Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA COMMITTEE OF 100 ON THE
FEDERAL CITY,
Plaintiff,
Case No. 1:14-cv-01903 (CRC) v.
ANTHONY FOXX, et al.,
Defendants. MEMORANDUM OPINION
The nation’s transportation infrastructure, especially in its cities, is rapidly deteriorating. But making the necessary improvements can be disruptive and harmful to the environment if not done properly. It thus falls to government to shepherd the modernization of our roads, bridges, and tunnels without unduly diminishing the quality of life and well-being of affected residents. The tension between these often competing aims is what animates this case.
At issue is the Virginia Avenue Tunnel (“VAT”), a 111-year-old rail tunnel that runs for approximately nine blocks under the Capitol Hill neighborhood in the center of Washington, D.C. The tunnel is an integral link in a rail network that serves the mid-Atlantic and mid- western United States. Yet due to its age, the tunnel is ill-equipped to accommodate 21st century freight traffic: It is too narrow for two parallel tracks; it is not high enough for trains carrying modern, double-stacked shipping containers; it floods often and requires frequent repairs; and its earthen foundation requires trains to travel well below their normal speeds. These deficiencies have combined to make the tunnel, in the opinion of a coalition of Washington-area government leaders, “one of the most significant freight bottlenecks on the East Coast.” Metropolitan Washington Council of Governments, Transportation Improvement Program for the Metropolitan *2 Washington Region: FY 2013-2018, at D-1 (2012). And because passenger trains pass just to the west of the tunnel to access Washington’s Union Station, the bottleneck causes passenger rail delays as well.
CSX Transportation, Inc. (“CSXT”), which owns the Virginia Avenue Tunnel and much of the associated rail network, would like to renovate and expand the capacity of the tunnel as part of a regional railway improvement program. The tunnel renovation project has been almost five years in the making, and CSXT estimates that construction will take 30 to 42 months to complete. The federal government, the District of Columbia government, AMTRAK, and a range of regional government representatives support reconstruction of the tunnel.
The same cannot be said of the Committee of 100 on the Federal City (the “Committee”),
a non-profit organization dedicated to urban planning and historic preservation in the
Washington, D.C. area. Part of the Committee’s opposition to the reconstruction undoubtedly
stems from broader concerns over CSXT’s movement of hazardous materials through
Washington, D.C., so close to our halls of government and national monuments, which has been
a topic of much public debate and litigation in recent years. In 2005, the District of Columbia
City Council passed an act that would have forbidden the rail shipment of “explosives,
flammable gases, poisonous gases and other poisonous materials” within 2.2 miles of the United
States Capitol Building. CSX Transp. v. Williams,
The focus of the Committee’s suit here is more limited. It contends the District of Columbia Department of Transportation (“DDOT”) and the United States Department of Transportation, through the Federal Highway Administration (“FHWA”), violated the National Environmental Policy Act in numerous respects by failing adequately to assess the potential environmental harms of the proposed reconstruction. The agencies’ environmental review and resulting final Environmental Impact Statement were deficient, the Committee alleges, because they improperly committed themselves to the project before completing the review, understated or ignored potential environment risks, and failed to consider in detail alternatives to the chosen project that called for rerouting trains around the city.
Before the Court is an application by the Committee for a preliminary injunction prohibiting DDOT from issuing the necessary permits for reconstruction of the tunnel to begin. The bar for obtaining a preliminary injunction pending resolution of a suit on the merits is high, and the Court concludes that it has not been cleared here. On the record before the Court, the Committee has not established that its suit is likely to succeed on the merits. Nor has it shown that the potential environmental harm of reconstruction outweighs the public benefit from modernizing the tunnel. The Court will, accordingly, deny the Committee’s application.
I. Background [1]
A. The Virginia Avenue Tunnel Completed in 1904, the Virginia Avenue Tunnel passes under the Capitol Hill neighborhood of Washington, D.C., from 2nd Street to 11th Street Southeast. Final *4 Environmental Impact Statement (“FEIS”) at S-1. It runs beneath Virginia Avenue Southeast and parallel to, and just south of, Interstate 695 (formerly I-295). Its western portal emerges four blocks from the U.S. Capitol Building. Id. at 1-2. The tunnel is constructed of masonry and its rails sit atop crushed stone on a dirt floor. Id at 2-3, 2-4. Although the tunnel is functional, it requires frequent inspection and repair. Id. at 2-3. Its walls are flaking, its mortar is deteriorating, and the dirt floor floods frequently due to poor drainage. Id. at 2-4. The recurrent repairs cause significant backups in rail traffic. Id. at 2-3. The soft foundation of the tunnel also limits the speeds of passing trains. Id. at 2-4, 2-5.
The VAT and the rail tracks that pass through it are owned by CSXT and comprise part of a CXST freight rail corridor that runs between the East Coast and West Virginia, Pennsylvania, Ohio, Indiana, and Illinois. Even when it is performing at top capacity, the VAT is a choke point in the CSXT system. Id. at S-3. Although the VAT used to contain two railroad tracks, with changes in modern railway technology it now has room for just one. Id. at 2-1. Freight on much of the rest of the network travels on two tracks, including both before and after the VAT. Id. at 1-4. Due to the single track, trains often must idle outside the tunnel, waiting for oncoming trains to clear the tunnel so they can pass single-file. Id. at 2-2. Passenger trains traveling to and from Washington’s Union Station share the tracks just west of the VAT with freight trains. A tunnel shutdown or backup in idling trains therefore causes cascading delays for passenger travel as well. Id. at 1-5. The VAT also lacks sufficient vertical clearance to accommodate “double-stacking” of intermodal freight containers—a relatively recent practice that doubles the capacity of each train. Id. at S-3.
B. The National Gateway Initiative In 2010, CSXT launched the $842 million National Gateway Initiative with the central purpose of ensuring dual tracks and enabling double-stacking of containers throughout its rail system. Appl. Prelim. Inj. Ex. 3, at 2. The proposed expansion of the VAT, discussed in more detail below, accounts for approximately $160 million of the total cost of the initiative. Id. Ex. 5. These investments were spurred by projections that the nation’s rail freight volume will increase by up to 50 percent by 2040. 77 Fed. Reg. 25,781, 25,782. Much of this increase is expected to result from the anticipated expansion of the Panama Canal, which would enable larger intermodal container ships that previously docked at West Coast ports to reach the East Coast and the Gulf of Mexico. FEIS at 2-6.
Due to its potential to increase rail freight capacity, reduce the need for shipping freight by truck, and limit passenger rail delays, expansion of the VAT is supported by a wide range of transportation authorities, as reflected by its inclusion in the Northeast Corridor Infrastructure Master Plan, a set of recommendations for regional transportation improvements issued by AMTRAK, the Federal Railroad Administration, and the twelve states in the Northeast Corridor. NEC Master Plan Working Group, Northeast Corridor Infrastructure Master Plan (2010), available at http://bit.ly/1sZRYWE. Reconstruction is also supported by some neighborhood groups, including the Capitol Hill Southeast Advisory Neighborhood Commission. ROD App. C-14, C-16.
In furtherance of the National Gateway Initiative, CSXT and the DDOT entered into a series of agreements, which are described in further detail below. See infra, III.B.1.b. In an August 2010 agreement, DDOT agreed to support the initiative and to redesign ongoing reconstruction of the 11th Street Bridge—which sits near the eastern portal of the tunnel—so as *6 not to preclude expanding the VAT. Appl. Prelim. Inj. Ex. 13 at 2–4. In exchange, CSXT agreed to relocate a communication tower near the 11th Street Bridge and pay DDOT (subject to a credit) $4,171,044 to offset the cost of the bridge redesign. Id.; Appl. Prelim. Inj. Ex. 13 at 2. In a December 2012 agreement, DDOT promised to issue permits for the VAT reconstruction, conditioned on the project receiving NEPA approval, and to “provide oversight of the EIS process.” Appl. Prelim. Inj. Ex. 19 at 1–2. DDOT later issued CSXT public right-of-way occupancy permits to enable construction activities to begin in the event of NEPA approval. Id. Exs. 15, 17. And in October 2013, DDOT received an option to make an offer to purchase a five-mile tract of unused railway line owned by CSXT elsewhere in the city. Id. Ex. 14 at 1–2. The option was conditioned on CSXT obtaining the necessary permits to undertake the VAT reconstruction. Id. at 3.
C. Preparation of the Environmental Impact Statement Because reconstruction of the VAT would require the temporary closure of ramps to Interstate 695, which is federal property, the project requires federal approval. Record of Decision (“ROD”) at 1. FWHA, which oversaw the approval process, decided a full environmental impact statement (“EIS”) was needed in order to assess the environmental impacts of construction before it could grant approval. Compl. ¶ 40, 77 Fed. Reg. 25,781. FHWA, as the lead agency, and DDOT, as joint lead agency, oversaw an extensive environmental review process beginning in the summer of 2011. Compl. ¶¶ 39–40. DDOT consulted and met with elected officials and various local and federal agencies responsible for historic preservation, housing and community development, and environmental protection, including the Environmental Protection Agency (“EPA”), the Fish and Wildlife Service, the D.C. Department of Housing and Community Development, and the State Historic Preservation Office. FEIS at 7- *7 1 to 7-4. Before issuing the draft EIS, the agencies hosted four public meetings, made information available online, and solicited written comments. Id. at 7-9 to 7-11. They considered twelve possible design concepts—a no-action scenario, seven “build options,” and four options that would have rerouted trains around the city.
The draft EIS was issued on July 12, 2013. DDOT presented the draft at a public meeting, which a FHWA representative attended, and extended the public comment period by 30 days. Id. at 7-12 to 7-13; Transcript, July 31, 2013, available at
http://www.virginiaavenuetunnel.com/sites/default/files/VAT_Public_Meeting_Transcript_Reda cted_102513_1.pdf. Over one hundred individuals and organizations—including the Committee—provided written comments on the draft EIS. FEIS at 7-13; Compl. ¶ 43; Appl. Prelim. Inj. Ex. 10.
The final EIS was approved almost a year later, on June 5, 2014. The document outlined the purpose and need of the project, the alternatives considered, the affected environment, the potential environmental consequences of the various alternatives, and the historic properties affected by the project. It also incorporated a detailed study of the historical uses of the land (in order to understand what hazardous industrial substances might be disturbed by excavation), and various engineering specifications. The EIS attached 700 pages of public comments and agency responses. FEIS App. L. Altogether, the EIS spanned six volumes, 13 appendices, and over 2,500 pages. It analyzed four alternative scenarios in detail: a no-action scenario and three alternative design concepts that maintained freight traffic through downtown Washington, D.C. The EIS discussed and eliminated eight options: four other options for rebuilding the tunnel and four options that involved rerouting most or all freight around the city entirely. FEIS at 3-44. All of the “reroute” options required the construction of either a new, longer tunnel under the *8 city or a new bridge crossing the Potomac River well south of Washington, D.C. Id. at 3-45, 3- 58, 3-60. The agencies and CSXT held two more public meetings in July 2014 and solicited further comments. ROD at 3.
D. The Preferred Alternative The EIS ultimately endorsed what it called “Alternative 3” or the “Preferred Alternative,” one of the build options. FEIS at 3-2. FWHA’s Record of Decision, issued November 4, 2014, responded to comments to the EIS and affirmed the selection of the Preferred Alternative. ROD at 45 & App. C. In the Preferred Alternative, a new parallel tunnel will be built on the south side of the existing tunnel. ROD at 3. When that tunnel is complete, trains will switch to the new tunnel while the existing tunnel is demolished and rebuilt. Id. The result will be two adjacent tunnels separated by a center wall in a slightly larger footprint. Id. The tunnels will be built on a concrete base and include security enhancements. Id. at 8. Theoretically, the double track will reduce delays, and the increased clearance will permit fewer double-stacked trains to carry projected freight volumes of the next twenty-five years. FEIS at S-4.
The Preferred Alternative will take approximately 30 to 42 months to finish. Id. at S-32. During that time, residents can expect to experience noise, dust, and vibration from the construction activity. Crews will be excavating, demolishing, and rebuilding the tunnel using jack hammers, pile drivers, and other heavy equipment. Id. at 5-20. Heavy trucks will be bringing material in and debris out, and concrete mixers and generators will be employed on site. Id. at 5-20, 5-27. The EIS predicts that construction noise intermittently will exceed current ambient noise levels by up to 18 decibels. Id. at 5-27, 5-30. Just above that level—90 decibels—the Occupational Safety and Health Administration mandates hearing protection for workers. 29 C.F.R. § 1926.52. “Front row” residents living directly adjacent to the construction *9 activity—including some seniors in an apartment complex facing the tunnel—will be most affected. Id. at 5-11 to 5-14. One of the Committee’s members, Ms. Maureen Cohen Harrington, is one of these “Front Row” residents. Appl. Prelim. Inj. Ex. 16. To mitigate impacts from construction, CSXT has committed to installing fencing, watering down roads and materials to reduce dust, installing vibration and noise monitors, and choosing equipment and construction techniques that cause relatively less vibration and noise. Id. at 5-25, 5-35, 5-36, 5- 46. The EIS predicts that vibrations from construction will not cause damage to any nearby buildings, and that particulate matter and ozone gas emissions should be de minimis . Id. at 5-20, 5-39. As for the unavoidable noise, CSXT will limit construction to daylight hours and weekdays to minimize the impact on residents. Id. at 5-28. Although construction activities will be impossible to ignore, the EIS predicts that, with these mitigation measures, they should be no more than an “annoyance” or “inconvenience” for nearby residents.
On November 12, 2014, the Committee filed suit and applied for a preliminary injunction to halt construction on the VAT. As explained in further detail below, the Committee alleges various procedural violations of the National Environmental Policy Act, the Administrative Procedure Act, and District of Columbia law. The Court heard argument on the application on February 20, 2015.
II. Legal Standard
A. National Environmental Policy Act
The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., requires a
federal agency to take a “hard look” at the environmental consequences of proposed federal
actions. Theodore Roosevelt Conservation P’ship v. Salazar,
NEPA is essentially a procedural statute. Vt Yankee Nuclear Power Corp. v. NRDC, 435
U.S. 519, 558 (1978). It does not mandate any particular substantive environmental result, and is
designed to ensure well-informed and well-considered decisions, not necessarily the best
decisions. Theodore Roosevelt Conservation P’ship,
B. Administrative Procedures Act
NEPA does not provide an independent right of action. Plaintiffs therefore typically
bring NEPA claims under the general review provision of the Administrative Procedures Act
(“APA”), 5 U.S.C. §§ 702, 706. Sierra Club,
Courts reviewing an agency’s environmental analysis generally defer to the informed
discretion of the agency on an issue that requires a high degree of technical expertise. Id. But no
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deference is owed to agency interpretations of NEPA or CEQ regulations because NEPA is
addressed to all federal agencies. Grand Canyon Trust v. Fed. Aviation Admin.,
C. Preliminary Injunction
A preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter
v. NRDC,
III. Analysis
A. Irreparable Harm
An injunction is appropriate only if the applicant has demonstrated irreparable harm and
the inadequacy of legal remedies. Sierra Club,
The Committee identifies five distinct harms that it contends will occur if construction is allowed to proceed. First, it alleges that “once the Defendants issue their approvals and permits, they will lose their ability to control CSXT’s operations, both with respect to the construction and actual operation of the newly expanded tunnel.” Appl. Prelim. Inj. at 40. Second, it claims that its member Maureen Cohen Harrington, who lives next to the planned construction site, “will suffer from noise, vibrations, air pollutants, and other environmental impacts.” Id. at 41. Third, it claims that Ms. Harrington will suffer a loss in the value of her home. Fourth, the Committee asserts that “in the event of a rail spill, Ms. Harrington’s life and property would be at risk.” Id. And finally, in an argument raised for the first time in its reply brief, the Committee contends that construction will result in the removal of trees and the closure of parks and other recreation areas in the neighborhood.
1. Control of the Site The Committee’s first claimed harm—that the issuance of permits would prevent the District and federal governments from controlling what CSXT does on the site—lacks factual support in the record. As the defendants point out, the District of Columbia will retain authority over all local construction activities and the federal government will retain authority over the operation of rail services during the construction period. Opp’n of District Defs. at 14. In addition, CSXT will be bound by the mitigation measures and other commitments reflected in the EIS and Record of Decision, as well as the terms and conditions of its permits. The Committee thus fails to establish how any “loss of control” resulting from the issuance of permits would occur, let alone cause it irreparable harm.
2. Disruption and Property Damage The Committee next contends that Ms. Harrington and other nearby residents will be irreparably harmed by construction-related noise, dust, and vibration. The EIS analyzed all of these potential effects. It concluded that construction noise will be “a nuisance or an annoyance, especially if unmitigated, to those living and working adjacent to” the construction area, but noted that construction generally will be limited to weekdays and daylight hours and that noise will be mitigated through the use of sound barriers and other construction techniques. FEIS at 5- 28. As for vibration, the EIS concluded that no vibration damage will occur to homes or other buildings as a result of construction but that “certain major vibration producing construction activities are predicted to cause human annoyance” for nearby residents. Id. at 5-39. And with respect to dust and other air pollutants, the EIS predicted that emissions would be below applicable EPA de minimis thresholds and thus concluded that “the impacts of criteria pollutants from construction activities are not considered to be a concern.” Id. at 5-22.
While the Court appreciates that Ms. Harrington and other nearby residents might regard
the effects of the VAT reconstruction project as more than mere “nuisances” or “annoyances,”
the effects noted in the EIS do not rise to the level of irreparable injuries upon which a
preliminary injunction may be based. Most importantly, the Committee offers no evidence to
rebut the EIS’s conclusion that the incremental effects on the environment will be relatively
modest given the urban setting of the construction site and the mitigation measures assumed in
the EIS. The cases cited by the Committee in which courts have found irreparable harm from
construction projects involved far more severe disruptions and environmental hazards than those
predicted by the EIS. San Luis Valley Ecosystem Council v. Fish & Wildlife Serv., 657 F. Supp.
2d 1233, 1240 (D. Colo. 2009) (preliminarily enjoining a drilling project because rigs would
*15
have operated 24 hours a day, under bright lights, in a sensitive wildlife refuge); New York v.
Shinnecock Indian Nation,
3. Potential Rail Accidents
The Committee next contends that residents will be irreparably harmed by the increased
risk of a rail accident due to trains moving at higher speeds through the new tunnel. As will be
discussed further below, see infra Section III.B.4, the EIS considered this issue and concluded
that despite the higher speeds, train derailments will be less likely to occur in the new tunnels
due to upgrades to the tunnel floor and track ballast. FEIS at 5-11. The Committee offers no
evidence to rebut the EIS’s conclusion in that regard. Absent contrary evidence, the
Committee’s claimed harm is largely speculative and therefore insufficient to establish
irreparable harm. See Sierra Club,
4. Loss of Property Value
The Committee also contends that Ms. Harrington “will suffer diminution in the value of
her home” if construction is not enjoined. Appl. Prelim. Inj. at 41. It points to the unique
features of Ms. Harrington’s no-interest mortgage, which she claims would require her
immediately to pay off the full balance of the loan were she to move out temporarily or sell her
home. Reply Ex. 48, ¶¶ 9, 13, 14. The Committee contends this economic loss would be
*16
irreparable notwithstanding the general rule that economic losses do not constitute irreparable
harm because they can be compensated with money damages. See Wis. Gas,
5. Loss of Trees and Public Recreation Space
Finally, the Committee alleges that it would be irreparably harmed absent an injunction because the proposed project will require clearing trees and closing parks and other recreation spaces enjoyed by Ms. Harrington. As for access to parks, the Committee appears to acknowledge that several local parks will be closed only during the construction period. See Reply at 63 (“The project will ‘also require construction-period occupancy of Virginia Avenue Park’”) (citing FEIS at 6-19); id. (“Access to Bridge Spot Park, a popular skate park, will also be blocked during construction”); id. (“[A]ccess to Garfield Park will be closed during construction.”). According to the EIS, access to all of the parks will be restored following construction. FEIS at 5-5, 5-60, 5-62, 5-64. The Committee has not cited any case, and the Court is aware of none, where a temporary closure of a park or recreation area was held to constitute irreparable harm for purposes of a preliminary injunction. The Court declines to reach that holding here. While undoubtedly an inconvenience to Ms. Harrington, not being able to walk or skate in nearby parks during the estimated construction period is not the type of severe and irreversible injury that is required to establish irreparable harm.
The question of harm from removal of trees is not as clear cut. The EIS indicates that the
construction will require the removal of approximately 200 trees, most of which are on public
property—168 line Virginia Avenue—and are considered healthy and mature under local
forestry regulations. Id. at 5-54. The EIS indicates that mitigation fees will be paid (presumably
by CSXT) to compensate for the removal of mature trees, but it does not say whether the trees
will be replaced. And even if the mature trees were replaced with saplings, it would take years
for them to grow to the size of the current ones. Other courts have found that the clearing of
mature trees to accommodate construction projects constitutes, or at least contributes to,
irreparable harm. See Lichterman v. Pickwick Pines Marina, Inc.,
B. Likelihood of Success on the Merits The Committee must establish a likelihood of success on the merits of its claims in order to enjoin construction on the tunnel. It alleges that DDOT and FHWA violated NEPA in six ways: they predetermined the selection of the Preferred Alternative prior to completing the NEPA review; they improperly segmented the project in order to minimize its environmental effects; they failed to examine the cumulative effects of the project; they disregarded foreseeable impacts of the project; they failed to consider reasonable alternatives; and they relied on inaccurate information. The Committee also alleges violations of District of Columbia law. The Court will address each argument in turn.
1. Predetermination The Committee contends that DDOT improperly predetermined the outcome of the NEPA process prior to the completion of the EIS by entering into a series of agreements with CSXT that, in its view, committed DDOT to the selection of the Preferred Alternative. Because NEPA only governs the actions of federal agencies, however, the Committee further argues that DDOT’s alleged predetermination should be attributed to FHWA because it was aware of the bias created by the agreements and failed to conduct an independent review of the EIS before adopting it in the Record of Decision. The Committee’s predetermination claim thus presents two questions: (1) do the agreements in question reflect improper predetermination by DDOT? and (2) if so, should any improper conduct by DDOT be attributed to FHWA? Before answering those questions, the Court will discuss the standards guiding the predetermination inquiry.
a. Standards for Assessing Predetermination
By requiring agencies to conduct environmental review prior to taking certain actions,
NEPA seeks to strike a careful balance. The Act requires agencies to consider potential
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environmental effects objectively and in good faith, Carolina Envtl. Study Grp. v. United States,
In striking this balance, NEPA seeks to ensure that agencies conduct environmental
analyses in a timely and objective fashion by prohibiting them from predetermining the outcome
of their review. See 40 C.F.R. § 1502.2(g) (an EIS must “serve as the means of assessing the
environmental impact of proposed agency actions, rather than justifying decisions already
made”); id. § 1506.1(a) (“Until an agency issues a record of decision . . . no action concerning
the proposal shall be taken which would . . . [l]imit the choice of reasonable alternatives.”). But
an agency may take ancillary steps towards a project before completing environmental review so
long as NEPA review is complete before the agency makes an “irreversible and irretrievable
*20
commitment of resources.” Wyo. Outdoor Council v. Forest Serv.,
b. Predetermination by DDOT
The Committee asserts that a series of agreements between DDOT and CSXT reflect an irreversible commitment of resources by DDOT towards the VAT reconstruction project before the EIS was completed. The agreements generally show that DDOT supported the National Gateway Initiative and the reconstruction of the tunnel; sought certain concessions from CSXT in exchange for that support; and took steps to facilitate the tunnel reconstruction in the event of NEPA approval.
To support its argument that these agreements show improper predetermination, the
Committee relies heavily on the Ninth Circuit’s decision in Metcalf v. Daley,
The Committee urges the Court to apply Metcalf and find that DDOT’s support of the
VAT reconstruction similarly reflected improper predetermination. But Metcalf’s applicability
in this Circuit is limited. As Judge Kelinfeld’s dissent in Metcalf observes, the panel majority
imposed a subjective standard on federal agencies by asking whether the environmental review
was “slanted” in favor of the hunt as a result of agency bias. Id. at 1147–48. This standard runs
counter to the Court’s reading of the D.C. Circuit’s approach to the predetermination inquiry.
Although the Circuit appears not to have addressed the precise factual circumstances presented
here, it has generally adopted a more objective approach to determining whether an agency has
irreversibly committed resources towards a particular project. In Sierra Club, for example, the
Circuit held that an agency must prepare an EIS at the point it will no longer “retain the authority
to preclude” the activity under NEPA review.
These cases establish that the test in this Circuit for determining when an agency’s commitment is “irreversible” looks to the practical effects of agency’s conduct rather than whether the conduct suggests subjective agency bias in favor of the project. The agreements cited by the Committee fall short of establishing predetermination when judged against that standard. The Court discusses each of the agreements below.
i. General Pledges of Support
In an August 2010 Memorandum of Agreement, DDOT pledged generally to support
CSXT’s National Gateway Initiative and to submit a “TIGER II” grant application for federal
funds to defray the costs of planning, but not the actual construction of, the VAT reconstruction
project. Appl. Prelim. Inj. Ex. 13. It further promised, in a December 2012 Term Sheet
Agreement, to provide oversight of the EIS process as co-lead agency with FHWA and to
“manage the EIS process under FHWA’s
Every Day Counts
initiative,” a streamlined process for
performing environmental review of the transit projects. Id. Ex. 19. DDOT’s general
expressions of support for CSXT’s National Gateway Initiative and its submission of a federal
planning grant application on the company’s behalf merely reflect its subjective preference for
the project. See Carolina Envtl. Study Grp.,
ii. Conditional Permits
The same is true for DDOT’s agreement to issue CSXT public space and right-of-way
permits in the event of a favorable NEPA result. See Appl. Prelim. Inj. Ex. 19 (agreement by
DDOT to issue public space permit and right-of-way required for the VAT reconstruction in the
event that the project received NEPA approval); id. Ex. 15 (December 2012 D.C. Public Right-
of-Way Occupancy Permit conditioned on NEPA approval). An agency’s promise to issue a
permit for a project in the future, but only on the condition that the project receives NEPA
approval, is not an irreversible commitment of resources. See Pub. Utilities Comm’n of State of
Cal. v. FERC,
iii. 11th Street Bridge Redesign The 11th Street Bridge crosses CSXT’s tracks near the eastern entrance of the VAT. In the August 2010 Memorandum of Agreement, DDOT agreed to redesign an existing plan to reconstruct the bridge so that its onramp would be compatible with the VAT reconstruction. Appl. Prelim. Inj. Ex. 13. CSXT agreed to repay to DDOT the entire $4.2 million cost of the redesign, which amount DDOT agreed to credit CSXT in the event the VAT reconstruction received NEPA approval. Id. [2] Thus, CSXT would have borne the entire cost of the modifications had the project not received NEPA approval. Nevertheless, the Committee argues that by committing its funds toward the redesign for the short period of time until CSXT repaid the redesign costs, DDOT irretrievably committed resources to the VAT reconstruction prior to completion of NEPA review. The Court disagrees.
The agreement to redesign the 11th Street Bridge was not an irretrievable commitment of resources to the VAT project because the bridge reconstruction had utility regardless of whether the VAT construction was approved. This is not a circumstance where an agency takes action with no purpose other than to further the project under NEPA review. Cf . Thomas, 753 F.2d at *25 760–61 (Forest Service allowed project proponent to construct a forest road with no other purpose than to aid a logging program before determining whether it could issue logging permits under NEPA). DDOT was already in the process of reconstructing the 11th Street Bridge, which is part of a $390 million project to modernize freeway bridges connecting the Southeast- Southwest Freeway and I-295, create a pedestrian and bicycle path across the river, and connect a proposed streetcar network. DDOT, 11th Street Bridge Project, http://ddot.dc.gov/page/11th- street-bridge-project (last checked April 7, 2015). Moreover, the redesign of the onramp served the independent purpose of preserving flexibility while the VAT reconstruction was under consideration. That flexibility was equally compatible with the EIS’s no-build alternative as the scenario that ultimately received NEPA approval.
The redesign also was not an irreversible commitment of agency resources towards the VAT reconstruction because DDOT was not required to pay for the redesign unless a VAT “build” option received NEPA approval. As a practical matter, before NEPA review was complete, the agreement obligated CSXT to repay DDOT’s costs. Then, if the Record of Decision had selected the “no build” alternative, DDOT would not have been required to provide the credit to CSXT and the entire cost of the redesign would have remained with CSXT.
iv. Shepherds Branch Right-of-Way In an October 2013 amendment to the December 2012 Term Sheet Agreement noted above, CSXT gave DDOT a one-time option to acquire the Shepherds Branch right-of-way—a five-mile tract of unused CSXT railway line south of the Anacostia neighborhood in the District of Columbia—for use as a walking and biking trail. Appl. Prelim. Inj. Ex. 14. The agreement entitles DDOT to submit an offer to purchase the right-of-way at a price based on an appraisal of the property and obligates the parties “to use commercially responsible efforts and negotiate in *26 good faith to reach mutually agreeable terms” for the purchase. Id. The agreement does not, however, obligate CSXT to agree to DDOT’s proposed purchase price. It also provides that DDOT cannot close on the option unless CSXT obtains the permits and approvals required to construct the VAT under the “build alternative, if any, [that is] determined to be the acceptable alternative” after NEPA review. Id.
The Committee asserts that the Shepherds Branch option was a “powerful inducement” for DDOT to favor the Preferred Alternative during NEPA review because DDOT could not close on the option unless one of the build alternatives was selected. Reply at 11. At the hearing on the Committee’s application, counsel for both CSXT and the District countered that the agreement did not in fact condition closing on selection of a build alternative. They contend that the closing condition requiring DDOT to issue permits under the “build alternative, if any” would have been triggered only if a build alternative was selected. If no build alternative had been selected, they suggest, the condition would simply not apply and DDOT still could close on the option. The Court finds the agreement ambiguous. While it could be read as the District and CSXT suggest, one could also fairly infer from the circumstances that the parties intended that DDOT would be unable to exercise the option unless CSXT received authorization to pursue one of the build alternatives. But even if DDOT stood to benefit financially from the selection of the Preferred Alternative, how much so is debatable. The option merely gave DDOT an opportunity to make CSXT an offer to purchase the right-of-way and to enter into good faith negotiations; it did not obligate CSXT to sell, no matter the offer.
Regardless of any potential inducement, DDOT’s acquisition of the option still does not represent an irretrievable commitment of resources towards the VAT. While the agreement might have caused DDOT to favor the selection of the Preferred Alternative, it does not bind *27 DDOT to issue any permits or require it to invest any resources towards the project. Nor would DDOT have been in breach of the agreement, as the Committee suggests, if none of the build alternatives had been selected; it merely would have been unable to close on the option. Accordingly, acquiring the Shepherds Branch option does not constitute improper predetermination of the NEPA review by DDOT. [3]
c. Attribution of DDOT’s Alleged Predetermination to FHWA As discussed above, the Committee alleges that DDOT’s contractual arrangements with CSXT constituted unlawful bias in favor of a build alternative prior to the completion of NEPA review. NEPA, however, as a federal statute, does not apply to DDOT’s conduct. See 42 U.S.C. § 4332(2) (requiring “all agencies of the Federal Government” to perform environmental review (emphasis added)). So even if DDOT did somehow predetermine the NEPA outcome, DDOT’s bias must be attributed to FHWA in order for there to be a NEPA violation. The Committee contends that DDOT’s bias can be attributed to FHWA because it was aware of DDOT’s advance agreements with CSXT yet nonetheless issued the EIS without independently reviewing its analysis and underlying data.
The Committee rests its attribution argument principally on the Tenth Circuit’s decision
in Davis v. Mineta,
Davis differs from this case in several respects. First, unlike the consultant contract in
Davis, DDOT’s agreements with CSXT did not obligate DDOT to reach any particular NEPA
outcome. As a result, the agreements here did not put FHWA on notice of improper bias,
regardless of when the federal agency learned of them. Second, the current record in this case
lacks any suggestion that FHWA sought to manipulate the NEPA process—by, for example,
removing evidence of a contractor’s prejudgment from public view—as was the case in Davis.
Finally, the record here also does not reflect, as it did in Davis, that FHWA failed to conduct an
*29
independent review of the EIS. In fact, FHWA affirmed at least twice in the Record of Decision
that it had independently considered the data underlying the EIS and the potential environmental
effects of the project. ROD at 2 (“FHWA considered the impacts of the Project and alternate
courses of action under NEPA”), id. at 44 (FHWA arrived at its decision “after its own
independent review and consideration of the referenced information” in the EIS). The only
record evidence cited by the Committee to contradict these statements is a passage in a DDOT
environmental manual indicating that DDOT would exclusively prepare a Federal Register
notice announcing the beginning of the environmental review. That alone is plainly insufficient
to rebut the presumption of regularity accorded to agencies in performing their duties. See, e.g.,
Sierra Club v. Costle,
Accordingly, even if DDOT predetermined the NEPA outcome, the Committee has failed to identify sufficient evidence in the current record to attribute that predetermination to FHWA.
d. Contractor Bias Taking a somewhat similar tack, the Committee asserts that FHWA impermissibly relied on reports generated by a contractor with a financial interest in the VAT construction project. The EIS indicates that it considered three engineering reports prepared by Clark-Parsons Joint Venture. FEIS Chs. 8, 10. The same company has contracted with CSXT to be the lead construction contractor on the VAT project. Appl. Prelim. Inj. Ex. 9. The Committee contends that because Clark-Parsons has a financial interest in the reconstruction of the VAT, its reports may be biased, and FHWA was therefore obligated to disclose the alleged conflict and independently verify the accuracy of the reports.
The D.C. Circuit considered a very similar argument in National Wildlife Federation v.
FERC,
The Committee’s argument fails here for the same reasons. It has not demonstrated that Parsons-Clark’s connections to CSXT were hidden from FHWA. Indeed, NEPA regulations permit a project proponent and its contractors to provide information on which an EIS is based. Guidance Regarding NEPA Regulations 48 FR 34263-01, 34266. [4] As discussed above, moreover, FHWA’s statement that it performed an independent review of the EIS is afforded a presumption of validity, which the Committee has not rebutted. The Committee also has failed to assert any substantive errors in Clark-Parsons’ reports, which do not appear to analyze the environmental effects of the project in any event, but are rather engineering reports describing the effects of construction on traffic and vibration. FEIS at 10-1. Accordingly, the Committee has not demonstrated that FHWA has violated NEPA by relying on reports prepared by the Clark-Parsons Joint Venture.
*31 2. Segmentation
The Committee next alleges that the EIS improperly segmented the VAT proposal from
the larger National Gateway Initiative in order to reduce the scope of analysis. A project subject
to NEPA may not be segmented in such a way as to reduce the environmental impact assessed or
mask its true scope. That is so because “[a]gencies may not evade their responsibilities under
NEPA by artificially dividing a major federal action into smaller components, each without
‘significant’ impact.” Coal. on Sensible Transp., Inc. v. Dole
,
CEQ regulations specify that actions are “connected,” and therefore should be analyzed in the same EIS, if they: “(i) [a]utomatically trigger other actions which may require environmental impact statements[;] (ii) [c]annot or will not proceed unless other actions are taken previously or simultaneously[; or] (iii) [a]re interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(1). In contrast, each action evaluated in its own EIS shall:
(1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope;
(2) Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.
23 C.F.R. § 771.111(f). A short project may have logical endpoints if it connects with a broader
network in a useful fashion. Taxpayers Watchdog, Inc. v. Stanley,
The EIS identifies the termini of the VAT as the ends of the tunnel itself, under Virginia Avenue from 2nd Street SE to 11th Street SE. FEIS at 2-8. The Committee, however, contends that the proposed VAT improvements are useless without similar modifications throughout the rail network. Noting the EIS’s emphasis on CSXT’s contemporaneous National Gateway Initiative, it argues that increasing clearance in the VAT will serve no purpose unless the 60 other impediments to double-stacking in the network are also removed. Appl. Prelim. Inj. at 21– 22; id. Ex. 3, at 2. And the Committee characterizes the Defendants’ reliance on the benefits of double-tracking (which the VAT project would accomplish on its own) to justify the project as an improper post hoc rationalization that the Court should ignore. Reply at 21–23. The Committee’s segmentation argument fails for two primary reasons.
First, the conclusion that the VAT project has a logical scope and independent utility apart from the wider network finds support in the current record. The EIS itself identifies three drawbacks of the current tunnel, two of which—the limits of the single track and ever-increasing maintenance needs and safety risks of the aging tunnel—would be immediately eliminated by the Preferred Alternative. FEIS at 2-1. The Record of Decision also highlights the enhanced safety that would result from the Preferred Alternative. ROD at 8. The speed and flexibility gained by modernizing and expanding the VAT provides a clear benefit to customers and the railway alike.
Second, the Committee has not identified another project currently pending before a federal agency from which the VAT project could have been divided. At the hearing on the application, counsel for the Committee noted that the Department of Transportation had just awarded $2.8 million to conduct a NEPA evaluation of possible improvements to the Long Bridge, the only rail crossing of the Potomac between Washington, D.C. and Harpers Ferry, West Virginia, 50 miles to the northwest. Luz Lazo, Long Bridge project gets $2.8 million from federal government, Wash. Post (Sept. 18, 2014); FEIS at 2-7. But this project is in the early planning stages, while construction on the VAT is ready to begin. Even assuming the Long Bridge construction could be a “connected” action, it is entirely speculative whether it will take place, and it would not undermine the independent utility of the VAT discussed above. The agency’s conclusion that the VAT improvements form a logical segment is reasonable under the circumstances.
3. Cumulative Effects
The Committee alleges that FHWA failed to evaluate the cumulative effects of the VAT
construction. Cumulative effects “result[] from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions,” regardless of who or what is
responsible for the other actions. 40 C.F.R. § 1508.7. The purpose of studying cumulative
effects is similar to that of the segmentation requirement: “to prevent agencies from dividing one
project into multiple individual actions each of which individually has an insignificant
environmental impact, but which collectively have a substantial impact.” NRDC v. Hodel, 865
F.2d 288, 297 (D.C. Cir. 1988) (internal citations removed) (remanding for further consideration
of the effects on migratory species of simultaneous development in multiple planning areas). A
cumulative effects analysis must identify the area of study; expected impacts from the proposed
*34
project; other expected actions in the same area and their impacts; and the overall cumulative
impact that can be expected if the individual effects are allowed to accumulate. Del.
Riverkeeper,
The Committee contends that the EIS ignored the cumulative effects of the VAT project by examining only the effects of construction, not ongoing tunnel operations. Appl. Prelim. Inj. at 24 (quoting FEIS at 5-100). It argues that it was arbitrary and capricious for FHWA to “ignore the environmental impact of transporting up to four times the volume of freight rail, including hazardous materials, at increased speeds through the heart of the capitol.” Id. at 25. The Committee also points to a supposed inconsistency in positions advanced by the project’s proponents regarding the volume of freight that will move through the new tunnel: Defendants assert both that CSXT will move “the same amount of freight with fewer trains,” Opp’n of Fed. Defs. at 24 (quoting FEIS at 5-82), and that the VAT will accommodate increased freight volumes, FEIS at 5-82.
The Committee’s argument misses the mark. The EIS does in fact analyze cumulative effects, both in its summary of post-construction effects, see id. at S-10 to S-25, and in a separate section on cumulative impacts, see id. at 5-100 to 5-105. For example, the EIS discusses post- construction air quality impacts from train operations under the Preferred Alternative. Id. at S- 13. The EIS and Record of Decision also analyze the incremental effects of the projected 50 *35 percent increase in freight transportation in the project area. In contrast, the Committee has not provided any evidence to support its contention that four times the current amount of freight will actually move through the VAT. As a result, the Committee has not at this point demonstrated that the agency failed to consider post-construction cumulative effects.
4. Foreseeable Impacts
In addition to cumulative effects, NEPA requires the agency to consider direct and
indirect foreseeable future effects of the project under review. 40 C.F.R. § 1508.25(c). An
agency may not unreasonably disregard foreseeable environmental consequences that are
supported by the record. Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d
1, 23 (D.D.C. 2009). On the other hand, an agency is not required to assess an environmental
harm that is only a remote possibility, Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 356 (1989), or examine a risk that is merely conceivable, but not reasonably foreseeable,
Theodore Roosevelt Conservation P’ship v. Salazar,
The Committee asserts that DDOT and FHWA failed to consider what it believes are two reasonably foreseeable impacts of the VAT project: rail accidents and terrorist attacks. As to the former, the Committee argues that greater freight traffic and trains traveling at higher speeds *36 through the tunnels will increase the risk of accidents. It adds that, if CSXT were to rescind its voluntary agreement not to transport certain hazardous materials through the District, the consequences of any accident could be more serious.
Citing CSXT accident statistics, the Committee argues that the risk of a train derailment in the tunnels is reasonably foreseeable. See Reply Ex. 36 (CSXT incident reports since 2005); id. Ex. 35 (discussing a 2007 CSXT coal spill into the Anacostia River). But the risk of an accident exists today. For the Committee’s argument to prevail, then, it must demonstrate that the newly-constructed tunnels will foreseeably increase the risk of an accident as compared to current operations. It has not made that showing. First of all, the EIS makes clear that the number of trains passing through the tunnels will not “vastly” increase, as the Committee argues. The “worst-case” 50 percent increase in freight volume is anticipated to occur gradually over the next 30 years. And with the increased height of the tunnels, double-stacked trains would be able to carry as much freight on half as many cars. The Committee is correct that trains would be able to move faster through the new tunnels—40 miles per hour rather than the current 15. But it is also true that trains now have to brake from their normal speed before entering the VAT and then accelerate when they exit. Which scenario presents a higher risk of derailment is not self- evident.
The Committee’s contention that higher speeds will make accidents more likely also overlooks the modernization of the tunnel. Stressing this point, the EIS concludes that “[t]rain derailments will be less likely to occur in the new tunnel compared to the existing tunnel, despite a higher operating speed than current conditions[, because t]he new tunnel will have a more reliable floor and track ballast.” FEIS at 5-11. It also notes the new center wall would isolate *37 any derailment. Id. at S-4. Thus, not only is an increased marginal risk of accidents not reasonably foreseeable, it was also considered, and rejected, in the EIS.
The Committee also contends that the EIS ignored the risk of terrorist attacks. But as
with potential derailments, the Committee fails to demonstrate how the risk of an attack would
be any greater than it is now. Indeed, one might think trains idling outside the tunnel, as they do
now, would present more inviting terrorist targets. Assessing the marginal risk of an attack
would be speculative in any event. As a result, courts generally have not required agencies to
assess the potential for terrorist attacks in a NEPA analysis. See Mid States Coal. for Progress v.
Surface Transp. Bd.,
5. Consideration of Alternatives
Consideration of alternatives is at the core of NEPA’s procedural mandate. City of
Alexandria v. Slater,
CEQ regulations require the EIS to “inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1; accord id. § 1508.25(b). An agency therefore must:
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits. . . .
(e) Identify the agency’s preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference.
Id. § 1502.14. An agency is not required, however, to conduct a monetary cost-benefit analysis. Id. § 1502.23 (“For purposes of complying with the Act, the weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations.”).
The problem remains that a “reasonable alternative” is not self-defining; it must be
compared to something. City of Alexandria,
FHWA defined the purpose and need of the VAT project as to “preserve, over the long- term, the continued ability to provide efficient freight transportation services in the District of *39 Columbia, the Washington Metropolitan Area and the eastern seaboard.” ROD at 2. The agency first considered eleven design concepts (along with a no-action option) to meet this purpose and need. Seven of the alternatives involved rebuilding or reconfiguring the VAT. FEIS at 3-43. Four others involved rerouting the bulk of freight traffic outside (or under) Washington, D.C. altogether. Id. These are the four options the Committee argues were not given due consideration.
After the application of eight screening criteria, the four reroute options were eliminated because they had an “extremely high cost” (ranging from $2 to $4.7 billion); would require planning across multiple jurisdictions; would require the construction of either a “deep bore” tunnel under the city or a new bridge across the Potomac river south of Washington; would adversely affect diverse natural resources; or would include substantial diversion of freight volume to trucks with associated effects on highway congestion, fuel consumption, and pollution. Id. at 3-65. The three designs that had passed all of the criteria were then evaluated in detail in the EIS against the no-build alternative. Id. at 3-65 to 3-66.
The Committee disputes the elimination of the reroute options. It argues that screening
criterion six—that “[t]he concept will be implemented in a time frame that accommodates the
near term anticipated increase in freight traffic,” id. at 3-63—was unachievable, and designed to
make the reroute options fail. It notes the Preferred Alternative itself will take 30 to 42 months
to complete. Id. at S-32. As for cost, the Committee argues that the EIS does not explain
whether criterion eight—“[t]he concept has a comparatively low cost,” id. at 3-63—measures
merely financial investments, or reflects a cost-benefit analysis. It asserts that failure to weigh
the benefits to CSXT and others against the cost of rerouting indicates the agency “entirely failed
to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc.,
*40
Courts evaluate whether an alternative meets an objective “with considerable deference
to the agency’s expertise and policy-making role.” City of Alexandria,
6. Accurate Information
A NEPA evaluation must rely on “high quality” information and accurate scientific
analysis. 40 C.F.R. § 1500.1(b). “Agencies shall insure the professional integrity, including
*41
scientific integrity, of the discussions and analyses in environmental impact statements.” Id. §
1502.24. An agency need not, however, “employ the best, most cutting-edge methodologies.”
Theodore Roosevelt Conservation P’ship v. Salazar,
The Committee asserts that the EIS contains inaccurate information in two respects. It contends that it exaggerates the extent to which the existing tunnel, standing alone, contributes to freight bottlenecks. And it faults the EIS’s reliance on cost data from the 2007 RRF study to justify the elimination of the four reroute alternatives. Neither of these alleged deficiencies in the EIS violates the agency’s obligation to rely on quality information and accurate analysis.
The role of the tunnel in delaying freight and passenger rail traffic is widely documented in the EIS. FEIS at 2-2 (“The single railroad track within Virginia Avenue Tunnel represents the single greatest constraint on rail headway (the frequency of passing trains within a given time period) on CSX’s mainline freight rail network . . . . Ordinarily, just freight trains are affected by this delay. However, if an eastbound train is delayed, the queue could extend beyond the junction at 1st Street SW, which is located just one-half-mile from the Virginia Avenue Tunnel portal at 2nd Street SE, or less than the length of a typical freight train. Trains queued beyond that point will continue to cause delays to passenger rail service traveling between Virginia and Union Station.”); accord id. at S-3, 2-1, 2-5. Just because it may not be the only bottleneck in the CSXT network does not mean that it does not create, or significantly contribute to, the delays and inefficiencies described in the EIS. Moreover, as explained in the discussion of the *42 Committee’s segmentation claim, the EIS adequately explains why the tunnel modernization has independent utility even without improvements to the rest of the CSXT network. See supra, III.B.2.
Moving to the Committee’s second objection, the EIS cites the 2007 RRF study to explain why it eliminated the reroute options based on cost, among other reasons. As noted above, the RRF study indicated that the cost of the four options—which would involve constructing either a nine-mile long “deep bore” tunnel running under the city center or a new Potomac River bridge south of Washington—would range from $2 to $4.7 billion. The Preferred Alternative, on the other hand, is estimated to cost substantially less, at about $160 million. While the Committee faults the “dated nature” of the study, Reply at 51, it nowhere suggests how the cost of those options could possibly have decreased in the last eight years. Its more serious objection is that the agencies failed to weigh those costs against the potential economic benefits of rerouting freight around the city. As previously noted, however, NEPA does not require agencies to conduct monetary cost-benefit analysis when considering alternatives. See supra, III.B.5; 40 C.F.R. § 1502.23.
The Committee therefore has not established at this stage that the EIS rests on inaccurate information.
7. District of Columbia Law The Committee’s final contention on the merits is that DDOT and the District of Columbia violated a series of local laws by issuing the permits required for the VAT reconstruction. The Committee first asserts that DDOT failed to promulgate an EIS in conformity with the District of Columbia Environmental Policy Act (“DCEPA”), D.C. Code § 8- 109.01, et seq.—which imposes environmental review requirements on the city similar to those *43 required by NEPA—by entering into the agreements with CSXT described in Section III.B.1 above. The DCEPA, however, provides that the city and its agencies need not issue an EIS if “an EIS has been prepared in accordance with [NEPA]” or if the project’s “impact on the environment has been considered in the functional equivalent of an EIS.” D.C. Code § 8- 109.06(a)(1), (3). Because DDOT and FHWA issued an EIS under NEPA that, for the reasons stated above, appears adequate on this record, DCEPA did not require DDOT to issue another EIS.
The Committee next maintains that DDOT violated D.C. Code § 10-801 by failing to obtain D.C. City Council approval before issuing the right-of-way permits for the VAT. D.C. Code § 10-801 requires City Council approval prior to selling, conveying, leasing for more than 20 years, or otherwise disposing of real property owned by the District. That provision, however, does not address the issuance of right-of-way permits. Instead, D.C. Code § 10- 1141.03 allows the mayor to “issue permits to occupy or otherwise use public rights of way, public space, and public structures pursuant to this subchapter for any purpose” and does require prior City Council approval. The Committee argues that the right-of-way permit issued to CSXT does not comport with D.C. Code § 10-1141.03 because that provision allows the mayor to revoke a right-of-way permit at any time, whereas the permit issued to CSXT will terminate only with the consent of both DDOT and CSXT. Appl. Prelim. Inj. Ex. 15 at 4. But this incongruity does not transform the right-of-way permit into a disposition of real property. The conditions of the permit more accurately reflect an easement than a lease or other transfer because CSXT may only use the land to operate the VAT. Compare Easement, Black’s Law Dictionary (10th ed. 2014) (“An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose ” (emphasis added)); with Lease, *44 Black’s Law Dictionary (10th ed. 2014) (“A contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration”). The permit itself, moreover, provides that it will remain in effect if any provision is deemed invalid. Appl. Prelim. Inj. Ex. 15 at 3. Thus, even if this clause is incompatible with D.C. Code § 10- 1141.03, the more appropriate remedy would be to strike it from the agreement. Furthermore, the Committee would not appear to have standing to challenge the permit on the basis that it waives the mayor’s right to revocation.
Finally, the Committee contends that DDOT violated D.C. Code § 9-202.01, which allows for the permanent closure of “all or part of any street or alley . . . upon approval of a proposed resolution submitted by the Mayor to the Council for its review.” The VAT reconstruction, however, will not require the city to permanently close any street or alley, merely land adjacent to or under streets. See Appl. Prelim. Inj. Exs. 15, 17 (delineating above- and below-ground locations of right-of-way permits). The provision is therefore inapplicable.
For all of the reasons discussed above, the Committee has not established a likelihood of success on the merits of its claims.
C. Balance of Equities and Public Interest
The final two factors the Court must consider in deciding whether to grant a preliminary
injunction are the balance of harms and the public interest. When balancing competing claims of
injury, the Court must “consider the effect on each party of the granting or withholding of the
requested relief.” Winter v. NRDC,
The Committee’s claimed injuries are cataloged above: the noise, dust, vibration, and loss of flora and public space that would be caused by the construction project and any increased risk *45 of a rail accident or terrorist attack after the project has been completed. On the other side of the scale, CSXT claims that it will suffer economically if the project is further delayed due the continuing cost of maintaining and repairing the aging tunnel and the lost revenue associated with operating an inefficient freight rail system. Opp’n of CSXT at 23. The injuries identified by the federal defendants are mainly public harms from keeping the tunnel in its current state. Opp’n Fed. Defs. at 40–41. They reiterate that reconstruction of the VAT will improve the safety and security of the tunnel and the efficiency of both the freight and passenger rail system in the Washington, D.C. area.
The Court concludes the balance of the equities tips decidedly in the Defendants’ favor,
and particularly towards the public interest. As discussed above, the Committee’s contentions
that a new tunnel will lead to more accidents and a greater risk of terrorist attack are speculative
at best. And with the exception of the removal of some 200 trees, the Committee has not
established that any environmental effects of the construction activity will be severe or
irreparable. Moreover, although the construction inevitably will be disruptive and unsightly, the
Committee has identified only one of its members who will be directly affected. This is not to
minimize Ms. Harrington’s understandable misgivings over the prospect of a large-scale
construction project outside her front window in the coming years. But her concerns do not
outweigh the broader public’s substantial interest in modernizing this deteriorating and
outmoded tunnel. Winter,
IV. Conclusion
For the foregoing reasons, the Committee has failed to carry its burden to establish grounds for a preliminary injunction. The Court therefore will deny the Committee’s application. A separate Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER United States District Judge Date: April 7, 2015
Notes
[1] The record currently before the Court consists of the draft and final environmental impact statements and their various appendices and exhibits, FHWA’s Record of Decision, and other material submitted with the parties’ briefs. The following background facts are drawn from those materials. The entire administrative record has yet to be filed.
[2] Originally, DDOT agreed to credit the amount towards the costs of repaving Virginia Avenue after the construction was complete—and only if DDOT received federal funding for the repaving. Id. The parties modified that agreement, however, in an April 2014 amendment to the Memorandum of Agreement. Appl. Prelim. Inj. Ex. 20. Under the modified agreement, DDOT can only credit the payment towards another construction project involving CSXT that will require repaving, if one is identified. Id. The Committee does not identify how this change to the contract would alter the Court’s analysis of the predetermination inquiry.
[3] The Committee also argues that CSXT induced DDOT to grant NEPA approval by agreeing to remove a communications tower that interfered with the proposed 11th Street Bridge ramp, to negotiate for easements to enable DDOT to construct pedestrian and bicycle trails, and to extend the VAT tunnel entrance from 10th Street to 12th Street. Appl. Prelim. Inj. Exs. 13, 19. But none of these agreements is conditioned on NEPA approval. They therefore put DDOT in no worse condition if the VAT reconstruction was not approved.
[4] A contractor who prepares the EIS, however, must “have no financial or other interest in the outcome of the project.” 40 C.F.R. § 1506.5(c). Here, there is no evidence in the present record before the Court that Clark-Parsons played a role in drafting the EIS.