Citizens Against the v. Mineta , 375 F.3d 412 ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Citizens Against the Pellissippi No. 02-6536
ELECTRONIC CITATION: 2004 FED App. 0211P (6th Cir.) Parkway v. Mineta, et al.
File Name: 04a0211p.06
Environmental Planning and -
UNITED STATES COURT OF APPEALS Permits for TDOT, individual -
and official capacities, -
FOR THE SIXTH CIRCUIT -
_________________ Defendants. -
N
CITIZENS AGAINST THE X Appeal from the United States District Court
PELLISSIPPI PARKWAY - for the Middle District of Tennessee at Nashville.
EXTENSION , INC., - No. 02-00549—Todd J. Campbell, District Judge.
- No. 02-6536
Plaintiff-Appellee, - Argued: April 28, 2004
>
,
v. - Decided and Filed: July 7, 2004
-
NORMAN Y. MINETA , - Before: MARTIN and ROGERS, Circuit Judges; BELL,
Secretary of the United States - Chief District Judge.*
Department of Transportation, - _________________
-
official capacity; MARY
-
PETERS , Administrator of the - COUNSEL
Federal Highway - ARGUED: John L. Smeltzer, UNITED STATES
Administration, official - DEPARTMENT OF JUSTICE, Washington, D.C., for
capacity; CHARLES BOYD , - Appellants. Joe W. McCaleb, Hendersonville, Tennessee, for
Division Administrator for the - Appellee. ON BRIEF: John L. Smeltzer, UNITED STATES
- DEPARTMENT OF JUSTICE, Washington, D.C., for
Nashville Division, FHWA, -
official capacity, Appellants. Joe W. McCaleb, Hendersonville, Tennessee, for
- Appellee.
Defendants-Appellants, -
-
J. BRUCE SALTSMAN, -
Commissioner of the -
-
Tennessee Department of -
Transportation, individual and -
official capacities; CHARLES -
*
BUSH , Manager of - The Ho norable R obe rt Ho lmes B ell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
1
No. 02-6536 Citizens Against the Pellissippi 3 4 Citizens Against the Pellissippi No. 02-6536
Parkway v. Mineta, et al. Parkway v. Mineta, et al.
_________________ Smoky Mountain gateway towns of Maryville and Alcoa.
The project calls for the construction of a four-lane limited
OPINION access highway with a grassy median, and would require the
_________________ acquisition of 155 acres of new right-of-way land.
ROGERS, Circuit Judge. To comply with the National There is no dispute that the project is a “major Federal
Environmental Policy Act (NEPA), the Federal Highway action” subject to the National Environmental Policy Act.
Administration (the “FHWA”), in conjunction with federal See 42 U.S.C. § 4332(C); see generally 42 U.S.C. § 4321 et
and state agencies, issued a finding of no significant impact seq. NEPA sets forth essentially procedural requirements to
(“FONSI”) for a proposed 4.5 mile extension of a highway in assess environmental impacts of major federal actions. See
Tennessee. Subsequently, a citizens group opposed to the 42 U.S.C. § 4332(C); Southwest Williamson County Cmty.
extension brought suit in federal district court alleging that Ass’n v. Slater, 243 F.3d 270, 278 (6th Cir. 2001). In general,
the agency’s finding violated NEPA because it did not NEPA requires agencies to prepare an Environmental Impact
address a specific federal regulation. The district court issued Statement (an “EIS”) for any major federal action that
a broad preliminary injunction that prevented state or federal significantly affects the quality of the human environment.
agencies from “planning, financing, contracting, land 42 U.S.C. § 4332(C). An EIS provides an extensive
acquisition, [or] construction” for the highway extension. In explanation of the environmental impacts of, and possible
response, the FHWA withdrew the FONSI and sought a alternatives for, a proposed major federal action. Id.
voluntary remand so that it could reconsider its decision. The
district court denied the FHWA’s motion for a remand. The Regulations promulgated by the Council on Environmental
FHWA now appeals, arguing that it acted properly by Quality, implementing NEPA, require federal agencies to
withdrawing the FONSI, that the district court erred in prepare an EIS for any proposed major federal action, unless
refusing to modify the injunction to allow the agency to the action is categorically excluded or unless the project
reconsider the FONSI, and that the agency is entitled to a would not have a significant impact on the environment. See
voluntary remand to consider the regulation that it did not 40 C.F.R. §§ 1500.3, 1501.4. If an agency is unsure as to
address in the preparation of the initial FONSI. Because the whether a project would significantly affect the quality of the
district court erred in denying the FHWA an opportunity to human environment, an agency may postpone the preparation
revisit its decision, we reverse the judgment of the district of an EIS and prepare an Environmental Assessment (an
court and remand the case to the district court with “EA”), which briefly provides sufficient evidence and
instructions to vacate or modify the injunction so as to allow analysis for determining whether there is a significant
the FHWA to comply with NEPA. environmental impact. Id.; 40 C.F.R. § 1508.9. After
analyzing the EA, the agency decides whether to prepare an
Tennessee state route 162, the Pellissippi Parkway, EIS or issue a finding of no significant impact. 40 C.F.R.
presently runs from state route 62 in Knox County and ends § 1501.4(e); 40 C.F.R. § 1508.13. A FONSI briefly presents
at state route 33 in adjacent Blount County. The Tennessee the reasons why an agency action will not create a significant
Department of Transportation (the “TDOT”) proposed the environmental impact and why an EIS will not be issued.
Pellissippi Parkway Extension Project, which would extend 40 C.F.R. § 1508.13.
the Pellissippi Parkway 4.5 miles to relieve congestion in the
No. 02-6536 Citizens Against the Pellissippi 5 6 Citizens Against the Pellissippi No. 02-6536
Parkway v. Mineta, et al. Parkway v. Mineta, et al.
FHWA regulations in turn guide that agency’s informed the TDOT that the FHWA was suspending federal
determination whether to prepare an EIS or an EA and a funding for the project until further notice. Thereafter, the
FONSI. These regulations divide FHWA actions into three district court held a hearing on the injunction. During the
classes. “Class I” actions “significantly affect the hearing, a TDOT representative informed the district court
environment and require an EIS.” 23 C.F.R. § 771.115(a). that the TDOT was seriously considering continuing with the
“Class II” actions do not “have a significant environmental project even in the absence of federal funds. On July 17,
effect,” and thus do not require an EIS or an EA. 23 C.F.R. 2002, the district court granted CAPPE a preliminary
§ 771.115(b). The remaining category of Class III actions injunction that stated:
encompasses those actions “in which the significance of the
environmental impact is not clearly established.” 23 C.F.R. all Defendants and their officers, agents, employees,
§ 771.115(c). Class III actions necessitate the preparation of servants, attorneys, and all persons in active concert or
an EA “to determine the appropriate environmental document participation with them are hereby restrained and
required.” Id. The FHWA regulations list “examples” of enjoined from continued planning, financing,
Class I projects, and the examples include “(1) A new contracting, land acquisition, and construction of a four-
controlled access freeway” and “(2) A highway project of lane, controlled access highway called the Pellissippi
four or more lanes on a new location.” 23 C.F.R. Parkway Extension. . . . pending further order of the
§ 771.115(a). Court.
The FHWA issued an EA for the extension project on Over a month later, on August 29, 2002, Boyd informed the
October 3, 2001. Roughly seven months later, on April 24, TDOT that the FHWA was withdrawing the FONSI for the
2002, the FHWA issued a FONSI for the project. Neither the project. Boyd’s letter to the TDOT stated that the FHWA was
EA nor the FONSI discussed the apparent Class I nature of taking “additional administrative actions” on the project, and
the project. However, the FONSI allowed the project to move as a consequence all federal funds would be suspended from
forward. 23 C.F.R. § 771.113(a)(1). the project. The letter also warned the TDOT that if the state
were to proceed with the project, the state would “jeopardize
On June 7, 2002, a not-for-profit corporation called the the project for future federal-aid funding.”
Citizens Against the Pellissippi Parkway Extension, or
CAPPE, filed suit against the FHWA and TDOT officials in Subsequently, the FHWA1 moved the district court for a
federal district court to enjoin further action on the project. voluntary remand of the case to the FHWA for further review
CAPPE consists of Blount County residents who own or to dismiss the case as moot because the FHWA had
property that would be affected by the project. The complaint withdrawn the FONSI and stopped the federal funding of the
alleged that because the project fit within Class I of the project. On October 1, 2002, the district court denied the
FHWA regulations, the FONSI needed to explain why an EIS
was not needed, in light of the provisions of 23 C.F.R.
§ 771.115(a). 1
CAPPE sued three federal officials and two Tennessee officials. For
On June 26, 2002, in response to the lawsuit, Charles S. convenience, in discussing the p rocedural actions of the parties in this
litigation, we refer to the federal defendants as FHW A and the Tennessee
Boyd, the Tennessee Division Administrator for the FHWA, defendants as TDOT.
No. 02-6536 Citizens Against the Pellissippi 7 8 Citizens Against the Pellissippi No. 02-6536
Parkway v. Mineta, et al. Parkway v. Mineta, et al.
FHWA’s motion because of Tennessee’s expressed desire to a declaratory judgment and the dissolution of an injunction as
continue with the project absent federal funding. The FHWA a motion to modify the injunction).
filed a motion for reconsideration, but the district court denied
that motion as well. The FHWA now appeals.2 The district court in this case articulated no tenable reason
for continuing injunctive relief against the FHWA. In the
The district court improperly failed to vacate or modify the absence of any such reason, it is an abuse of discretion to
injunction, because in doing so it precluded the agency from prevent an agency from acting to cure the very legal defects
acting to comply with the very statute that formed the basis asserted by plaintiffs challenging federal action. This court
for the lawsuit. The injunction essentially prevents the has recognized the inherent authority of an agency to
FHWA from all “planning” associated with the project, reconsider a prior decision. Belville Mining Co. v. United
including the planning necessary to complete an EIS or States, 999 F.2d 989, 997 (6th Cir. 1993) (“Even where there
another FONSI. Although the FHWA’s motion to the district is no express reconsideration authority for an agency,
court was styled as a motion for voluntary remand, the motion however, the general rule is that an agency has inherent
may appropriately be considered as a motion to modify the authority to reconsider its decision, provided that
injunction so that it could continue to prepare a proper FONSI reconsideration occurs within a reasonable time after the first
or EIS. The district court itself considered the motion to decision.”); see also Cissell Mfg. Co. v. United States Dep’t
remand as an attempt by the FHWA to dissolve the injunction of Labor, 101 F.3d 1132, 1136 (6th Cir. 1996) (holding in a
and refused to do so, citing the potential for irreparable harm review of an adjudicative proceeding that “[i]t is well settled
to CAPPE. that when an agency makes an error of law in its
administrative proceedings, a reviewing court should remand
It is only if we consider the motion as one to deny the case to the agency so that the agency may take further
modification of the injunction that we even have jurisdiction action consistent with the correct legal standards”).
over an appeal from the district court’s denial of the motion. Accordingly, when an agency seeks a remand to take further
While we generally lack jurisdiction over interlocutory action consistent with correct legal standards, courts should
appeals, 28 U.S.C. § 1292(a)(1) gives this court jurisdiction permit such a remand in the absence of apparent or clearly
over interlocutory orders “granting, continuing, modifying, articulated countervailing reasons. Otherwise judicial review
refusing or dissolving injunctions, or refusing to dissolve or is turned into a game in which an agency is “punished” for
modify injunctions.” 28 U.S.C. § 1292(a)(1); see also procedural omissions by being forced to defend them well
Linville v. Teamsters Misc. & Indus. Workers Union, Local after the agency has decided to reconsider.
284, 206 F.3d 648, 650 (6th Cir. 2000) (treating a motion for
By analogy, courts typically grant an agency’s motion to
remand a case if there has been an intervening change in the
2 law or new evidence. SKF USA Inc. v. United States, 254
CAPPE moved this court to dismiss the instant appeal for lack of
jurisdiction. On February 6, 2003, a motions panel of this court denied F.3d 1022, 1028 (Fed. Cir. 2001) (“A remand is generally
that motion on the ground that the district court’s order of October 1, required if the intervening event may affect the validity of the
2002, was appealable “under 28 U.S.C. § 1292(a)(1) as an order refusing agency action.”); see also Cissell Mfg. Co., 101 F.3d at 1136;
to vacate the prelimina ry injunctio n entered by the district court o f July
17, 2002.” Accordingly we do n ot have before us the district co urt’s
Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993)
denial of the FHW A’s motion to dismiss the suit altogether. (After new evidence was presented to the agency, the court
No. 02-6536 Citizens Against the Pellissippi 9 10 Citizens Against the Pellissippi No. 02-6536
Parkway v. Mineta, et al. Parkway v. Mineta, et al.
granted the motion to remand and stated “[w]e commonly SKF USA, Inc., 254 F.3d at 1029 (emphasis added).3
grant such motions, preferring to allow agencies to cure their
own mistakes rather than wasting the courts’ and the parties’ To be sure, an agency’s reconsideration of its own decision
resources reviewing a record that both sides acknowledge to may in some contexts be unwarranted, or even abusive. As
be incorrect or incomplete.”). the Fifth Circuit indicated in Macktal v. Chao, 286 F.3d 822,
826 (5th Cir. 2002), an “agency may not reconsider its own
Although there is no allegation of new evidence or a change decision if to do so would be arbitrary, capricious, or an abuse
in the law in the present case, the same considerations of of discretion.” And the Federal Circuit recognized in SKF
judicial efficiency apply. As the Federal Circuit in SKF USA USA that
explained in careful dictum, voluntary remand is appropriate
even without a change in the law or new evidence: [a] remand may be refused if the agency’s request is
frivolous or in bad faith. For example, in Lutheran
[E]ven if there are no intervening events, the agency may Church-Missouri Synod v. Fed. Communications
request a remand (without confessing error) in order to Comm’n, 141 F.3d 344, 349 (D.C. Cir. 1998), the Court
reconsider its previous position. It might argue, for of Appeals for the District of Columbia Circuit refused
example, that it wished to consider further the governing the FCC’s “novel, last second motion to remand,” noting
statute, or the procedures that were followed. It might that the remand request was not based on a confession of
simply state that it had doubts about the correctness of error and was instead based on a prospective policy
its decision or that decision’s relationship to the statement which would not bind the FCC. See id. The
agency’s other policies. Here, the reviewing court has court added that “the Commission has on occasion
discretion over whether to remand. See Southwestern employed some rather unusual legal tactics when it
Bell Tel. Co. v. Fed. Communications Comm’n, 10 F.3d wished to avoid judicial review, but this ploy may well
892, 896 (D.C. Cir. 1993) (noting that the court had take the prize.” Id.
previously allowed a remand to the FCC where the FCC
sought voluntary remand “to give further consideration SKF USA, Inc., 254 F.3d at 1029. Similarly, this court
to the matters addressed in the [FCC’s] orders”) . . . ; qualified its recognition of an agency’s inherent authority to
Wilkett v. Interstate Commerce Comm’n, 710 F.2d 861, reconsider by referring to reconsiderations that occur “within
863 (D.C. Cir. 1983) (noting that the court had granted a reasonable time.” Belville, 999 F.2d at 997. These
the Commission’s motion for remand for purposes of limitations recognize that there are “two opposing policies
reconsideration); see also Anchor Line Ltd. v. Fed. [that] immediately demand recognition: the desirability of
Maritime Comm’n, 299 F.2d 124, 125 (D.C. Cir. [1962]) finality, on the one hand, and the public interest in reaching
(noting that “when an agency seeks to reconsider its what, ultimately, appears to be the right result on the other.”
action, it should move the court to remand or to hold the Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316,
case in abeyance pending reconsideration by the 321 (1961) (footnote omitted).
agency”) . . . . [I]f the agency’s concern is substantial
and legitimate, a remand is usually appropriate.
3
None of the cases cited in this passage analyze the decision to grant
or deny an a gency’s motio n to rem and the case .
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CAPPE has not demonstrated any examples of detrimental with instructions to vacate or modify the preliminary
reliance on the previous FONSI that would militate against injunction in accordance with this opinion.
allowing the agency to withdraw the FONSI. The FHWA
cannot be accused of causing needless delay, because this is
not a case in which delay works at all against the interest of
the plaintiff. Indeed, the only apparent advantage to CAPPE
in preventing the remand is the delay involved in forcing the
agency to litigate on a concededly insufficient record.
Instead, undelayed agency reconsideration of the potential
environmental impacts of a project furthers the purpose of
NEPA, which seeks to ensure that federal agencies take a
“hard look” at the environmental consequences of significant
federal actions. Thus, the public interest as well as the
purpose of NEPA would permit an agency to reconsider a
FONSI.
The district court based its denial of the motion to
voluntary remand primarily on its perception of the possible
irreparable injury that would come with a voluntary
remand—namely, the potential that the TDOT would
continue the project on its own without federal funding, thus
making the FHWA and compliance with NEPA irrelevant.
This consideration in no way supports the injunction against
FHWA, however, since state continuation of the project
without federal funding would not implicate NEPA in the first
place. And even if a purely state-funded project were
somehow subject to the federal NEPA, the district court could
simply modify the injunction to allow the FHWA to
reconsider and reissue the relevant NEPA documents while
continuing the injunction in other respects. The district court
could thereby prevent harm to the plaintiffs while conserving
the resources of the parties and the judiciary by not mandating
the complete judicial review of a FONSI that is no longer
issued and that has been acknowledged by the FHWA as
deficient.
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND the case to the district court