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NRDC, Inc. v. United States Department of Transportation

United States Court of Appeals, Ninth Circuit

October 30, 2014

NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit corporation; EAST YARD COMMUNITIES FOR ENVIRONMENTAL JUSTICE, a non-profit corporation; COALITION FOR A SAFE ENVIRONMENT, a non-profit corporation, Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, in his official capacity as Secretary of Transportation; STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION; VICTOR MENDEZ, Administrator, Federal Highway Administration; JEFFREY PANIATI, in his official capacity as Acting Deputy Director of the Federal Highway Administration, Defendants-Appellees, ALAMEDA CORRIDOR TRANSPORTATION AUTHORITY, Real Party in Interest-Appellee

Argued and Submitted May 14, 2014, Pasadena, California

Page 1261

Appeal from the United States District Court for the Central District of California. D.C. No. 2:09-cv-08055-JAK-MAN. John A. Kronstadt, District Judge, Presiding.

SUMMARY[*]

Environmental Law

The panel affirmed the district court's summary judgment in favor of federal and state defendants in an action brought by environmental groups alleging that the defendants violated the Clean Air Act and the National Environmental Policy Act by failing to properly evaluate and disclose the potential environmental impact of a planned expressway connecting the Ports of Los Angeles and Long Beach to the I-405 freeway.

Pursuant to the Clean Air Act (CAA), the states must adopt a State Implementation Plan that provides for the implementation and maintenance of national air quality standards. The CAA contains a " conformity" provision that prohibits federal participation in any project that fails to conform to an approved State Implementation Plan. The CAA delegated to the Environmental Protection Agency (EPA) and the U.S. Department of Transportation the duty to establish procedures to assure conformity for transportation projects. Pursuant to that authority, the EPA promulgated regulations mandating a " hot-spot analysis" for certain pollutants, including PM2.5 - the pollutant at issue. In the course of the expressway project's approval process, the defendants conducted an air quality Conformity Determination, which involved a qualitative hot-spot analysis of existing concentration of PM2.5, and an Environmental Impact Statement (EIS) as required by the National Environmental Policy Act.

The panel held that the defendants were not required to estimate PM2.5 increases within the area immediately adjacent to the proposed expressway, and concluded that the defendants' Conformity Determination complied with the CAA. Specifically, the panel held that the CAA's statutory phrase " any area" was ambiguous, and the governing regulations did not decisively answer whether the CAA required qualitative hot-spot analysis within the immediate vicinity of the project area during the time period at issue, but the EPA's and Department of Transportation's interpretation of the regulations--permitting the type of analysis performed here by the defendants--were entitled to considerable deference. The panel further held that the defendants' Conformity Determination was neither arbitrary nor capricious.

Finally, the panel held that the EIS prepared by the defendants took the requisite " hard look" at the freeway project's likely consequences and probable alternatives, and therefore the EIS comported with the National Environmental Policy Act.

Adriano Martinez (argued), David Pettit, Natural Resources Defense Council, Santa Monica, California; Robert E. Yuhnke, Robert Yuhnke & Associates, Boulder, Colorado, for Plaintiffs-Appellants.

J. David Gunter II (argued), Ignacia S. Moreno, David Glazer, Norman Rave, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Jocelyn Denise Thompson (argued), Sharon Rubalcava, Shiraz D. Tangri, Marisa Blackshire, Alston & Bird LLP, Los Angeles, California, for Real Party in Interest-Appellee.

Before: John T. Noonan, Kim McLane Wardlaw, and Raymond C. Fisher, Circuit Judges.

OPINION

Page 1262

WARDLAW, Circuit Judge.

Natural Resources Defense Council, East Yard Communities for Environmental Justice, and Coalition for a Safe Environment (collectively " NRDC" ) appeal the district court's grant of summary judgment in favor of the U.S. Department of Transportation and other federal and state defendants (collectively " Defendants" ). NRDC argues that Defendants violated the federal Clean Air Act (" CAA" ) and the National Environmental Policy Act (" NEPA" ) by failing to properly evaluate and disclose the potential environmental impact of a planned expressway connecting the Ports of Los Angeles and Long Beach to the I-405 freeway. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's grant of summary judgment to Defendants.

I.

The Port of Los Angeles is our nation's busiest container port.[1] Considered together with the adjacent Port of Long Beach, this port complex is among the ten busiest in the world, and it accounts for roughly forty percent of all waterborne cargo that enters the United States. Bill Sharpsteen, The Docks 53-54 (2011). The port's cargo volume is projected to continue rising for decades.[2]

Although the ports are an economic boon for the Los Angeles region, they also affect air quality in the surrounding area, especially in the adjacent communities of San Pedro and Wilmington. These impacts are projected to worsen with the rise in container volume at the ports. The State Route 47 Expressway Project (" Project" ) is one of several port-related infrastructure projects designed to ease traffic congestion and mitigate air pollution. If built, the Project will connect the ports to the I-405 freeway via an elevated, 1.7 mile-long expressway. The Project's sponsors, which are now the Defendants in this litigation, assert that the Project will better integrate the ports with the freeway system, thereby reducing the need for surface-street travel by trucks carrying shipping containers, and the pollution generated while they run idle at traffic signals and railroad crossings.

Page 1263

In the course of the Project's approval process, Defendants conducted an air quality Conformity Determination and an Environmental Impact Statement (" EIS" ). As one component of the Conformity Determination study, Defendants performed a qualitative " hot-spot" analysis that measured existing concentrations of PM2.5, a type of fine particulate matter, and estimated the Project's likely impact on PM2.5 levels. Because there was no PM2.5 receptor located within the immediate vicinity of the Project, Defendants based their qualitative hot-spot analysis on data from a receptor five miles away from the project area. Defendants released a draft Conformity Determination in November 2008. Following a round of comments and revisions, the final Conformity Determination was issued in May 2009.

Meanwhile, Defendants prepared an EIS as required by NEPA. The EIS process began in 2004, and Defendants released a draft EIS in August 2007. The draft EIS prompted numerous comments, including comments from NRDC, to which Defendants responded at length. The comments also spurred Defendants to conduct additional studies, such as a Traffic Sensitivity Analysis and a Health Risk Assessment that detailed the Project's likely health impacts, including an increased risk of cancer in the areas immediately adjacent to the Project. Defendants released the final version of the EIS in May 2009, and signed the Record of Decision in August 2009.

In November 2009, NRDC filed a complaint in the Central District of California alleging that Defendants' approval of the Project violated CAA, NEPA, and the Administrative Procedure Act. At the district court's request, the parties briefed and argued cross-motions for summary judgment. On June 29, 2012, the district court issued an order granting summary judgment in Defendants' favor. This appeal follows.

II.

A district court's decision on cross-motions for summary judgment is reviewed de novo. Am. Civil Liberties Union of Nev. v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). " We view the evidence in a light most favorable to the nonmoving party and decide whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009).

Under the Administrative Procedure Act, we must " hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). " Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency." Barnes v. United States DOT., 655 F.3d 1124, 1132 (9th Cir. 2011).

" When Congress has 'explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,' and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute." United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2000) (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Even if the agency has not formally interpreted the statute, Chevron deference applies when it has " promulgated a rule based on an implicit interpretation of the statute." Schleining v. Thomas, 642 F.3d 1242, 1246 (9th Cir. 2011).

Page 1264

An agency's interpretation of its own regulation is " controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 ...


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