Latin Americans for Social & Economic Development v. Administrator of the Federal Highway Administration
2014 U.S. App. LEXIS 11619
| 6th Cir. | 2014

Background

  • This appeal challenges the FHWA’s January 2009 Record of Decision (ROD) selecting the Delray (X-10B) site in Detroit for a new U.S.–Canada international bridge (DRIC). Plaintiffs: community groups tied to Delray and the private Detroit International Bridge Company (Bridge Company), owner of the existing Ambassador Bridge.
  • Plaintiffs alleged NEPA, APA, NHPA, Section 4(f), and environmental justice violations; the district court affirmed the ROD and denied motions to (fully) supplement the administrative record (AR). This panel affirms.
  • The DRIC process (2001–2009) was binational (U.S./Canada Partnership), involved extensive public outreach, traffic and environmental studies, and generated a DEIS (2008) and FEIS (Dec. 2008) before the ROD.
  • Alternatives analysis began with 16 illustrative sites (X-1 to X-16), narrowed to practical alternatives (X-10A, X-10B, X-11). Illustrative alternative X-12 (Ambassador Bridge twinning / Bridge Company proposal) was not advanced for multiple reasons.
  • Agency considered ownership/governance options (public, private, PPP, bi-national authority) and concluded on government ownership with private-sector participation after public review; Bridge Company argued FHWA pre-committed to public ownership.
  • Key contested points: (1) whether FHWA pre-committed to public ownership; (2) elimination of X-12 and alleged deference to Canada; (3) characterization of the “no-build” alternative (extent of Ambassador Bridge availability); (4) use of traffic forecasts; (5) adequacy of environmental justice analysis; (6) whether the district court abused discretion by refusing to supplement the AR with Canadian/Transport Canada documents.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Pre-commitment to public ownership FHWA pre-committed to a government-owned bridge without analysis or notice FHWA considered ownership models publicly throughout process and selected public ownership after study No pre-commitment; FHWA considered options and acted consistently with NEPA (no violation)
Elimination of X-12 (Ambassador twinning) FHWA deferred to Canada and failed to give X-12 a hard look; improper elimination FHWA independently evaluated X-12, identified U.S. and Canadian impacts, and reasonably excluded X-12 as impractical/non-redundant FHWA gave X-12 a sufficient hard look; consideration of Canada’s objections was permissible and not arbitrary
“No-build” alternative characterization FHWA used a scenario where Ambassador Bridge would be taken out of vehicular service (net +2 lanes) instead of a scenario where both bridges would operate (net +6 lanes) Bridge Company’s statements about keeping Ambassador open were inconsistent; FHWA reasonably modeled the no-build used in the FEIS FHWA’s no-build framing was reasonable; NEPA does not require the agency to adopt plaintiff’s preferred hypothetical
Use of traffic forecasts FHWA relied on older forecasts and failed to incorporate newer data showing lower growth FHWA considered updated forecasts, concluded they did not change the project’s purpose/need FHWA adequately considered updated traffic data; no NEPA violation

Key Cases Cited

  • Friends of Tims Ford v. Tennessee Valley Authority, 585 F.3d 955 (6th Cir. 2009) (NEPA review via the APA; standing/zone-of-interests discussion)
  • Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir. 2006) (NEPA procedural requirements and review principles)
  • Sierra Club v. Slater, 120 F.3d 623 (6th Cir. 1997) (ROD as final agency action; AR limitation principles)
  • Meister v. U.S. Dep’t of Agriculture, 623 F.3d 363 (6th Cir. 2010) (de novo review of district court’s APA/NEPA determinations)
  • Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (U.S. 1989) (NEPA is procedural, not results-driven)
  • Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (arbitrary and capricious review and limits on extra-record materials)
  • Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard requires reasoned explanation)
  • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (U.S. 1978) (agency discretion over procedure and scope of NEPA alternatives)
  • Kentuckians for the Commonwealth v. United States Army Corps of Engineers, 746 F.3d 698 (6th Cir. 2014) (environmental justice and NEPA review)
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