Protecting Arizona's Resources v. Fhwa
16-16586
| 9th Cir. | Dec 8, 2017Background
- Appellants (PARC, advocacy groups, and the Gila River Indian Community) challenged federal and state agencies' approval of the Loop 202 South Mountain Freeway, claiming violations of NEPA and Section 4(f).
- District court granted summary judgment to the Federal Highway Administration, FHWA Arizona Division Administrator, and Arizona DOT; Appellants appealed to the Ninth Circuit.
- The agencies prepared a Final Environmental Impact Statement (FEIS) addressing purpose and need, an alternatives screening process conducted over many years, a no-action scenario, air quality and MSAT analyses, mitigation measures, and Section 4(f) evaluation regarding South Mountain Park Preserve (SMPP) and GRIC resources.
- Agencies used regional planning inputs (MAG socioeconomic and travel forecasts) and FHWA/EPA modeling for air quality and MSAT; they performed a quantitative hot-spot analysis and concluded no violations of NAAQS or MSAT thresholds.
- Agencies identified mitigation measures, a Programmatic Agreement for cultural resources/Section 106 compliance, and contractual protections for GRIC wells; they reserved ability to prepare a supplemental EIS if future alignment changes cause significant unforeseen impacts.
- Ninth Circuit reviewed de novo the district court order but applied the Administrative Procedure Act’s deferential standard to agency substantive actions and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of purpose-and-need statement under NEPA | Purpose-and-need was too narrow or flawed | Statement based on population, housing, employment, VMT, capacity needs and regional plans is appropriate | Court: Agency given considerable discretion; purpose-and-need complied with NEPA |
| Reasonableness of alternatives analysis (including no-action) | Agencies failed to consider reasonable/non-freeway alternatives and improperly screened out options | Multi-variable, long-term screening (three western alignments, one eastern, no-action) and MAG forecasts supported elimination decisions | Court: EIS adequately analyzed alternatives and non-action was reasonably modeled using MAG projections |
| Hazardous-materials risk, children’s health, air quality, and MSAT analysis | Agencies did not sufficiently analyze hazardous spills, near-roadway MSAT, or impacts to children | Probability of hazardous spills is low; existing regs/coordination mitigate risk; FHWA/EPA modeling and hot-spot/MSAT analyses show no NAAQS/MSAT violations; NAAQS protect sensitive populations | Court: Discussion was sufficient; speculative harms need not be fully analyzed; air quality/MSAT analyses and conformity findings were adequate |
| Section 4(f) compliance and mitigation for SMPP and GRIC wells | Agencies could have shown feasible/prudent avoidance alternatives and better mitigation planning | FEIS showed alternatives avoiding SMPP were not feasible/prudent; planning to minimize harm and Programmatic Agreement, plus binding contractor protections for GRIC wells, were sufficient | Court: Agencies permissibly found no feasible/prudent avoidance of SMPP, conducted required minimization planning, and provided adequate protections/commitments; Section 4(f) satisfied |
Key Cases Cited
- Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853 (9th Cir. 2004) (standard for appellate review of district court NEPA determinations)
- Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (9th Cir. 2005) (APA standard governs review of agency NEPA compliance)
- HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222 (9th Cir. 2014) (agency discretion in defining purpose and need; Section 4(f) analysis guidance)
- City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9th Cir. 1997) (scope of alternatives analysis under NEPA)
- Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517 (9th Cir. 1994) (mitigation discussion requirements under NEPA)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA requires discussion of means to avoid adverse effects but not remote/speculative impacts)
- San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016 (9th Cir. 2006) (no need to analyze highly speculative environmental consequences)
- Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671 (9th Cir. 2016) (agency reliance on regional planning data may be reasonable)