Home » Case Summaries » 2015 » Natural Res. Defense Council, Inc. v. U.S. Dep’t of Transp., 770 F.3d 1260 (9th Cir. 2014)

 
 

Natural Res. Defense Council, Inc. v. U.S. Dep’t of Transp., 770 F.3d 1260 (9th Cir. 2014)

 

The Natural Resources Defense Council (NRDC) brought this action against the United States Department of Transportation (DOT) contending that DOT violated the Clean Air Act (CAA)[1] and the National Environmental Policy Act (NEPA)[2] by failing to adequately evaluate the environmental effects of constructing an expressway between the Ports of Los Angeles and Long Beach and the I-405 freeway. The United States District Court for the Central District of California granted summary judgment for DOT. On appeal, the Ninth Circuit reviewed the judgment de novo and affirmed.

Under the CAA, the United States Environmental Protection Agency (EPA) and DOT are required to work together to ensure the conformity of transportation plans, programs, and projects with their respective State Implementation Plans (SIP) for national air quality standards.[3] Pursuant to this objective, EPA requires a “hot-spot analysis,” which estimates the localized effects of projects on the concentrations of various air pollutants including particulate matter less than 2.5 microns in diameter (PM2.5).[4]

With regards to the expressway project at issue in this case, NRDC argued that DOT improperly conducted hot-spot analysis of PM2.5 by gathering data from a receptor outside the immediate area of the project. Instead, NRDC relied on the CAA’s use of “any area” in the SIP conformity provision[5] to argue the act required hot-spot analysis in every part of the area affected by project emissions. To support this interpretation of “area” as adjacent to the project, NRDC raised three arguments. First, NRDC pointed to an EPA regulation that defines “any area” as “a location or region”[6] and argued that “location” refers to an area smaller than the project area. Second, NRDC contended that the EPA regulation mandating hot-spot analysis at “receptor locations in the area substantially affected by the project” means the project’s immediate vicinity.[7] Third, NRDC looked to EPA’s response to comments for its proposed hot-spot rules, which explained that the CAA’s intent is to prohibit the violation of standards in any area, not just based on public exposure.

However, NRDC was not able to persuade the Ninth Circuit that the CAA’s use of “any area” limited the hot-spot analysis to the area immediately adjacent to the project site. The Ninth Circuit explained that DOT properly followed the Conformity Guidance,[8] which permits analysis of data from a surrogate monitor in a location with similar characteristics to the project location. The Ninth Circuit cited a District of Maryland case holding that the Conformity Guidance permits DOT’s use of the monitor comparison method.[9] Additionally, the Ninth Circuit explained that the Federal Highway Administration endorsed data gathering from surrogate monitors for hot-spot analysis in two projects. The Ninth Circuit therefore held that the agencies’ interpretation of the appropriate hot-spot analysis governs.

The Ninth Circuit next determined that DOT was neither arbitrary nor capricious in its conclusion that the expressway project complied with the CAA’s SIP conformity provision. The court explained that DOT showed satisfactory similarity between North Long Beach air monitoring station, selected by DOT as a surrogate, and the project area. Furthermore, the Ninth Circuit held that DOT adequately analyzed the data baseline to conclude that PM2.5 emissions from the expressway project would be the same or less than not building. Since the Ninth Circuit accepted DOT’s findings that the project would not cause a new violation, increase the severity of an existing violation, or delay the implementation of national air quality standards, the court held that DOT had not violated the CAA.

Finally, the Ninth Circuit held that DOT’s Environmental Impact Statement (EIS) satisfied the disclosure requirements of NEPA. NRDC argued that DOT failed to explain whether a potential PM2.5 increase would exceed current national air quality standards and did not fully disclose likely effects on public health. The Ninth Circuit held that DOT’s EIS adequately discussed the new air quality standard and the failure to meet the new standard at the project area in the past three years. Additionally, the court noted that the EIS estimated no increase in PM2.5 levels from the expressway project. Furthermore, the Ninth Circuit explained that the Health Risk Assessment within the EIS adequately disclosed the project’s likely health effects. The court noted that the EIS included detailed study of estimated increases in cancer and other health risks, a diagram of risk increases by location, and recommendations to mitigate risk. The Ninth Circuit explained that DOT took the requisite hard look at the project’s likely consequences and possible alternatives. Therefore the court held that DOT had satisfied NEPA.

In sum, the Ninth Circuit held that DOT satisfied the requirements of the CAA and NEPA and affirmed the grant of summary judgment.

Footnotes    (↵ returns to text)

  1. Clean Air Act, 42 U.S.C. §§ 7401–7671q (2012).
  2. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  3. 42 U.S.C. § 7506(c)(4)(B) (2012).
  4. See 40 C.F.R. § 93.101 (2012) (defining a “hot-spot analysis” as an “estimation of likely future localized . . . PM2.5 pollutant concentrations”).
  5. 42 U.S.C. § 7506(c)(1)(B) (2012).
  6. 40 C.F.R. § 93.101.
  7. Id. § 93.123(c)(1).
  8. The Conformity Guidance was published jointly by the EPA and the DOT to aid state and local agencies in meeting the requirements of hot-spot analysis. Transportation And Climate Division, Office Of Transportation And Air Quality & U.S. Envt’l. Prot. Agency, Epa-420-B-13-053, Transportation Conformity Guidance For Quantitative Hot-Spot Analyses In Pm2.5 And Pm10 Nonattainment And Maintenance Areas (2013).
  9. Audubon Naturalist Soc’y of the Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F. Supp. 2d 642, 701 (D. Md. 2007) (holding that DOT’s use of the Muirkick monitor was not arbitrary and capricious).
Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.