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Zeppelin v. Federal Highway Administration

United States District Court, D. Colorado

January 22, 2018

FEDERAL HIGHWAY ADMINISTRATION, ELAINE CHAO, in her official capacity as Secretary of Transportation; and JOHN M. CARTER, in his official capacity as Division Administrator, Defendants, and COLORADO DEPARTMENT OF TRANSPORTATION, and MICHAEL P. LEWIS, in his official capacity as Executive Director of the Colorado Department of Transportation


          William J. Martinez United States District Judge

         A portion of Interstate 70 (“I-70”) in northeast Denver was constructed in the 1960s as a 1.2-mile viaduct running through and above Denver's Elyria-Swansea and Globeville neighborhoods (“Viaduct”). This structure has apparently caused concern for some time in light of its age and the increase in traffic that naturally attends population growth. Defendant Federal Highway Administration (“Highway Administration”) and Intervenor-Defendant Colorado Department of Transportation (“CDOT”) (together, “Defendants”) have decided that the best way to deal with the Viaduct is to tear it down and rebuild the roadway below grade at a depth of up to 40 feet. This plan has become known as the “PCL Alternative.” “PCL” is short for “partial cover lowered, ” with “lowered” referring to the fact that the freeway would run below-grade, and “partial cover” referring to a plan to build an at-grade cover over a roughly 1, 000-foot stretch of the lowered freeway, turning that stretch into a tunnel.

         The Highway Administration needs to approve the PCL Alternative, and plans to provide some funds to CDOT for the project. The Highway Administration thus was required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4231 et seq., to prepare an environmental impact statement (“EIS”) thoroughly considering the various effects of the PCL Alternative and other alternatives (such as modifying the viaduct or re-routing the freeway).

         Plaintiffs Kyle Zeppelin, Brad Evans, Christine O'Connor, Kimberly Morse, Jacqueline Lansing, and Janet Feder (together, “Zeppelin Plaintiffs”) are among those seeking to stop Defendants, at least temporarily, from proceeding with the PCL Alternative. The Zeppelin Plaintiffs primarily argue that, in preparing the EIS and connected documents, Defendants intentionally and unlawfully excluded full consideration of a major stormwater project currently being pursued by the City and County of Denver (“Denver”). This project is now commonly referred to as “Platte to Park Hill” or “P2PH, ” although it has also been known (and is sometimes still referred to) as the “Two Basins Drainage Project” or “TBDP.” The Court will refer to this project as P2PH. It involves destruction and rebuilding of Denver's Globeville Landing Park, to accommodate a new stormwater outfall into the South Platte River (“Globeville Landing Outfall, ” referred to in many documents as the “GLO”); construction of a new open channel and greenway along a portion of Denver's 39th Avenue (“39th Avenue Open Channel”); partial destruction and rebuilding of Denver's City Park Golf Course to increase its capacity to detain water during a major storm event; and a certain amount of construction for the same purpose at another golf course, the Park Hill Golf Club.

         It is undisputed that CDOT is providing millions of dollars to assist Denver in constructing P2PH. For this and other reasons, the Zeppelin Plaintiffs believe that P2PH, although being built by Denver, is actually a component of the PCL Alternative, given that it will catch and divert a significant amount of rainfall that would otherwise flow toward and potentially flood the lowered portion of I-70. Thus, the Zeppelin Plaintiffs assert that Defendants were required by NEPA to include full consideration of every aspect of P2PH in their EIS. The Zeppelin Plaintiffs further allege that the P2PH construction process, and its ultimate results, will harm them in various ways.

         Irrespective of P2PH and its alleged connection to the PCL Alternative, the Zeppelin Plaintiffs additionally believe that Defendants have not adequately studied and disclosed potential consequences of the excavation necessary to place the freeway below grade, given that such excavation will necessarily disturb contaminated soils. The Zeppelin Plaintiffs, or some of them, worry that contaminated dust generated during the construction process might escape the construction zone and cause harm to them.

         The Zeppelin Plaintiffs have sued under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq., which gives this Court power to vacate Defendants' decision and require them to redo the NEPA process before considering again whether to pursue the plan to lower I-70 below grade. The Zeppelin Plaintiffs' specific claims for relief may be summarized as follows:

Claim 1. APA & NEPA (failure to analyze impacts of digging the freeway trench): The PCL Alternative will require digging through contaminated soils, and Defendants failed to examine how disturbing these hazardous materials will affect human health and the environment.
Claim 2. APA & NEPA (failure to include mitigation measures as part of digging the trench): Similar to Claim 1, arguing that Defendants did not explain how workers and members of the public can avoid exposure to contaminants dug up during construction.
Claim 3. APA & NEPA (inaccurate cost estimates): The $1.1 billion cost estimate for the PCL Alternative does not include the costs required to remediate hazardous materials encountered during construction.
Claim 4. APA & NEPA (failure to analyze “connected action”): P2PH is a “connected action” as defined in NEPA regulations (40 C.F.R. § 1508.25(a)(1)), and Defendants failed to account for it in the EIS.
Claim 5. APA & NEPA (failure to analyze “similar action”): Alternatively, P2PH is a “similar action” as defined in NEPA regulations(40 C.F.R.§ 1508.25(a)(3)), and Defendants failed to account for it in the EIS.
Claim 6. APA & NEPA (failure to analyze cumulative impacts): Alternatively, P2PH qualifies as a “cumulative impact” as defined in NEPA regulations (40 C.F.R. §§ 1508.25(c)(3) & 1508.7), and Defendants failed to account for it in the EIS.
Claim 7. APA & § 4(f) of the U.S. Department of Transportation Act of 1966 (failure to avoid destruction of a public park as part of a highway project): P2PH is a necessary part of the PCL Alternative, and P2PH requires destruction of City Park Golf Course, which is a public park.

         APA lawsuits normally take months and sometimes years to resolve. The Zeppelin Plaintiffs have therefore filed an APA § 705 Motion for Stay (“Motion for Stay, ” ECF No. 32), which seeks relief in the nature of a preliminary injunction to stop the PCL Alternative from progressing while the Court considers the merits of their claims. That motion specifically seeks an injunction based on Claims 1, 4, 5, and 6. (Id. at 27 & n.6.)[2]

         As will be recounted in more detail below, the Court has already held proceedings specifically addressing Claims 4, 5, and 7, and dismissing them for lack of subject matter jurisdiction, while reserving ruling on Claims 1 and 6. No party argues that the Court lacks subject matter jurisdiction over Claim 1 or Claim 6, and the purpose of this Order is to resolve the Zeppelin Plaintiffs' Motion to Stay as to those two claims on their merits. Also before the Court is the Zeppelin Plaintiffs' Motion to Reconsider the Court's order dismissing Claims 4, 5, and 7. (ECF No. 91.) For the reasons explained below, the Court denies the Motion to Reconsider and denies the Motion to Stay as to Claims 1 and 6 (thus denying it in its entirety).


         In August 2003, the Highway Administration published a notice in the Federal Register that it intended to prepare an EIS encompassing, among other things, potential “variations of the horizontal and vertical alignment of I-70 as well as capacity and safety improvements” from the I-25/I-70 interchange to Peña Boulevard-a stretch of freeway the Highway Administration dubbed the “I-70 East Corridor.” 68 Fed. Reg. 49839, 49839 (Aug. 19, 2003). CDOT and other governmental entities would participate with the Highway Administration in this process. Id.

         Three years later, the Highway Administration announced that, for purposes of the EIS, the “I-70 East Corridor” would be narrowed in scope to considerations of freeway alterations, and that mass transit-related considerations would be handled in a separate EIS. 71 Fed. Reg. 37637, 37637-38 (June 30, 2006).

         Defendants published their first draft EIS (“DEIS”) in November 2008. (See Administrative Record (“R.”) (ECF No. 99) at 6693.) Among the purposes acknowledged in the DEIS for the overall project was a need to address the Viaduct, the “current sufficiency rating of [which] ¶ 44 out of a possible 100, which is considered structurally deficient, functionally obsolete, and requiring replacement.” (R. at 6697.)

         In 2014, Defendants issued a supplemental draft EIS (“SDEIS”). (R. at 9843.) This document announced that the two “realignment” alternatives had been eliminated, and that a new alternative-the PCL Alternative-had been proposed. (R. at 9878.) Defendants issued the final EIS (“FEIS”) in January 2016. (R. at 17558.) Finally, in January 2017, Defendants issued their Record of Decision (“ROD”). (R. at 1.) The ROD announces that Defendants had selected the PCL Alternative as the preferred course of action. (R. at 2, 14-16.)


         A. Article III Standing Generally

         Understanding the parties' dispute regarding Claims 4, 5, and 7 requires keeping in mind the general principles of Article III standing. Article III of the U.S. Constitution restricts federal courts to deciding “cases” and “controversies.” See U.S. Const. art. III, § 2, cl. 1. These words have been interpreted to restrict federal courts from giving “advisory opinions, ” Flast v. Cohen, 392 U.S. 83, 96 (1968), meaning that a federal court may not resolve questions in the abstract, but instead may only resolve “disputes arising out of specific facts when the resolution of the dispute will have practical consequences to the conduct of the parties, ” Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1376 (10th Cir. 2011).

         To safeguard this restriction, the Supreme Court has articulated a three-element test for Article III standing:

First, the plaintiff must have suffered an “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural' or ‘hypothetical.'” Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be “likely, ” as opposed to merely “speculative, ” that the injury will be “redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted; certain alterations incorporated). As will become clear below, whether the Zeppelin Plaintiffs have standing to assert Claims 4, 5, and 7 turns on whether any order from this Court could redress their claimed injuries.

         B. Background

         1. Plaintiffs' Alleged Injuries

         Plaintiff Zeppelin lives and works in the Globeville neighborhood through which the Viaduct runs, and through which the PCL Alternative will run if constructed. (ECF No. 1-1 ¶¶ 6, 11.) He understands that the entire path of the PCL Alternative traverses a Superfund site, and he fears that the excavation process will expose him and his family to contaminated dust and other pollutants. (Id. ¶ 17.) He also understands that the Globeville Landing Outfall (a component of P2PH) is being constructed through the same Superfund site, and he fears that the construction will spread contaminants, potentially harming him, his family, and his business investments on the South Platte River. (Id. ¶¶ 19-22.) Zeppelin also generally opposes urban freeways as regressive and damaging to health, economic vitality, and social cohesion. (Id. ¶¶ 8-9.)

         Plaintiff Evans works full-time in the Globeville neighborhood, one block from Globeville Landing Park and three blocks from the Viaduct. His concerns are essentially the same as Zeppelin's. (ECF No. 1-2 ¶¶ 2, 7, 9, 14.)

         Plaintiff O'Connor often recreates at City Park Golf Course and enjoys its open space, trees, vistas, and historic significance. (ECF No. 1-6 ¶¶ 18-20.) She fears that the closure and reconstruction of City Park Golf Course as part of P2PH will temporarily, and perhaps permanently, impair her enjoyment of this public space. (Id.) She also worries about construction of the PCL Alternative itself, particularly that it “will lead to multiple lane closures, slower traffic, and increase[d] . ...

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