Federal Gov. Briefing in Purple Line Case

USCA Case #17-5132 Document #1689314 Filed: 08/18/2017 Page 1 of 74
[ORAL ARGUMENT NOT YET SCHEDULED]
Nos. 17-5132, 17-5161, 17-5174, and 17-5175 (Consolidated)
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
JOHN M. FITZGERALD et al.,

Plaintiffs-Appellees/Cross-Appellants,
v.
FEDERAL TRANSIT ADMINSTRATION et al.,
Defendants-Appellants/Cross-Appellees, and
STATE OF MARYLAND,
Intervenor-Defendant-Appellant/Cross-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
Case No. 1:14-cv-01471 (Hon. Richard J. Leon)
OPENING BRIEF FOR THE FEDERAL APPELLANTS
JEFFREY H. WOOD
Of counsel: Acting Assistant Attorney General
CHARLES E. ENLOE ERIC GRANT
Office of General Counsel Deputy Assistant Attorney General
Department of Transportation
MATTHEW LITTLETON
NANCY-ELLEN ZUSMAN TYLER L. BURGESS
Office of Chief Counsel KEVIN W. MCARDLE
Federal Transit Administration Environment and Natural
Resources Div.
U.S. Department of Justice
P.O. Box 7415
Washington, D.C. 20044
(202) 305-0219
kevin.mcardle@usdoj.gov
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel
certifies as follows:
A. Parties and Amici. The Plaintiffs are John M. Fitzgerald,
Friends of the Capital Crescent Trail, and Christine Real de Azua. The
Defendants are the Federal Transit Administration, the United States
Department of Transportation, the United States Fish and Wildlife Service,
and the United States Department of the Interior. The Intervenor-
Defendant is the State of Maryland. Prince Georges County, Maryland and
Montgomery County, Maryland participated in the district court as amicus
curiae in support of the Defendants.
B. Rulings Under Review. The district courts rulings under
review in Case No. 17-5174 include the Memorandum Opinion (ECF No. 96)
and Order (ECF No. 97) dated August 3, 2016, granting in part Plaintiffs
motion for summary judgment; the Memorandum Opinion (ECF No. 109)
and Order (ECF No. 110) dated November 22, 2016, denying in part the
Federal Transit Administrations motion to alter or amend the Order of
August 3, 2016; the Memorandum Opinion (ECF No. 138) and Order (ECF
No. 139) dated May 22, 2017, granting in part Plaintiffs renewed motion
for summary judgment and entering an injunction against the Federal
Transit Administration; and the final judgment entered on May 30, 2017
(ECF No. 142).
C. Related Cases. On May 30, 2017, Maryland filed a notice of
appeal seeking review of the final judgment entered in the same action on
May 30, 2017 (ECF No. 142). Marylands appeal is docketed as Case
No. 17-5132. On July 14, 2017, the Federal Transit Administration filed a
notice of appeal of the district courts Memorandum Opinion (ECF No. 138)
and Order (ECF No. 139) entering an injunction. The Federal Transit
Administrations appeal was docketed as Case No. 17-5161. On August 3,
2016, Plaintiffs filed a notice of appeal of the final judgment (ECF No. 142),
the Memorandum Opinion entered on June 9, 2017 (ECF No. 149), and the
denial of Plaintiffs Motion for Reconsideration or Clarification entered on
July 31, 2017 (ECF No. 166). Plaintiffs appeal was docketed as Case No. 17-
5175. This Court has consolidated Case Nos. 17-5132, 17-5161, 17-5174, and
17-5175. Counsel is unaware of any other related cases pending in this
Court or any other court.
s/ Kevin W. McArdle
KEVIN W. MCARDLE
ii
TABLE OF CONTENTS
Certificate as to Parties, Rulings, and Related Cases ..................................... i
Table of Contents ....................................................................................... iii
Table of Authorities...................................................................................... v
Glossary ...................................................................................................... ix
Statement of Jurisdiction ............................................................................. 1
Statement of the Issues ................................................................................ 1
Statement of the Case ................................................................................... 3
I. Statutory Background ................................................................ 3
A. The National Environmental Policy Act ........................... 3
B. FTAs New Starts Capital Investment Grants

Program ........................................................................... 4
C. Judicial review of FTAs compliance with NEPA .............. 6
II. Factual and Procedural Background .......................................... 6
A. The Purple Line ................................................................ 6
B. FTAs NEPA compliance ................................................... 8
1. The Draft EIS .......................................................... 8
2. FTAs 2014 ROD...................................................... 9
C. Fitzgeralds original and supplemental complaints ........ 11
D. The district courts first injunction ................................. 12
E. FTAs remand decision not to prepare an SEIS .............. 13
iii
F. The district courts second injunction ............................ 15
G. The final judgment and post-judgment motions ............ 17
Standard of Review .................................................................................... 18
Summary of Argument ............................................................................... 19
Argument ................................................................................................... 21
I. Metrorails Recent Safety and Ridership Issues Do Not

Require an SEIS....................................................................... 21
A. A decline in Metrorail transfers would not

significantly change the Purple Lines
environmental impacts. .................................................. 22
B. A decline in Metrorail transfers would not prevent

the Purple Line from meeting the purpose and need
stated in the FEIS. .......................................................... 23
C. Fitzgeralds declarants do not show that FTA failed

to consider an important aspect of the problem. ............ 26
1. The Lysy declaration ............................................. 27
2. The Allen declaration ............................................ 30
3. The Saggese declaration ........................................ 31
II. The District Court Lacked Authority to Vacate the ROD ......... 33
Conclusion ................................................................................................. 35
iv
TABLE OF AUTHORITIES
CASES:
Citizens Against Burlington, Inc. v. Busey,

938 F.2d 190 (D.C. Cir. 1991) ............................................................. 29
Am. Forest & Paper Assn Inc. v. EPA,

294 F.3d 113 (D.C. Cir. 2002) ............................................................. 26
Cuomo v. U.S. Nuclear Regulatory Commn,

772 F.2d 972 (D.C. Cir. 1985) ............................................................. 25
Found. on Econ. Trends v. Lyng,

817 F.2d 882 (D.C. Cir. 1987) ............................................................. 26
Govt of Province of Manitoba v. Zinke,

849 F.3d 1111 (D.C. Cir. 2017) ............................................................. 33
In re Polar Bear Endangered Species Act Listing,

709 F.3d 1 (D.C. Cir. 2013) ..................................................................18
Karst Envtl. Educ. & Prot., Inc. v. EPA,

475 F.3d 1291 (D.C. Cir. 2007) ............................................................. 6
Koon v. United States,

518 U.S. 81 (1996) ................................................................................18
Latif v. Obama,
666 F.3d 746 (D.C. Cir. 2011) ............................................................. 26
Marsh v. Oregon Natural Res. Council,

490 U.S. 360 (1989) ............................................... 17, 18, 20, 21, 32, 33
Metro. Edison Co. v. People Against Nuclear Energy,

460 U.S. 766 (1983) .............................................................................. 3
Minisink Residents for Envtl. Pres. & Safety v. FERC,

762 F.3d 97 (D.C. Cir. 2014) ............................................................... 30
Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ............................................................................... 19
Natl Comm. for the New River v. FERC,

373 F.3d 1323 (D.C. Cir. 2004) ........................................................... 20
Nebraska Dept of Health & Human Servs. v. Dep't of Health & Human
Servs., 435 F.3d 326 (D.C. Cir. 2006) .................................................18
City of Olmstead Falls v. FAA,

292 F.3d 261 (D.C. Cir. 2002)............................................................... 4
Public Employees for Environmental Responsibility v. Hopper,

827 F.3d 1077 (D.C. Cir. 2016) ........................................................... 26
Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ...................................................................... 25, 29
Stryckers Bay Neighborhood Council, Inc. v. Karlen,

444 U.S. 223 (1980) ........................................................................... 29
Trudeau v. Federal Trade Commn,

456 F.3d 178 (D.C. Cir. 2006) ............................................................. 34
STATUTES:
Administrative Procedure Act

5 U.S.C. 551 et seq. ............................................................................. 1
5 U.S.C. 704 ............................................................................ 6, 33, 34
5 U.S.C. 706(2) ................................................................................. 34
5 U.S.C. 706(2)(A) ............................................................................. 17
23 U.S.C. 139(c)(3)................................................................................. 5, 32
23 U.S.C. 139(l) .......................................................................................... 33
23 U.S.C. 139(l)(1) .................................................................................. 6, 33
vi
23 U.S.C. 139(l)(2) ............................................................ 4, 6, 12, 20, 21, 33
28 U.S.C. 1291 ............................................................................................... 1
28 U.S.C. 1292(a)(1)...................................................................................... 1
28 U.S.C. 1331 ............................................................................................... 1
28 U.S.C. 2401(a) ......................................................................................... 6
National Environmental Policy Act

42 U.S.C. 4321 et seq. ........................................................................ 1
42 U.S.C. 4332(C)............................................................................... 3
42 U.S.C. 4332(D)(i) ........................................................................ 32
49 U.S.C. 5301(a) ......................................................................................... 4
49 U.S.C. 5309(c)(1) .................................................................................... 4
49 U.S.C. 5309(d)(1)(B) ............................................................................... 4
49 U.S.C. 5309(d)(2)(A) .............................................................. 5, 8, 10, 30
49 U.S.C. 5309(d)(2)(A)(i) .......................................................................... 5
49 U.S.C. 5309(d)(2)(A)(i)(II)..................................................................... 5
49 U.S.C. 5309(k)(2).................................................................................... 5
49 U.S.C. 5309(k)(5) .................................................................................... 5
RULES AND REGULATIONS:
Fed. R. App. P. 4(a)(1)(B) ................................................................................ 1
Fed. R. App. P. 4(a)(4)(iv) ............................................................................... 1
Fed. R. Civ. P. 59(e) ....................................................................................... 12
23 C.F.R. 771.109(c)(2) ............................................................................... 31
vii
23 C.F.R. 771.127(a) ..................................................................................... 3
23 C.F.R. 771.130 ........................................................................................ 12
23 C.F.R. 771.130(a) ................................................................................... 23
23 C.F.R. 771.130(a)(2) ..................................................................... 3, 21, 32
23 C.F.R. 771.130(c) ................................................................................ 4, 31
23 C.F.R. 771.130(d) .............................................................................. 3, 34
40 C.F.R. 1502.13 ......................................................................................... 3
49 C.F.R. 611.105 ............................................................................. 5, 10, 28
49 C.F.R. 611.201-611.207 .......................................................................... 5
65 Fed. Reg. 76,864 (Dec. 7, 2000)................................................................ 8
78 Fed. Reg. 1992 (Jan. 9 2013) ..................................................................... 4
79 Fed. Reg. 18,113 (March 31, 2014) .................................................. 6, 11, 33
viii
GLOSSARY
APA ................................................................... Administrative Procedure Act
EIS.............................................................. Environmental Impact Statement
FEIS .................................................. Final Environmental Impact Statement
FTA ................................................................ Federal Transit Administration
JA.Joint Appendix
NEPA ....................................................... National Environmental Policy Act
ROD ................................................................................... Record of Decision
SEIS .................................... Supplemental Environmental Impact Statement
ix
STATEMENT OF JURISDICTION
The district court had jurisdiction under 28 U.S.C. 1331. John
Fitzgerald, Friends of the Capital Crescent Trail, and Christine Real de Azua
(collectively, Fitzgerald) sued the Federal Transit Administration and other
federal agencies (collectively, FTA) under the Administrative Procedure Act
(APA), 5 U.S.C. 551 et seq. Fitzgerald alleged violations of the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and other
federal laws.
The district court entered judgment on May 30, 2017, and denied
Fitzgeralds motion to alter or amend the judgment on July 31, 2017. Joint
Appendix (JA) 836-37, 1022-23. FTA filed a timely notice of appeal on
August 1, 2017. See Fed. R. App. P. 4(a)(4)(iv); JA28. This Court has
jurisdiction under 28 U.S.C. 1291.1
STATEMENT OF THE ISSUES
FTA grants federal funds for public-transportation projects
constructed, owned, and operated by state and local transit agencies. The
Maryland Transit Administration (hereinafter, Maryland) applied for
federal funds for the Purple Line, a proposed light-rail project that would
1 On May 22, 2017, the district court entered an injunction against FTA.
JA818-30. FTA filed a timely notice of appeal on July 14, 2017. See Fed. R.
App. P. 4(a)(1)(B); 28 U.S.C. 1292(a)(1). FTAs notice of appeal from the
judgment supersedes its prior notice of appeal of the injunction.
link communities in Montgomery County and Prince Georges County and
connect to the Metrorail system operated by the Washington Metropolitan
Area Transit Administration. In 2014, FTA issued a Record of Decision
(ROD) memorializing its compliance with NEPA for any future decision to
grant Marylands application. Fitzgerald sued to challenge the ROD.
In 2016, with Marylands application to FTA still pending, the district
court ordered FTA to decide whether Metrorails new safety and ridership
issues require a Supplemental Environmental Impact Statement (SEIS) for
the Purple Line. And even though the court did not find any fault with the
2014 ROD, the court nonetheless vacated that ROD. FTA decided that an
SEIS was unnecessary, and Fitzgerald contested that decision. The district
court ruled that Metrorails issues required an SEIS, ordered FTA to
prepare an SEIS, and declined FTAs request to reinstate the ROD.
This appeal presents two issues:
1. Whether FTAs finding that Metrorails safety and ridership
problems did not require an SEIS for the Purple Line was arbitrary or
capricious.
2. Whether FTAs failure to prepare an SEIS in 2016, even if
arbitrary or capricious, justified vacatur of the 2014 ROD, a separate and
predicate agency action with which the district court found no fault.
STATEMENT OF THE CASE
I. STATUTORY BACKGROUND
A. The National Environmental Policy Act
NEPA requires federal agencies like FTA to prepare a detailed
Environmental Impact Statement (EIS) to assess the impact of, and
alternatives to, proposed major Federal actions significantly affecting the
quality of the human environment. 42 U.S.C. 4332(C). An EIS must
briefly specify the underlying purpose and need to which the agency is
responding in proposing the alternatives including the proposed action.
40 C.F.R. 1502.13. An EIS need not assess every impact of the proposed
action and alternatives, but only the impact or effect on the physical
environment. Metro. Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 772 (1983). After a Final EIS (FEIS) is completed, the FEIS and
any other pre-decisional documents form the basis for FTAs ROD, which is
the locus of any judicial review. See 23 C.F.R. 771.127(a).
Ordinarily, the FEIS and ROD mark the culmination of an agencys
NEPA review. However, FTA must prepare an SEIS and a new ROD when
[n]ew information relevant to environmental concerns and bearing on
the proposed action would result in significant environmental impacts
not evaluated in the EIS. 23 C.F.R. 771.130(a)(2); id. 771.130(d)
(requiring separate ROD); see also 23 U.S.C. 139(l)(2). Before preparing
an SEISwhich, like an FEIS, requires public notice and commentFTA
may take a hard look at new information to determine whether it paints
a seriously different picture of the environmental landscape. City of
Olmstead Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002). If it does not, an
SEIS is unnecessary, and FTA memorializes that conclusion in the project
file without issuing a new ROD. 23 C.F.R. 771.130(c).
B. FTAs New Starts Capital Investment Grants

Program
Congress has declared that it is in the national interest to foster the
development and revitalization of public transportation systems run by
state and local governments. 49 U.S.C. 5301(a). Subject to the
availability of appropriations, FTA administers a Capital Investment
Grants Program to help state and local authorities finance transit projects.
This case involves the New Starts component of the program, which
provides funding to state and local transit agencies for new fixed guideway
capital projects like the Purple Line. 49 U.S.C. 5309(c)(1).
FTAs New Starts process is subdivided into three phases: project
development, engineering, and construction. NEPA review occurs during
the initial phase of project development. 49 U.S.C. 5309(d)(1)(B); see 78
Fed. Reg. 1992, 1994, 2014 (Jan. 9, 2013) (describing the integration of
NEPA into the New Starts process). FTA and the applicant serve as joint
lead agenc[ies] for purposes of that review. 23 U.S.C. 139(c)(3). The
applicant may prepare the required NEPA analysis, so long as FTA
furnishes guidance and independently evaluates and approves the
analysis. Id.; see 49 U.S.C. 5309(d)(1)(A)(i)(II). The applicant must also
select a locally preferred alternative from among the alternatives studied,
49 U.S.C. 5309(d)(2)(A)(i), which serves as the preferred alternative in
the NEPA process. 49 C.F.R. 611.105. The project development phase
ends when FTA issues a ROD that, inter alia, memorializes completion of
activities required under [NEPA]. 49 U.S.C. 5309(d)(2)(A). Any required
FEIS serves as the basis for the ROD.
During the engineering phase, FTA evaluates and rates the
proposed transit project with statutory and regulatory criteria not relevant
here. See 49 U.S.C. 5309(k)(2); 49 C.F.R. 611.201-611.207. If those
criteria are satisfied, FTA has discretion to enter into a Full Funding Grant
Agreement (Grant Agreement) with the applicant after providing Congress
30 days notice. 49 U.S.C. 5309(k)(5). The Grant Agreement commits
federal funds to the state or local entity for construction of the project.
C. Judicial review of FTAs compliance with NEPA
Because NEPA does not provide a private right of action, NEPA
claims against FTA must be brought under the APA. See Karst Envtl. Educ.
& Prot., Inc. v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007). The APA
authorizes judicial review of final agency action. 5 U.S.C. 704. Plaintiffs
ordinarily have six years within which to file suit against a federal agency,
28 U.S.C. 2401(a), but Congress has shortened the statute of limitations
to 150 days for claims challenging any FTA approval related to a public
transportation capital project. 23 U.S.C. 139(l)(1). One such approval is
the ROD issued at the end of the project development phase of the New
Starts process. See, e.g., 79 Fed. Reg. 18,113 (March 31, 2014) (notice of
Purple Line ROD). If FTA decides that it needs to prepare an SEIS later in
the process, after a ROD issues, the SEIS serves as the basis for a new or
amended ROD that is considered a separate final agency action with a
separate 150-day limitations period. 23 U.S.C. 139(l)(2). The tiered
judicial review ensures that FTAs original NEPA analysis will not be
unwound late in the engineering or construction phase of the project.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Purple Line
The Purple Line is a proposed 16-mile light-rail line that would run in
an east-west direction between Bethesda and New Carrollton, Maryland.
JA1206. The Purple Line would span 21 stations and connect to three
Metrorail lines, the Maryland Area Regional Commuter rail system,
Amtrak, and local and regional bus systems. JA1207, 1250-51, 2347-48.
Although the Purple Line would link to Metrorail, it would be constructed,
owned, and operated by Maryland and its contractor. JA2223.
At present, Metrorail in Maryland primarily serves passengers
travelling in a north-south direction to and from downtown Washington,
D.C. JA1206. The Purple Line is designed to provide faster, more direct,
and more reliable east-west transit service between major activity centers in
Montgomery and Prince Georges Counties; to provide better connection to
Metrorail services within the corridor; and to improve the connectivity of
the communities between existing Metrorail lines. Id. The need for
improved transit stems from several factors, including the concentration of
major activity centers in the corridor; the substantial population and
employment growth projected for the corridor; and the limited options
available for improving bus service on already congested east-west roads.
JA1029, 1206, 2344-47.
B. FTAs NEPA compliance
1. The Draft EIS
Maryland applied to FTA for a New Starts grant to cover a portion of
the costs of constructing the Purple Line, triggering the requirements of
NEPA. JA1233, 1265-66, 1074-76. In 2008, FTA and Maryland jointly
circulated an Alternatives Analysis and Draft EIS (collectively, Draft EIS)
for public comment. JA1028.2 The Draft EIS evaluated eight alternatives
for public transit in the east-west corridor, including a no-action
alternative, the alternative of improving existing bus service, and several
bus-rapid transit and light rail alternatives. JA1235-37, 1078-79. The Draft
EIS indicated that any improvements to east-west bus service on existing
roads would provide diminishing returns as roadway congestion increased.
JA2366, 1094-96, 1099. The bus-rapid transit and light rail alternatives
would avoid that pitfall by operating (to varying degrees) in dedicated lanes
or rights-of-way. JA1101.
The Draft EIS estimated bus-rapid transit and light rail ridership in
three categories: (1) trips exclusively on the Purple Line; (2) trips involving
transfers to or from Metrorail; and (3) trips involving transfers to or from
2 At that time, an alternatives analysiswhich was often prepared

concurrently with a Draft EISwas required for grant eligibility. See 49
U.S.C. 5309(d)(2)(A) (2008); 65 Fed. Reg. 76,864, 76,868 (Dec. 7, 2000).
the Maryland Area Regional Commuter rail system. JA1103, 2351. The
forecasts indicated that all of the bus-rapid transit and light rail alternatives
would rely on Metrorail connections for a similar percentage of their trips.
Id.; JA2369. In addition, because every alternative would have similar
alignment, stations, and ridership, interconnectivity to Metro[rail] was
generally not a differentiating factor among the alternatives. JA1083,
1084.
In August 2009, after the public comment period on the Draft EIS
closed, Maryland selected light rail as its locally preferred alternative.
JA1240-42, 2367-68. Although bus-rapid transit was less expensive and
had a higher cost-effectiveness rating, Maryland determined that light rail
(1) achieved higher total ridership, (2) generated greater user benefits
overall, (3) reduced more auto trips, (4) accommodated more post-2030
ridership growth, (5) provided greater economic development and
community revitalization opportunities, and (6) had stronger support from
local jurisdictions, including both Montgomery and Prince Georges
Counties. JA2367-68, 1240-42, 1489.
2. FTAs 2014 ROD
In August 2013, FTA issued the FEIS for the Purple Line. JA1205.
The FEIS lists three project objectives:
1. Provide faster, more direct, and more reliable east-west

transit service connecting the major activity centers in the
Purple Line corridor;
2. Provide better connections to Metrorail services located in

the corridor; and
3. Improve connectivity to the communities in the corridor

located between existing Metrorail lines.
JA1215. The FEIS identified Marylands locally preferred light rail
alternative (with certain refinements) as the preferred alternative for
meeting the purpose and need. JA1032-33, 1250-51; 49 C.F.R. 611.105.
The FEIS also analyzed the environmental impacts of light rail in 18
resource categories. JA1033-39, 1281-88. The FEIS also included revised
long-term ridership forecasts. Those forecasts projected that, as of 2040,
Purple Line ridership would reach 69,299 per workday. Approximately 27
percent of the trips (18,972) would involve connections with Metrorail. The
remaining 73 percent would not use Metrorail for any portion of the trip.
JA1271, 2352.
On March 19, 2014, FTA executed a ROD that selected the preferred
light rail alternative to further evaluate for New Starts funding. JA1027,
1058; see 49 U.S.C. 5309(d)(2)(A). On March 31, 2014, FTA published a
notice of availability of the ROD. 79 Fed. Reg. 18,113. The notice advised
10
that the ROD was a final agency action and that any legal challenge to the
ROD had to be filed within 150 days, i.e., by August 28, 2014. Id. at 18,114.
C. Fitzgeralds original and supplemental complaints
On August 26, 2014, Fitzgerald sued FTA to challenge the ROD just
before the statute of limitations ran. Fitzgerald claimed that FTA violated
NEPA and other statutes, and he asked the district court to vacate the ROD.
Maryland intervened to defend FTAs decision. See JA929-30.
While the suit was pending, Fitzgerald sent two letters to FTA asking
the agency to prepare an SEIS to address allegedly new and material
information postdating the ROD. JA2119-34, 2166-74. In the second letter,
sent in October 2015, Fitzgerald referenced Metrorails recent safety and
ridership issues. JA2167-68. FTA referred Fitzgeralds letters to Maryland
for initial review, JA2221, and Maryland replied that financial or other
issues currently being experienced by [Metrorail] do not involve the Purple
Line, and they have no relationship to environmental impacts. JA2223.
By memorandum dated January 7, 2016, FTA concurred with Marylands
assessment and concluded that none of the issues identified in Fitzgeralds
letters, including issues relating to Metrorail, warranted an SEIS. JA2258-
63. Fitzgerald then filed two supplemental complaintsone in October
11
2015 and the other in January 2016alleging that FTAs decision not to
prepare an SEIS was arbitrary and capricious. JA136-46, 147-57.
D. The district courts first injunction
In July 2016, while summary judgment motions were pending, FTA
notified Congress that the agency intended to execute a Grant Agreement to
fund $900 million of the expected $2.5 billion cost of the Purple Line.
JA442. However, on August 3, 2016, five days before an agreement was to
be executed, the district court partially granted Fitzgeralds motion for
summary judgment and held that recent revelations regarding
[Metrorail] ridership and safety concerns merit a[n SEIS] under NEPA.
JA428, 434-35. The court ordered FTA to prepare an SEIS as expeditiously
as possible. JA435-37. Although the district court reserve[d] judgment
on Fitzgeralds claims challenging the 2014 ROD, the court nevertheless set
aside the ROD. JA428, 434-37.
Pursuant to Fed. R. Civ. P. 59(e), FTA and Maryland moved to alter or
amend the order in two respects. JA663. First, FTA requested an
opportunity to determine in the first instance whether the new information
relating to Metrorail warranted an SEIS under FTA regulations. Id.; see 23
U.S.C. 139(l)(2) (referencing 23 C.F.R. 771.130). Second, FTA and
Maryland argued that, even if an SEIS had to be prepared, the court should
12
not have vacated the 2014 ROD. JA663, 668-71. In response to the Rule
59(e) motions and accompanying materials, Fitzgerald submitted
declarations by three individualsWilliam Allen, Frank Lysy, and Martin
Saggesewho disputed FTAs conclusions. JA494-542.
The district court granted the Rule 59(e) motions in part and
amended the portion of its order directing FTA to prepare an SEIS. The
amended order merely required FTA to conduct an assessment as
expeditiously as possible, in accordance with its regulations, as to whether
recent Metrorail safety and ridership issues require a[n SEIS] for the
Purple Line. 672-73, 666-68. The court denied the Rule 59(e) motions
insofar as they sought to reinstate the 2014 ROD. JA668-71.
E. FTAs remand decision not to prepare an SEIS
On December 13, 2016, FTA executed a memorandum to the file
concluding that new information regarding Metrorail ridership and safety
problems did not require an SEIS for the Purple Line. JA2420-27. FTA
acknowledged that Metrorail ridership had declined in recent years and
that the decline accelerated between 2015 and 2016 due to safety and
reliability issues and Metrorails efforts to address them. JA2421. FTA
then evaluated how a continuation of Metrorails ridership issues could
affect ridership projections for the Purple Line. FTA considered five
13
scenarios, each of which reduced the number of Purple Line trips involving
connections with Metrorail. JA2422-23.
At one end of the spectrum, FTA considered a scenario in which
Metrorail ridership continues to decline through 2017 and then
progressively increases until 2040 at the rate projected in the FEIS.
JA2422. At the other end, FTA considered a scenario in which Metrorail
ridership continues to decline into the future, and the declines are so
drastic that Purple Line ridership in 2040 includes no transfers to or from
Metrorail. JA2423. FTA explained that, although this worst case
scenario was highly unlikely, modeling it served an important scientific
purpose, namely, tak[ing] uncertainties about future Metrorail ridership
entirely out of the assessment of future Purple Line ridership. JA2423,
2426. FTA found that, even under this scenario, projected Purple Line
ridership in 2040 would fall only 27 percent, from 69,299 to 50,327 trips
per workday, JA2422-23, a level that is still greater than or equal to
ridership on comparable light rail projects. JA2361.
FTA found that under all five scenarioseven the extreme, zero
transfer scenariothere was no significant change to the environmental
impact of the project or its alternatives. JA2423-26, 2369. FTA also
determined that the light rail preferred alternative would continue to meet
14
all three elements of the project purpose and need under any scenario in
which Metrorail continues to operate. JA2426, 2365, 2369. Obviously,
none of the alternatives could achieve the goal of improving connections
with Metrorail if no Purple Line riders transferred to or from Metrorail.
JA2426. But the corresponding increases in roadway congestion from
reduced Metrorail ridership would amplify the need for the project to
achieve the remaining two objectives, i.e., providing better east-west transit
and improving connectivity between the communities in the corridor. Id.
FTA found that light rail would remain the best alternative for meeting the
overall purpose and need even in a highly unlikely scenario in which no
Purple Line riders transferred to or from Metrorail. Id.
In reaching its decision, FTA relied on a technical report prepared by
Marylands ridership experts with assistance from FTA experts. JA2420,
2423, 2426, 2338-72. FTA also considered yet another letter from
Fitzgerald referencing the Allen, Lysy, and Saggese declarations filed in
opposition to the Rule 59(e) motions, as well as Marylands response to
Fitzgeralds letter. JA2420, 2374-2387, 2292-2337, 2411-2419.
F. The district courts second injunction
After FTA decided not to prepare an SEIS, Fitzgerald challenged that
decision, and the parties renewed their cross-motions for summary
15
judgment. On May 22, 2017, the district court issued an opinion
concluding that FTA had failed to take the requisite hard look at the
potential impact that [Metrorails] ridership and safety issues could have on
the Purple Line Project. JA820. Specifically, the court faulted FTA for not
explicitly addressing the three declarations Fitzgerald filed in response to
the Rule 59(e) motions. In the courts view, those declarations raise[d]
serious questions about [FTAs] assumptions about Metrorail and its
future impact on the Purple Line. JA827. The court found that FTAs
failure to discuss or analyze the declarations in its decision was arbitrary
and capricious. Id.
More generally, the court criticized FTA for not attempting to
determine which of the five wildly disparate Metrorail ridership scenarios
FTA had evaluated is actually most likely to occur. JA825. The court also
equated FTAs scenario in which no Purple Line riders would transfer to or
from Metrorail with a scenario in which Metrorail ceased to function. The
court observed that one of the project purposesto connect to Metrorail
would no longer be met in that circumstance. See JA825-26.
Concurrent with its opinion, the court entered an injunction directing
FTA to prepare an SEIS to address the declarations and Metrorail ridership
issues more generally. JA828. And, although the court still had not
16
identified any flaw in FTAs 2014 ROD, the court denied FTAs request to
dissolve its earlier injunction vacating the ROD. See JA698.
G. The final judgment and post-judgment motions
On May 30, 2017, the district court entered judgment for FTA on all
remaining claims. JA836-37. The court clarified that Fitzgerald had
prevailed on his NEPA claim solely for the reasons identified in the
courts opinion of May 22, 2017. Id. On June 9, 2017, the court issued an
opinion explaining its reasons for ruling in FTAs favor on the remaining
claims. JA929-52. The opinion confirmed that the district court had found
no flaw in the NEPA analysis underlying the 2014 ROD. JA932-36.
Maryland immediately appealed from the judgment and moved for a
stay pending appeal of the district courts decision to vacate the ROD. See
JA25. On July 19, 2017, this Court granted Marylands motion and ordered
that the ROD be reinstated pending appeal. See JA27.
On June 26, 2017, Fitzgerald moved the district court under Rule
59(e) to alter the judgment and rule in Fitzgeralds favor on certain claims
challenging the ROD. JA27. The district court denied Fitzgeralds motion
by order dated July 31, 2017. JA1022.
17
STANDARD OF REVIEW
1. Review of FTAs decision not to prepare an SEIS is controlled by
the arbitrary and capricious standard of [5 U.S.C.] 706(2)(A). Marsh v.
Oregon Natural Res. Council, 490 U.S. 360, 375 (1989). Where, as here,
the District Court reviewed an agency action under the APA, [this Court]
review[s] the administrative action directly, according no particular
deference to the judgment of the District Court. In re Polar Bear
Endangered Species Act Listing, 709 F.3d 1, 8 (D.C. Cir. 2013).
The specific issue presented is whether FTAs expert review of the
new information was incomplete, inconclusive, or inaccurate. Marsh, 490
U.S. at 376-77. That is a classic example of a factual dispute the resolution
of which implicates substantial agency expertise. Id. at 376. When
confronted with conflicting views of the evidence, FTA must have
discretion to rely on the reasonable opinions of its own qualified experts
even if, as an original matter, a court might find contrary views more
persuasive. Id. at 378. The reviewing court can set aside FTAs decision
only if the agency made a clear error of judgment. Id. at 385.
2. This Court reviews a district courts decision whether to vacate
unlawful agency action for abuse of discretion. Nebraska Dept of Health &
Human Servs. v. Dep't of Health & Human Servs., 435 F.3d 326, 330 (D.C.
18
Cir. 2006). A district court by definition abuses its discretion when it
makes an error of law. Koon v. United States, 518 U.S. 81, 100 (1996).
SUMMARY OF ARGUMENT
1. FTA reasonably concluded that Metrorails safety and ridership
issues did not require an SEIS because they did not significantly change the
Purple Lines environmental impact. While a decline in Metrorail ridership
would lower the number of Purple Line riders who transfer to or from
Metrorail, FTA found that whatever the extent of that decline, it would not
prevent the Purple Line from meeting the purpose and need stated in the
FEIS, nor would it alter FTAs or Marylands choice among project
alternatives. And FTA did not have to create an SEIS to evaluate a highly
unlikely, worst-case scenario in which Metrorail stops running.
That FTA did not explicitly address Fitzgeralds declarations does not
render its decision arbitrary or capricious because the declarations do not
identify an important aspect of the problem that FTA entirely failed to
consider. Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). Apart from critiques of the Draft EIS and FEIS that
went beyond the scope of the remand, the declarants simply offered a
different assessment of the same information that FTAs and Marylands
experts considered. A battle among experts is not a valid ground on which
19
to set aside agency action. But even if the declarants dire views of Metrorail
ridership were correct, an SEIS still would have been unnecessary in light of
FTAs determination that even the zero-transfer scenario would not
significantly alter the Purple Lines environmental impacts.
Fitzgeralds declarants contend that the Purple Line is not worth the
cost and that better options exist, but NEPA does not compel FTA to engage
in that debate. NEPA requires only that agencies consider the effect of their
actions and the alternatives on the physical environment. The district
courts erroneous view that NEPA requires more underlies the courts
erroneous order directing FTA to prepare an SEIS.
2. Even assuming that FTAs 2016 decision not to prepare an SEIS
was arbitrary or capricious, the district court should not have set aside the
2014 ROD. The decision not to prepare an SEIS is a separate final agency
action, 23 U.S.C. 139(l)(2), and the district court has identified no flaw in
the Draft EIS or FEIS that form the basis for the 2014 ROD. The district
court abused its discretion by vacating the ROD, and it also frustrated
Congresss intent to shorten the statute of limitations for challenges to
NEPA review of public transportation capital funding. At a minimum,
therefore, this Court should permanently reinstate the ROD.
20
ARGUMENT
I. METRORAILS RECENT SAFETY AND RIDERSHIP ISSUES DO NOT

REQUIRE AN SEIS.
Agencies need not supplement an EIS every time new information
comes to light after the EIS is finalized. Marsh, 490 U.S. at 373. An SEIS
is only required where new information provides a seriously different
picture of the environmental landscape. Natl Comm. for the New River
v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (citation omitted).
Otherwise, the decision making process would be intractable, always
awaiting updated information only to find the new information outdated by
the time a decision is made. Marsh, 490 U.S. at 373. Like NEPA analyses
generally, the decision whether to prepare an SEIS is governed by a rule of
reason. Id. at 373. An SEIS is necessary only if [n]ew information or
circumstances relevant to environmental concerns and bearing on the
proposed action or its impacts would result in significant environmental
impacts not evaluated in the EIS. 23 C.F.R. 771.130(a)(2); see also 23
U.S.C. 139(l)(2).
The district court initially directed FTA to conduct an assessment as
expeditiously as possible, in accordance with its regulations, as to whether
recent Metrorail safety and ridership issues require a[n SEIS] for the
Purple Line. JA672-73. After conducting the assessment, FTA reasonably
21
found that Metrorails recent problems would not cause the Purple Line to
have any new, significant environmental impacts or prevent the Purple Line
from achieving the project purpose. Fitzgerald identified no relevant factor
that FTA failed to consider. Thus, the district court erred in concluding
that FTAs decision not to prepare an SEIS was arbitrary and capricious.
A. A decline in Metrorail transfers would not significantly

change the Purple Lines environmental impacts.
FTA thoroughly explained why a continued decline in Metrorail
ridership would not significantly alter the environmental impact of the
Purple Line or its alternatives. JA2423-26, 2369-74. Even under a
hypothetical zero-transfer scenario in which no Purple Line riders
transfer to or from Metrorail, such a decline would not change the physical
footprint of the project or the impacts of construction under any of the
build alternatives. JA2423, 2369, 2372. Nor would a dip in ridership
materially alter the Purple Lines operational impacts. JA2424, 2369, 2372.
Even if ridership fell far below forecasted levels, those impacts would not
likely change because the planned service level (frequency of trains or
buses) is a policy decision by Maryland that is not necessarily tied to
ridership. Id. And, even if there were reductions in service, the
environmental impacts would decrease proportionally with the service
reductions. Id.
22
FTA acknowledged that a decline in Purple Line riders could lead to
increased use of private vehicles, which in turn could cause roadway
congestion greater than that predicted in the FEIS. JA2424, 2372. But
given the high volume of daily vehicle trips (2,685,677) in the region to be
served by the Purple Line, the potential increase in vehicle trips from
reduced light-rail service would be negligible and would not measurably
increase environmental impacts. Id. Thus, even under a zero-transfer
scenario, the reduction in Purple Line riders would not result in any new,
significant environmental impacts that were not already analyzed in the
Draft EIS and FEIS. On that basis, FTA reasonably found that an SEIS was
unnecessary.
B. A decline in Metrorail transfers would not prevent the

Purple Line from meeting the purpose and need stated
in the FEIS.
The district court suggested that an SEIS was required so that FTA
could evaluate whether, in light of Metrorails recent issues, the Purple Line
still meets the project purpose and need. See JA825-26. But an SEIS is
required only if new information or changes to the project would result in
significant environmental impacts not evaluated in the EIS. 23 C.F.R.
771.130(a) (emphasis added). An SEIS is not required to confirm that a
project still adequately meets the purpose and need.
23
Regardless, FTA reasonably found that the Purple Line would
continue to meet the purpose and need even if Metrorail ridership
continues to decline. JA2425-26, 2363-66. A reduction in Metrorail
ridership would lower the number of Purple Line riders transferring to or
from Metrorail. But even under a hypothetical zero-transfer scenario, the
projected Purple Line ridership would drop only 27 percent, from 69,299 to
50,327 per weekday, JA2422-23, a level still comparable to ridership on
similar light rail projects. JA2361.
A decline in Metrorail ridership also would implicate only the second
element of the purpose and need: providing better connections to
Metrorail. Yet, even if ridership declined substantially, the Purple Line
would still provide an attractive east-west connection between three
Metrorail lines and make it easier for Metrorail users to reach destinations
not served by the system. Therefore, the Purple Line would improve
connections with Metrorail under any scenario in which Metrorail remains
a part of the regional transportation network. JA2363, 2364-65, 2425-26.
FTA did not have to prepare an SEIS to account for the far-fetched
possibility that Metrorail would not remain part of the Washington area
transportation network. Even if Metrorail ridership does not return to a
growth rate, Metrorail will almost certainly remain a vital element of the
24
regions transportation system, used by hundreds of thousands of riders
every day, JA2365, particularly in light of projected population growth and
the level of private investment occurring near Metrorail stations. JA2422,
2345-47, 2357-58, 2363. Neither Fitzgeralds declarants nor anyone else
suggested that Metrorails demise was a possibility worth considering, and
NEPA does not require agencies to prepare SEISs just to study remote and
highly improbable circumstances. Cuomo v. U.S. Nuclear Regulatory
Commn, 772 F.2d 972, 975 (D.C. Cir. 1985); see Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 354 (1989) (NEPA does not require
the worst case study). Fitzgerald failed to identify any new alternative
that would be made viable by Metrorails demisenor could he, because if
Metrorail were to stop functioning, there is no alternative that could
provide better connections to Metrorail. JA1215.
The district court misunderstood the limited (albeit important) role of
FTAs zero-transfer scenario. The reason for modeling that scenario was
not to seriously entertain the possibility of Metrorails collapse; it was to
illustrate why the debate between FTAs and Fitzgeralds experts about
Metrorail ridership volume was irrelevant to the question whether an SEIS
was needed. If, as FTA found, the environmental impacts of the Purple
Line and its alternatives would be virtually the same regardless of how few
25
riders transferred to or from Metrorail, then FTA did not need to predict
the level of Metrorail ridership that is most likely to occur in order to
determine whether an SEIS was necessary. JA825. That exercise might be
useful for FTA policymakers, but NEPA does not require it: NEPA was not
intended to resolve fundamental policy disputes. Found. on Econ. Trends
v. Lyng, 817 F.2d 882, 886 (D.C. Cir. 1987).
C. Fitzgeralds declarants do not show that FTA failed to

consider an important aspect of the problem.
Aside from the criticisms addressed above, the district court did not
identify any substantive flaw in FTAs analysis. Instead, the court held that
FTAs decision not to prepare an SEIS was unlawful because the agency
failed to discuss[] or analy[ze] the three declarations that Fitzgerald filed
in response to FTAs and Marylands Rule 59(e) motions. JA826-28. To the
contrary, FTA stated that it considered and reviewed those declarations,
JA2420, and the agencys statement is entitled to a presumption of
regularity absent clear evidence to the contrary. Latif v. Obama, 666
F.3d 746, 748 (D.C. Cir. 2011).
More importantly, no statute or regulation required FTA to prepare a
point-by-point response to Fitzgeralds declarants, who did not raise any
significant environmental issue that FTA did not address in its decision.
See Am. Forest & Paper Assn Inc. v. EPA, 294 F.3d 113, 117 n.3 (D.C. Cir.
26
2002) (explaining that, as long as [the agency] did not entirely fail to
consider an important aspect of the problem, it was not required to
respond point-by-point to each objection raised in comments). The
district court relied on Public Employees for Environmental Responsibility
v. Hopper, 827 F.3d 1077, 1089-90 (D.C. Cir. 2016), in which this Court
faulted an agency for having ignored material scientific and economic
data submitted to it. But, as discussed below, FTA did not ignore any
material new information proffered by Fitzgeralds declarants.
1. The Lysy declaration
The district court highlighted the testimony of Dr. Frank J. Lysy, a
retired economist, who questioned whether Metrorail ridership is likely to
return to a growth rate. JA826, 2302-04, 2357-58. In particular, Dr. Lysy
asserts that it is possible Metrorail ridership may not return to a growth
rate, JA2304, though he does not claim that Metrorails total collapse is
likely (and he certainly does not provide any data supporting that
conclusion). Dr. Lysys assertion is irrelevant because FTAs decision does
not assume that Metrorail ridership will return to a growth rate.
Dr. Lysy observes that the ridership projections in the Draft EIS differ
from those in the FEIS, JA2306-07, but FTA reasonably relied on
Marylands explanation of the difference. JA2351-55. Dr. Lysy also asserts
27
that a decline in Metrorail riders may cause a shift across transit modes,
with a likely increase in demand for bus alternatives. JA2315. But FTA
and Maryland addressed that issue as well, finding that a ridership
reduction would likely cause an increase in roadway congestion as
Metrorail riders shift to other modes, such as buses, carpooling, and single-
passenger automobile travel. JA2369.
Dr. Lysy suggests that a decline in Metrorail ridership could affect
Marylands selection of light rail as the locally preferred alternative.
JA2307-15. But Marylands decision was based on several factors, none
of which would be undermined by a decline in Metrorail ridership.
JA2367-70. As FTA explained from the beginning, interconnectivity to
Metro[rail] generally was not a differentiating factor among the
alternatives. JA1083, 1084. Maryland thus adjudged that its locally
preferred alternative would not change if Metrorail ridership declined, and
Fitzgerald cannot use NEPA to contest that judgment, which is Marylands
alone to make. See 49 C.F.R. 611.105.
Dr. Lysy also attacks the cost estimates in the Draft EIS, arguing that
they omit any value for the land to be used for the Purple Line and the
costs that would be imposed on other public transit systems. JA2309-11.
But that has nothing to do with the question that FTA grappled with on
28
remand: whether to prepare an SEIS to address post-2014 information
about Metrorail safety and ridership.
Dr. Lysy opines that either choosing the bus-rapid transit alternative
or taking a wait and see approach would be better and more cost effective
than building a light rail system now. JA2306-15. The district court
likewise expressed skepticism about spending federal dollars on a project
that might be of questionable value. See JA434, 974, 976. But such
skepticism is misplaced here for two related reasons.
First, NEPA merely prohibits uninformedrather than unwise
agency action. Robertson, 490 U.S. at 351. Because the statute directs
agencies only to look hard at the environmental effects of their decisions,
and not to take one type of action or another, federal judges
correspondingly enforce the statute by ensuring that agencies comply with
NEPAs procedures, and not by trying to coax agency decision-makers to
reach certain results. Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 194 (D.C. Cir. 1991). Whether funding the Purple Line makes sense or
not, the only basis for invalidating FTAs decision on NEPA grounds is the
agencys failure to take a hard look at environmental impacts. See id. But
here, there is no doubt that [the agency] considered the environmental
29
consequences of its decision. Stryckers Bay Neighborhood Council, Inc.
v. Karlen, 444 U.S. 223, 228 (1980). NEPA requires no more. Id.
Second, as the district court later recognized, FTAs decision to fund
the project through a Grant Agreement was not before the court. JA940-41.
Fitzgerald challenged FTAs 2014 ROD and its later decision(s) not to
prepare an SEIS, which are necessary but not sufficient precursors to the
actual grant of moneyan action that FTA has not yet taken. See 49 U.S.C.
5309(d)(2)(A); JA940-41.
The wisdom of funding the project thus was not properly before the
court, and it is not an issue that implicates NEPA. As a result, FTA was not
required to engage in a debate with Fitzgeralds declarants over whether
light rail is the best or most cost-effective option. See Minisink Residents
for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 112 (D.C. Cir. 2014) (NEPA
does not mandate that an agency assess the monetary costs and benefits of
the respective proposals, particularly where the agency is merely assessing
whether an EIS is required).
2. The Allen declaration
Fitzgerald also submitted the declaration of William G. Allen, Jr.,
P.E., a transportation planner. JA2318-24. Allen cites an apparent
discrepancy between the Purple Line ridership forecasts in the FEIS and
30
the figures in a more recent New Starts rating. JA2319-21. As an FTA
official explained in a counter-declaration supporting FTAs Rule 59(e)
motion, however, the figures in the FEIS and the New Starts rating are not
comparable because they are based on different metrics. JA658-60. There
was no need for FTA to revisit this issue on remand.
3. The Saggese declaration
Finally, Fitzgerald submitted the declaration of Martin Saggese, a
former vice president for the Long Island Rail Road. JA2292-2301.
Saggese asserts that there is a lack of transparency regarding the
ridership projections in the FEIS and that those projections are flawed
and inflated. JA2294-96. Fitzgerald advanced the same claims at
summary judgment, and the agencies addressed them.3 The claims were
beyond the scope of the remand, JA428, 431, and the court ultimately
rejected them. JA932-36. FTA thus had no obligation to respond again on
remand to Saggesses redundant and meritless complaints about the
ridership projections in the FEIS.
Saggese also asserts that Maryland and its consultants have a conflict
of interest and that FTA should have performed an independent analysis.
3See, e.g., JA263-65, 276-77, 280-84, 289-9, 302-03, 309-312, 314-16, 411-
13, 422-26.
31
JA2293-94. But the district court ordered FTA to conduct the remand in
accordance with its regulations, JA672-73, which allow [a]ny applicant
that is a State or local governmental entity to prepare environmental
review documents if [FTA] furnishes guidance and independently evaluates
the documents. 23 C.F.R. 771.109(c)(2); see also 23 C.F.R. 771.130(c);
23 U.S.C. 139(c)(3); 42 U.S.C. 4332(D)(i). FTA provided guidance to
Maryland while the latter prepared a technical report, FTA independently
reviewed the report, and FTA determined that the findings in the report
were accurate. JA2420, 2423, 2338. FTA then prepared its own
independent analysis thoroughly explaining the basis for its decision not to
prepare an SEIS. JA2420-27. Fitzgerald and his declarants may disagree
with FTAs findings, but an agency must have discretion to rely on the
reasonable opinions of its own qualified experts. Marsh, 490 U.S. at 378.
* * *
Fitzgeralds declarations do not show that FTA entirely failed to
consider an important aspect of the sole problem FTA had to address on
remand: whether Metrorails ridership and safety problems would result
in significant environmental impacts not evaluated in the EIS. 23 C.F.R.
771.130(a)(2); JA672. The district court erred in holding that FTAs
32
decision not to prepare an SEIS was arbitrary and capricious simply
because FTA did not explicitly discuss or analyze these declarations.
II. THE DISTRICT COURT LACKED AUTHORITY TO VACATE THE ROD
Even if FTAs 2016 decision not to prepare an SEIS were arbitrary
and capricious (which it is not), the district court lacked authority to vacate
the 2014 ROD on that basis because the ROD is a separate final agency
action giving rise to a separate cause of action under the APA. 23 U.S.C.
139(l); see also 5 U.S.C. 704. Since the district court found no flaw in
the ROD or in the underlying Draft EIS and FEIS, and since Fitzgeralds
SEIS claim based on Metrorails recent safety and ridership issues was filed
long after the limitations period for challenging the ROD expired, the
courts decision to vacate the ROD was an abuse of discretion.
The ROD issued at the close of the project development phase of the
New Starts process is a final approval under 23 U.S.C. 139(l)(1). Thus,
in 2014, FTA published a notice of availability of the Purple Line ROD
stating that it was a final agency action and subject to immediate judicial
review. 79 Fed. Reg. 18,113. Cf. Govt of Province of Manitoba v. Zinke,
849 F.3d 1111, 1115 (D.C. Cir. 2017) (The issuance of a ROD constitutes
final agency action.). The 150-day claims limitations period for the ROD
expired on August 28, 2014. 79 Fed. Reg. at 18,114; 23 U.S.C. 139(l)(1).
33
FTA has a continuing obligation to keep its NEPA analysis up to date
whenever there remains major Federal action to occur. Marsh, 490 U.S.
at 374 (brackets and citation omitted); 23 U.S.C. 139(l)(2). If FTA
prepares an SEIS and a new or amended ROD, that new or amended ROD
shall be considered a separate final agency action for purposes of judicial
review. 23 U.S.C. 139(l)(2) (emphasis added). There is no basis for
treating FTAs decision not to prepare an SEIS any differently. Like an
SEIS and ROD, the decision not to prepare an SEIS marks the
consummation of FTAs decision-making process as to the impact of new
information. See 23 C.F.R. 771.130(d). Section 139(l)(2) evinces
Congresss intent that FTAs decision, whether in an SEIS/ROD or in a
decision not to prepare an SEIS, be treated as a separate agency action for
purposes of judicial review.4
Accordingly, in this case, FTAs 2014 ROD and its 2016 decision not
to prepare an SEIS are separate final agency action[s], id., each of which
gave rise to a distinct cause of action under the APA. See 5 U.S.C. 704.
4 Indeed, if FTAs decision not to prepare an SEIS were not a separate

final agency action independently reviewable under the APA, 5 U.S.C.
704, the decision would not have been reviewable at all in this case. See
Trudeau v. Federal Trade Commn, 456 F.3d 178, 188-89 (D.C. Cir. 2006)
([T]he absence of final agency action would cost [plaintiff] his APA
cause of action.).
34
Having found FTAs 2016 decision to be arbitrary and capricious, the
district court had the discretion to set aside that specific agency action.
5 U.S.C. 706(2). But the 2014 ROD was not infected by any error in FTAs
2016 decision, and the court went on to reject all of Fitzgeralds challenges
to the NEPA analysis embodied in the 2014 ROD. JA932-36.
Nor could the district court properly rely on Fitzgeralds SEIS claim
as a basis for vacating the ROD because that claim was first filed in October
2015 (JA142), long after the 150-day limitations period for the ROD
expired. Fitzgeralds claim, along with the district courts ruling on the
claim, were also based on reports about Metrorail published well after the
limitations period. JA431-34, 2167-68. It was therefore legal error and an
abuse of discretion for the district court to vacate the 2014 ROD, a separate
agency action with which the court found no fault.
CONCLUSION
For the foregoing reasons, this Court should reverse the judgment of
the district court.
Respectfully submitted,
JEFFREY H. WOOD
Of counsel: Acting Assistant Attorney General
CHARLES E. ENLOE
Office of General Counsel ERIC GRANT
Department of Transportation Deputy Assistant Attorney General
35
NANCY-ELLEN ZUSMAN /s/ Kevin W. McArdle

Office of Chief Counsel MATTHEW LITTLETON
Federal Transit Administration TYLER L. BURGESS
KEVIN W. McARDLE
Environment & Natural
Resources Division
U.S. Department of Justice
P.O. Box 7415
Washington, D.C. 20044
(202) 305-0219
kevin.mcardle@usdoj.gov
AUGUST 2017
DJ 90-8-6-07734/1
36
CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that this brief complies with the requirements of Fed.
R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point
Georgia, a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 7,358 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word.
s/ Kevin W. McArdle
KEVIN W. MCARDLE
CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2017, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court of
Appeals for the District of Columbia Circuit by using the appellate CM/ECF
system.
The participants in the case are registered CM/ECF users and service
will be accomplished by the appellate CM/ECF system.
s/ Kevin W. McArdle
KEVIN W. MCARDLE
STATUTORY AND REGULATORY ADDENDUM
23 U.S.C. 139 (excerpts)....A1
49 U.S.C. 5309 (excerpts)..A8
23 C.F.R. 771.109..A20
23 C.F.R. 771.130..A22
49 C.F.R. 611.105..A23
139. Efficient environmental reviews for project decisionmaking, 23 USCA 139

United States Code Annotated

Title 23. Highways (Refs & Annos)
Chapter 1. Federal-Aid Highways (Refs & Annos)
23 U.S.C.A. 139
139. Efficient environmental reviews for project decisionmaking
Currentness
(a) Definitions.--In this section, the following definitions apply:
(1) Agency.--The term agency means any agency, department, or other unit of Federal, State, local, or Indian tribal
government.
(2) Environmental impact statement.--The term environmental impact statement means the detailed statement of
environmental impacts required to be prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.).
(3) Environmental review process.--
(A) In general.--The term environmental review process means the process for preparing for a project an
environmental impact statement, environmental assessment, categorical exclusion, or other document prepared
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(B) Inclusions.--The term environmental review process includes the process for and completion of any
environmental permit, approval, review, or study required for a project under any Federal law other than the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(4) Lead agency.--The term lead agency means the Department of Transportation and, if applicable, any State or
local governmental entity serving as a joint lead agency pursuant to this section.
(5) Multimodal project.--The term multimodal project means a project that requires the approval of more than 1
Department of Transportation operating administration or secretarial office.
(6) Project.--
(A) In general.--The term project means any highway project, public transportation capital project, or multimodal
project that, if implemented as proposed by the project sponsor, would require approval by any operating
administration or secretarial office within the Department of Transportation.
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(B) Considerations.--In determining whether a project is a project under subparagraph (A), the Secretary shall take
into account, if known, any sources of Federal funding or financing identified by the project sponsor, including any
discretionary grant, loan, and loan guarantee programs administered by the Department of Transportation.
(7) Project sponsor.--The term project sponsor means the agency or other entity, including any private or public-
private entity, that seeks approval of the Secretary for a project.
(8) State transportation department.--The term State transportation department means any statewide agency of a
State with responsibility for one or more modes of transportation.
(b) Applicability.--
(1) In general.--The project development procedures in this section are applicable to all projects for which an
environmental impact statement is prepared under the National Environmental Policy Act of 1969 and may be applied,
to the extent determined appropriate by the Secretary, to other projects for which an environmental document is
prepared pursuant to such Act.
(2) Flexibility.--Any authorities granted in this section may be exercised, and any requirements established under this
section may be satisfied, for a project, class of projects, or program of projects.
(3) Programmatic compliance.--
(A) In general.--The Secretary shall allow for the use of programmatic approaches to conduct environmental reviews
that--
(i) eliminate repetitive discussions of the same issues;
(ii) focus on the actual issues ripe for analyses at each level of review; and
(iii) are consistent with--
(I) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and
(II) other applicable laws.
(B) Requirements.--In carrying out subparagraph (A), the Secretary shall ensure that programmatic reviews--
(i) promote transparency, including the transparency of--
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(I) the analyses and data used in the environmental reviews;
(II) the treatment of any deferred issues raised by agencies or the public; and
(III) the temporal and spatial scales to be used to analyze issues under subclauses (I) and (II);
(ii) use accurate and timely information, including through establishment of--
(I) criteria for determining the general duration of the usefulness of the review; and
(II) a timeline for updating an out-of-date review;
(iii) describe--
(I) the relationship between any programmatic analysis and future tiered analysis; and
(II) the role of the public in the creation of future tiered analysis;
(iv) are available to other relevant Federal and State agencies, Indian tribes, and the public; and
(v) provide notice and public comment opportunities consistent with applicable requirements.
(c) Lead agencies.--
(1) Federal lead agency.--
(A) In general.--The Department of Transportation, or an operating administration thereof designated by the

Secretary, shall be the Federal lead agency in the environmental review process for a project.
(B) Modal administration.--If the project requires approval from more than 1 modal administration within the
Department, the Secretary may designate a single modal administration to serve as the Federal lead agency for the
Department in the environmental review process for the project.
(2) Joint lead agencies.--Nothing in this section precludes another agency from being a joint lead agency in accordance
with regulations under the National Environmental Policy Act of 1969.
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(3) Project sponsor as joint lead agency.--Any project sponsor that is a State or local governmental entity receiving
funds under this title or chapter 53 of title 49 for the project shall serve as a joint lead agency with the Department
for purposes of preparing any environmental document under the National Environmental Policy Act of 1969 and
may prepare any such environmental document required in support of any action or approval by the Secretary if
the Federal lead agency furnishes guidance in such preparation and independently evaluates such document and the
document is approved and adopted by the Secretary prior to the Secretary taking any subsequent action or making
any approval based on such document, whether or not the Secretary's action or approval results in Federal funding.
(4) Ensuring compliance.--The Secretary shall ensure that the project sponsor complies with all design and mitigation
commitments made jointly by the Secretary and the project sponsor in any environmental document prepared by the
project sponsor in accordance with this subsection and that such document is appropriately supplemented if project
changes become necessary.
(5) Adoption and use of documents.--Any environmental document prepared in accordance with this subsection may
be adopted or used by any Federal agency making any approval to the same extent that such Federal agency could
adopt or use a document prepared by another Federal agency.
(6) Roles and responsibility of lead agency.--With respect to the environmental review process for any project, the lead
agency shall have authority and responsibility--
(A) to take such actions as are necessary and proper, within the authority of the lead agency, to facilitate the
expeditious resolution of the environmental review process for the project;
(B) to prepare or ensure that any required environmental impact statement or other document required to be
completed under the National Environmental Policy Act of 1969 is completed in accordance with this section and
applicable Federal law; and
(C) to consider and respond to comments received from participating agencies on matters within the special expertise
or jurisdiction of those agencies.
(d) Participating agencies.--
(1) In general.--The lead agency shall be responsible for inviting and designating participating agencies in accordance
with this subsection.
(2) Invitation.--Not later than 45 days after the date of publication of a notice of intent to prepare an environmental
impact statement or the initiation of an environmental assessment, the lead agency shall identify any other Federal and
non-Federal agencies that may have an interest in the project, and shall invite such agencies to become participating
agencies in the environmental review process for the project. The invitation shall set a deadline for responses to be
submitted. The deadline may be extended by the lead agency for good cause.
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(4) Amounts.--Requests under paragraph (1) may be approved only for the additional amounts that the Secretary
determines are necessary for the Federal agencies, State agencies, or Indian tribes participating in the environmental
review process to meet the time limits for environmental review.
(5) Condition.--A request under paragraph (1) to expedite time limits for environmental review may be approved only
if such time limits are less than the customary time necessary for such review.
(6) Agreement.--Prior to providing funds approved by the Secretary for dedicated staffing at an affected agency
under paragraphs (1) and (2), the affected agency and the requesting public entity shall enter into an agreement that
establishes the projects and priorities to be addressed by the use of the funds.
(k) Judicial review and savings clause.--
(1) Judicial review.--Except as set forth under subsection (l), nothing in this section shall affect the reviewability of any
final Federal agency action in a court of the United States or in the court of any State.
(2) Savings clause.--Nothing in this section shall be construed as superseding, amending, or modifying the National
Environmental Policy Act of 1969 or any other Federal environmental statute or affect the responsibility of any Federal
officer to comply with or enforce any such statute.
(3) Limitations.--Nothing in this section shall preempt or interfere with--
(A) any practice of seeking, considering, or responding to public comment; or
(B) any power, jurisdiction, responsibility, or authority that a Federal, State, or local government agency,
metropolitan planning organization, Indian tribe, or project sponsor has with respect to carrying out a project or
any other provisions of law applicable to projects, plans, or programs.
(l) Limitations on claims.--
(1) In general.--Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review
of a permit, license, or approval issued by a Federal agency for a highway or public transportation capital project shall
be barred unless it is filed within 150 days after publication of a notice in the Federal Register announcing that the
permit, license, or approval is final pursuant to the law under which the agency action is taken, unless a shorter time
is specified in the Federal law pursuant to which judicial review is allowed. Nothing in this subsection shall create a
right to judicial review or place any limit on filing a claim that a person has violated the terms of a permit, license,
or approval.
(2) New information.--The Secretary shall consider new information received after the close of a comment period if
the information satisfies the requirements for a supplemental environmental impact statement under section 771.130
of title 23, Code of Federal Regulations. The preparation of a supplemental environmental impact statement when
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required shall be considered a separate final agency action and the deadline for filing a claim for judicial review of
such action shall be 150 days after the date of publication of a notice in the Federal Register announcing such action.
(m) Enhanced technical assistance and accelerated project completion.--
(1) Definition of covered project.--In this subsection, the term covered project means a project--
(A) that has an ongoing environmental impact statement under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(B) for which at least 2 years, beginning on the date on which a notice of intent is issued, have elapsed without the
issuance of a record of decision.
(2) Technical assistance.--At the request of a project sponsor or the Governor of a State in which a project is located,
the Secretary shall provide additional technical assistance to resolve for a covered project any outstanding issues and
project delay, including by--
(A) providing additional staff, training, and expertise;
(B) facilitating interagency coordination;
(C) promoting more efficient collaboration; and
(D) supplying specialized onsite assistance.
(3) Scope of work.--
(A) In general.--In providing technical assistance for a covered project under this subsection, the Secretary shall
establish a scope of work that describes the actions that the Secretary will take to resolve the outstanding issues and
project delays, including establishing a schedule under subparagraph (B).
(B) Schedule.--
(i) In general.--The Secretary shall establish and meet a schedule for the completion of any permit, approval,
review, or study, required for the covered project by the date that is not later than 4 years after the date on which
a notice of intent for the covered project is issued.
(ii) Inclusions.--The schedule under clause (i) shall--
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(B) there is a significant new circumstance or information relevant to environmental concerns that bears on the
proposed action or the impacts of the proposed action.
(o) Improving transparency in environmental reviews.--
(1) In general.--Not later than 18 months after the date of enactment of this subsection, the Secretary shall--
(A) use the searchable Internet website maintained under section 41003(b) of the FAST Act--
(i) to make publicly available the status and progress of projects requiring an environmental assessment or
an environmental impact statement with respect to compliance with applicable requirements of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any other Federal, State, or local approval required
for those projects; and
(ii) to make publicly available the names of participating agencies not participating in the development of a project
purpose and need and range of alternatives under subsection (f); and
(B) issue reporting standards to meet the requirements of subparagraph (A).
(2) Federal, State, and local agency participation.--
(A) Federal agencies.--A Federal agency participating in the environmental review or permitting process for a project
shall provide to the Secretary information regarding the status and progress of the approval of the project for
publication on the Internet website referred to in paragraph (1)(A), consistent with the standards established under
paragraph (1)(B).
(B) State and local agencies.--The Secretary shall encourage State and local agencies participating in the
environmental review permitting process for a project to provide information regarding the status and progress of
the approval of the project for publication on the Internet website referred to in paragraph (1)(A).
(3) States with delegated authority.--A State with delegated authority for responsibilities under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) pursuant to section 327 shall be responsible for supplying
to the Secretary project development and compliance status for all applicable projects.
CREDIT(S)
(Added Pub.L. 109-59, Title VI, 6002(a), Aug. 10, 2005, 119 Stat. 1857; amended Pub.L. 112-141, Div. A, Title I,
1305 to 1309, July 6, 2012, 126 Stat. 533; Pub.L. 114-94, Div. A, Title I, 1304(a) to (j)(1), Dec. 4, 2015, 129 Stat. 1378.)
23 U.S.C.A. 139, 23 USCA 139

Current through P.L. 115-40. Also includes P.L. 115-42 and 115-43. Title 26 current through 115-43.
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5309. Fixed guideway capital investment grants, 49 USCA 5309
United States Code Annotated

Title 49. Transportation (Refs & Annos)
Subtitle III. General and Intermodal Programs (Refs & Annos)
Chapter 53. Public Transportation (Refs & Annos)
49 U.S.C.A. 5309
5309. Fixed guideway capital investment grants
Effective: December 4, 2015

Currentness
(a) Definitions.--In this section, the following definitions shall apply:
(1) Applicant.--The term applicant means a State or local governmental authority that applies for a grant under
this section.
(2) Core capacity improvement project.--The term core capacity improvement project means a substantial corridor-
based capital investment in an existing fixed guideway system that increases the capacity of a corridor by not less than
10 percent. The term does not include project elements designed to maintain a state of good repair of the existing
fixed guideway system.
(3) Corridor-based bus rapid transit project.--The term corridor-based bus rapid transit project means a small start
project utilizing buses in which the project represents a substantial investment in a defined corridor as demonstrated
by features that emulate the services provided by rail fixed guideway public transportation systems, including defined
stations; traffic signal priority for public transportation vehicles; short headway bidirectional services for a substantial
part of weekdays; and any other features the Secretary may determine support a long-term corridor investment, but
the majority of which does not operate in a separated right-of-way dedicated for public transportation use during
peak periods.
(4) Fixed guideway bus rapid transit project.--The term fixed guideway bus rapid transit project means a bus capital
project--
(A) in which the majority of the project operates in a separated right-of-way dedicated for public transportation
use during peak periods;
(B) that represents a substantial investment in a single route in a defined corridor or subarea; and
(C) that includes features that emulate the services provided by rail fixed guideway public transportation systems,
including--
(i) defined stations;
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(ii) traffic signal priority for public transportation vehicles;
(iii) short headway bidirectional services for a substantial part of weekdays and weekend days; and
(iv) any other features the Secretary may determine are necessary to produce high-quality public transportation
services that emulate the services provided by rail fixed guideway public transportation systems.
(5) New fixed guideway capital project.--The term new fixed guideway capital project means--
(A) a new fixed guideway project that is a minimum operable segment or extension to an existing fixed guideway
system; or
(B) a fixed guideway bus rapid transit project that is a minimum operable segment or an extension to an existing
bus rapid transit system.
(6) Program of interrelated projects.--The term program of interrelated projects means the simultaneous
development of--
(A) 2 or more new fixed guideway capital projects, small start projects, or core capacity improvement projects; or
(B) 2 or more projects that are any combination of new fixed guideway capital projects, small start projects, and
core capacity improvement projects.
(7) Small start project.--The term small start project means a new fixed guideway capital project or corridor-based
bus rapid transit project for which--
(A) the Federal assistance provided or to be provided under this section is less than $100,000,000; and
(B) the total estimated net capital cost is less than $300,000,000.
(b) General authority.--The Secretary may make grants under this section to State and local governmental authorities
to assist in financing--
(1) new fixed guideway capital projects or small start projects, including the acquisition of real property, the initial
acquisition of rolling stock for the system, the acquisition of rights-of-way, and relocation, for fixed guideway corridor
development for projects in the advanced stages of project development or engineering; and
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(2) core capacity improvement projects, including the acquisition of real property, the acquisition of rights-of-way,
double tracking, signalization improvements, electrification, expanding system platforms, acquisition of rolling stock
associated with corridor improvements increasing capacity, construction of infill stations, and such other capacity
improvement projects as the Secretary determines are appropriate to increase the capacity of an existing fixed guideway
system corridor by at least 10 percent. Core capacity improvement projects do not include elements to improve general
station facilities or parking, or acquisition of rolling stock alone.
(c) Grant requirements.--
(1) In general.--The Secretary may make a grant under this section for new fixed guideway capital projects, small start
projects, or core capacity improvement projects, if the Secretary determines that--
(A) the project is part of an approved transportation plan required under sections 5303 and 5304; and
(B) the applicant has, or will have--
(i) the legal, financial, and technical capacity to carry out the project, including the safety and security aspects
of the project;
(ii) satisfactory continuing control over the use of the equipment or facilities; and
(iii) the technical and financial capacity to maintain new and existing equipment and facilities.
(2) Certification.--An applicant that has submitted the certifications required under subparagraphs (A), (B), (C), and
(H) of section 5307(c)(1) shall be deemed to have provided sufficient information upon which the Secretary may make
the determinations required under this subsection.
(3) Technical capacity.--The Secretary shall use an expedited technical capacity review process for applicants that
have recently and successfully completed at least 1 new fixed guideway capital project, or core capacity improvement
project, if--
(A) the applicant achieved budget, cost, and ridership outcomes for the project that are consistent with or better
than projections; and
(B) the applicant demonstrates that the applicant continues to have the staff expertise and other resources necessary
to implement a new project.
(4) Recipient requirements.--A recipient of a grant awarded under this section shall be subject to all terms, conditions,
requirements, and provisions that the Secretary determines to be necessary or appropriate for purposes of this section.
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(d) New fixed guideway grants.--
(1) Project development phase.--
(A) Entrance into project development phase.--A new fixed guideway capital project shall enter into the project
development phase when--
(i) the applicant--
(I) submits a letter to the Secretary describing the project and requesting entry into the project development
phase; and
(II) initiates activities required to be carried out under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) with respect to the project; and
(ii) the Secretary--
(I) responds in writing to the applicant within 45 days whether the information provided is sufficient to enter
into the project development phase, including, when necessary, a detailed description of any information
deemed insufficient; and
(II) provides concurrent notice to the Committee on Banking, Housing, and Urban Affairs of the Senate and
the Committee on Transportation and Infrastructure of the House of Representatives of whether the new fixed
guideway capital project is entering the project development phase.
(B) Activities during project development phase.--Concurrent with the analysis required to be made under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), each applicant shall develop sufficient
information to enable the Secretary to make findings of project justification and local financial commitment under
this subsection.
(C) Completion of project development activities required.--
(i) In general.--Not later than 2 years after the date on which a project enters into the project development phase,
the applicant shall complete the activities required to obtain a project rating under subsection (g)(2) and submit
completed documentation to the Secretary.
(ii) Extension of time.--Upon the request of an applicant, the Secretary may extend the time period under clause
(i), if the applicant submits to the Secretary--
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(I) a reasonable plan for completing the activities required under this paragraph; and
(II) an estimated time period within which the applicant will complete such activities.
(2) Engineering phase.--
(A) In general.--A new fixed guideway capital project may advance to the engineering phase upon completion of
activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated by
a record of decision with respect to the project, a finding that the project has no significant impact, or a determination
that the project is categorically excluded, only if the Secretary determines that the project--
(i) is selected as the locally preferred alternative at the completion of the process required under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(ii) is adopted into the metropolitan transportation plan required under section 5303;
(iii) is justified based on a comprehensive review of the project's mobility improvements, the project's
environmental benefits, congestion relief associated with the project, economic development effects associated
with the project, policies and land use patterns of the project that support public transportation, and the project's
cost-effectiveness as measured by cost per rider; and
(iv) is supported by an acceptable degree of local financial commitment (including evidence of stable and
dependable financing sources), as required under subsection (f).
[(v) Redesignated (iv)]
(B) Determination that project is justified.--In making a determination under subparagraph (A)(iii), the Secretary
shall evaluate, analyze, and consider--
(i) the reliability of the forecasting methods used to estimate costs and utilization made by the recipient and the
contractors to the recipient; and
(ii) population density and current public transportation ridership in the transportation corridor.
(e) Core capacity improvement projects.--
(1) Project development phase.--
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(5) Failure to carry out program of interrelated projects.--
(A) Repayment required.--If an applicant does not carry out the program of interrelated projects within a reasonable
time, for reasons within the control of the applicant, the applicant shall repay all Federal funds provided for the
program, and any reasonable interest and penalty charges that the Secretary may establish.
(B) Crediting of funds received.--Any funds received by the Government under this paragraph, other than interest
and penalty charges, shall be credited to the appropriation account from which the funds were originally derived.
(6) Non-Federal funds.--Any non-Federal funds committed to a project in a program of interrelated projects may be
used to meet a non-Government share requirement for any other project in the program of interrelated projects, if the
Government share of the cost of each project within the program of interrelated projects does not exceed 80 percent.
(7) Priority.--In making grants under this section, the Secretary may give priority to programs of interrelated projects
for which the non-Government share of the cost of the projects included in the programs of interrelated projects
exceeds the non-Government share required under subsection (l).
(8) Non-Government projects.--Including a project not financed by the Government in a program of interrelated
projects does not impose Government requirements that would not otherwise apply to the project.
(j) Previously issued letter of intent or full funding grant agreement.--Subsections (d) and (e) shall not apply to projects
for which the Secretary has issued a letter of intent, approved entry into final design, entered into a full funding grant
agreement, or entered into a project construction grant agreement before the date of enactment of the Federal Public
Transportation Act of 2012.
(k) Letters of intent, full funding grant agreements, and early systems work agreements.--
(1) Letters of intent.--
(A) Amounts intended to be obligated.--The Secretary may issue a letter of intent to an applicant announcing an
intention to obligate, for a new fixed guideway capital project or core capacity improvement project, an amount
from future available budget authority specified in law that is not more than the amount stipulated as the financial
participation of the Secretary in the project. When a letter is issued for a capital project under this section, the
amount shall be sufficient to complete at least an operable segment.
(B) Treatment.--The issuance of a letter under subparagraph (A) is deemed not to be an obligation under sections
1108(c), 1501, and 1502(a) of title 31 or an administrative commitment.
(2) Full funding grant agreements.--
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(A) In general.--A new fixed guideway capital project or core capacity improvement project shall be carried out
through a full funding grant agreement.
(B) Criteria.--The Secretary shall enter into a full funding grant agreement, based on the evaluations and ratings
required under subsection (d), (e), or (i), as applicable, with each grantee receiving assistance for a new fixed
guideway capital project or core capacity improvement project that has been rated as high, medium-high, or
medium, in accordance with subsection (g)(2)(A) or (i)(3)(B), as applicable.
(C) Terms.--A full funding grant agreement shall--
(i) establish the terms of participation by the Government in a new fixed guideway capital project or core capacity
improvement project;
(ii) establish the maximum amount of Federal financial assistance for the project;
(iii) include the period of time for completing the project, even if that period extends beyond the period of an
authorization; and
(iv) make timely and efficient management of the project easier according to the law of the United States.
(D) Special financial rules.--
(i) In general.--A full funding grant agreement under this paragraph obligates an amount of available budget
authority specified in law and may include a commitment, contingent on amounts to be specified in law in advance
for commitments under this paragraph, to obligate an additional amount from future available budget authority
specified in law.
(ii) Statement of contingent commitment.--The agreement shall state that the contingent commitment is not an
obligation of the Government.
(iii) Interest and other financing costs.--Interest and other financing costs of efficiently carrying out a part of the
project within a reasonable time are a cost of carrying out the project under a full funding grant agreement, except
that eligible costs may not be more than the cost of the most favorable financing terms reasonably available for
the project at the time of borrowing. The applicant shall certify, in a way satisfactory to the Secretary, that the
applicant has shown reasonable diligence in seeking the most favorable financing terms.
(iv) Completion of operable segment.--The amount stipulated in an agreement under this paragraph for a new fixed
guideway capital project shall be sufficient to complete at least an operable segment.
(E) Before and after study.--
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(i) In general.--A full funding grant agreement under this paragraph shall require the applicant to conduct a study
that--
(I) describes and analyzes the impacts of the new fixed guideway capital project or core capacity improvement
project on public transportation services and public transportation ridership;
(II) evaluates the consistency of predicted and actual project characteristics and performance; and
(III) identifies reasons for differences between predicted and actual outcomes.
(ii) Information collection and analysis plan.--
(I) Submission of plan.--Applicants seeking a full funding grant agreement under this paragraph shall submit a
complete plan for the collection and analysis of information to identify the impacts of the new fixed guideway
capital project or core capacity improvement project and the accuracy of the forecasts prepared during the
development of the project. Preparation of this plan shall be included in the full funding grant agreement as
an eligible activity.
(II) Contents of plan.--The plan submitted under subclause (I) shall provide for--
(aa) collection of data on the current public transportation system regarding public transportation service
levels and ridership patterns, including origins and destinations, access modes, trip purposes, and rider
characteristics;
(bb) documentation of the predicted scope, service levels, capital costs, operating costs, and ridership of the
project;
(cc) collection of data on the public transportation system 2 years after the opening of a new fixed
guideway capital project or core capacity improvement project, including analogous information on public
transportation service levels and ridership patterns and information on the as-built scope, capital, and
financing costs of the project; and
(dd) analysis of the consistency of predicted project characteristics with actual outcomes.
(F) Collection of data on current system.--To be eligible for a full funding grant agreement under this paragraph,
recipients shall have collected data on the current system, according to the plan required under subparagraph
(E)(ii), before the beginning of construction of the proposed new fixed guideway capital project or core capacity
improvement project. Collection of this data shall be included in the full funding grant agreement as an eligible
activity.
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(3) Early systems work agreements.--
(A) Conditions.--The Secretary may enter into an early systems work agreement with an applicant if a record of
decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been issued on the project
and the Secretary finds there is reason to believe--
(i) a full funding grant agreement for the project will be made; and
(ii) the terms of the work agreement will promote ultimate completion of the project more rapidly and at less cost.
(B) Contents.--
(i) In general.--An early systems work agreement under this paragraph obligates budget authority available under
this chapter and title 23 and shall provide for reimbursement of preliminary costs of carrying out the project,
including land acquisition, timely procurement of system elements for which specifications are decided, and other
activities the Secretary decides are appropriate to make efficient, long-term project management easier.
(ii) Contingent commitment.--An early systems work agreement may include a commitment, contingent on
amounts to be specified in law in advance for commitments under this paragraph, to obligate an additional
amount from future available budget authority specified in law.
(iii) Period covered.--An early systems work agreement under this paragraph shall cover the period of time the
Secretary considers appropriate. The period may extend beyond the period of current authorization.
(iv) Interest and other financing costs.--Interest and other financing costs of efficiently carrying out the early
systems work agreement within a reasonable time are a cost of carrying out the agreement, except that eligible
costs may not be more than the cost of the most favorable financing terms reasonably available for the project at
the time of borrowing. The applicant shall certify, in a way satisfactory to the Secretary, that the applicant has
shown reasonable diligence in seeking the most favorable financing terms.
(v) Failure to carry out project.--If an applicant does not carry out the project for reasons within the control of
the applicant, the applicant shall repay all Federal grant funds awarded for the project from all Federal funding
sources, for all project activities, facilities, and equipment, plus reasonable interest and penalty charges allowable
by law or established by the Secretary in the early systems work agreement.
(vi) Crediting of funds received.--Any funds received by the Government under this paragraph, other than interest
and penalty charges, shall be credited to the appropriation account from which the funds were originally derived.
(4) Limitation on amounts.--
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(A) In general.--The Secretary may enter into full funding grant agreements under this subsection for new fixed
guideway capital projects and core capacity improvement projects that contain contingent commitments to incur
obligations in such amounts as the Secretary determines are appropriate.
(B) Appropriation required.--An obligation may be made under this subsection only when amounts are appropriated
for the obligation.
(5) Notification to Congress.--At least 30 days before issuing a letter of intent, entering into a full funding grant
agreement, or entering into an early systems work agreement under this section, the Secretary shall notify, in writing,
the Committee on Banking, Housing, and Urban Affairs and the Committee on Appropriations of the Senate
and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of
Representatives of the proposed letter or agreement. The Secretary shall include with the notification a copy of the
proposed letter or agreement as well as the evaluations and ratings for the project.
(l) Government share of net capital project cost.--
(1) In general.--
(A) Estimation of net capital project cost.--Based on engineering studies, studies of economic feasibility, and
information on the expected use of equipment or facilities, the Secretary shall estimate the net capital project cost.
(B) Grants.--
(i) Grant for new fixed guideway capital project.--A grant for a new fixed guideway capital project shall not exceed
80 percent of the net capital project cost.
(ii) Full funding grant agreement for new fixed guideway capital project.--A full funding grant agreement for a new
fixed guideway capital project shall not include a share of more than 60 percent from the funds made available
under this section.
(iii) Grant for core capacity improvement project.--A grant for a core capacity improvement project shall not exceed
80 percent of the net capital project cost of the incremental cost to increase the capacity in the corridor.
(iv) Grant for small start project.--A grant for a small start project shall not exceed 80 percent of the net capital
project costs.
(2) Adjustment for completion under budget.--The Secretary may adjust the final net capital project cost of a new fixed
guideway capital project or core capacity improvement project evaluated under subsection (d), (e), or (i) to include the
cost of eligible activities not included in the originally defined project if the Secretary determines that the originally
defined project has been completed at a cost that is significantly below the original estimate.
A17
(3) Project justification and local financial commitment.--A project under this subsection shall be evaluated for project
justification and local financial commitment under subsections (d), (e), (f), and (h), as applicable to the project, based
on--
(A) the net capital costs of the public transportation costs attributable to the project as determined under paragraph
(4); and
(B) the share of funds dedicated to the project from sources other than this section included in the unified finance
plan for the project.
(4) Calculation of net capital project cost.--The Secretary shall estimate the net capital costs of a project under this
subsection based on--
(A) engineering studies;
(B) studies of economic feasibility;
(C) the expected use of equipment or facilities; and
(D) the public transportation costs attributable to the project.
(5) Government share of net capital project cost.--
(A) Government share.--The Government share shall not exceed 80 percent of the net capital cost attributable to the
public transportation costs of a project under this subsection as determined under paragraph (4).
(B) Non-Government share.--The remainder of the net capital cost attributable to the public transportation costs of
a project under this subsection shall be provided from an undistributed cash surplus, a replacement or depreciation
cash fund or reserve, or new capital.
CREDIT(S)
(Added Pub.L. 103-272, 1(d), July 5, 1994, 108 Stat. 800; amended Pub.L. 104-287, 5(9), (12), Oct. 11, 1996, 110
Stat. 3389; Pub.L. 102-240, Title III, 3049(a), as added Pub.L. 105-130, 8, Dec. 1, 1997, 111 Stat. 2559; Pub.L. 105-178,
Title III, 3009(a), (c) to (h)(1), (3), (k), June 9, 1998, 112 Stat. 352; Pub.L. 105-206, Title IX, 9009(g), (h)(3), July 22,
1998, 112 Stat. 855, 856; Pub.L. 106-69, Title III, 347, Oct. 9, 1999, 113 Stat. 1024; Pub.L. 106-346, 101(a) [Title III,
380], Oct. 23, 2000, 114 Stat. 1356, 1356A-42; Pub.L. 106-554, 1(a)(4) [Div. A, 1101], Dec. 21, 2000, 114 Stat. 2763,
2763A-201; Pub.L. 108-88, 8(a), Sept. 30, 2003, 117 Stat. 1121; Pub.L. 108-202, 9(a), Feb. 29, 2004, 118 Stat. 484;
Pub.L. 108-224, 7(a), Apr. 30, 2004, 118 Stat. 632; Pub.L. 108-263, 7(a), June 30, 2004, 118 Stat. 704; Pub.L. 108-271,
8(b), July 7, 2004, 118 Stat. 814; Pub.L. 108-280, 7(a), July 30, 2004, 118 Stat. 882; Pub.L. 108-310, 8(a), Sept. 30,
2004, 118 Stat. 1154; Pub.L. 109-14, 7(a), May 31, 2005, 119 Stat. 330; Pub.L. 109-20, 7(a), July 1, 2005, 119 Stat. 352;
Pub.L. 109-35, 7(a), July 20, 2005, 119 Stat. 386; Pub.L. 109-37, 7(a), July 22, 2005, 119 Stat. 401; Pub.L. 109-40,
A18
7(a), July 28, 2005, 119 Stat. 417; Pub.L. 109-59, Title III, 3011(a), Aug. 10, 2005, 119 Stat. 1573; Pub.L. 110-244, Title
II, 201(d), June 6, 2008, 122 Stat. 1610; Pub.L. 111-147, Title IV, 433, Mar. 18, 2010, 124 Stat. 88; Pub.L. 111-322,
Title II, 2303, Dec. 22, 2010, 124 Stat. 3527; Pub.L. 112-5, Title III, 303, Mar. 4, 2011, 125 Stat. 18; Pub.L. 112-30,
Title I, 133, Sept. 16, 2011, 125 Stat. 350; Pub.L. 112-102, Title III, 303, Mar. 30, 2012, 126 Stat. 275; Pub.L. 112-140,
Title III, 303, June 29, 2012, 126 Stat. 396; Pub.L. 112-141, Div. B, 20008(a), Div. G, Title III, 113003, July 6, 2012,
126 Stat. 656, 984; Pub.L. 114-94, Div. A, Title III, 3005(a), Dec. 4, 2015, 129 Stat. 1450.)
49 U.S.C.A. 5309, 49 USCA 5309

Current through P.L. 115-40. Also includes P.L. 115-42 and 115-43. Title 26 current through 115-43.
End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works.
A19
771.109 23 CFR Ch. I (4116 Edition)
Nothing in this definition alters the 771.109 Applicability and responsibil-

scope of any delegation or assignment ities.
made by FHWA or FTA. (a)(1) The provisions of this regula-
(e) Section 4(f). Refers to 49 U.S.C. 303 tion and the CEQ regulation apply to
and 23 U.S.C. 138. 2 actions where the Administration exer-
(f) Applicant. Any State, local, or fed- cises sufficient control to condition the
erally-recognized Indian tribal govern- permit or project approval. Actions
mental unit that requests funding ap- taken by the applicant which do not re-
proval or other action by the Adminis- quire Federal approvals, such as prepa-
tration and that the Administration ration of a regional transportation
works with to conduct environmental plan are not subject to this regulation.
studies and prepare environmental re- (2) This regulation does not apply to,
view documents. When another Federal or alter approvals by the Administra-
agency, or the Administration itself, is tion made prior to the effective date of
implementing the action, then the lead this regulation.
agencies (as defined in this regulation) (3) Environmental documents accept-
may assume the responsibilities of the ed or prepared after the effective date
applicant in this part. If there is no ap- of this regulation shall be developed in
plicant, then the Federal lead agency accordance with this regulation.
will assume the responsibilities of the (b) It shall be the responsibility of
applicant in this part. the applicant, in cooperation with the
(g) Lead agencies. The Administration Administration to implement those
and any other agency designated to mitigation measures stated as commit-
serve as a joint lead agency with the ments in the environmental documents
Administration under 23 U.S.C. 139(c)(3) prepared pursuant to this regulation.
or under the CEQ regulation. The FHWA will assure that this is ac-
(h) Participating agency. A Federal, complished as a part of its program
State, local, or federally-recognized In- management responsibilities that in-
dian tribal governmental unit that clude reviews of designs, plans, speci-
may have an interest in the proposed fications, and estimates (PS&E), and
project and has accepted an invitation construction inspections. The FTA will
to be a participating agency, or, in the assure implementation of committed
case of a Federal agency, has not de- mitigation measures through incorpo-
clined the invitation in accordance ration by reference in the grant agree-
with 23 U.S.C. 139(d)(3). ment, followed by reviews of designs
(i) Project sponsor. The Federal, and construction inspections.
State, local, or federally-recognized In- (c) The following roles and respon-
dian tribal governmental unit, or other sibilities apply during the environ-
entity, including any private or public- mental review process:
private entity that seeks an Adminis- (1) The lead agencies are responsible
tration action. for managing the environmental re-
[52 FR 32660, Aug. 28, 1987, as amended at 70 view process and the preparation of the
FR 24469, May 9, 2005; 74 FR 12527, Mar. 24, appropriate environmental review doc-
2009; 78 FR 8982, Feb. 7, 2013] uments.
(2) Any applicant that is a State or
local governmental entity that is, or is
2 Section 4(f), which protected certain pub- expected to be, a direct recipient of
lic lands and all historic sites, technically funds under title 23, U.S. Code, or chap-
was repealed in 1983 when it was codified, ter 53 of title 49 U.S. Code, for the ac-
without substantive change, as 49 U.S.C. 303. tion shall serve as a joint lead agency
This regulation continues to refer to section
with the Administration in accordance
4(f) because it would create needless confu-
sion to do otherwise; the policies section 4(f) with 23 U.S.C. 139, and may prepare en-
engendered are widely referred to as section vironmental review documents if the
Administration furnishes guidance and
ehiers on DSK5VPTVN1PROD with CFR
4(f) matters. A provision with the same

meaning is found at 23 U.S.C. 138 and applies independently evaluates the docu-
only to FHWA actions. ments.
444
A20
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Federal Highway Administration, DOT 771.111
(3) The Administration may invite 771.111 Early coordination, public in-
other Federal, State, local, or feder- volvement, and project develop-
ally-recognized Indian tribal government.
mental units to serve as joint lead (a)(1) Early coordination with appro-
agencies in accordance with the CEQ priate agencies and the public aids in
regulation. If the applicant is serving determining the type of environmental
as a joint lead agency under 23 U.S.C. review documents an action requires,
139(c)(3), then the Administration and the scope of the document, the level of
the applicant will decide jointly which analysis, and related environmental re-
other agencies to invite to serve as quirements. This involves the exchange
joint lead agencies. of information from the inception of a
(4) When the applicant seeks an Ad- proposal for action to preparation of
ministration action other than the ap- the environmental review documents.
proval of funds, the role of the appli- Applicants intending to apply for funds
cant will be determined by the Admin- should notify the Administration at
istration in accordance with the CEQ the time that a project concept is iden-
regulation and 23 U.S.C. 139. tified. When requested, the Administra-
(5) Regardless of its role under para- tion will advise the applicant, insofar
graphs (c)(2) through (c)(4) of this sec- as possible, of the probable class of ac-
tion, a public agency that has state- tion and related environmental laws
wide jurisdiction (for example, a State and requirements and of the need for
highway agency or a State department specific studies and findings which
of transportation) or a local unit of would normally be developed concur-
government acting through a statewide rently with the environmental review
agency, that meets the requirements of documents.
section 102(2)(D) of NEPA, may prepare (2) The information and results pro-
the EIS and other environmental reduced by, or in support of, the trans-
view documents with the Administra- portation planning process may be in-
tion furnishing guidance, participating corporated into environmental review
in the preparation, and independently documents in accordance with 40 CFR
evaluating the document. All FHWA 1502.21 and 23 CFR 450.212 or 450.318.3
applicants qualify under this para- (b) The Administration will identify
graph. the probable class of action as soon as
(6) The role of a project sponsor that sufficient information is available to
is a private institution or firm is lim- identify the probable impacts of the ac-
ited to providing technical studies and tion.
commenting on environmental review (c) When both the FHWA and FTA
documents. are involved in the development of a
(d) When entering into Federal-aid project, or when the FHWA or FTA
project agreements pursuant to 23 acts as a joint lead agency with an-
U.S.C. 106, it shall be the responsibility other Federal agency, a mutually ac-
of the State highway agency to ensure ceptable process will be established on
that the project is constructed in ac- a case-by-case basis.
cordance with and incorporates all (d) During the early coordination
committed environmental impact miti- process, the lead agencies may request
gation measures listed in approved en- other agencies having an interest in
vironmental review documents unless
the State requests and receives written
FHWA approval to modify or delete 3 On February 14, 2007, FHWA and FTA
such mitigation features. issued guidance on incorporating products of

the planning process into NEPA documents
[52 FR 32660, Aug. 28, 1987; 53 FR 11065, Apr.
as Appendix A of 23 CFR part 450. This guid-
5, 1988, as amended at 62 FR 6873, Feb. 14,
ance, titled Linking the Transportation
1997; 70 FR 24469, May 9, 2005; 74 FR 12527,
Planning and NEPA Processes, is available
Mar. 24, 2009; 78 FR 8982, Feb. 7, 2013]
on the FHWA Web site at http://

www.fhwa.dot.gov or in hard copy upon re-
quest.
445
A21
771.130 23 CFR Ch. I (4116 Edition)
not a supplement to the draft EIS or a such a case, a revised ROD shall be pre-
new draft EIS is needed. pared and circulated in accordance
(b) A written evaluation of the final with 771.127(b).
EIS will be required before further ap- (c) Where the Administration is un-
provals may be granted if major steps certain of the significance of the new
to advance the action (e.g., authority impacts, the applicant will develop ap-
to undertake final design, authority to propriate environmental studies or, if
acquire a significant portion of the the Administration deems appropriate,
right-of-way, or approval of the plans, an EA to assess the impacts of the
specifications and estimates) have not changes, new information, or new cir-
occurred within three years after the cumstances. If, based upon the studies,
approval of the final EIS, final EIS sup- the Administration determines that a
plement, or the last major Administra- supplemental EIS is not necessary, the
tion approval or grant. Administration shall so indicate in the
(c) After approval of the ROD, project file.
FONSI, or CE designation, the appli- (d) A supplement is to be developed
cant shall consult with the Adminis- using the same process and format (i.e.,
tration prior to requesting any major draft EIS, final EIS, and ROD) as an
approvals or grants to establish wheth- original EIS, except that scoping is not
er or not the approved environmental required.
document or CE designation remains (e) A supplemental draft EIS may be
valid for the requested Administration necessary for major new fixed guide-
action. These consultations will be doc- way capital projects proposed for FTA
umented when determined necessary funding if there is a substantial change
by the Administration. in the level of detail on project impacts
[52 FR 32660, Aug. 28, 1987; 53 FR 11066, Apr. during project planning and develop-
5, 1988, as amended at 74 FR 12530, Mar. 24, ment. The supplement will address
2009] site-specific impacts and refined cost
estimates that have been developed
771.130 Supplemental environmental since the original draft EIS.
impact statements.
(f) In some cases, a supplemental EIS
(a) A draft EIS, final EIS, or supple- may be required to address issues of
mental EIS may be supplemented at limited scope, such as the extent of
any time. An EIS shall be supple- proposed mitigation or the evaluation
mented whenever the Administration of location or design variations for a
determines that: limited portion of the overall project.
(1) Changes to the proposed action Where this is the case, the preparation
would result in significant environ- of a supplemental EIS shall not nec-
mental impacts that were not evalu- essarily:
ated in the EIS; or (1) Prevent the granting of new ap-
(2) New information or circumstances provals;
relevant to environmental concerns
(2) Require the withdrawal of pre-
and bearing on the proposed action or
vious approvals; or
its impacts would result in significant
environmental impacts not evaluated (3) Require the suspension of project
in the EIS. activities; for any activity not directly
(b) However, a supplemental EIS will affected by the supplement. If the
not be necessary where: changes in question are of such mag-
(1) The changes to the proposed ac- nitude to require a reassessment of the
tion, new information, or new cir- entire action, or more than a limited
cumstances result in a lessening of ad- portion of the overall action, the Ad-
verse environmental impacts evaluated ministration shall suspend any activi-
in the EIS without causing other envi- ties which would have an adverse envi-
ronmental impacts that are significant ronmental impact or limit the choice
and were not evaluated in the EIS; or of reasonable alternatives, until the
(2) The Administration decides to ap- supplemental EIS is completed.
prove an alternative fully evaluated in
[52 FR 32660, Aug. 28, 1987, as amended at 70

an approved final EIS but not identi- FR 24470, May 9, 2005; 74 FR 12530, Mar. 24,
fied as the preferred alternative. In 2009]
460
A22
611.101 49 CFR Ch. VI (10116 Edition)

611.209 New Starts process Funding Recommendations, required by
611.211 New Starts Before and After study 49 U.S.C. 5309(o)(1).
Subpart CSmall Starts 611.103 Applicability.
611.301 Small Starts eligibility (a) This part applies to all proposals
611.303 Small Starts project justification for Federal major capital investment
criteria funds under 49 U.S.C. 5309 for new fixed
611.305 Small Starts local financial commit- guideways, extensions to fixed guide-
ment criteria
ways, and corridor-based bus rapid
611.307 Overall Small Starts project ratings
611.309 [Reserved] transit systems.
(b) This part does not apply to
APPENDIX A TO PART 611DESCRIPTION OF
MEASURES USED FOR PROJECT EVALUA- projects for which an FFGA or PCGA
TION has already been executed, or to
projects that have been approved into
AUTHORITY: 49 U.S.C. 5309(g)(6) and
final design or project development un-
5334(a)(11); 49 CFR 1.51.
less the project sponsor requests to be
SOURCE: 78 FR 2031, Jan. 9, 2013, unless oth- covered by this part. The regulations
erwise noted. in existence prior to the effective date
of this rule will continue to apply to
Subpart AGeneral Provisions projects for which an FFGA or PCGA
has already been executed and to
611.101 Purpose and contents. projects approved into final design or
(a) This part prescribes the process project development unless a project
that applicants must follow to be con- sponsor requests to be covered by this
sidered eligible for fixed guideway cap- part. New Starts projects approved for
ital investment grants for a new fixed entry into final design shall be consid-
guideway, an extension to a fixed ered to be in the engineering phase of
guideway, or a corridor-based bus rapid the New Starts process.
transit system (known as New Starts (c) A New Starts project which has
and Small Starts). Also, this part pre- been approved for entry into prelimi-
scribes the procedures used by FTA to nary engineering under the regulations
evaluate and rate proposed New Starts in existence prior to the effective date
projects as required by 49 U.S.C. 5309(d) of this rule shall be considered to be in
and Small Starts projects as required the engineering phase of the New
by 49 U.S.C. 5309(h). Starts process. For the purpose of com-
(b) This part defines how the results pleting engineering, the regulations in
of the evaluation described in para- existence prior to the effective date of
graph (a) of this section will be used to: this rule will continue to apply to a
(1) Rate projects as high, me- New Starts project approved into pre-
dium-high, medium, medium-low liminary engineering until such time
or low as required by 49 U.S.C. as the sponsor requests an FFGA un-
5309(g)(2)(A) and 49 U.S.C. 5309(h)(6); less the project sponsor requests to be
(2) Assign individual ratings for each covered by this part prior to an FFGA.
of the project justification criteria
specified in 49 U.S.C. 5309(d)(2)(B) and 611.105 Definitions.
49 U.S.C. 5309(h)(6); The definitions established by Titles
(3) Determine project eligibility for 12 and 49 of the United States Code, the
Federal funding commitments, in the Council on Environmental Qualitys
form of full funding grant agreements regulation at 40 CFR parts 15001508,
(FFGA) for New Starts projects and ex- and FHWAFTA regulations at 23 CFR
pedited grant agreements (EGA) for parts 450 and 771 are applicable. In ad-
Small Starts projects; and dition, the following definitions apply:
(4) Support funding recommendations Corridor-based bus rapid transit project
for the New Starts and Small Starts means a bus capital project where the
programs for the Presidents annual project represents a substantial invest-
budget request. ment in a defined corridor as dem-
jstallworth on DSK7TPTVN1PROD with CFR
(c) The information collected and onstrated by features such as park-and-

ratings developed under this part will ride lots, transit stations, bus arrival
form the basis for the Annual Report on and departure signage, intelligent
500
A23
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Federal Transit Admin., DOT 611.105
transportation systems technology, new fixed guideway means a newly-con-

traffic signal priority, off-board fare structed fixed guideway in a corridor
collection, advanced bus technology, or alignment where no such guideway
and other features that support the exists.
long-term corridor investment. FTA means the Federal Transit Ad-
Current year means the most recent ministration.
year for which data on the existing Full funding grant agreement means a
transit system and demographic data contract that defines the scope of a
are available. New Starts project, the amount of New
Early system work agreement means a Starts funds that will be contributed,
contract, pursuant to the requirements and other terms and conditions.
in 49 U.S.C. 5309(k)(3), that allows some Horizon year means a year roughly 10
construction work and other clearly years or 20 years in the future, at the
defined elements of a project to pro- option of the project sponsor. Horizon
ceed prior to execution of a full fund- years are based on available socio-
ing grant agreement (FFGA). It typi- economic forecasts from metropolitan
cally includes a limited scope of work planning organizations, which are gen-
that is less than the full project scope erally prepared in five year increments
of work and specifies the amount of such as for the years 2020, 2025, 2030,
New Starts funds that will be provided and 2035.
for the defined scope of work included Locally preferred alternative means an
in the agreement. alternative evaluated through the local
EGA means an expedited grant agree- planning process, adopted as the de-
ment. sired alternative by the appropriate
Engineering is a phase of development State and/or local agencies and official
for New Starts projects during which boards through a public process and
the scope of the proposed project is fi- identified as the preferred alternative
nalized; estimates of project cost, bene- in the NEPA process.
fits, and impacts are refined; project Long-range transportation plan means
management plans and fleet manage- a financially constrained long-range
ment plans are developed; and final plan, developed pursuant to 23 CFR
construction plans (including final con- Part 450, that includes sufficient finan-
struction management plans), detailed cial information for demonstrating
specifications, final construction cost that projects can be implemented using
estimates, and bid documents are pre- committed, available, or reasonably
pared. During engineering, project available revenue sources, with reason-
sponsors must obtain commitments of able assurance that the Federally sup-
all non-New Starts funding. ported transportation system is being
ESWA means early system work adequately operated and maintained.
agreement. For metropolitan planning areas, this
Extension to fixed guideway means a would be the metropolitan transpor-
project to extend an existing fixed tation plan and for other areas, this
guideway or planned fixed guideway. would be the long-range statewide
FFGA means a full funding grant transportation plan. In areas classified
agreement. by the Environmental Protection
Fixed guideway means a public trans- Agency as nonattainment or main-
portation facility that uses and occu- tenance of air quality standards, the
pies a separate right-of-way or rail line long-range transportation plan must
for the exclusive use of public transpor- have been found by DOT to be in con-
tation and other high occupancy vehi- formity with the applicable State Im-
cles, or uses a fixed catenary system plementation Plan.
and a right of way usable by other Major capital transit investment means
forms of transportation. This includes, any project that involves the construc-
but is not limited to, rapid rail, light tion of a new fixed guideway, extension
rail, commuter rail, automated guide- of an existing fixed guideway, or a cor-
way transit, people movers, ferry boat ridor-based bus rapid transit system
service, and fixed-guideway facilities for use by public transit vehicles.

for buses (such as bus rapid transit) NEPA process means those procedures
and other high occupancy vehicles. A necessary to meet the requirements of
501
A24
611.107 49 CFR Ch. VI (10116 Edition)
the National Environmental Policy Act 611.107 Relation to the planning

of 1969 (NEPA), as amended, at 23 CFR processes.
Part 771; the NEPA process is com- All New Starts and Small Starts
pleted when the project receives a cat- projects proposed for funding assist-
egorical exclusion, a Finding of No Sig- ance under this part must emerge from
nificant Impact (FONSI) or a Record of the metropolitan and Statewide plan-
Decision (ROD). ning process, consistent with 23 CFR
New Starts means a new fixed guide- part 450, and be included in the fiscally
way project, or a project that is an ex- constrained long-range transportation
tension to an existing fixed guideway, plan required under 23 CFR part 450.
that has a total capital cost of
$250,000,000 or more or for which the Subpart BNew Starts
project sponsor is requesting $75,000,000
or more in New Starts funding. 611.201 New Starts eligibility.
New Starts funds mean funds granted (a) To be eligible for an engineering
by FTA for a New Starts project pursu- grant under this part for a new fixed
ant to 49 U.S.C. 5309(d). guideway or an extension to a fixed
No-build alternative means an alter- guideway, a project must:
native that includes only the current (1) Be a New Starts project as defined
transportation system as well as the in 611.105; and
transportation investments committed (2) Be approved into engineering by
in the Transportation Improvement FTA pursuant to 611.209.
Plan (TIP) (when the horizon year is 10 (b) To be eligible for a construction
years in the future) or the fiscally con- grant under section 5309 for a new fixed
strained long-range transportation guideway or extension to a fixed guide-
plan (when the horizon year is 20 years way, a project must:
in the future) required by 23 CFR Part (1) Be a New Starts project as defined
450. in 611.105;
Secretary means the Secretary of (2) Have completed engineering;
Transportation. (3) Receive a medium or better rat-
Small Starts means a new fixed guide- ing on project justification pursuant to
way project, a project that is an exten- 611.203;
sion to an existing fixed guideway, or a (4) Receive a medium or better rat-
corridor-based bus rapid transit system ing on local financial commitment pur-
project, with a total capital cost of less suant to 611.205;
than $250,000,000 and for which the (5) Meet the other requirements of 49
project sponsor is requesting less than U.S.C. 5309.
$75,000,000 in Small Starts funding.
Small Starts funds mean funds granted 611.203 New Starts project justifica-
by FTA for a Small Starts project pur- tion criteria.
suant to 49 U.S.C. 5309(h). (a) To perform the statutorily re-
Small Starts project development is a quired evaluations and assign ratings
phase in the Small Starts process dur- for project justification, FTA will
ing which the scope of the proposed evaluate information developed locally
project is finalized; estimates of through the planning and NEPA proc-
project costs, benefits and impacts are esses.
refined; NEPA requirements are com- (1) The method used by FTA to evalu-
pleted; project management plans and ate and rate projects will be a multiple
fleet management plans are further de- measure approach by which the merits
veloped; and the project sponsors ob- of candidate projects will be evaluated
tains commitment of all non-Small in terms of each of the criteria speci-
Starts funding. It also includes (but is fied by this section.
not limited to) the preparation of final (2) The measures for these criteria
construction plans (including construc- are specified in appendix A to this part
tion management plans), detailed spec- and elaborated on in policy guidance.

ifications, construction cost estimates, This policy guidance, which is subject
and bid documents. to a public comment period, is issued
502
A25

Federal Gov. Briefing in Purple Line Case

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USCA Case #17-5132 Document #1689314 Filed: 08/18/2017 Page 1 of 74

[ORAL ARGUMENT NOT YET SCHEDULED]

Nos. 17-5132, 17-5161, 17-5174, and 17-5175 (Consolidated)

IN THE UNITED STATES COURT OF APPEALS

JOHN M. FITZGERALD et al.,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

OPENING BRIEF FOR THE FEDERAL APPELLANTS

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel

A. Parties and Amici. The Plaintiffs are John M. Fitzgerald,

Defendants are the Federal Transit Administration, the United States

Department of Transportation, the United States Fish and Wildlife Service,

and the United States Department of the Interior. The Intervenor-

Defendant is the State of Maryland. Prince Georges County, Maryland and

Montgomery County, Maryland participated in the district court as amicus

curiae in support of the Defendants.

B. Rulings Under Review. The district courts rulings under

Federal Transit Administrations motion to alter or amend the Order of

for summary judgment and entering an injunction against the Federal

USCA Case #17-5132 Document #1689314 Filed: 08/18/2017 Page 3 of 74

(ECF No. 142).

C. Related Cases. On May 30, 2017, Maryland filed a notice of

Administrations appeal was docketed as Case No. 17-5161. On August 3,

denial of Plaintiffs Motion for Reconsideration or Clarification entered on

17-5175. Counsel is unaware of any other related cases pending in this

Court or any other court.

USCA Case #17-5132 Document #1689314 Filed: 08/18/2017 Page 4 of 74

Certificate as to Parties, Rulings, and Related Cases ..................................... i

Table of Contents ....................................................................................... iii

Statement of Jurisdiction ............................................................................. 1

Statement of the Issues ................................................................................ 1

Statement of the Case ................................................................................... 3

I. Statutory Background ................................................................ 3

A. The National Environmental Policy Act ........................... 3

B. FTAs New Starts Capital Investment Grants

C. Judicial review of FTAs compliance with NEPA .............. 6

II. Factual and Procedural Background .......................................... 6

A. The Purple Line ................................................................ 6

B. FTAs NEPA compliance ................................................... 8

1. The Draft EIS .......................................................... 8

2. FTAs 2014 ROD...................................................... 9

C. Fitzgeralds original and supplemental complaints ........ 11

D. The district courts first injunction ................................. 12

E. FTAs remand decision not to prepare an SEIS .............. 13

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F. The district courts second injunction ............................ 15

G. The final judgment and post-judgment motions ............ 17

Standard of Review .................................................................................... 18

Summary of Argument ............................................................................... 19

I. Metrorails Recent Safety and Ridership Issues Do Not

A. A decline in Metrorail transfers would not

B. A decline in Metrorail transfers would not prevent

C. Fitzgeralds declarants do not show that FTA failed

1. The Lysy declaration ............................................. 27

2. The Allen declaration ............................................ 30

3. The Saggese declaration ........................................ 31

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Citizens Against Burlington, Inc. v. Busey,

Am. Forest & Paper Assn Inc. v. EPA,

Cuomo v. U.S. Nuclear Regulatory Commn,

Found. on Econ. Trends v. Lyng,

Govt of Province of Manitoba v. Zinke,

In re Polar Bear Endangered Species Act Listing,

Karst Envtl. Educ. & Prot., Inc. v. EPA,