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Sierra Club v. Federal Highway Administration

United States District Court, D. Colorado

April 3, 2018

SIERRA CLUB; ELYRIA AND SWANSEA NEIGHBORHOOD ASSOCIATION; CHAFFEE PARK NEIGHBORHOOD ASSOCIATION; and COLORADO LATINO FORUM, Plaintiffs,
v.
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,

          ORDER DENYING PLAINTIFFS' MOTION TO STAY

          William J. Martinez United States District Judge.

         A portion of Interstate 70 (“I-70”) running through 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. For reasons explained below, this plan has become known as the “PCL Alternative.” Given that the Highway Administration needed to approve the PCL Alternative, and will provide some funds to CDOT for the project, the Highway Administration 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 doing nothing, or modifying the viaduct).

         Plaintiffs Sierra Club, Elyria and Swansea Neighborhood Association, Chaffee Park Neighborhood Association, and the Colorado Latino Forum (“Plaintiffs”) claim that Defendants did not fulfill their NEPA and other statutory duties when choosing to approve the PCL Alternative.[2] Plaintiffs have sued under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq., which gives this Court the 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.

         Because it usually takes months and often years to fully resolve APA claims, Plaintiffs have filed the motion currently before the Court, a Motion for Stay of Agency Action Pending Review on the Merits (“Motion to Stay”). (ECF No. 88.). Plaintiffs invoke APA § 705, empowering this Court to grant what is, in all material respects, a preliminary injunction against any further action on the PCL Alternative while this Court adjudicates Plaintiffs' challenge.

         For the reasons explained below, the Court denies Plaintiffs' Motion to Stay.

         I. THE CLEAN AIR ACT & “NAAQS”

         As will become clear below, many of the parties' arguments require an understanding of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et seq., particularly as it relates to federally funded transportation projects. The Court therefore begins with a summary of the relevant statutory and regulatory requirements.

         As part of the CAA, Congress charged the Environmental Protection Agency (“EPA”) with setting National Ambient Air Quality Standards (“NAAQS”) for certain pollutants. 42 U.S.C. § 7409. The NAAQS are specifically described as “ambient air quality standards the attainment and maintenance of which in the judgment of the [EPA], based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.” Id. § 7409(b)(1).[3]

         Once a NAAQS is promulgated or revised, each state must adopt and submit to the EPA for approval a State Implementation Plan (“SIP”) that “provides for implementation, maintenance, and enforcement of [the NAAQS] in each air quality control region (or portion thereof) within such State.” Id. § 7410(a)(1). Each SIP must “include enforceable emission limitations and other control measures, means, or techniques . . ., as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the [CAA's] applicable requirements.” Id. § 7410(a)(2)(A).

         The federal government may not “engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which” would jeopardize or interfere with a SIP's ability to achieve or maintain NAAQS compliance. Id. § 7506(c)(1). Thus, as relevant to the Highway Administration, it may not fund or approve a highway project if the resulting emissions would push the relevant geographic region out of NAAQS compliance. Id. § 7506(c)(1)-(2).

         II. BACKGROUND

         A. Beginnings of the Present Project

         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).

         B. The DEIS

         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.)

         The DEIS evaluated five potential actions: (1) “no-action, ” meaning tearing down and rebuilding the viaduct “without any added capacity”;[4] (2) “existing [alignment], ” which would rebuild the viaduct with added lanes; (3) “existing [alignment], tolled, ” which would rebuild the viaduct with added lanes, including toll lanes; (4) “realigned, ” which would essentially route all I-70 traffic in central Denver onto I-270 and I-76, thus avoiding the viaduct (which would then be torn down and returned to its previous status as 46th Avenue in Denver); and (5) “realigned, tolled, ” which is the same as “realigned” but with the addition of toll lanes. (R. at 6698-99.)

         As particularly relevant here, the DEIS contained a discussion of air quality effects of the various proposals, including the need to maintain NAAQS compliance. (R. at 7033-58.) This discussion included a lengthy section regarding a category of toxic compounds sometimes emitted from automobiles known as mobile source air toxics (“MSATs”). (R. at 7040-49.) The DEIS described MSATs as “a relatively new area of potential concern in the air quality field.” (R. at 7040.) The DEIS announced that Defendants could not “predict with confidence the [MSAT-related] project-specific health impacts . . . associated with the alternatives” due to a “lack of a national consensus on an acceptable level of risk and other air quality criteria assumed to protect the public health and welfare, as well as the reliability of available technical tools.” (R. at 7041.) Nonetheless, for comparative purposes, the DEIS quantified the levels of MSAT emissions expected to result from the various alternatives. (R. at 7049.)

         The University of Denver Sturm College of Law's Environmental Clinic submitted comments on the DEIS. (R. at 9435.) Among the Clinic's major concerns was the air pollution analysis:

There is now compelling and unambiguous scientific evidence that demonstrate that diverse air pollutants from trucks and motor vehicles (including diesel particulate matter, fine and ultrafine particulate matter) cause an increased risk of asthma, heart disease and cancer in those living immediately adjacent to interstate highways. Moreover, contrary to [Defendants' position], using available data and reliable models, [Defendants] could readily quantify these health risks, and compare the alternatives with respect to them. . . . Accordingly, we request that before the I-70 East EIS is finalized, the agency quantify the increased incidence of asthma, heart disease and cancer in those who will live, work and recreate immediately adjacent (< 400m) to the various proposed alternatives, as a result of being exposed to elevated levels of air pollutants from vehicles on I-70 East.

(R. at 9450.) The Clinic specifically criticized “the common, but nevertheless incorrect, assumption that because NAAQS standards are theoretically set at a level to protect human health, an EIS that confirms that these standards will not be exceeded constitutes an adequate analysis of ‘no significant impact' with regards to public health.” (R. at 9450 n.1.)

         The Clinic also expressed concern that all of the contemplated alternatives would in some measure continue to bisect the affected neighborhoods, thus perpetuating the lack of community cohesion that resulted from I-70's original construction through those neighborhoods. (R. at 9443-44.) The Clinic encouraged Defendants to think more broadly about alternatives, including “below grade construction” and “use of tunnels.” (R. at 9445.)

         C. The SDEIS

         In 2014, Defendants issued a supplemental draft EIS (“SDEIS”). (R. at 9843.) This document announced that the two “realignment” alternatives had been eliminated. (R. at 9878.) Such realignment along I-270 and I-76, Defendants concluded, would, among other things: (1) create more traffic congestion in the area, including by forcing more heavy trucks onto local streets, given the number of industrial areas and businesses located along the existing I-70 route; (2) eliminate the redundancy that currently exists by having I-70 through northeast Denver and I-270/I-76 through the northern suburbs; and (3) cost more (estimated at about $4 billion, as compared to less than $2 billion for other alternatives) because it would require twelve miles of major highway widening. (R. at 10839-43.)

         The SDEIS also announced a new alternative under consideration (R. at 9878), which has become known as the “PCL Alternative.” PCL is short for “Partial Cover Lowered” and refers to a plan to demolish the Viaduct, reconstruct that portion of the freeway mostly below grade, and then to cover a part of that lowered section, creating a short tunnel. (R. at 9880.)

         Like the original DEIS, the SDEIS contained a discussion of likely air quality effects of the proposed alternatives. (R. at 10209.) And, like the original DEIS, the SDEIS contained a quantitative inventory of expected MSAT emissions, but no discussion of how those emissions might affect public health. (R. at 10246-47.) The SDEIS predicted an “overall decreasing trend in MSATs” for all alternatives, including the no-action ...


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