The Purple Line's future is looking quite purple-y. A federal appeals court has reversed District Court Judge Richard Leon's 2016 ruling blocking the light rail Purple Line between Bethesda and New Carrollton, now under construction.
Opponents of the line, styling themselves “Friends of the Capital Crescent Trail,” have tried to block the line on many grounds, including supposedly endangered microscopic shrimp-like creatures which their scientist was unable to actually find in the area. One of their last Hail Mary passes suddenly hit its mark in August of 2016, when Judge Leon blocked the line just days before the State of Maryland was about to sign a funding agreement with the federal government.
The opponents claimed that Metro's ridership decline rendered the project's Environmental Impact Statement out-of-date and requiring a new supplemental EIS, because one of the several goals of the line was to help connect numerous branches of Metro in Maryland. The Federal Transit Administration prepared a supplemental report analyzing five scenarios, from one where Metro ridership recovers starting in 2018 after SafeTrack, to one where Metro shuts down completely and permanently.
The FTA claimed that in all cases, the Purple Line meets its EIS goals. In fact, in the no-more-Metro scenario, while the Purple Line would carry no transferring passengers from Metro, it would be more necessary in other ways to combat the greater traffic coming from people driving instead of riding Metro.
The “Friends” argued this report wasn't sufficient. Leon agreed, but then the appellate court, the Court of Appeals for the DC Circuit (it's in DC and not the Fourth Circuit, which includes Maryland, because it's challenging a federal agency decision) let the line go forward to funding and construction while they considered the full case.
Now their opinion is out, and the three judges unanimously side with the Purple Line, FTA, and Maryland against Leon and the “Friends.” The opinion was written by Judith Rogers, and the other judges on the panel were Sri Srinivasan and Merrick Garland.
As interpreted by the Supreme Court, NEPA requires the preparation of a SEIS where new information “will affect the quality of the human environment in a significant manner or to a significant extent not already considered.” Marsh, 490 U.S. at 373–74 (emphasis added). Over the course of a long-running project, new information will arise that affects, in some way, the analysis contained in a prior FEIS.
NEPA does not require agencies to needlessly repeat their environmental impact analyses every time such information comes to light. Rather, a SEIS must be prepared only where new information “provides a seriously different picture of the environmental landscape.” Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis added).
In other words, this Metro thing is just not new or significant enough. And the Court of Appeals found that by doing its report, the FTA had considered the issue thoughtfully enough to not be “arbitrary and capricious.” In this area of law, courts are supposed to defer to agency technical expertise as long as the agency has given the issues sufficient consideration, and here, the court said, it did.
Even if Metrorail ceased to exist — an extreme and highly unlikely scenario given its centrality to transportation in the greater Washington metropolitan area — light rail would still provide faster (and higher-capacity) east–west connections between major Maryland activity centers in Montgomery and Prince George’s counties than would other alternatives, like bus rapid transit. See Md. Ridership Assessment, at 32.
Light rail also would promote new economic opportunities in the underserved low-income and minority communities located between those centers, and provide better connections to non-Metrorail regional transit options, including the MARC train, the Amtrak railroad, and local bus routes. See FTA Scenarios Report, at 6; FEIS, ch. 1, at 1.
And in contrast to bus rapid transit, light rail would help reduce roadway congestion in a region with a fast-growing population and economy. See ROD, at 3; FEIS, app. A, at 19–20; see also Md. Ridership Assessment, at 7–8, 32.
FTA and Maryland, therefore, could reasonably conclude that the Metrorail information submitted by the Friends does not present any new environmental impacts, whether absolute or relative, that were “significant” enough to require preparation of a SEIS.
Leon didn't side with the “Friends” on everything. For instance, Maryland initially planned on putting in a “green track,” which is grass in the space between the tracks. That would have made the area feel more pastoral than a regular gravel-filled trackbed. However, Maryland cut this feature for cost reasons.
Ironically, the grass tracks may not have been cut had the opponents not delayed the project for years with their endless legal challenges. By delaying, they pushed the project's start until after Republican Larry Hogan replaced Democrat Martin O'Malley as governor, and Hogan was eager to cut any optional or cosmetic feature. So, this was a problem of the “Friends” own making.
Nevertheless, they argued that removing the grass also would require an SEIS. Leon disagreed, and so did the appeals court.
Both courts also rejected another “Friends” argument that the economic development the Purple Line would bring would harm “local water quality and wildlife or on the socioeconomic makeup of local communities.” On that, the court said this was too speculative and that an EIS doesn't have to consider every hypothetical possible consequence of doing something:
Under FTA’s regulations, “indirect effects” are those “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable”; they include “growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.” 40 C.F.R. § 1508.8(b).
The required indirect effects analysis is thus limited to what is reasonably foreseeable, “with reasonable being the operative word.” Sierra Club, 867 F.3d at 198. “Baseless speculation is unhelpful,” id., and agencies “need not foresee the unforeseeable,” Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (D.C. Cir. 2014). Still, agencies must “fulfill [their] duties to the fullest extent possible” with the information available. Id.
The EIS looked at the likely economic development and its environmental and socioeconomic effect, but for an area within a quarter mile of the stations. It also considered environmental justice impacts on low-income neighborhoods, though it noted that many of these effects are difficult to quantify. Just because the “Friends” could envision some effects not fully enumerated in the EIS and the analysis could have had more detail, the appeals court said, that didn't mean there was “a critical flaw or glaring hole.”
This decision allows the Purple Line, which broke ground in August, to continue moving forward. Opening is scheduled for 2022. In the meantime, this case could set a precedent for future efforts by project opponents to block things they don’t like by demanding they be studied to death.