United States District Court, D. Connecticut
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
R. UNDERHILL UNITED STATES DISTRICT JUDGE
Norwalk Harbor Keeper and Fred Krupp
(“Plaintiffs”), brought suit against the U.S.
Department of Transportation (“DOT”) and Elaine
L. Chao in her official capacity as Secretary of DOT; the
Federal Transit Administration (“FTA”) and
Matthew Welbes in his official capacity as Executive Director
of the FTA (together these defendants are referred to as
“Federal Defendants”), as well as the Connecticut
Department of Transportation (“CTDOT”) and James
P. Redeker in his official capacity as Commissioner of the
CTDOT (“State Defendants”) (collectively, Federal
Defendants and State Defendants will be referred to as
“Defendants”). Plaintiffs claim that
Defendants' environmental analysis pursuant to the
National Environmental Policy Act (“NEPA”)
regarding the replacement of the Norwalk River Bridge in
Norwalk, Connecticut was inadequate.
have filed a motion for summary judgment, arguing that
“Defendants have not complied with NEPA.”
Plaintiffs' Memorandum of Law in Support of
Plaintiffs' Motion for Summary Judgment (“Pls'
Memo”), Doc. No. 42-1, at 1. Federal Defendants have
also moved for summary judgment, arguing that Plaintiffs
“failed to demonstrate FTA's Finding of No.
Significant Impact (‘FONSI'), which incorporates by
reference the Environmental Assessment (‘EA'), of
the Walk Bridge Replacement Project was arbitrary,
capricious, or not in accordance with the law.” FTA
Defendants' Memorandum of Law in Support of Motion for
Summary Judgement (“Defs' Memo”), Doc. No.
43-1, at 1-2.
reasons set forth below, I hold that the Plaintiffs do not
have standing to bring this lawsuit. In the alternative, even
if they do have standing to sue, summary judgment is granted
in favor of the Defendants on the merits.
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). On
cross-motions for summary judgment, “neither side is
barred from asserting that there are issues of fact,
sufficient to prevent the entry of judgment, as a matter of
law, against it.” Heublein, Inc. v. United
States, 996 F.2d 1455, 1461 (2d Cir. 1993). When, as
here, both parties seek summary judgment, “a district
court is not required to grant judgment as a matter of law
for one side or the other.” Id. “Rather,
the court must evaluate each party's motion on its own
merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration.” Id. (internal citations and
quotation marks omitted).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits
evidence that is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
creates no private right of action. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 882 (1990). Thus,
challenges to compliance with NEPA are usually brought
pursuant to the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701-706. Id.
a court's review under the APA should “be searching
and careful, ” it is not de novo. Marsh v. Oregon
Nat. Res. Council, 490 U.S. 360, 378 (1989). Review of
an agency's decision under NEPA is controlled by the
“arbitrary and capricious” standard of the APA.
Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 14
(2d Cir. 1997); see 5 U.S.C. § 706(2)(A). The
arbitrary and capricious standard prohibits a court from
“substitut[ing] its judgment for that of the agency as
to the environmental consequences of its actions.”
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21
(1976). In conducting its review, the district court is
“relegated to affirming the agency's decision so
long as a rational basis is presented for the decision
reached.” Sierra Club v. U.S. Army Corps of
Eng'rs, 772 F.2d 1043, 1050 (2d Cir. 1985).
NEPA, plaintiffs are limited to challenging, and the court to
reviewing, the agency's decision making process, not the
agency's decision. See Kleppe, 427 U.S. at 410
n.21 (“Neither the statute nor its legislative history
contemplates that a court should substitute its judgment for
that of the agency as to the environmental consequences of
its actions.”); Strycker's Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223,
227-28 (1980) (court “cannot interject itself into the
area of [agency] discretion”). “The court's
role is to ensure that NEPA's procedural requirements
have been satisfied….” Fund for Animals v.
Kempthorne, 538 F.3d 124, 137 (2d Cir. 2008) (citing
Kleppe, 427 U.S. at 410 n.21) (holding that
court's role is to ensure agency took a hard look at
reviewing factual determinations by an agency under NEPA, a
court “must generally be at its most
deferential.” Baltimore Gas & Elec. Co. v.
Nat'l Res. Def. Council, Inc., 462 U.S. 87, 103
(1983); see also Nat'l Audubon Soc'y, 132
F.3d at 19 (role of reviewing court is to ensure NEPA
compliance without infringing upon the agency's decisions
in areas where it has expertise); WildEarth Guardians v.
Jewell, 738 F.3d 298, 312 (D.C. Cir. 2013) (because the
NEPA process “involves an almost endless series of
judgment calls ... the line drawing decisions ... are vested
in the agencies, not the courts”) (quoting
Duncan's Point Lot Owners Ass'n, Inc. v.
F.E.R.C., 522 F.3d 371, 376 (D.C. Cir. 2008)).
court is not to ask whether a regulatory decision is the best
one possible or even whether it is better than the
alternatives.” F.E.R.C. v. Elec. Power Supply
Ass'n, 136 S.Ct. 760, 782 (2016). Rather, a court
evaluates “whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.” Friends of
Ompompanoosuc v. F.E.R.C., 968 F.2d 1549, 1553 (2d Cir.
1992) (internal citation and quotation omitted). “NEPA
merely prohibits uninformed - rather than unwise - agency
action.” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 351 (1989).
District of Connecticut has stated that its “[j]udicial
review is guided by the ‘rule of reason,' which
assesses whether NEPA review ‘has been compiled in good
faith and sets forth sufficient information to enable the
decision-maker to consider fully the environmental factors
involved and to make a reasoned decision after balancing the
risks of harm to the environment against the benefits to be
derived from the proposed action, as well as to make a
reasoned choice between alternatives.'”
Nat'l Post Office Collaborate v. Donahoe, 2014
WL 6686691, at *7 (D. Conn. Nov. 26, 2014) (quoting
Suffolk Cnty v. Sec'y of Interior, 562 F.2d
1368, 1375 (2d Cir. 1977)).
following facts are drawn primarily from Plaintiffs'
Local Rule 56(a)1 Statement of Undisputed Material Facts
(“Undisputed Facts”), Doc. No. 42-2, and
Defendants' Local Rule 56(a)2 Statement (“Disputed
Facts”) and Local 56(a)3 Statement of Additional
Material Facts (“Additional Facts”), Doc. No.
bridge at issue (the “Walk Bridge”) is a movable
railroad bridge that was constructed in 1896. It was designed
and constructed to allow upriver access, which, at the time,
was a hub of industry and maritime commerce called the
“Upriver Shoreline.” The Walk Bridge carries rail
traffic across the Norwalk River for Amtrak and the New Haven
line of Metro-North Railroad, the most heavily trafficked
commuter line in the United States. The bridge is surrounded
by wetlands on both sides. There are two 235-foot towers, one
on each side of the river, which support high voltage power
transmission lines used by the utility company Eversource, as
well as by Metro-North as communication lines.
Walk Bridge separates the Upriver Shoreline section of the
Norwalk River from Norwalk Harbor, and the Upriver Shoreline
is navigable for approximately one mile. There is little
industry along the Upriver Shoreline. Industry has been
replaced primarily by riverfront housing. Marine traffic in
Norwalk Harbor has generally declined since 2008. When the
Walk Bridge is closed, at mean high water there is
approximately 16 feet of vertical clearance for vessels on
the river to pass underneath. At mean low water, there is
approximately 23 feet of vertical clearance.
February 3, 2015, CTDOT published a Notice of Scoping,
entitled “Replacement of the Norwalk River Railroad
Bridge”, explaining the basic goals of the bridge
replacement project, which is the subject of this lawsuit.
CTDOT invited the public to comment on the project and the
scope of issues that should be addressed in the project's
environmental review. At the time that the Notice of Scoping
was released, the stated purpose of the project did not
include preserving and enhancing maritime navigation.
two months later, on March 5, 2015, at an inter-agency
meeting about the project, Connecticut's Office of Policy
Management (“CTOPM”) asked whether CTDOT had
considered replacing the Walk Bridge with a fixed bridge
design rather than a movable bridge design. CTDOT responded
that the agency had decided to go forward with a movable
bridge design. On a website created for the Walk Bride
Project, language stated that “[t]he new or
rehabilitated Walk Bridge will improve maritime navigation of
the Norwalk River.” Undisputed Facts at ¶ 16. On
March 10, 2015, CTOPM issued a comment letter to CTDOT
responding to CTDOT's Notice of Scoping, noting that the
project purpose in the Notice of Scoping referred only to
constructing “a resilient bridge structure which will
enhance the safety and reliability of commuter and intercity
passenger rail service” and did not include a proposed
purpose of improving maritime navigation. CTOPM suggested
that CTDOT consider a fixed bridge alternative because
maintaining maritime navigation did not appear to be an
essential element of the Walk Bridge Project. CTOPM also
suggested that CTDOT consider whether the benefits of a fixed
bridge might outweigh the loss of navigability for boats that
were too large to pass underneath the bridge.
2015, CTDOT completed a Conceptual Engineering Report, which
considered options for replacing the Walk Bridge, and which
was a “precursor” to a more complete navigational
analysis that would be part of an application to the U.S.
Coast Guard for a permit to reconstruct the Walk Bridge. The
Conceptual Engineering Report identified two primary
commercial interests that interact with the Walk Bridge and
require an opening of the bridge to reach their final
destinations: barges and tugs serviced by Devine Brothers and
tall-mast sail boats maintained by United Marine.
issued an Environmental Assessment (“EA”) for the
Walk Bridge Replacement Project, as required by NEPA, on
August 26, 2016. In the EA, the project's purpose
included “maintaining or improving navigational
capacity and dependability for marine traffic in the Norwalk
River.” Undisputed Facts at ¶ 27. The parties
disagree whether the primary purpose of the project is simply
to restore or replace the Walk Bridge for rail transit or
whether the broader purpose is “to rectify the existing
deficiencies of the existing bridge, including its age and
deterioration, decreasing reliability, safety standards, and
difficulty of maintenance [and incorporate] federal and state
transportation goals for the New Haven Line/Northeast
Corridor (NHL/NEC).” Disputed Facts at ¶ 28. The
parties agree that the purpose relating to maintaining or
improving navigational capacity is a secondary purpose of the
project. A fixed bridge built at approximately the current
height of the existing Walk Bridge would meet all Project
Purpose and Need criteria except for maintaining upriver
contend that the EA did not assess a number of potential
factors for the Existing Level Fixed Bridge option,
including: (1) the potential resiliency benefits; (2)
potential railroad safety and reliability benefits; (3)
balancing the needs of rail and waterborne transport; (4) the
potential impact of navigational access; (5) potential change
to marine commerce in Norwalk Harbor; (6) the actual present
navigational needs to access the area of Norwalk River north
of the Walk Bridge; and (7) what is fully required to meet a
United States Coast Guard (“USCG”) navigational
clearance determination before issuing an EA, Record of
Decision (“ROD”), or Finding of No. Significant
Impact (“FONSI”). Defendants counter that the EA
assessed the potential resiliency benefits, potential
railroad safety and reliability benefits, balanced the needs
of rail and waterborne transport, assessed the navigational
impact of each Fixed Bridge Alternative, and considered
actual and future marine commerce.
Norwalk Harbor Keeper submitted public comments criticizing
the EA's study of upriver navigational needs and arguing
it failed to study a fixed bridge alternative, among other
alleged defects. The EA stated that removing the High Towers
adjacent to the Walk Bridge, relocating the high voltage
transmission line for Eversource, and the relocation of the
Metro-North communication line, would all be necessary to
construct the movable bridge alternative. The EA acknowledged
that the Eversource Transmission Line relocation would be a
secondary impact of the Walk Bridge Replacement Project.
2017, CTDOT issued a ROD containing a final determination
regarding the environmental review of the Walk Bridge
Replacement Project. The ROD selected a movable bridge design
for the project. The Fixed Bridge Alternative Issue Paper
CTDOT attached to the ROD noted that CTDOT considered four
fixed bridge alternatives at the conceptual level. Benefits
of a fixed bridge included that it would be safe, resilient,
and less expensive to construct than the preferred
alternative. However, there were also deficiencies with the
fixed bridge option: it would prohibit all current navigation
traffic that required an opening of the existing Walk Bridge
and would lengthen the construction period. Specifically, the
construction period for a movable bridge would take
approximately 40 months to complete, but construction for a
fixed bridge alternative would take between 52 and 64 months.
For a movable bridge, there would be ...