9th Circ. Simplifies Enviro Process For Transit Projects

by Nossaman LLP

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.

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