United States District Court, D. Colorado
SIERRA CLUB, ELYRIA AND SWANSEA NEIGHBORHOOD ASSOCIATION, CHAFEE PARK NEIGHBORHOOD ASSOCIATION, and COLORADO LATINO FORUM, Plaintiffs,
FEDERAL HIGHWAY ADMINISTRATION, ELAINE CHAO, and JOHN M. CARTER, Defendants.
COLORADO DEPARTMENT OF TRANSPORTATION, and SHAILEN P. BHATT, Defendants-Intervenors.
ORDER ON THE SCOPE OF THE ADMINISTRATIVE
Michael E. Hegarty, United States Magistrate Judge.
case in an Administrative Procedure Act (“APA”)
review of Defendant Federal Highway
Administration's (“FHWA”) approval of an
expansion project for a portion of Interstate 70
(“I-70”). Plaintiffs Sierra Club, Elyria and
Swansea Neighborhood Association, Chafee Park Neighborhood
Association, and Colorado Latino Forum move to supplement the
administrative record with eight exhibits. In a separate
motion, Plaintiffs seek to conduct discovery and complete the
hold that Plaintiffs have not overcome the presumption
against extra-record evidence for the eight documents
underlying their motion to supplement. Therefore, I deny
Plaintiffs' Corrected Motion to Supplement the
permit Plaintiffs to conduct limited discovery into
FHWA's modeling of PM10 emissions. However, I
decline to complete or supplement the record with the five
documents Plaintiffs attach to their motion. Accordingly, I
grant in part and deny in part Plaintiffs' Corrected
Motion to Conduct Limited Discovery, Complete the Record, and
Take Judicial Notice.
case arises out of FHWA's January 19, 2017 Record of
Decision (“ROD”), which approved a highway
expansion plan for I-70. Am. Petition ¶ 1, ECF No. 25.
The plan has become known as the “PCL
Alternative.” This project will reconstruct a ten mile
stretch of I-70 between Interstate 25 and Chambers Road in
Denver, Colorado. (AR 1-251); Am. Petition ¶ 8.
Plaintiffs contend FHWA's approval failed to comply with
the National Environmental Policy Act (“NEPA”)
and the Transportation Act. Am. Petition ¶¶ 2,
214-318. According to Plaintiffs, FHWA did not adequately
analyze the effect the PCL Alternative will have on human
health, especially with regard to individuals residing close
to the affected area. Id. ¶ 12.
January 26, 2018, FHWA lodged the corrected administrative
record. See ECF No. 105. Then, on March 9, 2018,
Plaintiffs filed the present Motion to Supplement the
Administrative Record, ECF No. 128. Plaintiffs seek to add to
the record eight documents that were undisputedly not before
FHWA when it approved the PCL Alternative. Id. Five
of these documents are expert reports allegedly demonstrating
that FHWA failed to consider the project's impact on
human health. See Decl. of Dr. George Thurston
(“Thurston Decl.”), ECF No. 128-1; First Decl. of
Dr. Gregory Rowangould (“First Rowangould
Decl.”), ECF No. 128-3; Second Decl. of Dr. Gregory
Rowangould (“Second Rowangould Decl.”), ECF No.
128-4; Decl. of Jonathan Heller (“Heller Decl.”),
ECF No. 128-5; Decl. of John Brink (“Brink
Decl.”), ECF No. 128-6. Additionally, Plaintiffs submit
a document summarizing nine scholarly articles related to the
health impacts of highway emissions. ECF No. 128-2. Finally,
Plaintiffs seek to supplement the record with notes from a
meeting they had with FHWA administrators, Decl. of Albert
Melcher (“Melcher Decl.”), ECF No. 128-7, and
CDOT's response to a Colorado Open Records Act
(“CORA”) request. ECF No. 128-8. FHWA contends
these documents do not satisfy any of the narrow exceptions
to the rule that review must be based on the record before
the agency. Resp. to Mot. to Supplement, ECF No.
Plaintiffs filed a reply brief on March 21, 2018. Reply in
Supp. of Mot. to Supplement, ECF No. 132.
March 9, 2018, Plaintiffs filed the present Motion to Take
Discovery and Complete the Administrative Record, ECF No.
First, Plaintiffs seek to serve limited discovery regarding
the modeling process FHWA used for emissions of
PM10. Mot. to Complete 6, ECF No. 127. Second,
Plaintiffs move to complete or supplement the administrative
record with five documents located on FHWA's website.
Id. at 7-14. Alternatively, Plaintiffs ask me to
take judicial notice of these documents. Id. at
14-15. FHWA filed a response on March 19, 2018. Resp. to Mot.
to Complete, ECF No. 115. FHWA contends Plaintiffs have not
made a significant showing that the record is incomplete with
regard to FHWA's PM10 modeling decisions.
Id. at 5-8. Further, FHWA asserts it did not
directly or indirectly consider the five documents Plaintiffs
seek to add to the record, and Plaintiffs have not met one of
the limited exceptions for supplementing the record.
Id. at 8-13. Plaintiffs subsequently filed a reply
brief. Reply in Supp. of Mot. to Complete, ECF No. 133. On
March 28, 2018, I held oral argument regarding both motions.
See ECF No. 134.
are two types of additions to the administrative record:
“(1) materials which were actually considered by the
agency, yet omitted from the administrative record
(‘completing the record'); and (2) materials which
were not considered by the agency, but which are necessary
for the court to conduct a substantial inquiry
(‘supplementing the record').” Ctr. for
Native Ecosystems v. Salazar, 711 F.Supp. 2d 1267, 1274
(D. Colo. 2010). Plaintiffs' motion to conduct discovery
and complete the record falls primarily under the first
category, while Plaintiffs' motion to supplement the
record concerns the second.
analyze whether to supplement the record with Plaintiffs'
eight exhibits. Then, I discuss whether Plaintiffs are
entitled to limited discovery and whether the record should
be completed or supplemented with the five documents attached
to Plaintiffs' motion.
Motion to Supplement the Administrative Record
addressing the applicable standard for supplementing the
administrative record, I individually analyze each of the
documents underlying Plaintiffs' motion. I decline to
supplement the record with these documents.
“the agency's action must be reviewed on the basis
articulated by the agency and on the evidence and proceedings
before the agency at the time it acted.” See Am.
Mining Congress v. Thomas, 772 F.2d 617, 626 (10th Cir.
1985); Medina Cty. Envtl. Action Ass'n v. Surface
Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010)
(“[T]he general presumption [is] that review is limited
to the record compiled by the agency.”). This is
because district courts act as reviewing bodies, instead of
independent decision makers, when deciding the merits of APA
appeals. Am. Mining Congress, 772 F.2d at 626.
“[A]ny exception to this general rule against the use
of extra-record materials must be extremely limited.”
Id.; Walter O. Boswell Mem'l Hosp. v.
Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (“To
review more than the information before the Secretary at the
time she made her decision risks our requiring administrators
to be prescient or allowing them to take advantage of post
American Mining Congress, the Tenth Circuit noted
the following five exceptions to the general rule against
extra-record evidence: (1) when the agency action is not
adequately explained and cannot be reviewed properly without
considering the cited materials; (2) when the record is
deficient, because the agency ignored relevant factors it
should have considered; (3) when the agency considered
factors that it left out of the formal record; (4) when the
case is so complex and the record so unclear that the
reviewing court needs more evidence to enable it to
understand the issues; and (5) when the evidence coming into
existence after the agency acted demonstrates that the
actions were right or wrong. 772 F.2d at 626. Additionally,
courts have recognized an exception specific to NEPA cases
when extra-record evidence “may illuminate whether an
[environmental impact statement (“EIS”)] has
neglected to mention a serious environmental consequence,
failed adequately to discuss some reasonable alternative, or
otherwise swept stubborn problems or serious criticism . . .
under the rug.” Citizens for Alts. to Radioactive
Dumping v. U.S. Dep't of Energy, 485 F.3d 1091, 1096
(10th Cir. 2007) (quoting Lee v. U.S. Air Force, 354
F.3d 1229, 1242 (10th Cir. 2004)).
courts should construe these exceptions narrowly. Am.
Mining Congress, 772 F.2d at 626. Evidence indicating a
“disagreement regarding the reliability of the
methodology [the agency used] and whether it has been applied
accurately in this [environmental impact statement]. . . is
an insufficient basis for admitting extra-record evidence . .
. .” Lee, 354 F.3d at 1243-44; Rags Over
the Ark. River, Inc. v. Bureau of Land Mgmt., No.
12-cv-00265-JLK, 2014 WL 12741064, at *1 (D. Colo. Mar. 28,
2014) (“[E]vidence showing that a plaintiff's
expert disagrees with an agency expert is not a basis to
admit extra-record review.”). Thus, when analyzing
whether to supplement the record with an expert opinion, the
issue is whether the testimony “illuminates gaps in the
decision-making process . . . or is simply a conflicting
expert opinion on the topic.” Rags Over the Ark.
River, Inc., 2014 WL 12741064, at *2.
“Extra-record evidence which is actually a competing
expert opinion . . . may not be admitted under the guise of
the NEPA exception.” Colo. Wild v. Vilsack,
713 F.Supp.2d 1235, 1241 (D. Colo. 2010) (citing
Lee, 354 F.3d at 1242). Additionally, the
presumption against extra-record evidence is especially
strong when the proposed documents were created for
litigation. See Gulf Coast Rod Reel & Gun Club v.
U.S. Army Corps of Eng'rs, No. 3:13-CV-126, 2015 WL
1883522, at *6 (S.D. Tex. Apr. 20, 2015) (“Courts have
long refused to consider reports created at the litigation
stage when reviewing agency action.”).
Declaration of Dr. George Thurston, ECF No. 128-1
Thurston's affidavit takes issue with FHWA's
conclusion that an individual pollutant's compliance with
National Ambient Air Quality Standards (“NAAQS”)
ensures protection against the public health effects of
exposure to that pollutant. Thurston Decl. 5, ECF No. 128-1;
Mot. to Supplement 5-6, ECF No. 128. According to Dr.
Thurston, compliance with NAAQS does not guarantee that the
PCL Alternative will not significantly affect human health.
Thurston Decl. 5. Dr. Thurston's report details a variety
of professional articles and opines that residents living
near the modified section of I-70 will have a greater
likelihood of suffering a variety of health problems.
Id. Plaintiffs contend this report demonstrates
FHWA's failure to consider a relevant factor or relevant
evidence. Mot. to Supplement 5-6.
have not met their burden of establishing one of the limited
exceptions for supplementing the record. First, I disagree
with Plaintiffs' contention that the declaration
demonstrates FHWA did not consider a relevant factor-the PCL
Alterative's effect on human health. FHWA did not fail to
analyze the project's effect on human health; FHWA just
came to a different conclusion based on a different
methodology-compliance with NAAQS. Therefore, Dr.
Thurston's report merely disagrees with the reliability
of FHWA's methodology. This is an insufficient basis on
which to supplement the administrative record. See,
e.g., Colo. Wild, 713 F.Supp.2d at 1241
(“Extra-record evidence which is actually a competing
expert opinion . . . may not be admitted . . . .”). In
Lee, the plaintiffs submitted two expert affidavits
to support their argument that the Air Force “used a
flawed methodology in performing its analysis of noise
impacts resulting from the proposed action.” 354 F.3d
at 1236. The Tenth Circuit agreed with the district
court's decision to strike the expert affidavits from the
record. Id. at 1243-44. According to the court, the
affidavits “indicate that there is disagreement
regarding the reliability of the methodology and whether it
has been applied accurately in this EIS. This only
demonstrates that experts disagree, which, as discussed
above, is an insufficient basis for admitting extra-record
evidence.” Id. Similarly, Dr. Thurston's
report merely indicates that Plaintiffs disagree with the
methodology FHWA used to determine the PCL Alternative's
impact on human health; it does not demonstrate that FHWA
entirely failed to consider human health.
Plaintiffs argue that I should include the report in the
administrative record, because it contains relevant evidence.
However, the relevance of the report alone is an insufficient
basis on which to supplement the administrative record.
Indeed, allowing supplementation of the record with any
relevant expert reports and professional articles would be
directly contrary to the Tenth Circuit's admonition that
“any exception to this general rule against the use of
extra-record materials must be extremely limited.”
Am. Mining Congress, 772 F.2d at 626.
Plaintiffs primarily rely on Center for Native Ecosystems
v. Salazar, 711 F.Supp.2d 1267 (D. Colo. 2010) to
support their contention that courts may supplement the
record with relevant evidence. Reply in Supp. of Mot. to
Supplement 3, ECF No. 132. However, Center for Native
Ecosystems did not declare a general relevance exception
to the rule against consideration of extra-record evidence.
The evidence in that case was biological assessments and
opinions created by the agency, and it concerned the impact
of various projects on the species underlying that lawsuit.
Ctr. for Native Ecosystems, 711 F.Supp.2d at 1276.
In contrast, the articles Dr. Thurston cites are not
specifically related to the PCL Alternative, and FHWA did not
write them. See Thurston Decl. Therefore, Plaintiffs
cannot satisfy their burden simply by arguing that the report
contains relevant evidence, and I decline to supplement the
administrative record with Dr. Thurston's report.
Published Peer Review Articles, ECF No. 128-2
next seek to supplement the record with a summary of nine
articles related to assessing health impacts from highway
emissions. ECF No. 128-2. I deny Plaintiffs' request to
include these articles in the record. Contrary to
Plaintiffs' contention, the articles do not demonstrate
that FHWA failed to consider health effects. Indeed, the
articles are not even related to the PCL Alternative. That
the articles contain information regarding the health effects
of exposure to highway emissions is an insufficient basis on
which to supplement the administrative record. See Swan
View Coalition v. Weber, 52 F.Supp.3d 1133, 1159 (D.
Mont. 2014) (denying supplementation of the record with two
peer-reviewed articles, because the agency did not rely on
them in making its decision, and they did not show that the
agency failed to consider relevant factors). Indeed, this
would eliminate the presumption against extra-record evidence
by allowing admission of any relevant scientific study.
up to three of these articles were published after FHWA
issued the ROD in January 2017. ECF No. 128-2 (listing three
articles published in 2017). Including these articles in the
record would result in an impermissible post hoc analysis of
FHWA's decision. See Walter O. Boswell Mem'l
Hosp., 749 F.2d at 792; see also Friends of the
Earth v. Hall, 693 F.Supp. 904, 935 n.19 (W.D. Wash.
1988) (“Here again, the Corps attempts to improperly
supplement the administrative record with post hoc
scientific studies . . . .”); Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d
930, 942 (9th Cir. 2006) (stating that parties may not use
“post-decision information as a new rationalization
either for sustaining or attacking the Agency's
decision”). Because the articles do not demonstrate
FHWA entirely failed to consider a relevant factor, I decline
to include them in the administrative record.
First Declaration of Dr. Gregory Rowangould, ECF No.
Rowangould's first declaration disputes the accuracy of
the hot spot analysis FHWA performed to calculate expected
emissions of PM10. First Rowangould Decl., ECF No.
128-3. According to Dr. Rowangould, FHWA performed one
modeling procedure to determine emissions at over 3, 200
receptor locations, but followed a different procedure for
the seven receptor locations where emissions will be highest.
Id. at 16-25. Plaintiffs assert this declaration is
necessary to help the District Court understand FHWA's