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Norwalk Harbor Keeper v. U.S. Department of Transportation

United States District Court, D. Connecticut

July 8, 2019

NORWALK HARBOR KEEPER, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         Plaintiffs, 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.

         Plaintiffs 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.[1]

         For the 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.

         I.

         Standard of Review

         A. Summary Judgment

         Summary 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).

         When 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).

         “Only 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.

         If the 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.

         B. NEPA

         NEPA 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.

         Although 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).

         Under 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 environmental consequences)).

         When 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)).

         “A 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).

         The 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)).

         II. Background

         The 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. 50-1.[2]

         The 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.

         The 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.

         On 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.

         Approximately 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.

         In May 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.

         Defendants 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 navigation.

         Plaintiffs 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.

         The 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.

         In June 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 ...


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