Black Warrior Riverkeeper, Inc. v. Alabama Department of Transportation et al
MEMORANDUM OPINION AND ORDER that Plaintiff's motion for a preliminary injunction 134 is DENIED. Signed by Chief Judge William Keith Watkins on 1/17/2014. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
BLACK WARRIOR RIVERKEEPER, )
ALABAMA DEPARTMENT OF
TRANSPORTATION, et al.,
CASE NO. 2:11-CV-267-WKW
BLACK WARRIOR RIVERKEEPER, )
UNITED STATES ARMY CORPS OF )
ENGINEERS, et al.,
CASE NO. 2:13-CV-794-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s motion for preliminary injunction. (Doc.
# 134.) In the second of these consolidated cases, Black Warrior moves to enjoin
the issuance of a 404(b) permit by the U.S. Corps of Engineers to the Alabama
Department of Transportation (ALDOT) for the discharge of dredge materials in
the waters of the United States in connection with the construction of a 1.86-mile
portion of the Northern Beltway around Birmingham, Alabama. After careful
review of the record, full consideration of the arguments, and a hearing on
preliminary injunction, the court finds that the motion is due to be denied.
The Northern Beltline Project is a 50.1-mile stretch of proposed interstate
highway bypassing Birmingham, Alabama, by connecting I-459 in Bessemer with
I-59 in Trussville. This project is estimated to take decades to complete with cost
estimations currently set at $5.4 billion. Plaintiff Black Warrior Riverkeeper, Inc.
filed the first lawsuit in April 2011, asking the court to enjoin construction until
Defendants Federal Highway Administration (FHWA), Mark Bartlett in his official
capacity as Division Administrator of FHWA, Alabama Department of
Transportation (ALDOT), and John Cooper in his official capacity as director of
ALDOT took a “hard look” at the project’s environmental effects.
Pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321–47
(NEPA), ALDOT and the FHWA completed an Environmental Impact Statement
(EIS) in 1997. Reevaluations of the EIS were performed in 2006 and 2012.
Defendants decided that the project was to begin by connecting State Route (SR)
79 and SR 75. The Army Corps of Engineers (Corps), as a cooperating agency,
focused its efforts during the Clean Water Act (CWA) permitting process on site-
specific considerations, while relying on the extensive analysis of impacts
contained in the 1997 Final Environmental Impact Statement (FEIS) and the 2012
FEIS Reevaluation prepared by FHWA. Plaintiff takes issue with the failure of
Defendants to prepare an additional EIS during the process under section 404 of
the CWA, to reevaluate impacts of, and alternatives to, the entire 50.1-mile project.
In late 2013, ALDOT received its 404 permit from the Corps. Construction
is scheduled to begin in early 2014 to connect SR 79 and SR 75. The full 50.1mile project may take as long as 30 years to complete.
Procedural Issue and Overview of the Merits Arguments
Relevant for purposes of the preliminary injunction motion, the first-filed
case seeks to require a supplemental EIS prior to further advancement of the entire
50.1-mile, $5.4 billion project, and the second-filed case objects to the 404(b)
permit and is the one in which this injunctive motion resides.
procedural issue concerns which case framework governs the motion for
preliminary injunction. Is it the first-filed case involving the entire project, or is it
the second-filed case in which the motion was filed? Clearly, the correct answer is
The reason there is a “which case” question is that Plaintiff argues from a
“whole project” perspective to stop the 404 permit. This permit is the kickoff to a
much larger match, essentially the first shovel in the ground for the entire project.
Plaintiff’s position is that no 404 permit should issue until the entire project has
been reevaluated with an SEIS. At bottom, Plaintiff does not complain so much
about the 1.86-mile section.
Plaintiff is concerned about the cumulative
environmental effects of the whole project and takes the position that nothing
moves, beginning with the 404 permit for the first section of the highway, until a
formal study is completed. Thus, Plaintiff says the injunctive merits before the
court are adoptive of the whole project.
Defendants advocate limiting the present merits analysis to just the 404
permit and the 1.86-mile section at issue. They point to the evidentiary record’s 17
bankers boxes, a 1997 EIS, a 2006 reevaluation, and a 2012 reevaluation to say
enough environmental analysis and accommodations have been done to begin the
project. No less than eight federal and state agencies have either signed off on the
404 permit for this initial section or not opposed the project, though questions
remain regarding many other areas of the proposed beltway. And if that is the
scope, Defendants say, then Plaintiff loses because it has failed to individualize its
complaint to this 1.86-mile section and particular 404 permit.
Plaintiff circumvents Defendants’ position with a segmentation argument:
Defendants have improperly segmented the project to avoid the requirements of
NEPA and the CWA. As the issues are framed, the first substantive question to be
answered is the segmentation one. If Defendants have segmented improperly the
project, there may be some likelihood of success on the merits of the attack on the
permit, though the substantiability of that likelihood of success is not immediately
apparent. If the project has not been segmented improperly, however, there is little
likelihood of success on the permit argument alone, and the motion must fail.
Because the segmentation argument implicates issues in both cases, and of
necessity the CWA and NEPA, some analysis of the whole project is required.
A preliminary injunction is “an extraordinary remedy never awarded as of
right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008) (citations
omitted). Such a remedy requires a “clear showing that the plaintiff is entitled to
such relief.” Id. at 22. The moving party must show that it has a substantial
likelihood of success on the merits, that it is likely to suffer irreparable injury
unless the injunction is issued, that the balance of equities tips in its favor, and that
an injunction is in the public interest. Id. at 20; see also Grizzle v. Kemp, 634 F.3d
1314, 1320 (11th Cir. 2011). Each of these four factors must be established
independently. See, e.g., Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)
(stating that “[a] preliminary injunction is an extraordinary and drastic remedy not
to be granted unless the movant clearly established the ‘burden of persuasion’ as to
each of the four prerequisites.” (citing McDonald’s Corp. v. Robertson, 147 F.3d
1301, 1306 (11th Cir. 1998)). Thus, if Plaintiff is unable to establish any one of
the factors, the motion for preliminary injunction must fail.
Plaintiff has not demonstrated a substantial likelihood of success on the
Plaintiff’s substantial likelihood of success on the merits of its NEPA and
CWA claims is evaluated under the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701–06. Under the APA, the standard of review is whether the agency’s action
is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law.” Id. at § 706(2)(A). This standard is exceedingly deferential, and the
court is “not authorized to substitute [its] judgment for the agency’s as long as [the
agency’s] conclusions are rational.” Miccosukee Tribe of Indians of Fla. v. United
States, 566 F.3d 1257, 1264–65 (11th Cir. 2009) (internal quotation marks and
NEPA standards require that an agency take a “hard look” at the potential
environmental impact of the proposed action before it makes a decision.
Robertson v. Methow Valley Citizen’s Council, 490 U.S. 332, 350 (1989). The
inquiry must be “searching and careful,” and a court may not substitute its own
substantive judgment for that of the agency. City of Alexandria, Va. v. FHWA, 756
F.2d 1014, 1017 (4th Cir. 1985); see also Kleppe v. Sierra Club, 427 U.S. 390, 410
n.21 (1976). Plaintiff does not have a substantial likelihood of success on the
merits if it cannot show that the Section 404 permit improperly segments the
Northern Beltline Project.
NEPA 404 Permit Regulations
The court first addresses Plaintiff’s segmentation argument. NEPA prohibits
the “segmentation” of a project when it is done to mask the overall significance of
the project’s impacts, particularly its cumulative impacts.
40 C.F.R. §
To fully evaluate whether a project has been improperly
segmented for purposes of evading a thorough NEPA analysis, FHWA regulations
require that the project “connect logical termini,” “have independent utility,” and
not “restrict considerations of alternatives for other reasonably foreseeable
23 C.F.R. § 771.111(f); see also Preserve
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916 F.
Supp. 1557, 1566 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
Because the Northern Beltline is part of the freeway system included in the
Appalachian Development Highway Program authorized by Congress, federal
funding will be made available over time (perhaps 30 or more years) to advance
the construction of the project. After approving the 2006 and 2012 reevaluations,
FHWA approved phased construction of the Northern Beltline, beginning with the
SR 79/75 portion. NEPA allows the responsible agency administrative discretion
in determining how to break up a large project into manageable phases. Kleppe v.
Sierra Club, 427 U.S. 390, 414 (1976) (holding that one comprehensive impact
statement covering all related projects was not necessary before proceeding to
approve specific pending applications); see also Hoosier Envtl. Council v. U.S.
Army Corps of Eng’rs, 722 F.3d 1053, 1059 (7th Cir. 2013) (“There is a difference
between ‘segmentation’ in its perjorative sense and – what is within administrative
discretion – breaking a complex investigation into manageable bits.” (citations
omitted)); Nw. Res. Info. Ctr. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1069
(9th Cir. 1995) (“While we cannot allow an agency to segregate its actions in order
to support a contention of minimal environmental impact, we also cannot force an
agency to aggregate diverse actions to the point where problems must be tackled
from every angle at once.
To do so risks further paralysis of agency
decisionmaking.” (citations omitted)).
In Save Barton Creek Association v. FHWA, 950 F.2d 1129, 1141 (5th Cir.
1992), the Fifth Circuit determined that the challenged segments of the Austin
Outer Loop met requirements that each phase of the project have independent
utility, connect with logical termini, and not foreclose the opportunity to consider
alternatives. The court reasoned:
The Austin Outer Loop is more closely analogous to the 3-A system
of interstate and primary highways in the City of Baltimore which was
the subject of litigation in Movement Against Destruction v. Volpe,
361 F. Supp. 1360 (D. Md. 1973) (per curiam), aff’d per curiam, 500
F.2d 29 (4th Cir. 1974). There, the plaintiffs challenged the FHWA’s
failure to prepare an EIS prior to its approval of the system plan for
interconnected and interdependent highways. The court recognized
that each component of the 3-A system served different functions and
provided a useful facility even if the others were not constructed. It
held that there was “no ‘major [F]ederal action’ which treated the 3-A
system as a unit, and, therefore, under the plain language of the NEPA
no EIS [was] required for the ‘3-A system’ as a whole.” Id. at 1383.
See also Association Concerned About Tomorrow, Inc. v. Dole, 610 F.
Supp. 1101 (N.D. Tex. 1985) (finding that the segmentation of Loop 9
around Dallas County into segments or “legs” was an appropriate
decision for the purposes of planning and development, including
NEPA analysis; the legs of [the] Loop were not proposed for
contemporaneous construction and had significant independent
Id. at 1141 n.17. In consideration of the substantial record before the court, this
case fits squarely in the segmentation analysis of Save Barton Creek.1
The appropriate question is whether the SR 79/75 project serves a significant
purpose if the other portions are not built. See Coalition on Sensible Transp. Inc.
v. Dole, 826 F.2d 60, 69 (D.C. Cir. 1987) (holding that the highway and
interchange projects serve necessary purposes in the absence of I-270 expansion
and are sufficiently independent); Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d
294, 299 (D.C. Cir. 1987) (per curiam) (recognizing substantial independent utility
in a four-mile section of a mass transit project originally planned as 18.6 miles);
Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 440–41 (5th Cir.
1981) (holding that urban highway projects, although related to the overall
There is one very significant difference in this case and Save Barton Creek: Here, an
EIS and two reevaluations over a seventeen-year period have been completed, considered, and
accounted for in agency planning. Save Barton Creek was decided in large part on the failure to
prove that the segment at issue in Austin constituted “major federal action” under NEPA. But
the segmentation discussion of Save Barton Creek is instructive.
transportation plan, contributed individually to improving traffic conditions).
Plaintiff argues that the traffic counts do not warrant the increase to a six-lane
Defendants correctly respond that the regulations only require
independent utility, not maximum utility. The evidence establishes that the SR
79/75 segment increases the utility of the existing roadway network by providing
access between well-traveled highways.
Further, the SR 79/75 segment will
relieve traffic on arterial and city streets. Whether four or six lanes are appropriate
is a discretionary planning function of Defendants that the court will not disturb on
Defendants have made a reasonable and supportable finding regarding
utility. Plaintiff has failed to provide substantial evidence sufficient for this court
to substitute its judgment for that of the agencies charged with making those
administrative decisions regarding utility.
This project also satisfies the logical termini requirement because the termini
are located at nodes of commercial and traffic activity. However, even if the court
disagreed, it is not for the court to determine what is the most logical termini, only
that the termini chosen by the agency are logical and that the agency did not act
arbitrarily and capriciously in choosing the project termini. The court finds, with
the benefit of the record, that this requirement is met.
The facts further show a reasonable conclusion by Defendants that
proceeding with construction does not dictate that any other segment of the overall
project must be built, and thus, it does not foreclose other alternatives for the rest
of the Northern Beltline Project as a whole. Plaintiff alleges that the end points of
SR 79/75 limit the reasonable alternatives for the end points of the segments that
are proposed to connect to the 1.86-mile portion, thus limiting the eastern portion
of the overall Beltline Project. Plaintiff has failed in its burden to establish that the
end points of the first segment limit or prevent other routing options in the final
design scheme for the other segments. Except for connecting to the end of this
1.86-mile stretch (3.71% of total mileage of the project), the remaining 48.24 miles
are unconstrained as to locus as will be determined by future planning. No doubt,
over the course of thirty years and with periodic reevaluations, sections of the
project will migrate here and there. The adjoining sections may never be built and
are not required in order for SR 79/75 to be functional. Ultimately, the SR 79/75
section will not foreclose other alternatives.
Accordingly, the SR 79/75 project satisfies NEPA regulations because it has
independent utility, logical termini, and does not foreclose other alternatives for the
overall project. Moreover, requiring the Corps to prepare an EIS for each 404
permit would likely result in the project never being started at all and would be
useless and redundant. Price Road Neighborhood Ass’n, Inc. v. U.S. Dep’t of
Transp., 113 F.3d 1505, 1510 (9th Cir. 1997).
Plaintiff’s second argument implicating the whole project is that the Corps
avoided preparation of an EIS that would have “examined a broader spectrum of
alternatives to the Northern Beltline. . . .” (Doc. # 135 at 27.) The question here is
whether the Corps was required under NEPA to conduct a site-specific wetlands
delineation in an additional EIS for the entire 50.1-mile Northern Beltline Project
before issuing a 404 permit for a 1.86-mile section. Defendants contend it was not,
and the court agrees.
NEPA regulations dictate that the separation of highway projects for
purposes of impact analysis is improper when that separation is done in an effort to
avoid compliance with federal law and avoid preparing an EIS. See Preserve
Endangered Areas of Cobb’s History v. U.S. Army Corps of Eng’rs, 87 F.3d 1242,
1247 (11th Cir. 1996). However, in Sierra Club v. U.S. Army Corps of Engineers,
295 F.3d 1209, 1215 (11th Cir. 2002), the Eleventh Circuit upheld the Corps’
decision to prepare four separate Environmental Assessments (EAs) and use the
tiering method, which allows an agency to build onto FHWA’s EIS for a highway
construction project. “NEPA plainly is not intended to require duplication of work
by state and federal agencies.” Ohio Valley Envtl. Coal. v. Aracoma Coal. Co.,
556 F.3d 177, 196 (4th Cir. 2009).
Defendants contend that the 2006 and 2012 reevaluations of the 1997 EIS
adequately satisfy the requirements for the 404 permitting process of the sitespecific 1.86-mile project. Defendants do not dispute that more studies will likely
be necessary for the western portion of the Northern Beltline Project, but contend
that more study is not necessary based on the findings of the 2006 and 2012
reevaluations for the eastern portion of the project, which includes the current
1.86-mile portion at issue.
In Kleppe, the United States Supreme Court explained that
[e]ven had the Court of Appeals determined that a regional impact
statement was due at that moment, it still would have erred in
enjoining approval of the four mining plans unless it had made a
finding that the impact statement covering them inadequately
analyzed the environmental impacts of, and the alternatives to, their
approval. So long as the statement covering them was adequate, there
would have been no reason to enjoin their approval pending
preparation of a broader regional statement; that broader statement,
when prepared, simply would have taken into consideration the
regional environmental effects of the four mining plans once they
were in operation, in determining the permissibility of further coalrelated operations in the region.
427 U.S. at 407 n.16. There is no persuasive argument here, nor is there a clear
showing that would support a finding of inadequacy of the EIS as twice
NEPA does not require a comprehensive impact statement on all proposed
actions in the entire Beltline Project before approving any of the segmented
projects. Id. at 414 n.26. The 2012 reevaluation of the EIS covers the entire
Northern Beltline Project, which is sufficient to conclude that there was no effort
by the Corps to avoid analyzing the impacts of the Northern Beltline Project under
NEPA. It included a comprehensive analysis of direct, indirect, and cumulative
impacts pursuant to the Council on Environmental Quality guidelines.
40 C.F.R. § 1501, et seq. The result was that there were no significant changes
occurring to the project’s design or the affected environment for the eastern
portion, and a finding that an SEIS was not needed for this part of the overall
project. FHWA did note in the 2012 reevaluation that there will be realignments
for the western portion of the Beltline Project that would require additional studies
to determine if an SEIS is needed before any construction is authorized for that
portion. The Corps adopted the findings of the FHWA’s additional studies, as
permitted by NEPA. See 40 C.F.R. §§ 1501.5, 1501.6, 1506.3(c); LaFlamme v.
F.E.R.C., 945 F.2d 1124, 1130 (9th Cir. 1991) (holding that “it was not
unreasonable for the Forest Service as a cooperating agency to decline to prepare
independently an EA or an EIS” because FERC was the lead agency in reviewing
the license application).
This “tiering” method allows the Corps to prevent
redundant analysis and focus on what has not already been considered. Sierra
Club, 295 F.3d at 1214; see also 40 C.F.R. § 1508.28(b).
For the foregoing reasons, Plaintiff has not demonstrated that Defendants
improperly segmented the SR 79/75 project in an effort to avoid preparing an
SEIS. Accordingly, Plaintiff has not shown a substantial likelihood of success on
its claim that Defendants violated NEPA during the 404 permitting process, and
issuance of a preliminary injunction is not appropriate. Though further analysis is
unnecessary, the court will discuss the remaining factors.
Plaintiff has not established that it will suffer irreparable harm.
When seeking a preliminary injunction, a plaintiff must not only show that it
will suffer irreparable harm, but it must also show that the alleged harm is not
speculative but is both actual and imminent. Winter, 555 U.S. at 21–22. A mere
“possibility” of harm is not enough to justify the issuance of such an extraordinary
remedy. Id.; see also Grizzle, 634 F.3d at 1320. Plaintiff fails to establish any
actual and imminent irreparable harm from the 1.86-mile proposed project which it
is seeking to enjoin.
The majority of Plaintiff’s argument focuses on the harms associated with
the entire Northern Beltline project, with very little specific analysis of the actual
activity permitted by the Corps for this segment. Plaintiff supports its claim of
irreparable harm to the environment by arguing that it should be presumed when an
agency fails to comply with NEPA, citing Davis v. Mineta, 302 F.3d 1104, 1115
(10th Cir. 2002). (Doc. # 135 at 29.) Specifically, Plaintiff alleges the permitted
404 activity represents “significant and permanent degradation of the watersheds
of Self Creek, Gurley Creek, and surrounding streams, all of which are part of the
sensitive headwaters that feed the Locust Fork of the Black Warrior River.” (Doc.
# 135 at 30–31.) However, Plaintiff does not rely on the initial phase of this
construction project for which the 404 permit has been issued, but on the proposed
fully completed project for which this permit is not issued. Plaintiff also discusses
impacts to the Turkey Creek Watershed, but the SR 79/75 project is not located in
the Turkey Creek Watershed.
Even if Plaintiff’s claimed irreparable harm were imminent, the Corps has
included in the 404 permit required mitigation and minimization measures by
ALDOT to minimize the impacts to streams and wetlands.
unavoidable impacts to some streams and wetlands will be mitigated as a condition
of the Corps’ 404 permit, the environmental impacts do not reach the threshold of
“significant.” C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1575 (11th Cir. 1988).
Moreover, Plaintiff’s arguments that the alleged impacts resulting from completion
of later phases of the entire Northern Beltline Project are sufficiently “actual” or
“imminent” to justify the issuance of an injunction at this stage are belied by the
facts. Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1260 (10th Cir.
2003). Much of the project is subject to additional changes in the decades of
planning and preparation to come. In Greater Yellowstone, the court noted that
establishing the imminence of injury is critical to support the interim relief that a
preliminary injunction provides. Id. “If the plaintiffs alleged that the eagles would
be harmed only by the use of the completed project, and not by its construction,
this would be insufficient to justify a preliminary injunction in advance of the trial
court’s decision on the merits.” Id. Similarly, because Plaintiff only cites possible
harms to the environment and not any actual, imminent, and irreparable harm that
will result from the issuance of the 404 permit for this segment, a preliminary
injunction is not warranted.
Plaintiff has not established that the balance of harms weighs in its
favor or that a preliminary injunction is in the public interest.
As the Court held in Winter, to succeed on a motion for preliminary
injunction, a plaintiff must show that a preliminary injunction is favored by a
balancing of the equities. 555 U.S. at 24. Courts are to have particular regard for
the public consequences of such an extraordinary remedy. Id. However, even a
likely NEPA violation does not automatically call for injunctive relief especially if
the balance of harms points the other way. In certain circumstances the court may
withhold injunctive relief when it would harm the public interest, even if doing so
would cause irreparable injury to the movant. Weinberger v. Romero-Barcelo, 456
U.S. 305, 312–13 (1982); Yakus v. United States, 321 U.S. 414, 440 (1944).
Plaintiff’s balance of harm arguments are unpersuasive. Plaintiff argues that
the “harm to the environment may be presumed when an agency fails to comply
with NEPA.” Davis, 302 F.3d at 1115. However, Plaintiff has failed to prove that
Defendants have not complied with NEPA. Plaintiff also cites the harm that will
result from the degradation of the water resources in the Black Warrior River
Basin, but this is a “whole project” argument already rejected. And ALDOT’s
mitigation plan for this section, which was a condition of the 404 permit, will help
avoid, minimize, and mitigate potential environmental impacts. Plaintiff cites the
harm from the commitment of agency resources and the formation of contractual
obligations, but this argument assumes that the public interest is best served by not
developing the Beltline Project.
Not so; the public also has an interest in
development that will promote job growth and economic stability, and Plaintiff
does not establish a factual weight of harm to override the public interest in
Though not controlling, consideration must be given to the fact that
substantial funds have already been expended to begin construction on the 1.86mile project, including preparation for preliminary engineering, right-of-way
acquisition, and utility relocation work.
Delaying construction would have
significant financial impacts on Defendants and the public treasury, especially if
the bid process has to be repeated.
Finally, the Corps provided substantial
opportunities for public participation during the permitting process and adequately
addressed concerns presented by the public. Ultimately, the public’s need for
adequate transportation infrastructure outweighs Plaintiff’s desire to prevent any
change to this 1.86-mile area of the Black Warrior River environment.
For the foregoing reasons, Plaintiff has failed to establish, by a clear
showing of substantial evidence, Winter, 555 U.S. at 24, the four elements
necessary to support a preliminary injunction. Accordingly, it is ORDERED that
Plaintiff’s motion for a preliminary injunction (Doc. # 134) is DENIED.
DONE this 17th day of January, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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