Coalition of Concerned Citizens to Make Art Smart v. Federal Transit Administration of U.S. Department of Transportation
843 F.3d 886
10th Cir.2016Background
- The City of Albuquerque proposed the Albuquerque Rapid Transit (ART) project: median rapid-bus lanes and stations along Central Avenue (Route 66 corridor) to replace existing rapid routes; some exclusive lanes and station canopies were planned; most construction within existing right-of-way.
- The City sought FTA federal funding (Small Starts) and engaged in NHPA Section 106 consultation with the New Mexico SHPO; SHPO initially objected to canopies at three stations, the City/FTA removed them and SHPO later concurred no adverse effect.
- The FTA determined the ART project qualified for a NEPA Categorical Exclusion (CE) after reviewing the City’s 1,174-page CE worksheet and related technical supplements; FTA also issued a Letter of No Prejudice allowing limited reimbursable pre-construction spending.
- Plaintiffs (local businesses/property owners and a coalition) sued, alleging NEPA and NHPA violations (among other claims) and sought a preliminary injunction to stop ART construction; they argued FTA’s CE was arbitrary and that the Section 106 process/APE were defective (visual, traffic/diversion, economic, and historic impacts).
- The district court held a three-day evidentiary hearing, denied the preliminary injunction, finding plaintiffs unlikely to succeed on NEPA/NHPA claims, lacked irreparable harm, and that balance of equities/public interest favored the City; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. FTA’s NEPA CE adequacy | FTA failed to take a "hard look" and improperly relied solely on the City’s submissions; controversy and environmental effects require EA/EIS | FTA reviewed City materials, consulted SHPO, addressed comments and technical supplements; CE appropriate | Affirmed: FTA’s CE not arbitrary or capricious; relying on applicant’s studies acceptable where agency independently evaluates them and record shows review |
| 2. Whether public controversy required further NEPA review | Public opposition raised a substantial environmental controversy under CEQ regs (40 C.F.R.) | Comments centered on socioeconomic/access/cost, not on natural/physical environmental impacts; no substantial environmental controversy | Affirmed: public comments were mostly socioeconomic and did not trigger EIS/EA requirement |
| 3. NHPA Section 106 / APE scope and consultation | APE too narrow; FTA/City failed to consider indirect, cumulative, and traffic-diversion effects on historic districts; consultation/public involvement inadequate | FTA and City consulted SHPO, defined APE to capture visual/indirect effects, modified design (removed canopies), and performed outreach consistent with regs | Affirmed: APE and consultation were reasonable; SHPO concurrence supported agency discretion; plaintiffs not likely to show NHPA violation |
| 4. Preliminary injunction factors (irreparable harm, balance, public interest) | Businesses and neighborhoods will suffer irreparable and non-compensable harms (access loss, reduced customers, safety); redesignation of lanes speculative | Economic harms are typically compensable; speculative/uncertain; City can redesignate lanes or mitigate; delay harms to public (safety, cost overruns) weigh against injunction | Affirmed: plaintiffs failed to show irreparable harm or that equities/public interest favor injunction; injunction would harm public interest and increase costs |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (four-factor preliminary injunction standard and NEPA procedural review explained)
- Lee v. Air Force, 354 F.3d 1229 (10th Cir. 2004) (judicial review of agency NEPA decisions is ordinarily limited to the administrative record; extra-record materials allowed only in narrow circumstances)
- Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986) (agencies may rely on applicant-prepared reports but must investigate when such materials are specifically and credibly challenged)
- Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078 (10th Cir. 2004) (APE determinations under NHPA deserve substantial deference to agency expertise)
- Cure Land, LLC v. United States Dep’t of Agric., 833 F.3d 1223 (10th Cir. 2016) (socioeconomic impacts alone generally do not trigger NEPA’s EIS requirement)
- Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) (delay costs in NEPA context may be disregarded if self-inflicted; but likelihood of success on merits changes injunction calculus)