Protecting Arizona's Resources v. Fhwa ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PROTECTING ARIZONA’S No. 16-16586
RESOURCES AND CHILDREN;
FOOTHILLS COMMUNITY D.C. Nos. 2:15-cv-00893-DJH
ASSOCIATION; FOOTHILLS CLUB 2:15-cv-01219-DJH
WEST COMMUNITY ASSOCIATION;
CALABREA HOMEOWNERS
ASSOCIATION; SIERRA CLUB; MEMORANDUM*
PHOENIX MOUNTAINS
PRESERVATION COUNCIL; DON’T
WASTE ARIZONA, INC.; GILA RIVER
ALLIANCE FOR A CLEAN
ENVIRONMENT,
Plaintiffs-Appellants,
and
GILA RIVER INDIAN COMMUNITY,
Plaintiff,
v.
FEDERAL HIGHWAY
ADMINISTRATION; KARLA PETTY, in
her official capacity as the Arizona
Division Administrator of the Federal
Highway Administration; ARIZONA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
DEPARTMENT OF
TRANSPORTATION,
Defendants-Appellees.
GILA RIVER INDIAN COMMUNITY, No. 16-16605
Plaintiff-Appellant, D.C. Nos. 2:15-cv-00893-DJH
2:15-cv-01219-DJH
and
PROTECTING ARIZONA’S
RESOURCES AND CHILDREN;
FOOTHILLS COMMUNITY
ASSOCIATION; FOOTHILLS CLUB
WEST COMMUNITY ASSOCIATION;
CALABREA HOMEOWNERS
ASSOCIATION; SIERRA CLUB;
PHOENIX MOUNTAINS
PRESERVATION COUNCIL; DON’T
WASTE ARIZONA, INC.; GILA RIVER
ALLIANCE FOR A CLEAN
ENVIRONMENT,
Plaintiffs,
v.
FEDERAL HIGHWAY
ADMINISTRATION; KARLA PETTY, in
her official capacity as the Arizona
Division Administrator of the Federal
Highway Administration; ARIZONA
DEPARTMENT OF
TRANSPORTATION,
2
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted October 19, 2017
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,** District
Judge.
Protecting Arizona’s Resources and Children (“PARC”), additional
advocacy groups, and the Gila River Indian Community (“GRIC”) (hereinafter
“Appellants”) appeal the district court’s order granting the Federal Highway
Administration’s, et al. (hereinafter “Appellees”) motion for summary judgment.
Appellants claim that Appellees’ evaluation and subsequent approval of the Loop
202 South Mountain Freeway (“South Mountain Freeway”) violates the National
Environmental Policy Act (“NEPA”) and Section 4(f) of the Department of
Transportation Act. We have jurisdiction under 28 U.S.C. § 1291 and review the
district court’s order de novo. See Westlands Water Dist. v. U.S. Dep’t of Interior,
376 F.3d 853, 865 (9th Cir. 2004). Our review of Appellees’ compliance with
NEPA and Section 4(f) of the Transportation Act is governed by the deferential
**
The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
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standard of the Administrative Procedure Act, 5 U.S.C. § 701!06. See Ocean
Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir. 2005).
Amici’s argument for a “heightened standard of impact assessment because
American Indian populations are affected” has been waived, as it was neither
briefed nor raised by Appellants or Appellees. See Zango, Inc. v. Kaspersky Lab,
Inc., 568 F.3d 1169, 1176 n.8 (9th Cir. 2009).
An environmental impact statement (“EIS”) should “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. Appellees’
purpose and need statement examined projected population growth, housing
demand, employment growth, transportation mileage, and transportation capacity
deficiencies. These metrics were then used to establish the “underlying purpose
and need” and to determine whether a previously proposed freeway was still
necessary. See Honolulutraffic.com v. Fed. Transit Admin., 742 F.3d 1222,
1230!31 (9th Cir. 2014) (upholding a purpose and need statement based on
objectives previously identified in a Transportation Plan). The Ninth Circuit
provides agencies “considerable discretion” when defining the purpose and need of
a project. Id. at 1230 (quoting Nat’l Parks & Conservation Ass’n v. Bureau of
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Land Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010)). Under this standard,
Appellees’ purpose and need statement complied with NEPA.
An EIS must analyze reasonable or feasible alternatives to the proposed
freeway project. City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d
1142, 1155 (9th Cir. 1997) (citing 40 C.F.R. § 1502.14(a)!(c)). It is not required
to consider an infinite range of alternatives. Id. Appellees used a multivariable
screening process to evaluate reasonable alternatives over the course of thirteen
years. Appellees identified three alignment alternatives for the Western Section of
the freeway, one alignment alternative for the Eastern Section of the freeway, and a
no-action alternative for detailed study. Appellees utilized the “Modal Method” to
evaluate each non-freeway alternative, ultimately concluding that the non-freeway
alternatives would not address an adequate percentage of the transportation
capacity need. When Appellees eliminated an alternative from detailed study they
provided reasons for the elimination. 40 C.F.R. § 1502.14. We therefore conclude
that Appellees’ EIS complied with NEPA in its analysis of alternatives.
A no-action alternative may consider the impact of “continuing with the
present course of action until that action is changed.” Ass’n of Pub. Agency
Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir. 1997)
(quoting 46 Fed.Reg. 18026, 18027). Appellees’ no-action alternative analysis
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assumed that “[e]xisting residential land use patterns and trends would be
maintained,” and then modeled the effects if the freeway were not built. See
Carmel-By-The-Sea, 123 F.3d at 1162!63. Planning agencies may rely on state
assessments in drafting an EIS, see Laguna Greenbelt, Inc. v. U.S. Dept. of
Transp., 42 F.3d 517, 525!27 (9th Cir. 1994); HonoluluTraffic.com, 742 F.3d at
1231, to generate growth predictions. Appellees used a transportation planning
report previously issued by the Maricopa County Association of Governments
(“MAG”). The MAG report assumes some future expansion of highways, but does
not explicitly rely on the “preferred alternative.” Because Appellees explained the
basis for their decision to rely upon the socioeconomic projections of the MAG
report and disclosed their reliance on the projections, we conclude that their
examination of the no-action alternative was not arbitrary or capricious. See
Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 679 (9th Cir. 2016).
Though Appellees declined to analyze the potential impact of a hazardous
materials spill, their discussion of hazardous spills was sufficient. An EIS must
“discuss the extent to which adverse effects can be avoided,” and must include
“sufficient detail to ensure that environmental consequences have been fairly
evaluated.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351!52
(1989). However, an EIS need not discuss the potential environmental
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consequences of adverse effects that are remote or highly speculative. San Luis
Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 449 F.3d 1016, 1030
(9th Cir. 2006). Appellees determined that “the probability of a spill of hazardous
cargo is low,” and discussed the extent to which a hazardous spill could be avoided
or mitigated. Appellees noted that the potential for such an accident already exists
for portions of the Phoenix metropolitan areas and is governed by existing
regulations. Appellees outlined Arizona’s Department of Transportation’s
(“ADOT”) coordination with emergency services providers responsible for
responding to such spills, and Appellees discussed ADOT’s ongoing assessment
and evaluation of hazardous material restrictions.
Appellees adequately considered the proposed freeway’s potential impact on
children’s health. We give deference to an agency’s judgment when the agency
undertakes “technical scientific analysis.” Idaho Wool Growers Ass’n v. Vilsack,
816 F.3d 1095, 1107 (9th Cir. 2016). Appellees performed the conformity
analyses mandated by the Clean Air Act, 42 U.S.C. § 7506(c), and concluded that
the proposed freeway project would not exceed National Ambient Air Quality
Standards (“NAAQS”) standards throughout the Study Area. Because NAAQS are
set at levels designed to protect sensitive populations, including children,
Appellees concluded the South Mountain Freeway would cause no negative health
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impact on the general population in the Study Area. In coming to this conclusion,
Appellees produced a full Air Quality Technical Report, and performed a
quantitative “hot spot” analysis for particulate matter (“PM10”) and carbon
monoxide (“CO”). “The hot-spot analysis show[ed] that the Preferred Alternative
would not cause new violations of the PM10 and CO NAAQS, exacerbate any
existing violations of the standard, or delay attainment of the standards or any
required interim milestones.” Final Environmental Impact Statement (“FEIS”) at
4!75 (citing 40 C.F.R. § 93.116(a)).
Appellees adequately analyzed Mobile Source Air Toxic (“MSAT”)
emissions, in compliance with NEPA. Appellees’ MSAT analysis conformed to
the FHWA’s guidance for roadway projects. Appellees modeled MSAT emissions
using the EPA’s latest model, documented the Freeway Project’s MSAT impacts in
the Study Area and two subareas, and provided reasoning for their determination
that an analysis of near-roadway emissions was not necessary.
Appellees adequately considered mitigation measures. An EIS should
disclose any environmental effects that cannot be avoided and discuss the extent to
which steps can be taken to mitigate adverse environmental consequences. Laguna
Greenbelt, 42 F.3d at 528 (9th Cir. 1994) (citing Methow Valley Citizens Council,
490 U.S. at 351!52). Appellees’ FEIS proposes several project-specific mitigation
8
measures to address any direct impacts, cumulative impacts, and secondary
impacts from the freeway project. Chapter 4 of the FEIS discusses the South
Mountain Freeway’s potential impact on biological resources and the contiguous
nature of the community. Appellees’ FEIS proposes mitigation measures to reduce
the amount of dust and noise pollution generated from the construction of the
freeway project, including the use of watering trucks, windbreaks, dust
suppressants and rubberized asphalt. The FEIS examines the wildlife located in
the Study Area and discloses that the South Mountain Freeway will fragment the
habitats of many species. The FEIS explains that the freeway project will enhance
bridges and drainage structures to maintain wildlife connectivity in the affected
area. The FEIS also examines the potential displacement of households and
businesses, proposing, advisory services for displaced residents, rental assistance
for eligible individuals, and land acquisition and relocation assistance pursuant to
the Uniform Relocation Act, 42 U.S.C. §§ 4601, et seq., among other measures.
“NEPA does not require a fully developed plan that will mitigate all environmental
harm before an agency can act; NEPA requires only that mitigation be discussed in
sufficient detail to ensure that environmental consequences have been fully
evaluated.” Laguna Greenbelt, 42 F.3d at 528 (citing Methow Valley Citizens
Council, 490 U.S. at 352). The record thus does not bear out the contention that
9
the fifteen percent design level hindered Appellees from sufficiently detailing and
discussing mitigating measures.
Appellees permissibly determined there was no feasible and prudent
alternative to the South Mountain Park Preserve (“SMPP”) route of the project, in
compliance with Section 4(f). An agency’s Section 4(f) evaluation “shall include
sufficient supporting documentation to demonstrate why there is no feasible and
prudent avoidance alternative and shall summarize the results of all possible
planning to minimize harm to the Section 4(f) property.” 23 C.F.R. § 774.7(a).
Chapter 5 of the FEIS identifies the Section 4(f) properties within the Study Area,
describes alternatives that avoid the Section 4(f) properties aside from the SMPP,
and concludes that all alternatives avoiding the SMPP are not feasible or prudent.
The FEIS further concludes that the no-action alternative will not meet the freeway
project’s purpose and need and, as a result, is not prudent. HonoluluTraffic.com,
742 F.3d at 1232 (quoting 23 C.F.R. § 774.17) (explaining that an alternative is not
prudent if, among other things it compromises the project’s ability to address the
purpose and need to an unreasonable degree). The FEIS determines that
alternatives north of South Mountain, including US 60 extension to 1-10, US 60
extension to I-17, and I-10 spur, would adversely affect portions of I-10, US 60,
SR 101L, and SR 202L and would cause extensive displacement, in addition to not
10
meeting the project’s purpose and need. It concludes that alternatives south of
GRIC land, including the SR 85/I-8 alternative, were neither feasible nor prudent
because of their connecting distance from downtown Phoenix. Finally, because
about two-thirds of the Riggs Road alternative would cut through GRIC land and
GRIC would not allow development on its land, the FEIS determines the Riggs
Road alternative is neither feasible nor prudent.
Appellees conducted planning to minimize harm to the SMPP, related
cultural resources, and the GRIC well sites. “[A]ll possible planning to minimize
harm” must be conducted for 4(f) compliance. 49 U.S.C. § 303(c)(2). The record
bears out that Appellees’ fifteen percent design completion did not hinder them
from conducting such necessary planning. Chapter 5 of the FEIS details measures
to minimize harm to the SMPP, including fencing off sacred areas, providing an
alignment for community access, and consulting with GRIC members during the
design phase to continue to attempt to reduce the SMPP land needed for the South
Mountain Freeway. Appellees also document that they entered into a
Programmatic Agreement that documents “legally binding commitments to the
proper treatment and management of cultural Section 4(f) resources and by Section
106” of the National Historic Preservation Act. See HonoluluTraffic.com, 742
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F.3d at 1234 (citing 73 Fed.Reg. 13368-01, 13379-80 (2008) (recommending such
an agreements as “appropriate and desirable”)).
Finally, the FEIS contains a thorough discussion of the South Mountain
Freeway’s potential impacts to GRIC groundwater wells. Appellees included in
the design and construction contract a binding agreement that requires the
contractor to “avoid and preserve the GRIC well properties, GRIC’s legal access to
GRIC well properties, and the water, wells, pipes, and ditches located therein.”
Further, pursuant to 23 C.F.R. §§ 771.129 and 771.130, Appellees may re-evaluate
and, if necessary, prepare a supplemental EIS if any alterations to the freeway
alignment due to avoidance of the wells would result in significant environmental
impacts that were not previously evaluated.
AFFIRMED.
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