Shudde Fath v. Texas Dept. of Transportatio

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
Case: 17-50683 Document: 00514558211 Page: 3 Date Filed: 07/17/2018
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
Case: 17-50683 Document: 00514558211 Page: 4 Date Filed: 07/17/2018
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
Case: 17-50683 Document: 00514558211 Page: 5 Date Filed: 07/17/2018
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
Case: 17-50683 Document: 00514558211 Page: 6 Date Filed: 07/17/2018
No. 17-50683
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
Case: 17-50683 Document: 00514558211 Page: 7 Date Filed: 07/17/2018
No. 17-50683
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
Case: 17-50683 Document: 00514558211 Page: 8 Date Filed: 07/17/2018
No. 17-50683
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
Case: 17-50683 Document: 00514558211 Page: 9 Date Filed: 07/17/2018
No. 17-50683
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
Case: 17-50683 Document: 00514558211 Page: 10 Date Filed: 07/17/2018
No. 17-50683
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
Case: 17-50683 Document: 00514558211 Page: 11 Date Filed: 07/17/2018
No. 17-50683
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