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Sierra Club v. Federal Highway Administration

United States District Court, D. Colorado

April 6, 2018

SIERRA CLUB, ELYRIA AND SWANSEA NEIGHBORHOOD ASSOCIATION, CHAFEE PARK NEIGHBORHOOD ASSOCIATION, and COLORADO LATINO FORUM, Plaintiffs,
v.
FEDERAL HIGHWAY ADMINISTRATION, ELAINE CHAO, and JOHN M. CARTER, Defendants.
v.
COLORADO DEPARTMENT OF TRANSPORTATION, and SHAILEN P. BHATT, Defendants-Intervenors.

          ORDER ON THE SCOPE OF THE ADMINISTRATIVE RECORD

          Michael E. Hegarty, United States Magistrate Judge.

         This case in an Administrative Procedure Act (“APA”) review of Defendant Federal Highway Administration's[1] (“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 administrative record.

         I first 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 Administrative Record.

         Next, I 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.

         BACKGROUND

         This 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.

         On 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. 124.[2] Plaintiffs filed a reply brief on March 21, 2018. Reply in Supp. of Mot. to Supplement, ECF No. 132.

         Also on March 9, 2018, Plaintiffs filed the present Motion to Take Discovery and Complete the Administrative Record, ECF No. 127.[3] 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.

         ANALYSIS

         There 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.

         I first 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.

         I. Motion to Supplement the Administrative Record

         After 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.[4]

         Generally “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 hoc rationalizations.”).

         In 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)).

         However, 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.”).

         A. Declaration of Dr. George Thurston, ECF No. 128-1

         Dr. 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.

         Plaintiffs 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.

         Second, 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.

         B. Published Peer Review Articles, ECF No. 128-2

         Plaintiffs 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.

         Furthermore, 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.[5]

         C. First Declaration of Dr. Gregory Rowangould, ECF No. 128-3

         Dr. 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 ...


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