CV 12-9861-GW(SSx); CV 13-1144-GW(SSx); CV 13-8609-GW(SSx); CV 13-8621-GW(SSx)
August 12, 2016, Decided. August 12, 2016, Filed
For Beverly Hills Unified School District, Plaintiff (2:12cv9861): Clarine Riddle, LEAD ATTORNEY, Kasowitz Benson Torres and Friedman LLP, Washington, DC USA; Linda Diane Kornfeld, LEAD ATTORNEY, Kasowitz Benson Torres and Friedman LLP, Los Angeles, CA USA; Aaron H Marks, Jennifer S Recine, PRO HAC VICE, Kasowitz Benson Torres and Friedman LLP, New York, NY USA; Donald L Samuels, Bryan Cave LLP, Santa Monica, CA USA; William M Goodman, Kasowitz Benson Torres and Friedman LLP, San Francisco, CA USA.
For Federal Transit Administration, Carolyn Flowers, in her official capacity as Acting Administrator, Federal Transit Administration Substituted for Peter M Rogoff, Substituted for Therese W. McMillan, Leslie T Rogers, in his official capacity as Regional Administrator, Federal Transit Administration Region IX Office, Anthony Foxx, in his official capacity as Secretary United States Department of Transportation, Defendants (2:12cv9861): Jared S Pettinato, LEAD ATTORNEY, US Department of Justice, Environment & Natural Resources Division, Natural Resources Section, Washington, DC USA; Norman L Rave, Jr, US Department of Justice, Environmental & Natural Resources Division, Washington, DC USA.
For The City of Beverly Hills, a municipal corporation, Plaintiff (2:13cv1144): Donald L Samuels, LEAD ATTORNEY, Bryan Cave LLP, Santa Monica, CA USA; Robert I McMurry, LEAD ATTORNEY, Gilchrist and Rutter PC, Santa Monica, CA USA; Robert S Perlmutter, Sara Ann Clark, LEAD ATTORNEYS, Shute Mihaly and Weinberger LLP, San Francisco, CA USA.
For Federal Transit Administration, Peter M Rogoff, in his official capacity as Administrator, Federal Transit Administration, Leslie T Rogers, in official capacity as Regional Administrator, Federal Transit Administration Region IX Office, United States Department of Transportation, Ray Lahood, in his official capacity as Secretary, United States Department of Transportation, Defendants (2:13cv1144): Jared S Pettinato, LEAD ATTORNEY, US Department of Justice, Environment & Natural Resources Division, Natural Resources Section, Washington, DC USA.
For Beverly Hills Unified School District, Plaintiff (2:13cv8609): Linda Diane Kornfeld, LEAD ATTORNEY, Kasowitz Benson Torres and Friedman LLP, Los Angeles, CA USA; William M Goodman, LEAD ATTORNEY, Kasowitz Benson Torres and Friedman LLP, San Francisco, CA USA.
For The City of Beverly Hills, a municipal corporation, Plaintiff (2:13cv8621): Donald L Samuels, LEAD ATTORNEY, Bryan Cave LLP, Santa Monica, CA USA; Robert S Perlmutter, Sara Ann Clark, LEAD ATTORNEYS, Shute Mihaly and Weinberger LLP, San Francisco, CA USA.
CIVIL MINUTES - GENERAL
PROCEEDINGS (IN CHAMBERS): FINAL DECISION ON MOTIONS FOR SUMMARY JUDGMENT AND RULING IN REGARDS TO REMEDIES 
In its February 1, 2016 Tentative Ruling, this Court granted in part and denied in part three motions for summary judgment filed by Plaintiff Beverly Hills Unified School District ("BHUSD"), Plaintiff City of Beverly Hills ("City"), and Defendant Federal Transit Administration ("FTA") as to Phase 2 of the Westside Subway Extension Project (the "Project"). See Docket No. 136. In so doing, it ruled that:
the FTA failed its disclosure/discussion obligations under 40 C.F.R. §§ 1502.9(b) and 1502.22 (and under San Luis Obispo Mothers for Peace) in connection with BHUSD's comments concerning the effects of tunneling through gassy ground and the risk of explosions;  that it failed its disclosure obligations regarding incomplete information concerning seismic issues; and  that it should have issued both a SDEIS [supplemental draft environmental impact statement] and a SFEIS [supplemental final environmental impact statement]. The Court also concludes  that the FTA failed to properly assess "use" of the High School under Section 4(f) due to the planned tunneling. In all other respects, the Court rules in favor of the FTA.
Specifically, this Court reached inter alia the following conclusions: (1) as to Plaintiffs' claims regarding air quality and concomitant public health issues under the National Environmental Policy Act ("NEPA"), "the FTA took the necessary 'hard look' at the relevant environmental consideration of impacts on air quality from construction of the Project and engaged in a 'reasonably thorough discussion of the significant aspects' of increases in emissions . . . . the Court also rejects the assertion that the FTA has acted upon incomplete information" ( see Docket No. 136 at pages 103-04 of 217); (2) there is a problem with the sufficiency of the FTA's analysis as to the health impacts of nitrogen oxides ("NOx") at certain construction sites where the NOx levels were expected to exceed applicable thresholds, albeit temporarily ( Id. at page 104 of 217, and footnote 125 on page 217); (3) "[t]he FTA has explained in detail, and the administrative record supports, the conclusion that Metro can tunnel safely through areas with oil wells . . . . [and there was] no violation of 40 C.F.R. §1502.22 in connection with the issue of unknown oil wells alone" ( Id. at pages 114-15 of 217); (4) there was a "question . . . whether the FTA sufficiently 'crossed its t's and dotted its i's' in regards to potential surface hazards such as explosions arising from the Project's tunneling through 'gassy areas'" ( Id. at page 118 of 217); (5) "the FTA engaged in informed decision-making with respect to the assessment of alternatives relating to the approach to Constellation Station" ( Id. at page 129 of 217); (6) as to the selection of Constellation Boulevard (as opposed to Santa Monica Boulevard) as the location for the Century City subway station, the Court did agree "with BHUSD that the analysis certainly appears to have been slanted in one direction, [but] it is not prepared to conclude that it meets the standard necessary for a claim of improper pre-determination or bad faith" ( Id. at page 148 of 217), and the Court rejected "BHUSD's arguments about pre-determination and the associated 'hard look' arguments directed at the deficiencies it perceives in the Agencies' seismic and ridership studies" ( Id. at page 152 of 217); (7) there was a failure to disclose the incomplete nature of the information bearing upon the seismic analysis in regards to the subway siting decision ( Id. at pages 159-61 of 217); (8) both a SDEIS and SFEIS are required vis-à-vis the identification/selection of the Constellation Boulevard site as the location of the Century City subway station ( Id. at pages 170-74 of 217); (9) the City's claim under Section 176 of the Clean Air Act ("CAA"), 42 U.S.C. § 7506, is barred under the applicable statute of limitations ( Id. at page 199 of 217); (10) the Plaintiffs' claims under Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, as to the Reeves Park location was waived by their failure to timely raise/exhaust the issue ( Id. at page 206 of 217); (11) the FTA failed in its obligation to perform a sufficient Section 4(f) analysis concerning the "use" of the Beverly Hills High School location arising from the planned tunneling underneath it ( Id. at page 216 of 217); and (12) Plaintiffs' claims under the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq., fail ( Id. at pages 216-17 of 217).
At the February 4 hearing on the motions, the issue arose as to the appropriate remedies should the Court adopt its Tentative Ruling as its final decision. See Docket No. 137 and Transcript of 2/4/16 hearing (Docket No. 143). The Court ordered further briefing on that and other issues. Id. In review of that subsequent briefing, it appeared that the Plaintiffs were seeking five remedies:
(1) "Vacatur of the Final Environmental Impact Statement ('FEIS') and record of decision ('ROD') for Phase 2 of the Project only, thereby allowing the Federal Transit Administration ('FTA') to continue funding Phase 1;"
(2) "A remand to the FTA to undertake additional NEPA and Section 4(f) analyses consistent with the Court's ruling;"
(3) "A declaratory judgment that, after completing such additional analyses in compliance with both statutes, FTA must issue a new or amended ROD before providing any funding or entering into any grant agreement for Phase 2;"
(4) "A declaratory judgment that FTA must comply with 40 C.F.R. § 1506.1(b), which requires FTA to take appropriate action to ensure that its local partner — the Los Angeles Metropolitan Transportation Authority ('Metro') — does not take any action (such as acquiring property or entering into design or construction contracts) that would pre-determine the course of subway construction with respect to any of the Phase 2 issues that are the subject of the remand to FTA;" and
(5) "A 'narrow injunction' requiring periodic updates to Plaintiffs about Metro's progress in acquiring property for, designing, and constructing Phase 2 of the Project."
See Docket No. 164 at page 2 of 6. The Court also concluded that the FTA appeared to concede that the second of the above five forms of remedy would be required under the Tentative Ruling and that some measure of declaratory relief — "but only declaratory relief" — would be appropriate. Id. at 2-3 of 6. The FTA also indicated its belief that "the additional necessary analysis [pursuant to the remand could] be completed prior to the anticipated start date for ground-breaking for Phase 2, which . . . is anticipated to begin in January 2018." Id. at 3 of 6.
The "biggest" issue at this point of the proceedings is whether a vacatur of the FEIS and/or ROD for Phase 2 should be ordered. Id. On the one hand, while "[u]nder the APA, the normal remedy for an unlawful agency action is to 'set aside' the action . . . . [i]n other words, a court should 'vacate the agency's action and remand to the agency to act in compliance with its statutory obligations'" see Se. Alaska Conservation Council v. U.S. Army Corps of Eng'rs, 486 F.3d 638, 654 (9th Cir. 2007), rev'd on other grounds sub nom., Coeur Alaska v. Se. Alaska Conservation Council, 557 U.S. 261, 129 S. Ct. 2458, 174 L. Ed. 2d 193 (2009), the Ninth Circuit has also held that "[w]hether agency action should be vacated depends on how serious the agency's errors are 'and the disruptive consequences of an interim change that may itself be changed.'" Cal. Cmtys. Against Toxics v. U.S. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n., 988 F.2d 146, 150-51, 300 U.S. App. D.C. 198 (D.C. Cir. 1993)).
In a 2015 en banc decision, the Ninth Circuit opined that "not every violation of the APA invalidates an agency action; rather, it is the burden of the opponent of the action to demonstrate that an error is prejudicial." Organized Village of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 969 (9th Cir. 2015), cert. denied, 136 S. Ct. 1509, 194 L. Ed. 2d 585 (2016). "But the required demonstration of prejudice is 'not...a particularly onerous requirement.'" Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 410, 129 S. Ct. 1696, 173 L. Ed. 2d 532 (2009)).
Pursuant to an order by this Court, the parties provided a Joint Statement re Remedy wherein they indicated their agreement and disagreement on those areas which would have to be covered by the Supplemental Environmental Impact Statement. See Docket No. 167. The agreed upon topics are:
(1) "An analysis of the potential public health impacts of NOx emissions during construction of Constellation Station and tunneling for Subway Phase 2 and, depending on the results of that analysis, an assessment of the feasibility and efficacy of mitigation measures and alternatives to address such potential impacts;"
(2) "An analysis of the potential risks of soil gas migration from tunneling or other construction activities related to Subway Phase 2 and, depending on the results of that analysis, the disclosure of any information required by 40 C.F.R. §§ 1502.22, 1502.9, and San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), depending on the results of such analysis and disclosures, an assessment of the feasibility and efficacy of mitigation measures and alternatives to address such potential risks and disclosures;"
(3) "A discussion of the completeness of the available seismic risk information related to Subway Phase 2;"
(4) "A discussion of post-DEIS seismic and ridership studies available to the FTA and related to Subway Phase 2;" and
(5) "Identification of the direct and any constructive 'use' of the Beverly Hills High School campus from Subway construction and operation on, beneath or near the campus, and if construction or operation causes a 'use,' an evaluation of 'prudent and feasible alternatives' and 'all possible planning' to minimize harm under Department of Transportation Act § 4(f), Pub. L. No. 89-670, 80 Stat. 931, 933 (Oct. 15, 1966) (codified as amended at 23 U.S.C. § 138 and 49 U.S.C. § 303) ("Section 4(f)")."
Id. at page 4 of 10. The coverage areas (on which the parties disagreed) are:
(1) "Public Health Impacts for La Cienega Station (Phase 1)
The City and District assert that the remand should include an analysis of the potential public health impacts of NOx emissions during construction of La Cienega Station and, depending on the results of that analysis, an assessment of the feasibility and efficacy of mitigation measures and alternatives to address such potential impacts. Federal Defendants assert that nothing in the Court's Tentative would require analysis of NOx emissions at La Cienega Station on remand."
(2) "Seismic Information
The City and District assert that the assessment of the completeness of the seismic information may warrant re-evaluation of the alignment of the Subway tunnels. Federal Defendants disagree."
This Court agrees with the FTA that the issue of NOx emissions during the construction of the La Cienega Station was not considered in the Tentative Ruling and would not be part of any remand in this action. See Reporter's Transcript of the July 1, 2016 hearing at 11, Docket No. 184. As to the issue of whether the assessment of the completeness of the seismic information would warrant re-evaluation of the alignment of the subway tunnels in Phase 2, it would be purely speculative to address that topic at this point. Id. at 11-12.
One topic for inclusion on remand which the FTA did not believe was required by the Tentative Ruling but which it agreed (at least in part) to address on remand is
The City and District assert that the remand should include an analysis of the potential public health impacts of Subway construction dust and diesel particulate matter emissions (PM10 and PM2.5) and, depending on the results of that analysis, an assessment of the feasibility and efficacy of mitigation measures and alternatives to address such potential impacts.
Federal Defendants assert that nothing in the Court's Tentative would require analysis of dust and diesel particulate matter emissions on remand. Nonetheless, the Federal Defendants state that the FTA would analyze the impacts of particulate matter emissions from Constellation Station construction in any supplemental NEPA analysis the FTA may complete on remand.
Id. It was unclear whether the FTA's agreement to "analyze the impacts of particulate matter emissions from Constellation Station" would cover all of the areas which were included in the Plaintiffs' request for "an analysis of the potential public health impacts of Subway construction dust and diesel particulate matter emissions (PM10 and PM2.5) . . . ." However, at the July 1, 2016 hearing, this Court indicated that it was agreeing with the FTA's position that the additional/ supplemental particulate emissions analysis would only extend to the Constellation Station (including the area adjacent to the Beverly Hills High School) and not incorporate other locations (such as the Rodeo Drive Station). See Reporter's Transcript of the July 1, 2016 hearing at 13-19, Docket No. 184.
II. Final Ruling
To the extent that the Court has not issued a final ruling on the three motions for summary judgment filed by Plaintiffs BHUSD and the City and the Defendant FTA, the Court herein adopts the February 2, 2016 Tentative Ruling ( see Docket No. 136) as its final decision on those motions except to the extent noted herein.
In the Tentative Ruling, the City's challenge to the FTA's Section 4(f) analysis with respect to Reeves Park was rejected both on the grounds of waiver and on the merits. Id. at pages 201-12 of 217. At this point, the Court still rejects the challenge on the basis of waiver, but does not decide the matter on the substantive merits. In the Tentative Ruling as to the latter issue, it was held that a temporary constructive use would not be considered a "use" so as to require a Section 4(f) analysis. Id. at pages 208-212 of 217. The Court is no longer certain that its analysis on that issue is entirely correct and hence abandons it, but without prejudice to re-examining it later if necessary.
"Use" for purposes of Section 4(f) is defined in 23 C.F.R. § 774.17 as:
Except as set forth in §§ 774.11 and 774.13, a "use" of Section 4(f) property occurs:
(1) When land is permanently incorporated into a transportation facility;
(2) When there is a temporary occupancy of land that is adverse in terms of the statute's preservation purpose as determined by the criteria in § 774.13(d); or
(3) When there is a constructive use of a Section 4(f) property as determined by the criteria in § 774.15.
Thus, a constructive use can constitute a "use" under Section 4(f). Further, § 774.15(a) provides that:
A constructive use occurs when the transportation project does not incorporate land from a Section 4(f) property, but the project's proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired. Substantial impairment occurs only when the protected activities, features, or attributes of the property are substantially diminished.
§ 774.15(a) does not specifically indicate (and there is no regulatory language that explicitly states) that a temporary constructive use can fall within § 774.17's definition of "use" for purposes of Section 4(f). However, constructive use is to be determined by the transportation project's substantial impact on the neighboring property without any imposition of temporal limitations or requirements. It is recognized that temporary occupancies of land can be "so minimal as to not constitute a use within the meaning of Section 4(f)." See 23 C.F.R. § 774.13(d). It would seem as a matter of logic that temporary constructive uses of land should be treated in the same way, such that a temporary constructive use could equally be so minimal as to not qualify as requiring Section 4(f) analysis. But in turn, it would also mean that a temporary constructive use that did cause substantial impacts on the neighboring property should fall within Section 4(f). In addition, § 774.15(f)(8) describes certain situations that do not give rise to a constructive use and includes a scenario where "vibration levels from project construction activities are mitigated, through advance planning and monitoring of the activities, to levels that do not cause a substantial impairment of protected activities, features, or attributes of the Section 4(f) property." Since normally project construction activities are not permanent but merely temporary, if such construction activity caused vibration levels which went unmitigated and in turn caused substantial impairment of protected activities on the Section 4(f) property, that temporary constructive use would qualify as a "use" under 23 C.F.R. § 774.15 and, hence, also under Section 4(f).
Finally, the Tentative Ruling and the parties herein envisioned that the Section 4(f) analysis as to the "use" of the Beverly Hills High School campus caused by the subway construction would include the operations "on, beneath or near the campus." See "topic No. 5," page 3, supra. If temporary constructive uses could not give rise to the requirement of a Section 4(f) analysis, then there would be no need to consider the impact of the construction activities near the campus.
The Court also orders/remands the matter back to the FTA with instructions to prepare a supplemental draft environmental impact statement under NEPA and Section 4(f) and also a subsequent supplemental final environmental impact statement consistent with the holdings in the Tentative Ruling as further delineated on pages 3 and 4 herein.
III. Remand With Or Without Vacatur
A. Applicable Law
Plaintiffs initially argue that "[t]he presumptive remedy for an unlawful agency action is to vacate the agency's action and remand to the agency to act in compliance with its statutory obligations." See Plaintiffs' Opening Supplemental Brief on Remedy ("OSBR"), Docket No. 172 at page 6 of 14. Indeed, there is Ninth Circuit case law which supports that contention. See, e.g., Pollinator Stewardship Council v. U.S. EPA, 806 F.3d 520, 532 (9th Cir. 2015) ("We order remand without vacatur only in limited circumstances."). However, that position may be erroneous.
In Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S. Ct. 2743, 177 L. Ed. 2d 461 (2010), the United States Department of Agriculture Animal and Plant Health Inspection Service ("APHIS") issued a decision unconditionally deregulating the use of "Roundup Ready Alfalfa" ("RRA") (a variety of alfalfa that had been genetically engineered to tolerate the herbicide Roundup) based upon a preliminary "environmental assessment" rather than a full environmental impact statement ("EIS"). The district court held that APHIS had violated NEPA in failing to complete an EIS and issued an injunction which inter alia prohibited almost all future planting of RRA pending APHIS's completion of the required EIS. The Supreme Court reversed the Ninth Circuit's affirmance of the district court's decision observing that:
Petitioners argue that the lower courts in this case proceeded on the erroneous assumption that an injunction is generally the appropriate remedy for a NEPA violation. In particular, petitioners note that the District Court cited pre- Winter Ninth Circuit precedent for the proposition that, in "'the run of the mill NEPA case,'" an injunction delaying the contemplated government project is proper "'until the NEPA violation is cured.'" . . . . In addition, petitioners observe, the District Court and the Court of Appeals in this case both stated that, "in unusual circumstances, an injunction may be withheld, or, more likely, limited in scope" in NEPA cases. **** Insofar as the statements quoted above are intended to guide the determination whether to grant injunctive relief, they invert the proper mode of analysis. An injunction should issue only if the traditional four-factor test is satisfied. See Winter [v. Nat. Res. Def. Council, 555 U.S. 7, 31-33, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)] . . . . In contrast, the statements quoted above appear to presume that an injunction is the proper remedy for a NEPA violation except in unusual circumstances. No such thumb on the scales is warranted. Nor, contrary to the reasoning of the Court of Appeals, could any such error be cured by a court's perfunctory recognition that "an injunction does not automatically issue" in NEPA cases . . . . It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue under the traditional four-factor test set out [in cases such as Winter].
561 U.S. at 157-58. In light of Monsanto, to the extent that the vacatur currently sought by Plaintiffs would have the effect of injunctive relief, it cannot be held that a vacatur is the presumptive remedy where a NEPA (or other environmental review) violation is found. See, e.g., Cottonwood Envtl. Law Center v. U.S. Forest Service, 789 F.3d 1075, 1089 (9th Cir. 2015) (finding that Monsanto's analysis of injunctive relief under NEPA extends to the Endangered Species Act); see also Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir. 2011) ("Even in NEPA cases, '[a]n injunction should issue only if the traditional four-factor test is satisfied'; no 'thumb on the scales is warranted.'").
The traditional four factor test for injunctive relief requires that a plaintiff demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." Monsanto, 561 U.S. at 156-57. The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that, as to the first factor, the plaintiff must show a likelihood of success on the merits rather than actual success or its having suffered irreparable injury. See Winter, 555 U.S. at 32.
Even before the Monsanto decision, the Ninth Circuit had recognized that a district court is "not required to set aside every unlawful agency action." Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1343 (9th Cir.1995). As stated in Cal. Cmtys. Against Toxics, 688 F.3d at 992:
A flawed rule need not be vacated. See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995); W. Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980). Indeed, "when equity demands, the regulation can be left in place while the agency follows the necessary procedures" to correct its action. Idaho Farm Bureau, 58 F.3d at 1405. * * * *
Whether agency action should be vacated depends on how serious the agency's errors are "and the disruptive consequences of an interim change that may itself be changed." Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51, 300 U.S. App. D.C. 198 (D.C. Cir. 1993) (internal quotation marks omitted).
The Ninth Circuit in Pollinator Stewardship Council described a number of situations where vacatur was not ordered even after a finding of a failure to comply with NEPA or other environmental statutory requirements:
When deciding whether to vacate rulings by the EPA, we consider whether vacating a faulty rule could result in possible environmental harm, and we have chosen to leave a rule in place when vacating would risk such harm. See, e.g., Idaho Farm Bureau Fed'n, 58 F.3d at 1405-06 (choosing not to vacate because setting aside listing of snail species as endangered would risk potential extinction of that species); Cal .Cmtys. Against Toxics, 688 F.3d at 994 (remanding without vacating because vacating could lead to air pollution, undermining the goals of the Clean Air Act). We have also looked at whether the agency would likely be able to offer better reasoning or whether by complying with procedural rules, it could adopt the same rule on remand, or whether such fundamental flaws in the agency's decision make it unlikely that the same rule would be adopted on remand. Compare Allied-Signal, 988 F.2d at 151 (declining to vacate because there was "at least a serious possibility that the [agency would] be able to substantiate its decision on remand"), with North Carolina v. EPA, 531 F.3d 896, 900, 382 U.S. App. D.C. 167 (9th Cir. 2008) (concluding that the EPA's rule "must" be vacated because "fundamental flaws" prevented the EPA from promulgating the same rule on remand).
806 F.3d at 532.
B. Analysis under Cal. Cmtys. Against Toxics
1) Seriousness of the FTA's Errors
As noted above ( see footnote 1, supra), Plaintiffs did not prevail on the majority of their claims against the FTA. Insofar as the four principal errors which the Court did find: (1) one was relatively minor ( i.e. whether the FTA had "crossed its t's and dotted its i's" in regards to potential surface hazards arising from the Project's tunneling through "gassy areas");" and (2) another was limited to the sufficiency of the FTA's analysis as to the health impacts of nitrogen oxides in a limited number of construction areas which would only temporarily exceed applicable thresholds. The remaining two were clearly pressing and substantial: (3) the FTA's failure in its disclosure obligations regarding the incomplete nature of the information concerning the seismic analysis especially as to the Constellation subway station location; and (4) the inadequate Section 4(f) analysis as to the "use" of the Beverly Hills High School campus. Id.
As to those errors, the Court did not find that the FTA had actually made substantive decisions ( e.g., the selection of the location for the Century City subway station) that were demonstrably wrong. See, e.g., footnote 3, supra. Rather, the problems arose from the agency's procedural deficiencies and/or questions as to the sufficiency of its analysis. Additionally, there is no indication that the FTA would be unable to offer better and/or more complete reasoning for its challenged decisions herein. Furthermore, while this Court did conclude that certain of the FTA's evaluations appeared to be "slanted in one direction," it specifically did not find that the FTA had engaged in any improper "pre-determination" or bad faith in its treatment of the issues arising from Phase 2 of the Project. See footnote 1, supra.
The Project is financed primarily through: (1) local state and county funding and (2) federal moneys from the FTA including its 49 U.S.C. § 5309 discretionary Capital Investment Grants program. See ¶¶ 1, 11 of Declaration of Phillip A. Washington ("Washington Decl"), Docket No. 146-1. The Los Angeles Metropolitan Transportation Authority ("Metro") is the governmental entity which is undertaking the completion of the Project. Metro's planning and environmental review process as to Phase 2 of the Project (which included most of the same decisions involved in this litigation — e.g. the selection of the location of the Century City subway station on Constellation Boulevard, the placement of the subway tunnel underneath the Beverly Hills High School, etc.) was reviewed in a state lawsuit brought by Plaintiffs herein under the California Environmental Quality Act ("CEQA") and other state statutes. Metro's determinations were upheld in the state courts. Beverly Hills Unified Sch. Dist. v. Los Angeles Metro. Transp. Auth., 241 Cal. App. 4th 627, 668, 193 Cal. Rptr. 3d 846 (2015) ("We conclude that Metro fully complied with CEQA and did not abuse its discretion by certifying the EIR/EIS.").
While the findings/rulings of the state courts are not binding or controlling on this Court, they do comport with this Court's understanding of the scope/consequences of the FTA's failures in this case.
An agency's undertaking to correct the procedural deficiencies in its initial review/analysis of environmental issues can lead to its amending or even totally changing its substantive decisions. However, it would not be presumed that the agency will always do so. See generally Allied-Signal, 988 F.2d at 151.
2) Disruptive Consequences
a) To the Project and the Public
There is no dispute that the Project will result in improvements to the environment, the economy and the quality of life in Los Angeles County. The Westside locations covered by the Purple Line extension include the second highest concentration of employment centers and major attractions in Los Angeles County after the Downtown Los Angeles area, to which the subway extension will connect. See Westside Subway Extension Final Environmental Impact Statement/ Environmental Impact Report ("WSEFEIS"), Administrative Record ("AR") at 00526. The Wilshire Boulevard busline (which traverses some of the same routing as the extension) is the most used bus corridor in Southern California. Id. at 00527. Some of the most congested arterial streets in the County are also within the subject area. Id. at 00528. During rush hour commutes, "typical travel speeds on the [nearby] Santa Monica Freeway and side streets are no more than eight miles per hour." Beverly Hills Unified Sch. Dist., 241 Cal. App. 4th at 633. With the passage of time, congestion will only increase and travel speeds will be even slower with concomitant increases in pollution, wasted time in traffic, and other deleterious effects. See WSEFEIS, AR at 529.
Since the 1980s, public entities have been attempting to address the problem. Id. at 522. Presently, the Los Angeles Metro Purple Line Subway extends to and ends with the station located at the intersection of Wilshire Boulevard and Western Avenue. The Project would continue the route nine miles with seven stations approximately one mile apart in the following stages: Phase 1 from Wilshire/Western to Wilshire/Fairfax to Wilshire/LaBrea to Wilshire/LaCienega; Phase 2 from Wilshire/LaCienega to Wilshire/Rodeo to a Century City location (now sited at Constellation Boulevard); Phase 3 from Century City to Westwood at the University of California Los Angeles to Westwood at the Veterans Administration Hospital. Washington Decl. at ¶¶ 2, 4, 6, 10, 17, Docket No. 146-1.
Henceforth, designation of locations at the intersection of boulevards, avenues or streets will simply be by the road names, for example the intersection of Wilshire Boulevard and Western Avenue would be referenced as "Wilshire/Western."
A "Design-Build" contract for the "tunnels, stations, systems and trackwork" for Phase 1 in the amount of $1.636 billion was awarded on November 2014. Id. at ¶ 4. Preliminary excavation support work for the Wilshire/LaBrea subway station began in December 2015 and tunneling operations for Phase 1 are set to begin by Summer of 2017. Id. Excavation activities for the Wilshire/Fairfax and Wilshire/LaCienega subway stations are scheduled to begin in 2016 and 2017 respectively. Id.
As to Phase 2, a number of initial and/or preparatory steps need to be taken (and/or at this point in time, need to be completed). The estimated capital cost of Phase 2 is approximately $2.466 billion which is expected to come from: (1) $1.110 billion in local funds (primarily from the 1/2% increase in sales tax authorized by Measure R which was passed by Los Angeles County voters in 2008), (2) $1.187 billion in Section 5309 funds, and (3) $169 million in Federal Congestion Mitigation and Air Quality funds under 23 U.S.C. § 149. Washington Decl., ¶ 11. In order for Metro to secure and the FTA to provide Section 5309 funds, Metro must obtain a "full funding grant agreement' ("FFGA") from the FTA. Id. at ¶ 12. In order to get the FFGA, Metro must complete a "rigorous multi-step, multi-year Federal review process under which FTA evaluates and rates projects in accordance with criteria established by law." Id.; see also 49 U.S.C. § 5309(g). Metro received a FFGA for Phase 1 and is currently applying for a FFGA for Phase 2. Other transportation projects from other various nationwide governmental entities are intensely competing for the same pool of available funds. Washington Decl., ¶ 11. According to Metro (and not contested by the FTA or the Plaintiffs):
The FTA has proffered the Declaration of Phillip A. Washington (Metro's Chief Executive Officer) who puts forth the concept of the "critical path" which he describes as:
The "critical path" lists construction activities that the contractor cannot complete concurrently and has to complete sequentially. Therefore, the critical path reflects the activities arranged along the shortest possible time frame for completing the Subway. Delaying any activity on the critical path will extend the construction timeline an amount of time at least equal to the delay. Staying on the critical path requires the contractor to order the equipment necessary for each step, so it is available when the workers are ready. The equipment often travels a significant distance, so contractors plan for it to arrive at the appropriate moment. Staying on the critical path requires using the workforce efficiently by ensuring that they have enough tasks to pursue, but not too many to complete at the same time that it could slow down other components of the construction. Staying on the critical path requires coordinating multiple subcontractors to carry out various aspects of the construction in precise coordination with each other
¶ 5 Washington Decl., Docket No. 146-1. This Court understands and accepts the concept of the "critical path" insofar as it applies to a contractor's situation. Additionally, the Court would find that the concept would also be applicable in regards to some of the steps that need to be taken when a governmental entity (such as Metro) plans, prepares, and executes an enormous project such as the Westside Subway Extension. However, the Court would not find that the FTA has always provided sufficient evidence for the Court to find that a referenced "step" is an essential one or is an action which, if not taken or completed, would significantly disrupt the progress of the Project.
Chapter 53 of Title 49 of the United States Code authorizes the Secretary of Transportation to make grants or loans supporting states and local agencies in the planning, development, and improvement of mass transportation facilities. See, e.g., 49 U.S.C. §§ 5307 and 5309; Lakes & Parks Alliance of Minneapolis v. Fed. Transit Admin., 91 F. Supp. 3d 1105, 1116-17 (D. Minn. 2015). The FTA is the grant-making agency within the Department of Transportation as to those funds. Id. As noted in Darensburg v. Metro. Transp. Comm'n, 611 F. Supp. 2d 994, 1019-20 (N.D. Cal. 2009):
There are three categories of Section 5309 funds: Fixed Guideway Modernization; Discretionary Capital - Bus and Bus Facilities; and Discretionary Capital - New Starts. **** A "fixed guideway" includes heavy rail, commuter rail, light rail, monorail, trolleybus, aerial tramway, inclined plane, cable car, automated guideway transit, ferryboats, motor bus service on controlled rights-of-way, and HOV [high occupancy vehicle] lanes. **** Section 5309 Discretionary Capital - New Starts funds are used for construction of new fixed guideway systems or extensions for light rail, rapid/heavy rail, commuter rail, monorail, "people movers," motor bus on exclusive or controlled right of way/HOV lanes, and the like. New Starts programs typically receive funds through a full funding grant agreement (FFGA) that defines the scope and specifies the total multi-year Federal commitment to the project. Congress earmarks these funds based on grant applications by the operators.
If the Court vacates the [currently issued] ROD, then FTA would be unable to execute the FFGA until it issued an amended ROD after the agencies completed a supplemental NEPA analysis. Without the FFGA this fiscal year, Metro would then not have the funding in place to be able to award the Phase Design-Build contract .
. . .
Id. at ¶ 15. Finally, to "keep the Subway on schedule, it is imperative that Metro obtain a FFGA for FY 2016 prior to the end of the Fiscal Year, which closes on September 30, 2016." Id. at ¶ 14.
Metro also states that:
The solicitation phase of the Design-Build procurement for Phase 2 is near completion, with technical and price proposals from prospective Design-Build contractors due to Metro by May 16, 2016. After that, Metro will spend the next six months completing the procurement process, including the review and evaluation of the initial proposals, the Best and Final Offer submittal and review process, and selection of the Design-Build proposer that will be recommended to the Metro Board of Directors for contract award . . . . If Metro does not award the Design-Build contract within 180 days of May 16th, the bids will expire unless the bidders agree to extend their bids. Absent that agreement, the procurement process will need to be started all over again. Adherence to a critical path schedule for the sequencing of large scale projects is extremely critical to delivering a project on time and within budget. The Phase 2 critical path schedule includes advanced utility relocation work, which will start soon. Most of this utility relocation work will be performed by third party utility owners and some of this work must be completed before construction under the Design-Build contract can commence.
Id. at ¶ 10. It is also claimed that:
If Metro does not execute the Phase 2 Design-Build contract before the bids expire, Metro may have to redo the entire complex Design-Build procurement process, which would take approximately 16 months and would cause a corresponding delay in the overall Phase 2 schedule. Based on the escalation of track, materials, real property, and labor costs alone, a 16-month delay in the project schedule is estimated to result in an increase in the Phase 2 cost of between $90-100 million.
Id. at ¶ 16.
To counter Metro's assertions as to the bidding process, Plaintiffs have: (1) pointed out that Washington has admitted that the bidders for the Phase 2 Design-Build contract can agree to extend their bids; (2) introduced evidence that prospective contractors will not be asked to submit their "best and final" offer until October 3, 2016, and that Metro is not expected to execute the contract until April 28, 2017; and (3) offered deposition testimony wherein Washington conceded a mere delay of the award of the FFGA to February 2017 would not necessarily delay the execution of the Design-Build contract by Metro's currently scheduled outside date of April 28, 2017. See Reply Declaration of Philip E. Karmel at ¶¶ 9-11, Docket No. 160-1.
This Court would find that the issuance of a vacatur to overturn the ROD (and/or those portions of the FEIS which would cause Metro to be unable to secure the FFGA for the 2016 and 2017 fiscal years for Phase 2 of the Project or which would bar Metro from engaging in necessary pre-construction preparatory endeavors) would pose the type of dire consequences which the Ninth Circuit in Cal. Cmtys. Against Toxics found to be sufficient to justify not ordering a vacatur — even in the face of findings in that case of both procedural and substantive violations of the Clean Air Act in the Environmental Protection Agency's approval of the transfer of emissions credits to the soonto-be completed Sentinel Power Plant. Specifically, the Circuit found that the issuance of the vacatur would cause severe "delay and trouble" because: (1) the power plant was scheduled to come on line in the near future and the vacatur "would pave the road to legal challenges to Sentinel's construction that could well delay a much needed power plant . . . . [and] the region might not have enough power next summer, resulting in blackouts;" (2) "[s]topping construction would also be economically disastrous . . . . [to] a billion dollar venture employing 350 workers," and (3) vacatur " would likely require . . . needless and duplicative legislative effort." 688 F.3d at 993-94 (emphasis added).
It is interesting to note that in Cal. Cmtys. Against Toxics the Ninth Circuit's decision not to require the vacatur was based upon: (1) the possibility that such issuance might result in the region not having enough power the following summer (and the concomitant threat of blackouts; and, if blackouts were to occur, "[b]lackouts necessitate the use of diesel generators that pollute the air, the very danger the Clean Air Act aims to prevent"); (2) the possibility that there would have to be duplicative legislative efforts; and (3) the certain disastrous economic fallout from the delay in the completion and initiation of the power plant.
Here, as in Cal. Cmtys. Against Toxics, the challenged project was created to meet a pressing public need (in Cal. Cmtys. Against Toxics — energy generation; here — mass public transit), and the issuance of the vacatur would disrupt and delay the progress of the project and hence meeting the pressing public need. Also, the delay will cause the prevention in the near future of any reduction in the emissions of carbon dioxide, nitric oxide, and in both large and small particulate matter from lessened automobile usage exacerbating the levels of environmental degradation. There will be serious economic problems for the $2.466 billion Project including (1) the potential loss either for a year or much longer of over half of the funds — i.e. the Section 5309 grants — which are to be used to pay for Phase 2, and (2) the concomitant difficulties for the workers and companies that are now engaged (or would be engaged once the Design-Build contract is awarded) in the construction of the subway extension. Further, as to matters where Metro currently has contracts for preparatory work already underway, if the vacatur would require Metro to issue stop orders for such endeavors, Metro would be financially "responsible for all increases in the contract price including daily overhead and delay rates, material storage costs during the delay, construction equipment rental costs during the delay, and materials and equipment already under order, as well as the escalated costs of construction when work could recommence." See Washington Decl. at ¶ 9. Also, any delay as to Phase 2 will have a domino effect as to Phase 3 which will result in a setback for the final stage of the Purple Line extension. Id. at ¶ 20. Finally, a vacatur herein would likely result in the need for duplicative efforts either in re-filing for Section 5309 grants or in the need for the bidding process to begin anew if the delay caused by the vacatur goes beyond the "grace" period covered by the extension of the currently submitted bids.
The Sentinel Power plant was "a billion-dollar venture" ( see Cal. Cmtys. Against Toxics, 688 F.3d at 994) whereas the Phase 2 portion of the Project involves about two and a-half billion dollars.
As an example of additional potential consequences from a delay in the completion of the Project, Metro cites to the fact that Los Angeles is one of the final four cities being considered to host the 2024 Summer Olympics, with UCLA as a major venue for both athletic events and serving as the location for the Olympic Village. Washington Decl. at ¶ 18. The full nine mile Westside Subway extension is a critical component of the planned transportation provisions and an element for consideration in that selection process. Id. at ¶ 19; see also Nick McCarvel, LA 2024 Bid Promises Olympic-Ready Infrastructure, Good Weather, TEAM USA (Aug. 10, 2016, 12:30(ET), http://www.teamusa.org/News/2016/August/10/LA-2024-Bid-Promises-Olympic-Ready-Infrastructure-Good-Weather ("Existing infrastructure and a commitment to sustainability are at the heart of the Los Angeles 2024 bid, which was presented to media Tuesday in Rio, with the International Olympic Committee set to make its final pick in September of next year . . . . 'With our infrastructure, we are not proposing new lines for our buses, airport renovations or port modernization because we are already doing all of that as a city,' Garcetti said, noting the $55 billion already earmarked for forthcoming transportation projects.").
Plaintiffs cite to Washington's deposition testimony wherein he gave the following responses:
Q. Well, what if the case proceeded, and the judge ordered additional NEPA analysis but did not vacate the Record of Decision. Do you know whether that would reduce FTA's willingness to provide a Full Funding Grant Agreement?
MR. STAMM: Objection. Calls for speculation and a legal conclusion.
THE WITNESS: I believe even that would delay the project to an extent where a Full Funding Grant Agreement would be in jeopardy.
Q. And why do you say that?
A. Because of past experience. I've had oversight over numerous megaprojects during my career, and from experience, it's like losing your place in line. So from that past experience, I believe it jeopardizes the schedule that we're on and jeopardizes the billion-dollar-plus Full Funding Grant Agreement.
Reporter's Transcript of May 3, 2016 Deposition of Phillip Washington, Docket No. 160-4 at pages 21-22 of 108. The FTA was correct in objecting that Washington's testimony regarding his belief as to the effect of this pending lawsuit (by itself and without the vacatur) on the FTA's processing of Metro's FFGA application is pure speculation — especially where (1) Washington is not an employee or official of the FTA and was being asked about the FTA's willingness to provide the FFGA, and (2) the FTA is a party to this action and was subject to being queried as to that precise issue.
b) To the Plaintiffs
In their supplemental briefs and in their arguments at the hearing on the issue of remedies and vacatur, the Plaintiffs did not really present any evidence or argument as to adverse consequences to themselves in the absence of a vacatur order except for: (1) contending that vacatur is the "presumptive remedy" in the present situation ( see OSBR, Docket No. 172 at page 6 of 10), (2) arguing the increased likelihood that the FTA would engage in improper "pre-determination" of the issues on remand ( see Reporter's Transcript of July 1, 2016 hearing, Docket No. 184 at pages 22-26 of 66), and (3) the FTA would again fail to meet the requirements of NEPA and Section 4(f) and Phase 2 will be allowed to proceed to completion without ultimate compliance with the statutory obligations. The Court does not find that any of those contentions present a serious adverse consequence to Plaintiffs at this time.
First, as noted supra, the FTA did not fail in meeting its obligations as to most of the issues raised by the Plaintiffs. Second, as to the four areas where there has been found a failure by the FTA, the Court is remanding those matters to the FTA for further proceedings including a Supplemental Draft EIS and a Final Draft EIS on those NEPA and Section 4(f) issues. Third, as to that remand, the Court has made it clear what it expects the FTA to cover in the process and, indeed, there was not much disagreement between the parties in that regard.
As observed by Plaintiffs in their OSBR: "the parties largely agree on the scope of the remand; and where opinions differ, FTA has stated that it will undertake most of the requested analysis, in any event." Docket No. 172 at page 5 of 14.
As to the proposition regarding vacatur as the "presumptive remedy," that contention has been debunked as delineated above. The analysis described in Cal. Cmtys. Against Toxics and the traditional four part test as to injunctive relief delineated by the Supreme Court in cases such as Monsanto and Winter control here.
As noted already in regards to the pre-determination argument, this Court has initially found that the FTA did not engage in conduct sufficient to base a finding of either pre-determination or bad faith. Nevertheless, if on remand the FTA does act impermissibly or inappropriately so as to raise a basis for the charge of pre-determination or bad faith, Plaintiffs are free to raise that contention again and the Court will consider it.
Additionally, this Court did not find that the substantive choices which were made by the FTA or Metro in regards to the challenged decisions were so wrong that they could not properly make the same determinations upon remand. Hence, the present circumstances are similar to the situation discussed in Pollinator Stewardship Council, 806 F.3d at 532, where "we have also looked at whether the agency would likely be able to offer better reasoning or whether by complying with procedural rules, it could adopt the same rule on remand . . . ." See also Allied-Signal, 988 F.2d at 150-51.
As to Plaintiffs' last contention concerning the FTA/Metro's being able to substantially complete the Phase 2 construction without sufficient ultimate compliance with the demands of NEPA or Section 4(f), it is noted that — under the FTA's current estimate — it will be between 10 to 12 months to complete the supplementation of the draft and final EIS. See Washington Decl. at ¶ 21. Presently, the only actual construction related activity which is about to begin is the advanced utility relocation work which has not been the subject of any challenge initially brought by the Plaintiffs. Id. at ¶ 10. Under Metro's previous estimated schedule (without consideration of any delays caused by the present litigation), the Design-Build Contractor would commence construction of Phase 2 in January 2018. Consequently, it is expected that the completion of the Supplemental FEIS will occur well before the commencement of the construction of Phase 2 begins. Therefore, Plaintiffs' concern that construction of Phase 2 will start before sufficient compliance with NEPA and Section 4(f) requirements is not enough to warrant the issuance of a vacatur herein.
Plaintiffs have also recently provided notice of the recent decision in Friends of the Capital Crescent Trail v. Federal Transit Administration, No. 14-01471 (RJL), 2016 U.S. Dist. LEXIS 102083, 2016 WL 4132188 (D.D.C. Aug. 3, 2016). See Docket No. 186. In that case, the district court found that the FTA violated NEPA when it declined to prepare a supplemental SEIS for a light rail transit project in Maryland (the "Purple Line Project") after the plaintiffs notified the Maryland Transit Authority and FTA of "important" recent information regarding ridership and safety issues. 2016 U.S. Dist. LEXIS 102083, [WL] at *4. In deciding to issue an order bringing that project to a halt, that court: (1) did not consider the traditional four factors for injunctive relief as per Monsanto or Winter, (2) relied on the legal chestnut that "vacating a rule or action promulgated in violation of NEPA is the standard remedy," and (3) justified its ruling by observing "defendants failed to engage in the requisite supplemental analysis with respect to important recent information that calls into question, at a minimum, whether nearly a billion dollars in federal funding should ultimately be committed to a project for which serious questions have been raised as to its future viability. While a temporary halt in the project is not ideal, it would make little sense and cause even more disruption if defendants were to proceed with the project while the SEIS was being completed, only to subsequently determine that another alternative is preferable." Id.
The Friends of the Capital Crescent Trail ruling is not binding on this Court. Moreover, that decision is not persuasive. First, it does not apply the correct legal standard. Second, the facts are different. In Friends of the Capital Crescent Trail, the court focused solely on a single project where there would be a commitment of one billion federal dollars when "serious questions" had been raised as to its future viability. Here, the situation involves Phase 2 of a three phase subway project where: (1) Phase 1 has already passed scrutiny and is being constructed, (2) the billions of dollars being spent come about 50%-50% from federal and local sources, (3) while challenges have been made to Phase 2, they have been entirely rejected in the state court review and partially rejected herein, and (4) the challenges raised before this Court do not rise to the level of questioning the future or ultimate viability of either Phase 2 or the Westside Subway Extension project itself.
In sum, the absence of a vacatur will not have much of an immediate adverse consequence to Plaintiffs.
Pursuant to Cal. Cmtys. Against Toxics analysis, in deciding "[w]hether agency action should be vacated," this Court must consider "how serious the agency's errors are and the disruptive consequences of an interim change that may itself be changed." In considering those factors as discussed above, the Court would find that a vacatur is not required at this time.
C. Analysis under the Traditional Four Factor Test
In the present context, the four factors to consider as to whether to order vacatur (which is akin to ordering preliminary injunctive relief) are: " that [the plaintiff] is likely to succeed on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in his favor, and  that an injunction is in the public interest." Winter, 555 U.S. at 20. Some of the elements as to the above factors have already been considered to an extent in the Cal. Cmtys. Against Toxics analysis, and consequently they will only be briefly discussed here.
As to the subject of likelihood of success on the merits, the Court would initially draw a distinction between success as to the issue of the FTA's meeting the procedural requirements of NEPA and Section 4(f) versus success as to the substantive determinations — for example the selection of Constellation Boulevard as the location of the Century City subway station or the decision to tunnel underneath the Beverly Hills High School campus. As to the former, Plaintiffs have already demonstrated likelihood of success on the merits as to four instances of procedural and/or analysis deficiencies. As a result of that showing, the Court is remanding the matter back to the agency to meet the requirements of NEPA and Section 4(f) as to those areas. However, the Court has not found that the Plaintiffs have established a likelihood that they will prevail as to the substantive decisions to the extent that they are presently disputed. While the supplementation of the DEIS and FEIS may provide ammunition for Plaintiffs to subsequently bring a successful challenge, they have not demonstrated the likelihood of doing so thus far.
The Supreme Court has warned that it is not to be "presume[d that an injunction is the proper remedy for a NEPA violation except in unusual circumstances. No such thumb on the scales is warranted." Monsanto, 561 U.S. at 157; see also Cottonwood Envtl. Law Ctr., 789 F.3d at 1090 ("the [Endangered Species Act] does not allow courts to put their 'thumb on the scales' in evaluating the first prong [of the traditional four factor test].").
As to irreparable harm in the absence of a vacatur, it would initially be noted that "there is no presumption of irreparable injury where there has been a procedural violation" in NEPA or similar environmental cases. See generally id. at 1091. Further, the discussion in Section III(B)(2)(b), supra, as to the consequences to Plaintiffs of a failure to issue the vacatur is incorporated here. Thus, it would be found: (1) that Plaintiffs have not established irreparable harm, and (2) that any harm is not likely to be suffered at the present time, but only might occur in the future and with sufficient advance notice that it could be addressed by the Court before it affects the Plaintiffs.
As to the balance of the equities, in Section III(B)(2), supra, the Court has already considered and delineated the consequences to the Project, the Public and to the Plaintiffs of withholding the vacatur at this time. It has concluded that the balance of equities weighs in favor of not issuing the vacatur.
Lastly, as to the fourth factor of whether issuing a vacatur would be in the public interest, in addition to incorporating the discussion in Section III(B)(2) herein, the Court would also note that Congress has stated in a "Declaration of Policy" that: "It is in the interest of the United States, including the economic interest of the United States, to foster the development and revitalization of public transportation systems with the cooperation of both public transportation companies and private companies engaged in public transportation." 49 U.S.C. § 5301.
In sum, after considering the traditional four factors in regards to whether vacatur should be issued in this action at this time, the Court finds that the factors weigh against it.
For the reasons stated above and in the February 1, 2016 Tentative Ruling, the Court adopts that ruling as its final decision on the parties' motions for summary judgment except as noted herein. This matter is remanded to the FTA with instructions to prepare a supplemental draft environmental impact statement under NEPA and Section 4(f) and also a subsequent supplemental final environmental impact statement consistent with the holdings in the Tentative Ruling as further delineated on pages 3 and 4 herein. Finally, the Court declines to issue a vacatur at this time.
The Court sets a status conference for August 18, 2016 at 8:30 a.m. Parties may appear telephonically provided notice is given to the clerk two business days prior to the hearing.