Home » Case Summaries » 2016 » Japanese Village, LLC v. Federal Transit Administration, 843 F.3d 445 (9th Cir. 2016)

 
 

Japanese Village, LLC v. Federal Transit Administration, 843 F.3d 445 (9th Cir. 2016)

 

 

This case addressed an appeal from the United States District Court for the Central District of California’s grant[1] of a motion by the Federal Transit Administration (FTA) and others (collectively, FTA)[2] for summary judgment on claims brought by Japanese Village, LLC (Japanese Village) and Today’s IV, Inc., doing business as Westin Bonaventure Hotel (Bonaventure). The claims at issue arose under the National Environmental Policy Act[3] (NEPA), and related to an underground light rail construction project in the Los Angeles area. Japanese Village and Bonaventure challenged various aspects of FTA’s Environmental Impact Statement (FEIS), including whether FTA properly addressed mitigation measures and reasonable alternatives. The Ninth Circuit, reviewing de novo, affirmed the district court’s grant of summary judgment in favor of FTA on each claim.[4]

The Ninth Circuit first addressed Japanese Village’s claim that the FEIS inadequately addressed construction-related noise and vibration. While the Ninth Circuit acknowledged that the FEIS itself might have lacked a thorough analysis of mitigation measures, the court found that the ROD demonstrated that vibration-related mitigation measures had been researched, discussed, and then adopted.

Next, the court addressed whether temporary relocation of affected businesses during construction activities in Japanese Village was a permissible mitigation measure under NEPA. Japanese Village argued that NEPA includes an exclusive list of the possible mitigation measures,[5] and that relocation was not included on that list. FTA argued that the proposed relocation mitigation could fit within subsection (e) of the list, because relocation involves “providing substitute . . . environments.”[6] The Ninth Circuit declined to decide whether relocation is invalid as a matter of law because NEPA required FTA only to take a hard look at various alternatives.[7] FTA not only considered a variety of mitigation measures, it also went so far as to adopt and implement several. This, the Ninth Circuit concluded, satisfied NEPA’s requirements regardless of whether relocation was implicitly included in NEPA’s list of mitigation measures.

Japanese Village then argued that FTA violated NEPA by failing to require “isolated slab track” technology to mitigate noise and vibration from underground trains. Japanese Village supported its claim with an engineering report advocating use of that technology that postdated the EIS. The Ninth Circuit noted that once an EIS is complete, an agency does not need to revisit it every time new information comes to light. The court then held that the argument was moot because mitigation measures that included “isolated slab track” technology were ultimately adopted at a later date.

Japanese Village next argued that FTA’s subsidence mitigation plan lacked sufficient detail, and that, as a result, the mitigation impacts could not be properly evaluated. The Ninth Circuit held that although the measures were somewhat lacking in detail, the mitigation analysis, in conjunction with an expert study addressing the effectiveness of potential mitigation tactics, demonstrated that FTA adequately considered and addressed subsidence mitigation.

Finally, Japanese Village argued that FTA did not properly consider how the increased demand for parking resulting from the project would impact the Japanese Village parking structure. FTA argued that its analysis was adequate, citing a comprehensive FTA transportation study that included a parking-impacts analysis. The court noted that NEPA lacks a “threshold for determining the significance of parking impacts,” and pointed out that Japanese Village had failed to cite to any cases in which a court had found an EIS inadequate based on an analysis of impacts to existing parking structures. Given that FTA plainly addressed parking impacts and mitigation measures, and considering NEPA’s procedural, non-substantive scope, the Ninth Circuit ultimately concluded that FTA took the “requisite hard look” at parking impacts prior to approving the project.

The Ninth Circuit then addressed Bonaventure’s arguments. The court first acknowledged that an EIS is inadequate when it does not examine a viable alternative. Bonaventure claimed that FTA failed to adequately consider as an alternative a construction process called “closed-face tunnel boring machine (TBM).” Bonaventure argued that FTA’s finding that the alternative was not feasible was in error because the three identified obstacles to implementing “closed-face TMB” had been eliminated before FTA issued its FEIS. After reviewing the record, the court found that, in actuality, two of the identified obstacles had not been eliminated before FTA issued the FEIS, and FTA need not have included that alternative in the FEIS as a result.

Bonaventure then alleged that, because FTA found that “closed-face TBM” was feasible after issuing the FEIS, the FEIS was itself deficient for failing to include that alternative. The Ninth Circuit held that FTA’s later feasibility determination does not render the FEIS procedurally deficient. In addition, the court noted that a finding in Bonaventure’s favor would discourage agencies from fostering public participation and considering public comments after issuing an FEIS, which would be contrary to NEPA’s goal of well-informed agency decision making.

Next the court turned to Bonaventure’s claim that FTA did not properly address certain impacts and mitigation measures. First, Bonaventure argued that FTA’s analysis of “grade separation” was insufficient under NEPA. The Ninth Circuit found the FEIS was adequate because FTA took the requisite “hard look” at grade separation impacts. Bonaventure argued that grade separation was a significant issue requiring thorough analysis, but the Ninth Circuit found that Bonaventure failed to provide evidentiary support for its claim. As a result, only a “brief discussion” of grade separation impacts was required.[8]

Bonaventure next argued that construction would obstruct emergency vehicle access to the adjacent property, and that FTA failed to explore mitigation measures to ensure access. The Ninth Circuit disagreed, noting a variety of applicable mitigation measures in the FEIS. Finally, Bonaventure claimed that FTA impermissibly deferred certain monitoring and mitigation measures required by NEPA. Bonaventure argued that several proposed mitigation measures were too vague because the FEIS used language that allowed the measures to be developed at a later time. The Ninth Circuit disagreed again, finding that this arrangement was not overly vague but rather permissibly described an “adaptive management plan that [would] provide flexibility in responding to environmental impacts.”[9]

Finally, Bonaventure argued that FTA should have created a supplemental EIS analyzing the impacts from nighttime construction after FTA sought noise ordinance variances from the City. The Ninth Circuit discussed when agencies must prepare a Supplemental EIS, and found that one was not necessary in this case. In particular, the court determined that the FEIS already took into account noise and light impacts from potential nighttime construction, and that significant additional impacts not addressed in the FEIS were unlikely in the event that the variance application was approved.

In sum, the Ninth Circuit affirmed in full the district court’s grant of summary judgment for FTA. The court concluded that FTA had not acted in an arbitrary and capricious manner when preparing its NEPA analysis for the proposed light rail construction project.

 

 

Footnotes    (↵ returns to text)

  1. Today’s IV, Inc. v. Fed. Transit Admin., Nos. LA CV13–00378 JAK (PLAx), LA CV13–00396 JAK (PLAx), LA CV13–00453 JAK (PLAx), 2014 WL 3827489, at *1 (C.D. Cal. May 29, 2014).
  2. Defendants included Carolyn Flowers, in her official capacity as Acting Administrator of the Federal Transit Administration; Leslie T. Rogers, in his official capacity as Regional Administrator of the Region IX Office of the Federal Transit Administration; U.S. Department of Transportation; Anthony Foxx, in his official capacity as Secretary of the U.S. Department of Transportation; and Los Angeles Metropolitan Transportation Authority, a California–chartered Regional Transportation Planning Agency.
  3. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  4. Today’s IV, Inc., 2014 WL 3827489, at *1.
  5. See 40 C.F.R. § 1508.20.
  6. Id. § 1508.20(e).
  7. See id. §§ 1502.2, 1508.20.
  8. Id. § 1502.2(b).
  9. Japanese Vill., LLC v. Fed. Transit Admin., 843 F.3d 445, 461 (9th Cir. 2016).
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