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NINTH CIRCUIT REJECTS NEPA CHALLENGES TO LOS ANGELES METRO’S LIGHT RAIL EXTENSION PROJECT


In Japanese Village, LLC v. Federal Transit Administration, 2016 U.S. App. LEXIS 21700, the Ninth Circuit affirmed the district court’s rulings and rejected NEPA challenges to the Los Angeles Metropolitan Transportation Authority’s (“Metro”) approval for a 1.9-mile light rail extension line in downtown Los Angeles. The project was proposed to be funded by the Federal Transit Administration (“FTA”).

The project, intended to meet increased demand for public transit, would connect the light rail Gold Line to the Blue and Expo Lines. In January 2012, Metro and FTA (“Agencies”) issued an EIS for the project. Subsequently, the FTA issued the record of decision (“ROD”) approving federal funding for the project. In January 2013, the plaintiffs sued, challenging the project’s NEPA compliance. The lower court granted summary judgment in favor of the Agencies, except for one claim which required them to analyze tunneling alternatives for the project.

On appeal, the court first declined to take judicial notice of three documents on Metro’s website, including the federal ROD and the mitigation and monitoring and reporting program, because they were already included in the appellate record.

 

Second, applying the “arbitrary and capricious” standard under the Administrative Procedure Act, the court held that the EIS adequately analyzed the project’s impacts. The court found that the analysis of construction-related noise and vibration impacts was adequate, given that the Agencies took a “hard look” at alternatives and addressed the extent to which adverse noise effects could be avoided. However, the court declined to decide whether temporary relocation of residents or businesses to mitigate construction-related noise and vibration impacts was a valid mitigation measure under NEPA.

Similarly, the court found that the EIS satisfied NEPA’s “hard look” requirement with respect to the impacts associated with parking, grade separation, and emergency vehicle access. The court also held that the mitigation measures that incorporated “adaptive management” plans concerning traffic, vibration, and noise impacts satisfied the “hard look” requirement. Further, the court held that the mitigation measures to reduce subsidence, which could result from the tunneling under the Japanese Village, did not impermissibly defer required analysis because an expert study addressing potential subsidence impacts was prepared after the EIS was issued and became part of the administrative record for the ROD.

Third, the court held that the Agencies properly rejected the use of closed-face tunnel boring machine, a method of construction that would help minimize disruption to surface traffic and adjacent land uses, in certain project areas. The Agencies’ decision was based on three technical impediments identified. Giving deference to the Agencies’ technical expertise, the court found the Agencies were not arbitrary or capricious in making that decision.

Finally, the court held that a supplemental EIS was not required after variances to the City of Los Angeles’ construction noise restrictions were sought to undertake utility relocations necessary for the project. The court explained that the EIS had already addressed the noise and light impacts of possible nighttime construction.



dateJanuary 18th, 2017byby


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