basis because of the non-localized, global nature
of potential climate impacts. See Tinicum Twp., Pa. v. U.S. Dep’t of Transp., 685 F.3d 288, 296
(3d Cir. 2012) (“While additional data might enable a more detailed environmental analysis,
NEPA does not require maximum detail. Rather, it requires agencies to make a series of line-
drawing decisions based on the significance and usefulness of additional information.”).
Plaintiff offers nothing to rebut this rational conclusion. Accordingly, defendants’ approach to
greenhouse gas emissions was not arbitrary and capricious.
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Second, defendants did not irrationally omit consideration of “ultra-fine” airborne
particulates. The Supplemental Final EIS analyzed air quality impacts, focusing on the
pollutants regulated by the Clean Air Act’s National Ambient Air Quality Standards
(“NAAQS”). “Ultra-fine” particulates are not regulated under the NAAQS. Nevertheless, and
despite the lack of any other regulatory requirement or standards relating to “ultra-fine”
particulates, plaintiff insists that NEPA required defendants to include an analysis of such
emissions in the Supplemental Final EIS. Plaintiff cites no guidance document, case law, agency
comment, or other authority to suggest that such an analysis is required under NEPA or is even
technically feasible.1 Moreover, the record shows that defendants consulted with the EPA
throughout the preparation of the Supplemental Final EIS regarding the methodologies for
various impact analyses—including air quality—and at no time did EPA suggest that defendants
should analyze “ultra-fine” particulates. “While additional data might enable a more detailed
environmental analysis, NEPA does not require maximum detail. Rather, it requires agencies to
make a series of line-drawing decisions based on the significance and usefulness of additional
information.” Tinicum Twp., Pa., 685 F.3d at 296. Under the circumstances presented,
defendants reasonably decided not to analyze the environmental impacts of “ultra-fine”
particulates.
Third, defendants took the requisite “hard look” at the environmental impacts of road
runoff. Defendants conducted a thorough analysis of potential impacts to water quality,
incorporated robust measures to minimize road runoff impacts, and responded directly to
1
Notably, at least two courts have recognized that NEPA’s requirements are per se
satisfied by demonstrating conformity with NAAQS. See Tinicum Twp. v. U.S. Dep’t of Transp.,
685 F.3d 288, 296–98 (3d Cir. 2012); Sierra Club v. FHWA, 715 F. Supp. 2d 721, 741 (S.D. Tex.
2010).
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plaintiff’s concerns about the potential discharge of road deicing fluids into Harrods Creek. The
Final EIS acknowledged that de‐icing compounds will be used seasonally and “would result in
short‐term concentration increases,” but “due to the small quantities of such pollutants, no
adverse impacts are anticipated[,]” and the Supplemental Final EIS explained that the drainage
system for the Project will collect all runoff and store it in vaults prior to release into Harrods
Creek. The Supplemental Final EIS also explained that this drainage system had been discussed
with the Kentucky Division of Water and the Louisville Water Company—which operates the
water system—and that they considered it “reasonable, acceptable, and of adequate design for
the proposed project.” Plaintiff offers no evidence to show that defendants’ environmental
impact analysis in this area was arbitrary or capricious.
Fourth, defendants sufficiently addressed tunnel spoil concerns. Both the Final EIS and
the Supplemental Final EIS discussed potential impacts related to “tunnel spoil,” i.e., disposal of
excess excavation material. The Supplemental Final EIS states that because “excess material
sites for disposal of construction spoil have not been determined at this time,” those sites will be
investigated later when a determination is made regarding construction phasing.
Notwithstanding this statement, and citing no evidence in support of its position, plaintiff claims
that defendants knew what the disposal sites would be and deliberately withheld that information
during the NEPA process. Plaintiff’s baseless accusation falls flat. Moreover, defendants
rationally deferred a consideration of the environment impacts until the precise spoil locations
would be identified. See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1014 (9th
Cir. 2006) (if not enough information is available to permit a meaningful consideration of
possible environmental impacts, NEPA does not require the government to do the impractical);
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see also Kleppe, 427 U.S. at 402 (under NEPA, agencies need not consider potential effects that
are highly speculative or indefinite).
Fifth, defendants took a “hard look” at the environmental impacts regarding bridge piers.
The Final EIS acknowledged that “[p]lacement of bridge piers in a waterbody would lead to loss
of habitat in the area of the piers, but would not substantially impair the function of the water
body as a whole.” Defendants also analyzed a reasonable range of roadway alignments,
including alignments designed to lessen impacts to Harrods Creek. However, after testing each
permutation against the Purpose and Need Statement, defendants ultimately selected a proposal
that required bridge piers. Plaintiff offers no evidence to show that defendants acted without a
rational basis. Additionally, plaintiff’s claim that defendants deliberately delayed seeking
permits under the CWA to postpone the release of the locations of bridge piers is unwarranted
speculation that has no basis in the record.
IV.2
A.
The parties dispute whether plaintiff has created a genuine issue of material fact on its
claim that various elements of the Project violate Title VI of the Civil Rights Act of 1964. 3
Section 2000d of the Act provides that “No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be
2
Consistent with the district court’s approach, the following analysis assumes arguendo
that plaintiff has Article III standing to bring Title VI claims against the state defendants.
3
Plaintiff argues in its reply brief that the district court dismissed its Title VI claims under
Rule 12(c). Plaintiff is partially correct. The district court dismissed plaintiff’s Title VI claims
against the federal defendants under Rule 12(c), but granted summary judgment in favor of the
state defendants on those same claims under Rule 56. Because plaintiff has abandoned all Title
VI claims against the federal defendants, we review only the grant of summary judgment to the
state defendants.
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subjected to discrimination under any program or activity receiving Federal financial assistance.”
To avoid summary judgment on a Title VI race discrimination claim,
a plaintiff must create a genuine issue of material fact that the defendant intended
to discriminate on the basis of race. To establish a genuine issue of material fact
that the defendants intentionally discriminated against plaintiff[ ] on the basis of
his race, plaintiff must demonstrate that the decision to exclude [plaintiff] from a
federally financed program was motivated by race and that his race was a
determining factor in the exclusion. In other words, proof of discriminatory intent
is critical.
Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 (6th Cir. 1996) (internal quotation marks and
citation omitted).
Plaintiff offers a variety of circumstantial evidence in support of its Title VI claims. In
the Village of Arlington Heights v. Metropolitan Housing Development Corporation, the
Supreme Court identified factors relevant to establishing a circumstantial inference of
discriminatory animus. 429 U.S. 252 (1977). First, disparate racial impact may be a “starting
point,” but “impact alone is not determinative.” Id. at 266. Second, the “historical background
of the decision” may be relevant, “if it reveals a series of official actions taken for invidious
purposes.” Id. at 267. Third, the “sequence of events leading up [to] the challenged decision
also may shed some light on the decisionmaker’s purposes.” Id. Fourth, “[d]epartures from the
normal procedural sequence also might afford evidence that improper purposes are playing a
role.” Id. Fifth, departures from established “substantive” standards “may be relevant,
particularly if the factors usually considered important by the decisionmaker strongly favor” a
different course of action than the one selected. Id. Finally, the “legislative or administrative
history may be highly relevant,” including “statements by members of the decisionmaking body,
minutes of its meetings, or reports.” Id. at 268.
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B.
In this case, plaintiff’s evidence is insufficient to create a genuine issue of material fact
on whether the state defendants intentionally discriminated on the basis of race in connection
with the Project. Regarding the first Arlington Heights factor,4 it is true that defendants have
acknowledged that tolling will have a greater impact on minority and low-income populations.
However, defendants explained the reasons why they ultimately found tolling to be necessary as
a funding source, despite its disproportionately greater effects on low-income users of the
transportation system, and included measures to mitigate the impact, including $20 million for
enhanced bus service. Evidence of disparate impact alone is insufficient to justify an inference
of discriminatory intent, unless the type of impact is significant, stark, and unexplainable on
other grounds. See Arlington Heights, 429 U.S. at 266; Wilson v. Collins, 517 F.3d 421, 432 (6th
Cir. 2008); Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 276 (6th Cir. 1994). Plaintiff’s
disparate impact evidence falls far short of meeting the exception to the general rule, which the
Supreme Court has reserved for cases such as Gomillion v. Lightfoot, 364 U.S. 339 (1960)
(boundary change to city, eliminating all but 5 of 400 black voters from city), or Yick Wo v.
Hopkins, 118 U.S. 356 (1886) (ordinance enforced against laundries owned by Chinese citizens).
Further, plaintiff asks the court to draw an unreasonable inference from the evidence: because
defendants acknowledged the disproportionate effects of tolling, they intentionally discriminated
on the basis of race. This non sequitur does not create a genuine issue of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (at the summary
4
Because plaintiff structures its arguments around the Arlington Heights factors, our
analysis follows plaintiff’s lead.
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judgment stage, the plaintiff receives the benefit of any reasonable inferences that the facts
permit).
Moreover, the historical background of the Project does not reveal any discriminatory
intent. Arguing otherwise, plaintiff presents “evidence” that (1) white transportation planners
were insensitive to the problems of “urban core blacks” because the ORMIS study—upon which
the Project is based—did not specifically mention Title VI and (2) the Project itself is evidence
of intentional discrimination because it involves tolls that disproportionately affect minorities
and is not expected to increase “urban core employment.” These conclusory allegations are
insufficient to create a genuine issue of material fact on whether the Project’s background
includes a series of official actions taken for invidious purposes. To the contrary, the record
demonstrates that the need for tolling arose from funding shortfalls, not because defendants
intentionally discriminated against Title VI populations. No rational factfinder could conclude
otherwise.
Next, the sequence of events leading up to the Project’s approval does not demonstrate a
discriminatory purpose. “Discriminatory purpose . . . implies more than intent as volition or
intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed
a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
(1979) (internal quotation marks and citation omitted). The mammoth Administrative Record,
which chronicled the history of the Project in exhaustive detail, compels a reasonable factfinder
to conclude that the Project was motivated by the nondiscriminatory purpose of improving cross-
river mobility, not racial animus. The need to construct additional bridges for cross-river
mobility has been recognized for nearly fifty years, and the Purpose and Need Statement
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substantiates the acute and growing need to address cross-river traffic congestion and safety and
inefficient cross-river mobility for population and employment growth in the region. Also, the
alternatives evaluation demonstrates that the Modified Selected Alternative was chosen because
it best addresses the identified needs, not because of any intentional discriminatory impacts. No
reasonable jury would find anything about the “sequence of events” leading up to the Project’s
approval suggestive of discriminatory purpose.
In addition, there is simply no evidence of any departure from established procedures or
substantive standards that might support an inference of intentional race discrimination.
Defendants complied with the established procedures for review of the Project, including the
procedural and substantive requirements for evaluating environmental justice impacts in
Executive Order 12898, FHWA Order 6640.23, and DOT Order 5610.2. These procedures
included extensive efforts to inform and encourage participation by members of low-income and
minority communities.
Finally, the Administrative Record is highly relevant in this case because it contains no
evidence that defendants’ decision to approve the Project was motivated by an intent to
disadvantage the Title VI population. Although plaintiff argues otherwise, its conclusory
allegations of racial discrimination are undermined by the record. For two specific examples, the
record shows that the Supplemental Final EIS included commitments to provide (1) $1.5 million
for a Disadvantaged Minority Craftsman Training Program to train individuals in the techniques
and skills required for historic preservation and rehabilitation, and (2) $10 million to rehabilitate
the Trolley Barn in West Louisville to serve as the location for the Kentucky Center for African-
American Heritage.
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In sum, after sifting out plaintiff’s rhetoric, legal conclusions, and unsupported
allegations, the record facts that remain—viewed collectively, and in a light most favorable to
plaintiff—do not create a genuine issue of material fact on whether the state defendants
intentionally discriminated on the basis of race in connection with the Project.
V.
For the foregoing reasons, we affirm the judgment of the district court.
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