375 F.3d 412 | 6th Cir. | 2004
Before: MARTIN and ROGERS, Circuit Judges; BELL,
N ORMAN Y. M INETA , (cid:45) Chief District Judge. [*] (cid:45) Secretary of the United States (cid:45) Department of Transportation, _________________ (cid:45) official capacity; M ARY (cid:45) COUNSEL P ETERS , Administrator of the (cid:45) Federal Highway (cid:45) ARGUED: John L. Smeltzer, UNITED STATES (cid:45) Administration, official DEPARTMENT OF JUSTICE, Washington, D.C., for (cid:45) capacity; C HARLES B OYD , Appellants. Joe W. McCaleb, Hendersonville, Tennessee, for (cid:45) Division Administrator for the Appellee. ON BRIEF: John L. Smeltzer, UNITED STATES (cid:45) DEPARTMENT OF JUSTICE, Washington, D.C., for Nashville Division, FHWA, (cid:45) Appellants. Joe W. McCaleb, Hendersonville, Tennessee, for official capacity, (cid:45) Appellee. Defendants-Appellants, (cid:45) (cid:45) (cid:45)
J. B RUCE S ALTSMAN , (cid:45) Commissioner of the (cid:45) Tennessee Department of (cid:45) Transportation, individual and (cid:45) official capacities; C HARLES (cid:45) _________________ acquisition of 155 acres of new right-of-way land. ROGERS, Circuit Judge. To comply with the National There is no dispute that the project is a “major Federal Environmental Policy Act (NEPA), the Federal Highway action” subject to the National Environmental Policy Act. Administration (the “FHWA”), in conjunction with federal See 42 U.S.C. § 4332(C); see generally 42 U.S.C. § 4321 et and state agencies, issued a finding of no significant impact seq . NEPA sets forth essentially procedural requirements to (“FONSI”) for a proposed 4.5 mile extension of a highway in assess environmental impacts of major federal actions. See Tennessee. Subsequently, a citizens group opposed to the 42 U.S.C. § 4332(C); Southwest Williamson County Cmty. extension brought suit in federal district court alleging that Ass’n v. Slater , 243 F.3d 270, 278 (6th Cir. 2001). In general, the agency’s finding violated NEPA because it did not
NEPA requires agencies to prepare an Environmental Impact address a specific federal regulation. The district court issued Statement (an “EIS”) for any major federal action that a broad preliminary injunction that prevented state or federal significantly affects the quality of the human environment. agencies from “planning, financing, contracting, land 42 U.S.C. § 4332(C). An EIS provides an extensive acquisition, [or] construction” for the highway extension. In explanation of the environmental impacts of, and possible response, the FHWA withdrew the FONSI and sought a alternatives for, a proposed major federal action. Id . voluntary remand so that it could reconsider its decision. The district court denied the FHWA’s motion for a remand. The Regulations promulgated by the Council on Environmental FHWA now appeals, arguing that it acted properly by Quality, implementing NEPA, require federal agencies to withdrawing the FONSI, that the district court erred in prepare an EIS for any proposed major federal action, unless refusing to modify the injunction to allow the agency to the action is categorically excluded or unless the project reconsider the FONSI, and that the agency is entitled to a would not have a significant impact on the environment. See voluntary remand to consider the regulation that it did not 40 C.F.R. §§ 1500.3, 1501.4. If an agency is unsure as to address in the preparation of the initial FONSI. Because the whether a project would significantly affect the quality of the district court erred in denying the FHWA an opportunity to human environment, an agency may postpone the preparation revisit its decision, we reverse the judgment of the district of an EIS and prepare an Environmental Assessment (an court and remand the case to the district court with “EA”), which briefly provides sufficient evidence and instructions to vacate or modify the injunction so as to allow analysis for determining whether there is a significant the FHWA to comply with NEPA. environmental impact. Id .; 40 C.F.R. § 1508.9. After
analyzing the EA, the agency decides whether to prepare an Tennessee state route 162, the Pellissippi Parkway, EIS or issue a finding of no significant impact. 40 C.F.R. presently runs from state route 62 in Knox County and ends § 1501.4(e); 40 C.F.R. § 1508.13. A FONSI briefly presents at state route 33 in adjacent Blount County. The Tennessee the reasons why an agency action will not create a significant Department of Transportation (the “TDOT”) proposed the environmental impact and why an EIS will not be issued. Pellissippi Parkway Extension Project, which would extend 40 C.F.R. § 1508.13. the Pellissippi Parkway 4.5 miles to relieve congestion in the No. 02-6536 Citizens Against the Pellissippi 5 6 Citizens Against the Pellissippi No. 02-6536
Parkway v. Mineta, et al. Parkway v. Mineta, et al. FHWA regulations in turn guide that agency’s informed the TDOT that the FHWA was suspending federal determination whether to prepare an EIS or an EA and a funding for the project until further notice. Thereafter, the FONSI. These regulations divide FHWA actions into three district court held a hearing on the injunction. During the classes. “Class I” actions “significantly affect the hearing, a TDOT representative informed the district court environment and require an EIS.” 23 C.F.R. § 771.115(a). that the TDOT was seriously considering continuing with the “Class II” actions do not “have a significant environmental project even in the absence of federal funds. On July 17, effect,” and thus do not require an EIS or an EA. 23 C.F.R. 2002, the district court granted CAPPE a preliminary § 771.115(b). The remaining category of Class III actions injunction that stated: encompasses those actions “in which the significance of the all Defendants and their officers, agents, employees, environmental impact is not clearly established.” 23 C.F.R.
servants, attorneys, and all persons in active concert or § 771.115(c). Class III actions necessitate the preparation of participation with them are hereby restrained and an EA “to determine the appropriate environmental document enjoined from continued planning, financing, required.” Id . The FHWA regulations list “examples” of contracting, land acquisition, and construction of a four- Class I projects, and the examples include “(1) A new lane, controlled access highway called the Pellissippi controlled access freeway” and “(2) A highway project of Parkway Extension. . . . pending further order of the four or more lanes on a new location.” 23 C.F.R. Court. § 771.115(a). Over a month later, on August 29, 2002, Boyd informed the
The FHWA issued an EA for the extension project on TDOT that the FHWA was withdrawing the FONSI for the October 3, 2001. Roughly seven months later, on April 24, project. Boyd’s letter to the TDOT stated that the FHWA was 2002, the FHWA issued a FONSI for the project. Neither the
taking “additional administrative actions” on the project, and EA nor the FONSI discussed the apparent Class I nature of as a consequence all federal funds would be suspended from the project. However, the FONSI allowed the project to move the project. The letter also warned the TDOT that if the state forward. 23 C.F.R. § 771.113(a)(1).
were to proceed with the project, the state would “jeopardize On June 7, 2002, a not-for-profit corporation called the the project for future federal-aid funding.” Citizens Against the Pellissippi Parkway Extension, or Subsequently, the FHWA [1] moved the district court for a CAPPE, filed suit against the FHWA and TDOT officials in voluntary remand of the case to the FHWA for further review federal district court to enjoin further action on the project. or to dismiss the case as moot because the FHWA had CAPPE consists of Blount County residents who own withdrawn the FONSI and stopped the federal funding of the property that would be affected by the project. The complaint
project. On October 1, 2002, the district court denied the alleged that because the project fit within Class I of the FHWA regulations, the FONSI needed to explain why an EIS was not needed, in light of the provisions of 23 C.F.R. § 771.115(a). [1] CAPPE sued three federal officials and two Tennessee officials. For convenience, in discussing the p rocedural actions of the parties in this
On June 26, 2002, in response to the lawsuit, Charles S. litigation, we refer to the federal defendants as FHW A and the Tennessee Boyd, the Tennessee Division Administrator for the FHWA, defendants as TDOT. No. 02-6536 Citizens Against the Pellissippi 7 8 Citizens Against the Pellissippi No. 02-6536 Parkway v. Mineta, et al. Parkway v. Mineta, et al. FHWA’s motion because of Tennessee’s expressed desire to a declaratory judgment and the dissolution of an injunction as continue with the project absent federal funding. The FHWA a motion to modify the injunction). filed a motion for reconsideration, but the district court denied that motion as well. The FHWA now appeals. [2] The district court in this case articulated no tenable reason
for continuing injunctive relief against the FHWA. In the The district court improperly failed to vacate or modify the absence of any such reason, it is an abuse of discretion to injunction, because in doing so it precluded the agency from prevent an agency from acting to cure the very legal defects acting to comply with the very statute that formed the basis asserted by plaintiffs challenging federal action. This court for the lawsuit. The injunction essentially prevents the has recognized the inherent authority of an agency to FHWA from all “planning” associated with the project, reconsider a prior decision. Belville Mining Co. v. United including the planning necessary to complete an EIS or States , 999 F.2d 989, 997 (6th Cir. 1993) (“Even where there another FONSI. Although the FHWA’s motion to the district is no express reconsideration authority for an agency, court was styled as a motion for voluntary remand, the motion however, the general rule is that an agency has inherent may appropriately be considered as a motion to modify the authority to reconsider its decision, provided that injunction so that it could continue to prepare a proper FONSI reconsideration occurs within a reasonable time after the first or EIS. The district court itself considered the motion to decision.”); see also Cissell Mfg. Co. v. United States Dep’t remand as an attempt by the FHWA to dissolve the injunction of Labor, 101 F.3d 1132, 1136 (6th Cir. 1996) (holding in a and refused to do so, citing the potential for irreparable harm review of an adjudicative proceeding that “[i]t is well settled to CAPPE. that when an agency makes an error of law in its
administrative proceedings, a reviewing court should remand It is only if we consider the motion as one to deny the case to the agency so that the agency may take further modification of the injunction that we even have jurisdiction action consistent with the correct legal standards”). over an appeal from the district court’s denial of the motion. Accordingly, when an agency seeks a remand to take further While we generally lack jurisdiction over interlocutory action consistent with correct legal standards, courts should appeals, 28 U.S.C. § 1292(a)(1) gives this court jurisdiction permit such a remand in the absence of apparent or clearly over interlocutory orders “granting, continuing, modifying, articulated countervailing reasons. Otherwise judicial review refusing or dissolving injunctions, or refusing to dissolve or is turned into a game in which an agency is “punished” for modify injunctions.” 28 U.S.C. § 1292(a)(1); see also procedural omissions by being forced to defend them well Linville v. Teamsters Misc. & Indus. Workers Union, Local after the agency has decided to reconsider. 284 , 206 F.3d 648, 650 (6th Cir. 2000) (treating a motion for
By analogy, courts typically grant an agency’s motion to remand a case if there has been an intervening change in the F.3d 1022, 1028 (Fed. Cir. 2001) (“A remand is generally
jurisdiction. On February 6, 2003, a motions panel of this court denied required if the intervening event may affect the validity of the that motion on the ground that the district court’s order of October 1, 2002, was appealable “under 28 U.S.C. § 1292(a)(1) as an order refusing agency action.”); see also Cissell Mfg. Co., 101 F.3d at 1136; to vacate the prelimina ry injunctio n entered by the district court o f July
Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993) 17, 2002.” Accordingly we do n ot have before us the district co urt’s (After new evidence was presented to the agency, the court denial of the FHW A’s motion to dismiss the suit altogether. No. 02-6536 Citizens Against the Pellissippi 9 10 Citizens Against the Pellissippi No. 02-6536
Parkway v. Mineta, et al. Parkway v. Mineta, et al. SKF USA, Inc. , 254 F.3d at 1029 (emphasis added). [3] granted the motion to remand and stated “[w]e commonly grant such motions, preferring to allow agencies to cure their
To be sure, an agency’s reconsideration of its own decision own mistakes rather than wasting the courts’ and the parties’ may in some contexts be unwarranted, or even abusive. As resources reviewing a record that both sides acknowledge to the Fifth Circuit indicated in Macktal v. Chao , 286 F.3d 822, be incorrect or incomplete.”).
826 (5th Cir. 2002), an “agency may not reconsider its own Although there is no allegation of new evidence or a change decision if to do so would be arbitrary, capricious, or an abuse in the law in the present case, the same considerations of of discretion.” And the Federal Circuit recognized in SKF judicial efficiency apply. As the Federal Circuit in SKF USA USA that explained in careful dictum, voluntary remand is appropriate [a] remand may be refused if the agency’s request is even without a change in the law or new evidence:
frivolous or in bad faith. For example, in Lutheran [E]ven if there are no intervening events, the agency may Church-Missouri Synod v. Fed. Communications request a remand (without confessing error) in order to Comm’n , 141 F.3d 344, 349 (D.C. Cir. 1998), the Court reconsider its previous position. It might argue, for of Appeals for the District of Columbia Circuit refused example, that it wished to consider further the governing the FCC’s “novel, last second motion to remand,” noting statute, or the procedures that were followed. It might that the remand request was not based on a confession of simply state that it had doubts about the correctness of error and was instead based on a prospective policy its decision or that decision’s relationship to the statement which would not bind the FCC. See id. The agency’s other policies. Here, the reviewing court has court added that “the Commission has on occasion discretion over whether to remand. See Southwestern employed some rather unusual legal tactics when it Bell Tel. Co. v. Fed. Communications Comm’n , 10 F.3d wished to avoid judicial review, but this ploy may well 892, 896 (D.C. Cir. 1993) (noting that the court had take the prize.” Id . previously allowed a remand to the FCC where the FCC
SKF USA, Inc. , 254 F.3d at 1029. Similarly, this court sought voluntary remand “to give further consideration qualified its recognition of an agency’s inherent authority to to the matters addressed in the [FCC’s] orders”) . . . ; reconsider by referring to reconsiderations that occur “within Wilkett v. Interstate Commerce Comm’n , 710 F.2d 861, a reasonable time.” Belville , 999 F.2d at 997. These 863 (D.C. Cir. 1983) (noting that the court had granted limitations recognize that there are “two opposing policies the Commission’s motion for remand for purposes of [that] immediately demand recognition: the desirability of reconsideration); see also Anchor Line Ltd. v. Fed. finality, on the one hand, and the public interest in reaching Maritime Comm’n , 299 F.2d 124, 125 (D.C. Cir. [1962])
what, ultimately, appears to be the right result on the other.” (noting that “when an agency seeks to reconsider its Civil Aeronautics Bd. v. Delta Air Lines, Inc ., 367 U.S. 316, action, it should move the court to remand or to hold the 321 (1961) (footnote omitted). case in abeyance pending reconsideration by the agency”) . . . . [I]f the agency’s concern is substantial and legitimate, a remand is usually appropriate.
No. 02-6536 Citizens Against the Pellissippi 11 12 Citizens Against the Pellissippi No. 02-6536 Parkway v. Mineta, et al. Parkway v. Mineta, et al. CAPPE has not demonstrated any examples of detrimental with instructions to vacate or modify the preliminary reliance on the previous FONSI that would militate against injunction in accordance with this opinion. allowing the agency to withdraw the FONSI. The FHWA cannot be accused of causing needless delay, because this is not a case in which delay works at all against the interest of the plaintiff. Indeed, the only apparent advantage to CAPPE in preventing the remand is the delay involved in forcing the agency to litigate on a concededly insufficient record. Instead, undelayed agency reconsideration of the potential environmental impacts of a project furthers the purpose of NEPA, which seeks to ensure that federal agencies take a “hard look” at the environmental consequences of significant federal actions. Thus, the public interest as well as the purpose of NEPA would permit an agency to reconsider a
FONSI.
The district court based its denial of the motion to voluntary remand primarily on its perception of the possible irreparable injury that would come with a voluntary remand—namely, the potential that the TDOT would continue the project on its own without federal funding, thus making the FHWA and compliance with NEPA irrelevant. This consideration in no way supports the injunction against FHWA, however, since state continuation of the project without federal funding would not implicate NEPA in the first place. And even if a purely state-funded project were somehow subject to the federal NEPA, the district court could simply modify the injunction to allow the FHWA to reconsider and reissue the relevant NEPA documents while continuing the injunction in other respects. The district court could thereby prevent harm to the plaintiffs while conserving the resources of the parties and the judiciary by not mandating the complete judicial review of a FONSI that is no longer issued and that has been acknowledged by the FHWA as deficient.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case to the district court
NOTES
[*] (cid:45) B USH , Manager of The Ho norable R obe rt Ho lmes B ell, Chief United States District Judge for the Western District of Michigan, sitting by designation. 1 No. 02-6536 Citizens Against the Pellissippi 3 4 Citizens Against the Pellissippi No. 02-6536 Parkway v. Mineta, et al. Parkway v. Mineta, et al. _________________ Smoky Mountain gateway towns of Maryville and Alcoa. The project calls for the construction of a four-lane limited OPINION access highway with a grassy median, and would require the
[2] law or new evidence. SKF USA Inc. v. United States , 254 CAPPE moved this court to dismiss the instant appeal for lack of
[3] None of the cases cited in this passage analyze the decision to grant or deny an a gency’s motio n to rem and the case .
