Public Interest Transportation Forum - http://www.bettertransport.info/pitf

Citizens for Mobility Fails to Force
Sound Transit and the Federal Transit Administration
to Prepare an EIS for the Central Link Initial Segment

The below Federal court filing from attorneys representing a group of citizens in Seattle is one part of the broad-based public opposition to Link Light Rail. The argument made in the filing on this page failed to persuade the Federal Courts, which ruled against CFM in Federal District Court (pdf copy of Judge Zilly decision) and in the Ninth Circuit Court of Appeals (pdf copy of appeal denial).

By way of background, the 14-mile Initial Segment project to start building Central Link Light Rail in Seattle was never itself the subject of an Environmental Impact Statement (EIS). A similar but different project, a 24-mile light rail line from Northgate to SeaTac was the subject of a 1999 EIS, so Sound Transit and Federal Transit Administration decided that an EIS was unnecessary for Initial Segment. FTA ordered Sound Transit to prepare a more limited Environmental Assessment (EA), which was issued in February 2002. (In fact, Sound Transit argued to FTA in 2001 that even an EA was unnecessary, but FTA overruled them.)

As of December 2003, Initial Segment is under construction. One of its most serious environmental impact, the closure of the Downtown Seattle Transit Tunnel for two years to install train rails in order to later operate with mixed trains and buses in this tunnel, is now planned to occur in September 2005.  Click here for a map of the Seattle Bus Tunnel.

The Seattle-based association Citizens for Mobility (CFM) as early as 1999 concluded that the environmental impacts of Central Link make it an unwise infrastructure to build. CFM disputes that an EA is sufficient to summarize the environmental impacts of Initial Segment. Some aspects of the project are very different than in earlier EIS reports, such as the mixture of trains and buses in the Downtown Seattle Transit Tunnel, and the overall performance and impact of Initial Segment compared to its cost. Therefore, CFM took Sound Transit and FTA to Federal Court.

The below text copied verbatim from CFM's December 8, 2003 court filing -- a response brief -- provides information on the arguments that CFM is presenting, and how government agencies are responding. A sense of the technical detail required to take on powerful government agencies is also revealed.

No. 03-35540

IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Citizens for Mobility, et al.,

Plaintiffs/Appellants

v.

Norman Mineta, et al.,

Defendants/Appellees.

On Appeal From the United States District Court for the
Western District of Washington

Reply Brief of Appellants

John D. Alkire, WSBA #2251
1201 Third Avenue, Suite 5100
Seattle, WA 98101
(206) 583-8458

Jon W. MacLeod, WSBA #8491
1201 Third Avenue, Suite 5100
Seattle, WA 98101
(206) 621-6581

James P. Savitt, WSBA #16847
Savitt & Bruce
1325 Fourth Avenue, Suite 1410
Seattle, WA 98101-2406
(206) 749-0500

Attorneys for Appellants

CONTENTS

1. Initial Segment Will Have Potentially Significant Environmental Effects not Evaluated in the 1999 FEIS.

2. The Record Discloses No Convincing Statement of Reasons Showing Initial Segment's Environmental Impacts Are Insignificant.

3. The EA is not a Substitute for an EIS or SEIS.

4. Initial Segment was not Evaluated as an Alternative in any EIS or SEIS.

5. FTA Failed to Evaluate the TSM Baseline Alternative in any EIS or SEIS.

6. Mitigation of Safety Risks Has Not Been Ordered.

CONCLUSION

TABLE OF AUTHORITIES (deleted)

To download this document in PDF, including Table of Authorities, click here.

The briefing in this appeal demonstrates the parties dispute few if any material facts, but instead disagree about the legal significance of these facts. Disagreements about applicable law are subject to the "de novo" and "rule of reason" review standards. FTA and Sound Transit seek to emphasize the "arbitrary and capricious" standard, but that standard applies only to review of disputed facts, not to review of issues of law.

1. Initial Segment Will Have Potentially Significant Environmental Effects not Evaluated in the 1999 FEIS.

In its Opening Brief, at 4-8, and 11-14, CFM identified those potentially significant environmental effects of Initial Segment not previously addressed in the 1999 FEIS. In a remarkable shift, FTA chooses not to address directly those arguments about potentially significant environmental effects. Rather, FTA mounts a completely new argument, namely that the impacts are not on the "physical environment". FTA cites for this proposition Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1466 (9th Cir. 1996). Notably, FTA did not cite this case below, and the district court did not rely on it; the FTA did not raise the "physical environment" defense below, and the district court did not consider it.

In Bicycle Trails, the court considered an action of the Golden Gate National Recreation Area ("GGNRA"), a federal agency, to restrict bicycle access to certain existing trails. The action involved no physical construction plan or related physical change to the environment.

Here, the material facts could not be more different. FTA and Sound Transit propose spending over $2 billion on a rail construction project. It is hard to imagine a proposal more directly connected to the "physical" environment than a construction project. FTA and Sound Transit propose spending over $100 million reconstructing the DSTT alone. In its brief, FTA simply ignores these undisputed facts.

Notwithstanding FTA's contrary arguments, this case is just like Coalition on Sensible Transportation, Inc. v. Dole, 642 F. Supp. 573 (D.D.C. 1986), aff'd., 826 F.2d 60 (D.C. Cir. 1987), where the court held that traffic and safety issues resulted from, and had a close causal connection with, proposed additional lanes to a highway. Id. at 586 n.3. Here, similarly, the traffic and safety issues are associated with, and have a close causal connection with, the planned reconstruction of the DSTT for mixed rail-bus use. Thus, the Administrative Record in this case directly contradicts FTA's claim (FTA Brief at 13) that "a safety concern" is not an "environmental impact".

In a nutshell, FTA would seek to apply Bicycle Trails to the facts of Coalition on Sensible Transportation. Its argument, presumably, would lead to the conclusion that if one builds a highway, a power plant, or any other physical structure, NEPA does not require examination of traffic or safety effects, because they are not impacts on the "physical" environment. This is not the law. FTA's long and winding dissertation on Bicycle Trails is completely disconnected from the undisputed facts of this case, and equally so from the law that applies to those facts.

2. The Record Discloses No Convincing Statement of Reasons Showing Initial Segment's Environmental Impacts Are Insignificant.

Here again, FTA refuses to meet CFM's arguments directly. It chooses instead to advance a tautology: Because FTA has decided those environmental impacts of Initial Segment not previously examined in the FEIS are insignificant, there is no need to provide a convincing statement of reasons why this is so. That, of course, is not the law. See CFM's Opening Brief at 14-16, and cases cited therein.

FTA also props up a straw man, arguing falsely that CFM asserted the "fire/life/safety issues did not receive adequate consideration". FTA Brief at 28. That is not CFM's argument. CFM argues that the evidence, in the Administrative Record, of the fire/life/safety issues demonstrates those issues are of potential environmental significance and should have been addressed in an EIS or SEIS. CFM Opening Brief at 13-14; see also District Court Order at 12, quoting Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984).

Compounding its error, FTA argues that discussion of the fire/life/safety issues in the EA somehow is sufficient. Discussion in the EA is not the point: The issue is whether the questions addressed are of potential environmental significance, such as to require discussion in an EIS or SEIS. This issue FTA refuses to confront directly.

At page 30 of its brief, FTA states there is "nothing in the administrative record" casting doubt on FTA's administrative conclusion that "[t]he Initial Segment would not be expected to impact public services or safety compared to the original project." But FTA simply ignores the statement in the DSTT Joint Operations Report, previously quoted by FTA itself at page 17 of its Brief, that "the introduction of light rail vehicles in the transit tunnel will significantly change the operation of the tunnel and require that fire/life/safety standards are met for both light rail and buses." AR 502688.

FTA and Sound Transit offer, in conclusory fashion, that "significant changes" in operation of the tunnel do not necessarily suggest potentially "significant" new environmental impacts requiring treatment in an EIS or SEIS. This is not the convincing statement of reasons required by controlling law. Public Citizen v. Dep't of Transp., 316 F.3d 1002, 1021 (9th Cir. 2003). The agency decision must be based on a "reasoned evaluation of the relevant factors". Id., quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)(emphasis added).

3. The EA is not a Substitute for an EIS or SEIS.

FTA studiously ignores the district court's statement, quoted at page 20 of CFM's brief, that: "Plaintiffs have the burden of producing evidence of some potentially significant environmental impact that went unexamined in the Urban EA." Order at 16 (emphasis added). Notwithstanding FTA's extensive hyperbole, this statement by the district court remains an incorrect statement of the law. See CFM Opening Brief at 20.

4. Initial Segment was not Evaluated as an Alternative in any EIS or SEIS.

It is undisputed that the "Initial Segment" project alternative was not evaluated as an alternative in any EIS or SEIS. Order at 21; see also FTA Brief at 17. Indeed it was not even identified as an alternative in any EIS or SEIS. See CFM's Opening Brief at 22, citing AR 502215. From these undisputed facts, CFM argues that under controlling law Initial Segment should have been so identified and evaluated. CFM Opening Brief at 22-24.

In response, FTA contends that Initial Segment was within the "range of alternatives" addressed in the FEIS, and that was sufficient. FTA Brief at 33-40. Yet FTA simply fails to address the application of its own regulation, 23 C.F.R.  771.125(a)(1), requiring that the EIS (not an EA) "evaluate all reasonable alternatives considered." There is no room for FTA to argue here that Initial Segment is not an alternative "considered" by it—for FTA is proposing that Sound Transit construct this alternative!

Apparently, although not clearly, FTA would argue that if it complies with the "range of alternatives" requirement, it need not comply with 23 C.F.R.  771.125(a)(1). Stated differently, it would argue that it must comply with some laws, but not all of them. Civil disobedience, however, is not a remedy available to federal administrative agencies.

In contending that it need not evaluate Initial Segment as an alternative in an EIS or SEIS, FTA relies on just three cases: Half Moon Bay Fishermans' Marketing Ass'n. v. Carlucci, 857 F.2d 505 (9th Cir. 1988); Northern Plains Resource Council v. Lujan, 874 F.2d 661 (9th Cir. 1989); and Arizona Cattle Growers Ass'n. v. Cartwright, 29 F.Supp. 2d 1100 (D. Az. 1998). The two Ninth Circuit cases, Half Moon Bay and Northern Plains, are clearly distinguishable for reasons set forth in CFM's Opening Brief at page 23 n.17, and page 18, respectively.

Arizona Cattle, a district court opinion, offers no support to FTA here. It involved a complex case stemming from amendment of a U.S. Forest Service plan covering forest territory throughout Arizona and New Mexico. At issue were the planning Draft EIS and the planning Final EIS. Id. at 1103, 1110-13. The material in question was contained in the Final EIS (although apparently not in the Draft EIS); here, by contrast, the Initial Segment changes in question were not addressed or evaluated in the Final EIS. In Arizona Cattle, the scope and nature of impacts from the planning process was unclear, inasmuch as no implementation could occur until defendants completed further NEPA procedures at the project stage; here, by contrast, FTA proposes that Sound Transit build the Initial Segment project now.

5. FTA Failed to Evaluate the TSM Baseline Alternative in any EIS or SEIS.

FTA ignores the veritable thicket of interrelated statutes and regulations cited by CFM (CFM's Opening Brief at 25-28), and instead argues blithely that NEPA does not require evaluation of the TSM alternative in an EIS. By this argument, FTA persists in its effort to avoid the obvious effect of its own controlling laws and regulations.

FTA complains that by citing and relying on FTA's NEPA Regulation, 23 C.F.R.  771.125(a)(1), CFM reads a regulation "out of context". Yet in the same breath, FTA then argues that it unilaterally may decide to discuss some reasonable alternatives in an EIS, but not others. This is not the law. The law requires FTA to address in an EIS not some, but "all reasonable alternatives considered." Id. (emphasis added). FTA apparently would ask this court to interpret  771.125(a)(1) in the "context" of ignoring the plain language of the regulation.

FTA argues that it need not evaluate a TSM alternative separately from "no-build" if, "the adopted . . . plan includes within the corridor all reasonable cost-effective transit improvements short of the new starts project . . . ." (FTA Brief at 42-43, quoting 49 C.F.R. Part 611, Appendix A.) In this case, however, it is undisputed that Sound Transit's "no-build" proposal does not include within the corridor, "all reasonable cost-effective transit improvements short of the new starts project".

"No-build", obviously, is a no-build alternative, whereas TSM is a "build" alternative. The TSM alternative is the "best that can be done" to improve transit service in the corridor without a major capital investment in new infrastructure. (Alkire Dec., Sept. 18, 2002, para. 27, SER 000010; see also CFM Opening Brief at 25 n.19 and authority cited therein.) That is not what FTA evaluated in the FEIS. In this case, all of the "build" alternatives in the 1999 FEIS are rail alternatives: "The build alternatives would consist of constructing and operating a light rail line." (AR 3165; emphasis added.)

Sound Transit observes that several TSM alternatives were evaluated in a local planning EIS in 1993. (Sound Transit Brief at 35; see also id. at 5.) Yet it is undisputed that none of those 1993 TSM alternatives was evaluated in the 1999 project FEIS at issue here; and, it is equally clear that none of the TSM alternatives was compared with the Initial Segment alternative (which was not even defined until 2001).

FTA has offered no citation to the Administrative Record supporting the proposition that it need not evaluate a TSM alternative in the FEIS. Thus, once again, its legal argument is not tethered to the facts.

6. Mitigation of Safety Risks Has Not Been Ordered.

The law requires FTA's FEIS to describe mitigation measures that are to be incorporated into the proposed action. (See CFM Opening Brief at 28-29.) This has not been done. There is no statement in the FEIS, SEIS, ROD, or Amended ROD describing mitigation measures to be incorporated into the proposed Initial Segment action, or, more particularly, its planned mixed use of the DSTT. Id. Accord, FTA Brief at 14 ("FTA did not require Sound Transit to commit to any mitigation [regarding mixed bus-rail use in the DSTT].") FTA objects to CFM's argument via a bootstrap, contending that the EA found no need to discuss mitigation, and therefore "there was simply nothing to discuss". FTA Brief at 45. This is tantamount to saying, "we need not address mitigation issues because we say so."

Sound Transit argues differently, conceding that mitigation of safety impacts is necessary, but contending that identification of the mitigation measures "in the Initial Segment EA" constitutes compliance with applicable mitigation requirements. (Sound Transit Brief at 38.) This is not a correct statement of the law.

It is undisputed that safety impact mitigation related to mixed use of the DSTT is not specified in the FEIS, in the original ROD, or in the Amended ROD, and from this record there is simply no way of knowing what the mitigation requirements are, or how they would be enforced.

CONCLUSION

For the reasons stated above and in CFM's Opening Brief, this court should reverse the district court and order that an EIS or SEIS be prepared for the "Initial Segment" rail transit project.

Respectfully submitted this ____ day of December, 2003.

_____________________________
John D. Alkire, WSBA #2251
1201 Third Avenue, Suite 5100
Seattle, WA 98101
(206) 583-8458

_____________________________
Jon W. MacLeod, WSBA #8491
1201 Third Avenue, Suite 5100
Seattle, WA 98101
(206) 621-6581

_____________________________
James P. Savitt, WSBA #16847
Savitt & Bruce
1325 Fourth Avenue, Suite 1410
Seattle, WA 98101-2406
(206) 749-0500
Attorneys for Citizens for Mobility, et al.
Plaintiffs/Appellants

CERTIFICATE OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the Reply Brief of Appellants is proportionately spaced, has a typeface of 14 points or more and contains 2,144 words.

Date Signature of Filing Party

CERTIFICATE OF SERVICE

I, June Starr, certify that on December 5, 2003, caused to be delivered by hand, two copies of Reply Brief of Appellants upon the following parties, and by Federal Express, Priority Overnight, postage prepaid for next day delivery, the original and fifteen copies of Reply Brief of Appellants on the Clerk of the Ninth Circuit Court of Appeals at 95 Seventh Street, San Francisco, California 94103-1526:

Brian Kipnis, Esq.
Chief of Civil Division &

Assistant U.S. Attorney

601 Union Street, Suite 1500

Seattle, WA 98101-3903

Paul J. Lawrence, Esq.

Preston, Gates & Ellis

925 Fourth Avenue, Suite 2900

Seattle, WA 98104

 

_________________________________
JUNE STARR