Minnesota District Court Declines to Extend Limited NEPA Cause of Action to Section 4(f)
Posted on April 4, 2016
On February 25, 2016, the United States District for the District of Minnesota granted the Metropolitan Council’s motion to dismiss challenges to a proposed light rail transit route—the Southwest Light Rail Transit (SWLRT) project—that would connect downtown Minneapolis to the southwestern Twin Cities. Opus Woods Conserv. Ass. & SFI Ltd. Partnership v. Metropolitan Council, No. 15-1637 (D. Minn. Feb. 25, 2016). In so doing, the court declined to extend a limited National Environmental Policy Act (“NEPA”) cause of action it had recognized in a 2015 decision, also involving the SWLRT, to the related context of historical property review under Section 4(f) of the Department of Transportation Act of 1966. 49 U.S.C. § 303. Plaintiffs in the case alleged that the Met Council violated NEPA, Section 4(f), and Minn. Stat. § 473.3994 (“Municipal Consent Statute”) by selecting a preferred route for the SWLRT and initiating the municipal consent process before final environmental review for the project was complete and without conducting a Section 4(f) analysis of a wooded parkland area in Minnetonka commonly referred to as Opus Hill.
The responsible governmental agencies for the project’s environmental review are the Met Council and the Federal Transportation Agency (FTA). An environmental impact statement (“EIS”) is required for the SWLRT project under NEPA, and in October 2012, the project’s prior lead agency, the Ramsey County Regional Railroad Authority, published a Draft Environmental Impact Statement (“DEIS”), designating a preferred route for the rail line. The route would run through Opus Hill, about 90 feet west of the Claremont Apartments in Minnetonka. The DEIS included a draft Section 4(f) evaluation assessing historic properties and public areas affected by the proposed SWLRT route, but the analysis did not address Opus Hill. In the summer of 2014, pursuant to the Municipal Consent Statute, the City of Minnetonka approved the SWLRT proposal and entered a memorandum of understanding (MOU) with the Met Council. (See the Minnetonka City Council Agenda Item #14A for the meeting of June 23, 2014, which includes a copy of the proposed MOU, beginning on page A76.)The MOU provided that it memorialized “the Parties’ present intentions and understandings” but did not “limit the alternatives or mitigative measures that the Council may undertake in the development and construction of the SWLRT Project.” Finally, in May 2015, the Met Council and FTA published a supplemental draft EIS (SDEIS) to address certain changes to the project. The SDEIS did not alter the portion of the proposed route through Opus Hill and did not include a Section 4(f) analysis for Opus Hill. The NEPA process is ongoing; the Met Council and FTA have not yet issued a final EIS (FEIS) for the project.
In a very similar case from last year involving a challenge to the SWLRT project, Lakes and Parks Alliance of Minneapolis v. Federal Transit Administration (“LPA I”), 91 F. Supp. 3d 1105 (D. Minn. 2015), the court had held that, although NEPA challenges under the federal Administrative Procedure Act (APA) generally cannot be brought prior to a final agency decision (e.g., a “record of decision”), a limited cause of action exists under NEPA itself (not the APA) against a state actor where a party seeks to preserve federal rights under NEPA pending the outcome of federal procedural review. (See our prior post summarizing LPA I.) In LPA I, the court concluded that the plaintiffs had pled sufficient facts to survive a motion to dismiss, presenting “significant allegations” in their complaint regarding how the Met Council, through the Municipal Consent process and through specific dealings and agreements with various municipalities, had dramatically reduced the number of realistically available routes for the SWLRT, despite the ongoing environmental review process.
In this case, by contrast, the court found that the plaintiffs simply relied upon the facts that the Met Council had initiated the municipal consent process and selected a preferred alternative prior to completing the FEIS. These allegations lacked the kind of specific facts presented in LPA I. The court emphasized that NEPA anticipates some preapproval with state and local bodies; the limited cause of action recognized in LPA I only comes into play where plaintiffs can show that agency actions have the practical effect foreclosing potential options prior to conclusion of the environmental review process.
The court also rejected the plaintiffs’ claims under Section 4(f). Like NEPA, Section 4(f) does not provide an independent cause of action; judicial review is available only through the APA and only following final agency action. In spite of the fact that the Met Council and FTA have not yet completed the NEPA and section 4(f) processes, the plaintiffs argued that the court should recognize a similar limited pre-final-decision cause of action under Section 4(f), as it did for NEPA in LPA I, where agency actions are effectively limiting the potential outcomes of the Section 4(f) process. However, the court declined to do so, citing differences between NEPA and section 4(f)—e.g., the unique NEPA regulation relied upon in LPA I that prohibits any action that would “[l]imit the choice of reasonable alternatives” prior to completion of the environmental review process (40 C.F.R. § 1506.1(a))—and the lack of case law in other jurisdictions recognizing such a cause of action under Section 4(f).