9th Circ. Simplifies Enviro Process For Transit Projects

by Nossaman LLP
Contact

Originally Published on Law360 - March 7, 2014.

In a decision of national importance for transit and highway projects, on Feb. 18, 2014, the Ninth Circuit Court of Appeals rejected environmental challenges to the 20-mile Honolulu Rail Transit Project.[1] On the same day, the U.S. District Court for the District of Hawaii dissolved a temporary injunction on construction in the downtown Honolulu portion of the project.[2]

The two decisions remove the last legal barriers to completion of the project, which will connect West Oahu with downtown Honolulu and serve major commercial and tourist destinations, including Pearl Harbor, the Honolulu Airport, downtown Honolulu, and the Ala Moana Center.

The Ninth Circuit decision has important national implications because it recognizes that federal transportation agencies may (1) define a project's purpose and need and the range of alternatives based on the objectives described in an approved metropolitan transportation plan, and (2) narrow the range of alternatives based on prior state and local studies of project alternatives under certain circumstances.

The Complex Federal Environmental Process

The Ninth Circuit decision is based, in part, on recent federal legislation and regulations aimed at simplifying the complex and lengthy environmental process governing new highway and transit projects. Many studies have documented that the average time to obtain the many regulatory approvals necessary to construct a major transportation improvement is well over a decade and appears to be growing longer.

In 2011, the Federal Highway Administration estimated that the average time to deliver a new highway project from planning through construction was 13 years. The median time to complete the federal environmental impact statement process alone for highway projects approved in 2009 was 84 months.[3] These statistics are all the more sobering when one realizes that they do not include the time required to obtain approvals from other federal agencies and from state agencies.

Nor do the statistics account for the time attributable to preparation and approval of the metropolitan transportation plan and program (which must be in place prior to the approval of a project), or the time to resolve litigation challenges under the National Environmental Policy Act and other federal and state environmental laws.

To put the above data in context, the U.S. completed all of the many projects leading to the historic moon landing in 83 months — from President John F. Kennedy's September 1962 announcement of the goal to put a man on the moon to Neil Armstrong's "one giant leap for mankind" in 1969.

Much of the delay in the delivery of transportation projects is attributable to the diabolical complexity of the federal planning and environmental process. A 2012 General Accountability Office report on the delivery of federal highway projects documented that there are as many as 200 steps associated with the planning, permitting and construction of a new federal highway project.[4] The process is even more complex in states that require state environmental reviews and state environmental permits.

Agency May Rely on Metropolitan Transportation Plan to Define Purposes of Transportation

The Ninth Circuit decision regarding the Honolulu project is the first appellate court decision addressing the recent environmental streamlining reforms adopted by Congress and reflected in federal environmental regulations. In HonoluluTraffic.Com, the Ninth Circuit rejected plaintiffs' claim that the purpose and need for the project was too narrow because it identified the provision of high-capacity rail transit in the project corridor among other purposes.

Relying on statutory and regulatory provisions linking the metropolitan transportation planning and project-level environmental review, the court concluded that the Federal Transit Administration could define the purpose of a transportation project in accordance with the objectives of the Oahu transportation plan and the objectives in the applicable federal transportation statutes.[5]

The Oahu transportation plan determined that high-capacity rail transit connecting West Oahu with downtown Honolulu was necessary to implement Honolulu's smart growth land use policies. The federal law governing the FTA's New Starts program, in turn, includes the objectives of minimizing fuel consumption and improving mobility for transit-dependent communities.

Agency May Use Prior State Studies to Narrow Range of Alternatives

Plaintiffs claimed that the Federal Transit Administration had violated NEPA because it had relied on a city study of other alternatives (e.g., toll highways, tunnels and at-grade rail transit) to narrow the range of alternatives evaluated in detail in the environmental impact statement. The city prepared the alternatives analysis to comply with FTA New Starts program requirements.

The Ninth Circuit held that federal law authorized the FTA to use the city's analysis of alternatives to narrow alternatives evaluated in detail in the environmental impact statement because the FTA furnished guidance to the city, and the city provided an opportunity for public comment on the alternatives analysis.[6] The Ninth Circuit also affirmed the district court's conclusion that the FTA reasonably relied on the city's alternative analysis to reject a toll highway on cost and other grounds.[7]

Federal Agency May Determine that Nonrail Alternatives Are Not Prudent Under Section 4(f) Where the Alternative Does Not Meet the Project Purpose and Need

The Ninth Circuit also rejected the plaintiffs' claim that FTA violated Section 4(f) of the Transportation Act[8] when it determined that nonrail alternatives advocated by the plaintiffs were not prudent because the alternatives did not meet the project's purpose and need.

Section 4(f) prohibits federal transportation agencies from approving projects that use parks and certain historic sites unless the agency determines that there are no "feasible and prudent" alternatives. Project opponents commonly employ Section 4(f) to block federal transportation projects.

The court concluded that FTA reasonably determined that the plaintiffs' preferred alternatives would not achieve the purposes identified in the Oahu transportation plan, including supporting the city's land use policies and substantially improving mobility for transit-dependent communities.[9]

The Ninth Circuit decision reaffirms prior case law that federal transportation agencies have the authority to determine that an alternative is not "prudent" under Section 4(f) if the alternative does not meet the project's stated purpose and need. The decision underscores the critical importance of a carefully framed purpose and need statement that is linked to the objectives of the metropolitan transportation plan and federal transportation law.

District Court Dissolves Temporary Injunction on Construction in Downtown Honolulu

On the same day as the Ninth Circuit decision, the U.S. District Court for the District of Hawaii rejected plaintiffs' objection to the defendants' analysis of a tunnel alternative in the downtown portion of the project under Section 4(f) and dissolved the temporary injunction on construction activities in downtown Honolulu.

In December 2012, the district court had ordered FTA and the city to conduct additional analysis of three Section 4(f) issues in the downtown portion of the project, including whether a tunnel alternative was a feasible and prudent alternative to the project's use of historic sites. The district court concluded that the FTA reasonably determined that the tunnel alternative did not avoid the use of historic sites and that the approved project alignment was the least-harm alternative.

Nossaman was counsel to the city and county of Honolulu in HonoluluTraffic.Com v. Federal Transit Administration.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

1] HonoluluTraffic.Com v. Federal Transit Administration, No. 13-15377 (9th Cir. Feb. 18, 2014). 

[2] HonoluluTraffic.Com v. Federal Transportation Administration, No. 11-0307 AWT (D. Haw. Feb. 18, 2014). 

[3] http://www.environment.fhwa.dot.gov/strmlng/nepatime.asp (visited 3.4.2013).

[4] GAO Report No. 12-593 (June 2012). 

[5] Slip Op. at 17-18.

[6] Slip Op. at 19-21.

[7] Slip Op. at 20-21.

[8] 49 U.S.C. § 303 

[9] Slip Op. at 22.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nossaman LLP | Attorney Advertising

Written by:

Nossaman LLP
Contact
more
less

Nossaman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.