Rohnert Park Citizens to Enforce CEQA v. United States Department of Transportation , 385 F. App'x 759 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROHNERT PARK CITIZENS TO No. 09-15750
ENFORCE CEQA,
D.C. No. 3:07-cv-4607 TEH
Plaintiff - Appellant,
v. MEMORANDUM *
UNITED STATES DEPARTMENT OF
TRANSPORTATION; FEDERAL
HIGHWAY ADMINISTRATION,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted March 11, 2010
San Francisco, California
Before: REINHARDT and BYBEE, Circuit Judges, and GWIN, ** District Judge.
Plaintiff-Appellant Rohnert Park Citizens To Enforce CEQA (“Rohnert Park
Citizens”) appeals the district court’s entry of summary judgment in favor of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
U.S. Department of Transportation and the Federal Highway Administration on
Rohnert Park Citizens’s claim that the federal agencies violated the National
Environmental Policy Act (“NEPA”) when they found that a northern California
highway interchange expansion project would have no significant impact on the
human environment. Rohnert Park Citizens argues that the environmental
assessment for the highway project violated 40 C.F.R. § 1508.25(c)(3) by failing to
adequately consider the cumulative impact on traffic of the highway project in
tandem with an unrelated casino construction project nearby.
We review the district court’s grant of summary judgment de novo and the
environmental assessment’s finding of no significant impact under the
Administrative Procedure Act’s arbitrary and capricious standard. See, e.g., Native
Ecosystems Council v. Dombeck, 304 F.3d 886, 891-92 (9th Cir. 2002). We hold
that given the lack of information about the casino project’s likely effects on
traffic, the environmental assessment’s discussion of the cumulative traffic impact
was not arbitrary or capricious. We therefore affirm the district court’s grant of
summary judgment.
As a threshold matter, the federal agencies’ challenge to Rohnert Park
Citizens’s associational standing to bring this action fails. Linda Long, a Rohnert
Park Citizens member who lives on a street adjacent to the project, has a concrete
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interest in being free from any adverse environmental effects caused by the project.
See, e.g., White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1039 (9th
Cir. 2009). Because Ms. Long “would otherwise have standing to sue in [her] own
right,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 181 (2000), and because the other elements of associational standing are met,
Rohnert Park Citizens has standing to maintain this action on behalf of its
members.
On the merits of this appeal, Rohnert Park Citizens argues that the highway
project’s environmental assessment did not adequately analyze the highway
project’s “incremental impact . . . when added to” the impact of the nearby casino
project, a “reasonably foreseeable future action[].” 40 C.F.R. § 1508.7. The
highway project proposes to create a more direct connection between a local road
and the casino’s doorstep via an underpass. Rohnert Park Citizens claims that the
environmental assessment’s analysis of the potential traffic increase associated
with the highway project was deficient.
We disagree. The environmental assessment used current and projected
traffic data from the city of Rohnert Park to calculate that, due to the city’s traffic
routing plans, the highway project would cause only “an incremental increase to
traffic” at a local intersection. The data took into account potential traffic that
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would be generated by the proposed casino. Although this analysis is admittedly
thin, that shortcoming is the result of meager information about the incipient casino
project, not a failure to adequately analyze available information. At the time of
the environmental assessment’s release in November 2006, the federal agency
responsible for the casino project had not yet issued a draft environmental impact
statement for the casino. The only publicly available information about the casino
project was its proposed location and general attractions. Even today, the casino
has not been built. A NEPA document’s failure to analyze unknown
environmental effects of reasonably foreseeable future actions does not render its
cumulative impacts analysis arbitrary or capricious. See League of Wilderness
Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d
1211, 1220 (9th Cir. 2008); N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969,
976-77 (9th Cir. 2006).
Rohnert Park Citizens’s remaining challenges to the environmental
assessment’s alternatives and comments sections depend entirely on the success of
its cumulative impact challenge. Because that challenge fails for the reasons
above, Rohnert Park Citizens’s remaining challenges also fail.
AFFIRMED.
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