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Posts Tagged ‘EIS’


Ninth Circuit Rejects NEPA Challenges to Los Angeles Metro’s Light Rail Extension Project

Wednesday, January 18th, 2017

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.

Ninth Circuit Requires 2004 EIS to Include Higher Level of Analysis of Environmental Impacts on Fish, While Finding the Analysis of Environmental Impacts on Amphibians Sufficient

Thursday, June 28th, 2012

In January 2001, the United States Forest Service (Forest Service) issued an environmental impact statement (EIS) recommending amendments to the Forest Plans in the Sierras Madre Mountains (2001 EIS) to conserve and repair the riparian and amphibian habitat. By November 2001, the Forest Service reviewed the 2001 EIS and its proposed alternatives, and made several substantial changes, issuing a new EIS (2004 EIS) and adopting a new alternative (2004 Framework). The Pacific Rivers Council brought suit in Pacific Rivers Council v. United States Forest Service, 2012 U.S. App. LEXIS 12553, claiming that the Forest Service’s 2004 EIS violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by failing to take the requisite “hard look” at the environmental effects of the 2004 Framework on fish and amphibians. The United States Court of Appeals for the Ninth Circuit held that the 2004 EIS was deficient in its analysis on fish, however, sufficient in its analysis on amphibians.

With respect to the analysis of environmental consequences on fish, the Forest Service argued that the 2004 Framework was nothing more than an amendment to the Forest Plans, and thus it was not reasonably possible to provide an analysis of the environmental consequences on individual fish species. The Forest Service also claimed that the 2004 EIS satisfied the required “hard look” by incorporating the biological assessments (BA) by reference. The court disagreed with both arguments.

Responding to the Forest Service’s first argument, the court held that, based on the detailed analysis of the environmental effects on individual fish species in the 2001 EIS, along with the detailed analysis of environmental effects on individual species of mammals, birds, and amphibians in the 2004 EIS, a detailed analysis of fish in the 2004 EIS was in fact “reasonably possible.” The court explained that while the 2004 EIS was not required to have the same level of detail as the 2001 EIS, its complete lack of analysis, along with the absence of any explanation as to why no analysis was even included, was a violation of NEPA.

The court disagreed with the Forest Service’s second argument for three reasons. First, the court explained that depending on the nature of the information and its importance, it should either be in the text of the EIS, in an appendix to the EIS, or incorporated by reference. If the BAs were to serve as the requisite analysis, as argued by the Forest Service, then they should not have simply been referenced. Nor should they be included as an appendix. Based on their importance, the BAs should have been described and analyzed in the text. Next, the court held that the BAs could not even serve as the requisite “hard look” because there was no analysis of the degree or the manner by which the 2004 Framework may have affected the fish. Lastly, the court found that the BAs applied only to one group of fish species, as opposed to the three groups analyzed in the 2001 EIS. Based on those three findings, the court held that the 2004 EIS’s analysis of environmental consequences on fish was inadequate and in violation of NEPA.

With respect to amphibians, the court found the Forest Service’s 2004 EIS sufficient under NEPA. The 2004 EIS contained an extensive analysis of individual amphibians, identified changes between the 2001 and 2004 Frameworks that were likely to affect the species, and discussed mitigation strategies to minimize the environmental consequences of the 2004 Framework on amphibians. The court held that, since the Forest Service’s 2004 Framework stated that additional NEPA analysis would occur at the project-level, the current level of analysis was sufficient since site-specific projects are not yet at issue. Therefore, the court found the 2004 EIS’s analysis of environmental impacts on amphibians sufficient under NEPA.

Key Point:

The importance of information determines where the information must be presented in an EIS. The most important information must be analyzed in the text, less important information can be put in the appendix, and the least important information need only be referenced. Also, if an amendment to an alternative is significant, a new EIS must be prepared to take the requisite “hard look” at environmental consequences. A “hard look” involves considering all foreseeable direct and indirect impacts, as well as discussing the adverse impacts that do not improperly minimize negative side effects.

Written By: Tina Thomas, Amy Higuera and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Tahoe Regional Planning Agency Retains Discretion to Select the Appropriate Baseline for Environmental Review of its Shorezone Amendments

Wednesday, March 7th, 2012

TRPA adopted amendments to the shorezone regulations in 2008, setting development caps on the number of new buoys and piers allowed in Lake Tahoe, and certified an environmental impact statement (EIS) for the amendments. The League to Save Lake Tahoe and Sierra Club (Plaintiffs) challenged filed a lawsuit, alleging that the EIS failed to explain and evaluate the impact of replacing unpermitted boat buoys currently on Lake Tahoe with permitted buoys on a one-for-one basis. Specifically, Plaintiffs challenged TRPA’s decision to consider all existing buoys on Lake Tahoe, both permitted and unpermitted, when establishing the environmental baseline. The baseline helped TRPA determine the maximum number of buoys, piers and other boating facilities that can be allowed on the lake. Plaintiffs argued that if TRPA had considered only the permitted buoys to establish its baseline, rather than permitted and non-permitted buoys, the threshold for measuring environmental impacts would have been much lower and thus the maximum number of allowable buoys and piers (and the number of boats and pollution in the Lake) would also have been lower. The Eastern District of California agreed with Plaintiffs and, in its 2011 decision, the court held that the unpermitted buoys must be excluded from the baseline. The court found that TRPA’s failure to explain and justify the baseline was arbitrary and capricious and, in the alternative, that TRPA’s use of the existing permitted and non-permitted buoys was contrary to the TRPA Compact. TRPA appealed the judgment.

In an unpublished Memorandum issued last week, the Ninth Circuit Court of Appeals affirmed the district court’s determination that TRPA’s failure to explain or discuss its selected baseline was arbitrary and capricious, but vacated the district court’s alternative holding that the selected baseline was contrary to the Compact. (League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 2012 U.S. App. LEXIS 4089 (9th Cir. 2012).) The court remanded to the district court with direction that TRPA “shall retain discretion on remand to determine the best way to explain and evaluate the impact of the proposed project and its choice of an appropriate baseline.” In other words, TRPA will be required to re-evaluate the previous baseline and explain why such baseline is appropriate. Until then, TRPA is not issuing permits for any new boating facilities.

Key Points

This decision suggests that under TRPA’s environmental regulations, TRPA must justify the environmental baseline it uses even where it uses a baseline that is consistent with the existing environmental conditions in the Tahoe Basin. Under CEQA, a lead agency is not required to justify its decision to use the existing environmental conditions as the baseline, even where existing conditions include prior illegal activity. In Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, the First Appellate District in California recently reiterated that prior illegal development is properly included as part of the CEQA environmental baseline because “[h]ow present conditions come to exist… is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.” (Id. at p. 559.)

Written By: Tina Thomas and Ashle Crocker

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Federal District Court Grants Summary Judgment in Agency’s Favor on NEPA Issues and in Plaintiff’s Favor on Wilderness Act Issues

Tuesday, February 7th, 2012

In High Sierra Hikers Association v. United States Department of the Interior (N.D.Cal. 2012) 848 F. Supp. 2d 1036, the U.S. District Court for the Northern District of California, San Francisco Division, addressed whether the National Park Service (NPS) adequately assessed the environmental consequences of its General Management Plan for Sequoia and Kings Canyon National Parks (GMP) under the requirements of the Wilderness Act and the National Environmental Policy Act (NEPA). The Court concluded that under the Wilderness Act, an agency must conduct a “necessity” finding regardless of the type of Environmental Impact Statement (EIS) prepared. However, under NEPA, the Court explained that the level of analysis conducted by NPS was adequate for a programmatic EIS.

The Wilderness Act charges agencies, such as NPS, with the task of passing regulations that put the preservation of nature above commercial enterprises. If an agency wants to allow commercial activities, the agency must conduct a specialized “necessity” finding, showing that it considered the impacts of commercial activities and balanced all relevant factors. NPS argued the Act applies only to decisions that expressly permit commercial activities. NPS asserted that because the GMP is only a programmatic plan authorizing use at current levels, NPS was not required to make specialized findings until it implements its Wilderness Stewardship Plan (WSP). The Court disagreed, rejecting any distinction based on whether the agency is permitting new levels or simply authorizing current levels of commercial activity. Rather, the Court stated that since the NPS is charged with the main responsibility of preserving nature from commercial activities, a necessity finding is required under the Act. Therefore, the Court ruled in favor of the Plaintiff, holding that the GMP violated the Wilderness Act.

In addressing the Plaintiff’s NEPA argument, the Court noted that NEPA requirements differ based on the type of EIS required for a project. For a programmatic EIS, like the one approved by NPS, NEPA only requires an agency to include sufficient detail to help make an informed decision, whereas a site-specific EIS requires more specific data-gathering and analysis of impacts. The Court also emphasized that NEPA is a procedural statute, not concerned with outcomes but rather the process agencies must go through to ensure they make informed decisions. NEPA provides that agencies must take a hard look at the environmental impacts of their decisions, and must prepare an EIS that is available to the public and contains an analysis of possible environmental impacts along with reasonable alternatives.

In rejecting Plaintiff’s argument concerning the range of alternatives included in the EIS, the Court explained that NEPA does not require an agency to assess every alternative, but only the ones that are necessary to help make a reasonable decision and to allow for public participation. To determine which alternatives are reasonable, the Court explained that it must defer to the agency’s statement of purpose. In light of the stated purpose of the GMP, and because more detailed project-specific analysis will be considered by NPS when it adopts the WSP, the Court determined that the alternatives included in the EIS were sufficient under NEPA.

Next, the Court rejected Plaintiff’s argument that NPS failed to take a hard look at the impacts of the GMP and Packer Permits. The Court explained that the level of analysis required to constitute a “hard look” depends on the type of EIS at issue. The Court held the analysis NPS conducted was adequate under NEPA requirements for a programmatic EIS. The Court also held that NPS reasonably deferred further, more detailed analysis until the WSP.

Lastly, the Court declined to require NPS conduct additional analysis regarding the impact of renewing the Packer Permits. The Court concluded that the Plaintiff did not demonstrate a substantive basis for the claim that the prior environmental assessments relied upon in approving Packer Permits were outdated. Therefore, NPS did not violate NEPA in deciding to maintain the status quo by issuing Packer Permits at current levels.

Key Points:

NEPA is a procedural act designed to ensure agencies take a hard look at environmental issues before taking actions that may impact the environment. Outside of the NEPA process, federal law includes a number of substantive environmental mandates that must be addressed by agencies. Agencies must be cautious to comply with the requirements of all applicable federal environmental laws not just NEPA.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.