UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT )
TRAIL, et al. ' )
)
)
Plaintiffs, )
)
)
v. ) Civil Case N0. 14-01471 (RJL)
)
)
FEDERAL TRANSIT ADMINISTRATION, )
et al. )
§ F1LEo
Federal Defendants. ) AUG _3 2[]16
§ Clerk, U.S. D|strict & Bankruptcy
Courts for the D|strict of Co|umbla
v. )
)
)
STATE OF MARYLAND, )
)
Defendant-Intervenor. )

Mb:mo£m\tnum 01>1N10N
(Augusr 3 , 2016) [Dkrs. ##47, 54, 561

Plaintiffs Friends of the Capital Crescent Trail ("FCCT"), John MacKnight
Fitzgerald, and Christine Real de Azua ("plaintiffs") challenge the March l9, 2014 Record

of Decisi0n ("ROD") by the Federal Transit Administration ("FTA") and related approvals
by the U.S. Fish and Wildlife Service ("FWS," and together with FTA and the Department

of Transportation and the Department of Interi0r, "federal defendants") for the Purple Line

Project, a l6.2-mile light rail transit project in Montgomery and Prince George’s Counties,
Maryland. Plaintiffs raise multiple claims under the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321 et seq., the Federal Transit Act, 49 U.S.C. § 5309, Section
4(f) of the Department of Transportation Act, 23 U.S.C. § 138, the Endangered Species
Act, 16 U.S.C. §§ 1531 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. § 703. See
generally Am. Compl. [Dkt. #20]; First Supp. Compl. [Dkt # 33]; Second Supp. Compl.
[Dkt #42]. Following the filing of the complaint, the State of Maryland joined the federal
defendants as an intervenor-defendant. See Minute Order, July l5, 20 l 5. Currently before
the Court are cross-motions for summary judgment filed by plaintiffs, federal defendants,
and defendant-intervenor. See Pls.’ Mot. for Sum1n. J. [Dkt. #47]; Federal Defs.’ Cross-
Mot. for Summ. J. [Dkt. #54]; Def.-lntervenor’s Cross-Mot. for Summ. J. [Dkt. #56]. Upon
consideration of the pleadings, record,; and relevant law, I find that the recent revelations
regarding Washington Metropolitan Area Transit Authority’s ("WMATA") ridership and
safety concerns merit a supplemental Environmental impact Statement under NEPA and
reserve judgment as to the remaining issues. Accordingly, plaintiffs’ motion for summary
judgment is GRANTED in part, and federal defendants’ and defendant-intervenors’ cross-
motions for summary judgment are DENIED in part.
STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted "if
the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P.
56(a). The Court’s review "is based on the agency record and limited to determining

whether the agency acted arbitrarily or capriciously." Rempfer v. Sharfstein, 583 F.3d 860,

2

865 (D.C. Cir. 20()9). Whereas "the role of the agency [is] to resolve factual issues," the
sole "function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the_agency to make the decision it did."
Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2()()6) (internal citation and
quotation marks omitted). The‘ Court must determine "whether the agency acted within the
scope of its legal authority, . . . explained its decision, . . . relied'[on facts that] have some
basis in the record, and . . . considered the relevant factors." Fu)idfor Am`mczls v. Babbitt,

903 F. Supp. 96, 105 (D.D.C. 1995).

ANALYSIS

I. Statutory Backgr0und

NEPA requires that federal agencies consider the environmental effects of proposed
actions by requiring them to "carefully consider[] detailed information concerning
significant environmental impacts." Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 349 (1989). Under NEPA, a federal agency must prepare an Environmental
Impact Statement ("EIS") whenever a proposed government action qualifies as a "major
Federal action[] significantly affecting the quality of the human environment." 42 U.S.C.
§ 4332(2)(€). The EIS "shall state how alternatives considered in it and decisions based
on it will or will not achieve the requirements of [NEPA] and other environmental laws
and policies," 40 C.F.R. § l502.2(d), discuss "[p]ossible conflicts between the proposed
action and the objectives of Federal . . . land use plans, policies and controls for the area
concerned," ia’.’§ l502.l6(c), and "present the environmental impacts of the proposal and

the alternatives in comparative form, thus sharply defining the issues and providing a clear

basis for choice among options by the decisionmaker and the public," ia’. § 1502._14. The
idea is that "[s]uch information may cause the agency to modify its proposed action."
Cz`tizens Against Raz`ls-to-Traz'ls v. Surface Transp. Ba'., 267 F.3d 1144, l.l5l (D.C. Cir.
200l).

Even after preparation of an EIS, an agency is obligated to undertake a supplemental
EIS ("SEIS") when presented with "substantial changes in the proposed action that are
relevant to environmental concerns" or "new and significant circumstances or information
relevant to environmental concerns and bearing on the proposed action or its impacts." 10
C.F.R. § 5l.92(a)(1)-(2). "[A]n agency need not supplement an EIS every time new
information comes to light," Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 373 (1989),
but rather only when "new information provides a seriously different picture of the
environmental landscape,"’ Nczt’l Comm.for the New River v. FERC, 373 F.3d 1323, 1330
(D.C. Cir. 2004) (citation omitted). Courts review an agency’s decision whether to
undertake an SEIS under the arbitrary and capricious standard. Cily of Olmstea’ Falls v.
FAA, 292 F.3d 261, 274 (D.C. Cir. 2002).

The scope of review under the "arbitrary and capricious" standard "is narrow," and
"a court is not to substitute its judgment for that of the agency." Motor Vehz'cle Mfrs. Ass'n
v. State Farm Mul. Auto Ins. C0.,`463 U.S. 29, 43 (1983). Nevertheless, the agency must
examine the relevant data and articulate a satisfactory explanation for its action including
a "rational connection between the facts found and the choice made." Burlington Truck
Lz'nes v. Um'tea’ States, 371 U.S. 156, 168 (1962). An agency’s action is arbitrary and

capricious if it "has relied on factors which Congress has not intended it to consider,

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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." Motor
Vehicle Mfrs, Ass 'n, 463 U.S. at 43.

II. WMATA’s Ridership and Safety Concerns Merits an SEIS

Plaintiffs bring various claims against defendants challenging agency actions
involving the Purple Line, but today I will only address plaintiffs’ NEPA claim challenging
defendants’ failure to prepare an SEIS based on recent events that raise substantial concerns
about WMATA’s safety and in turn its possible decline in future ridership. l find that
defendants’ failure to adequately consider WMATA’s ridership and safety issues was
arbitrary and capricious, and that these conditions create the "seriously different picture"
that warrant an SEIS.

Plaintiffs submitted a letter on October 9, 2015, requesting that the agencies prepare
an SEIS based on WMATA’s recent safety concerns and declines in ridership in the
Metrorail system, which, as a consequence, called the ridership forecasts for the Purple
Line into question. AR5_()O6470-7l. Plaintiffs pointed to a "series of incidents that have
raised questions about passenger safety," explained that the National Transportation Safety
Board had found that the "FTA and WMATA’s Tri-State `Oversight Commission are
incapable of restoring and ensuring the safety of WMATA’s subway system," and
emphasized how these developments directly undermined the rationale for the Purple Line,
providing that:~

[R]idership on the WMATA subway has declined every year since

5

2()09. That is the year after the [draft Environmental Impact
Statement] last reviewed ridership projections for the Purple Line and
alternatives to it. . . . The news of [declining Metrorail ridership] . . .
casts a[n] additional shadow over the rosy projections of ever-
increasing ridership for the Purple Line, which is inextricably linked
to and dependent upon the use of several subway stops from beginning
to end.

Id. (footnotes omitted). Amazingly, the response from the Maryland Transit Authority

("MTA") consisted solely of the following:

As described in the [fmal Environmental impact Statement], the
Purple Line is not part of the WMATA’S Metrorail system. The
Purple Line would be owned by MTA and operated by MTA’s
contractor. Therefore, the financial or other issues currently being
experienced by WMATA do not involve the Purple Line, and they
have no relationship to the environmental impacts of the Purple Line.
Therefore, the WMATA-related issues cited in FCCT’s letter provide

no basis for preparing an SEIS.
AR5_0O0009. Curiously, this barebones explanation was subsequently adopted by the
FTA, notwithstanding the fact that the Purple Line project is dependent on a future federal
grant of nearly a billion dollars. June l5, 2016 Oral Arg. Tr.at 21:25-22:4, 50:7-9
[Dkt. #95]. In a memorandum dated January 7, 2016, the FTA stated, in relevant part, that
it concurred with MTA’s recommendation that no supplemental documentation was
required under NEPA. AR5_0000()3. FTA simply reiterated MTA’s response that "actions

and any potential issues related to WMATA, which is not the project sponsor for the Purple

Line, do not affect FTA’s NEPA findings." AR5_H000004.

“In making the factual inquiry concerning whether an agency decision was
‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was

based on a consideration of the relevant factors and whether there has been a clear error of

judgment."’ Marsh, 490 U.S. at 378 (quoting Cz`tz'zens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971)). "[I]n the context of reviewing a decision not to
supplement an EIS," as here, courts must "carefully review[] the record and satisfy[]
themselves that the agency has made a reasoned decision based on its evaluation of the
significance-or lack of significance-of the new information." Marsh, 490 U.S. at 378.
Here, defendants wholly failed to evaluate the significance of the documented safety issues
and decline in WMATA ridership, skirting the issue entirely on the basis that the Purple
Line is not part of WMATA. While it is true that WMATA is a distinct entity from MTA,
which would own and operate the Purple Line, AR5_000009, this does not provide a
rational basis for defendants’ summary conclusion that a decline in ridership thereon has
no effect on the Purple Line, given that the previous projections estimated over one quarter
of Purple Line riders would use the WMATA Metrorail as part of their trip. See
ARl___00l973-74. ‘ Nor can I turn a blind eye to the recent extraordinary events involving
seemingly endless Metrorail breakdowns and safety issues. See AR5_006470~7l & nn. 2-
4 (citing public reports and media accounts discussing WMATA’S safety issues and

ridership decline).z These serious issues, which may have long-term effects on Metro

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WMATA, Orange and Silver line service impacts to continue Saturday following derailment (July 29,
20 1 6), 

Press Release, WMATA, Metro' releases preliminary findings of investigation into Saturday smoke incident
outside Friendship Heights (April 25, 20l6),

 Pt@SS Release,
WMATA, All Metrorail service will be suspended Wednesday, March l6, for_emergency inspections

   

. -»_.'¢ ..:_-.,:-.\_,. =. "\~..

ridership, only underscore how important it was for defendants to take the requisite hard
look at the potential effect of Metro’s safety issues on future Purple Line ridership and any
related environmental issues. See, e.g., Sabine Rz`ver Auth. v. U.S. Dep’t of Im‘erior, 951

F,.2d 669, 678 (5th Cir.l992) (citation omitted) (court must look outside the administrative
record to determine whether the agency adequately considered the environmental effects
of a particular project). At a minimum, Wl\/IATA and the FTA’s cavalier attitude toward
these recent developments raises troubling concerns about their competence as stewards of
nearly a billion dollars of the federal taxpayers’ funds.

III. Remedy

The Administrative Procedure Act governs remedies for NEPA violations and
provides that a reviewing court shall "hold unlawful and set aside agency action, findings,

and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with _law." 5 U.S.C. § 706(2); see Cz'tz'zens to Preserve Overton Park,

- Inc., 401 U.S. at 413 ("ln all cases agency action must be set aside if the action was

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or
if the action failed to meet statutory, procedural, or constitutional requirements.").
"Pursuant to the case law in this Circuit, vacating a rule or action promulgated in violation
of NEPA is the standard remedy." Humane S0c ’y of U.S. v. Johcmns, 520 F. Supp. 2d. 8,
37 (D.D..C. 2007). The decision whether to vacate depends on "the seriousness of the

order’s deflciencies" and "the disruptive consequences of an interim change . . . ." Allz`ed-

Press Release, WMATA, Orange and Silver line return to 6-minute rush hour service for first time since
Stadium-Armory substation fire (Dec. 30, 2015),
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8

   

Signal, Inc. v. U.S. Nuclear Regulatory .Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993).
Here, defendants failed to engage in the requisite supplemental analysis with respect to
important recent information that calls into question, at a minimum, whether nearly a
billion dollars in federal funding should ultimately be committed to a project for which
serious questions have been raised as to its future viability. While a temporary halt in the
project is not ideal, it would make little sense and cause even more disruption if defendants
were to proceed with the project while the SEIS was being completed, only to subsequently
determine that another alternative is preferable. Accordingly, it is hereby ordered that the
Record of Decision be vacated and remanded to the defendants for the preparation of an
SEIS as expeditiously as possible, and consistent with NEPA’s requirements. Common
sense requires no less.
CONCLUSION

For the foregoing reasons, plaintiffs’ motion for summary judgment is GRANTED

in part, and federal defendants’ and defendant-intervenors’ cross-motions for summary

judgment are DENIED in part, An order consistent with this decision accompanies this

Memorandum Opinion.

 

United States District Judge

