Thank you for your coverage of Arlington County’s August 19 lawsuit concerning the I 95-395 HOT Lanes.

Please note the attached suit was previously filed August 18 under Cause No. 1:09CV923 (AJT/TCB) in the Federal Court for the Eastern District of Virginia.

Below is also a summary of a 2000 9th Circuit case which rejects the use of categorical exemptions for projects that impact travel patterns by relieving congestion.

Also the July 18, 2009 CTB Resolution which you will find on the VDOT site delegates “responsibility for compliance with NEPA” to “the concessionaire”, a consortium headed by fluor-transurban, a corporation that, like our former head of State, comes from Texas.

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA-AT ALEXANDRIA

ARTHUR S. WEST,
Plaintiff,
Vs.
PIERCE R. HORNER, DAVID S. EKERT, RAY LAHOOD, FEDERAL HIGHWAY ADMINISTRATION,
Defendants
Case No.

PLAINTIFF’S ORIGINAL
COMPLAINT FOR
VIOLATION OF NEPA

I. INTRODUCTION
This is an action for declaratory and injunctive relief in regard to an improper Categorical Exclusion, and to require compliance with the National Environmental Policy Act in regard to the proposed, improperly segmented, and ill defined I 95-395 HOT Lanes Project in the Eastern District of Virginia. Plaintiff seeks an order requiring appropriate NEPA documentation for the entire project in the form of an EIS or FONSI, and the appropriate traffic, economic, and cumulative impact studies, in addition to a full consideration of alternatives.
II. JURISDICTION
2.1 The jurisdiction of this Court is conferred by and invoked pursuant to federal question jurisdiction under 28 U.S.C. 1331, the Administrative Procedure Act, 5 U.S.C. 702, and 704, and the National Environmental Policy Act, 42 USC 4331, et sequ.
2.2 The jurisdiction of this court is also conferred by and invoked pursuant to 28 U.S.C. 1346 by virtue of the naming of one agency of the U.S. Government as defendant to this action.
III. PARTIES
3.1 Plaintiff West is a citizen and a member of that discreet class of persons authorized to drive on our National Highways. He has travelled repeatedly upon the I 95-395 Interstate and the Shirlington Interchange, and employed the immediate vicinity of the project and the Shirlington Town Center for leisure, recreation, and entertainment purposes. He has standing to maintain this action because the alteration of traffic patterns caused by the project will impact the safety of travel near and upon the interchange as well as his esthetic and recreational enjoyment of the area, which will be degraded by the increase in traffic, noise, air pollution, and cumulative impacts of the proposed action. He also has procedural standing to require a proper consideration of environmental, social, and economic factors before the project is constructed.
3.2 Pierce R Homer is Chairman of the Virginia Commonwealth Transportation Board that adopted a Resolution on June 18, 2009, which improperly approved a delegation of NEPA Authority to a private entity and which was otherwise unlawful and ultra vires.
3.3 Defendant David S. Ekern is the Commissioner of the Virginia Department of Transportation that improperly issued and/or approved a defective Categorical Exclusion for the I 95- 395 project.
3.4 Defendant LaHood is the United States Secretary of Transportation that improperly issued and/or approved a defective Categorical exclusion for the I 95- 395 project.
3.5Defendant Federal Highway Administration is the Federal Agency charged with administering the Federal Highway System.
3.6 Fluor-Transurban, Arlington County, and Alexandria are potentially interested parties subject to joinder in this case.
IV. ALLEGATIONS
4.1 The I 95-395 HOT Lane project is a major Federal action with reasonably foreseeable significant impacts.
4.2 The I 95-395 HOT Lane project will cause a major and significant alteration in traffic patterns, and have significant environmental, socioeconomic, and regional cumulative impacts.
4.3 The project has been impermissibly segmented and approved before key conditions and components have been defined, documentation prepared for the project is woefully inadequate to meet the requirements of NEPA, and NEPA authority has been improperly delegated to a private entity in a manner at variance with the clear and unambiguous remedial intent of NEPA.
4.4 The I 95-395 HOT Lane project is either not properly subject to, and does not meet the definition of a categorically Excluded Action as defined in the CFR, or exceptional circumstances exist making a CE improper under the CEQ regulations. (See, generally, West v. Secretary of Transportation, 206 F.3d 920, (9th Circuit, 2000)
4.5 To the extent that the defendants, acting for the FHA, CTB or VDOT have delegated any NEPA responsibility to a third party, this is an unlawful delegation under the doctrine of delegatus non potest delegare, and evidence of impermissible privatization and segmentation.
4.6 Defendants have taken final action in approving an incomplete, segmented, and ill-defined project, and this case is ripe for review.
V. NEPA-APA CLAIM
5.1 By issuing a categorical exclusion for a project that was incomplete, segmented, and not properly exempt, in the absence of compliance with NEPA in the form of an EIS, EA, or FONSI, the State and Federal defendants violated the National Environmental Policy Act for which relief is appropriate under the Administrative Procedures Act.
VI. DECLARATORY JUDGMENTS ACT CLAIM
6.1 By issuing a categorical exclusion for a project that was incomplete, segmented, and not properly exempt, in the absence of compliance with NEPA in the form of an EIS, EA, or FONSI, and in improperly delegating NEPA authority, the State and Federal defendants acted unlawfully and violated the National Environmental Policy Act for which relief is appropriate under the Federal Declaratory Judgments Act.
VII. REQUEST FOR RELIEF
Plaintiff respectfully requests the following relief:
7.1 That a declaratory Judgment issue declaring the I 95-395 HOT Lane project CE void, and annulling any delegation of NEPA authority to any private entity.
7.2 That the State and Federal defendants be compelled to revoke the CE for the I 95-395 project, and comply with the requirements of NEPA in regard to assessment of appropriate traffic, economic, and environmental impacts of the I 95-395 and 495 HOT Lane projects as a whole, and that mitigation measures be considered to reduce resulting traffic impacts upon the City of Alexandria and Arlington County.
7.3 That the Court order that such relief issue as may be necessary to protect the status quo pending the ultimate determination of this case.

Dated this 17th day of August, 2009

ARTHUR S. WEST

Interstate 5 South DuPont Interchange
Arthur West v. U.S. DOT
The Project.
The South DuPont Interchange project is located on Interstate 5 (”I-5″) between Seattle and Tacoma. The interchange was proposed by the city of DuPont (”the City”) to address traffic demand from existing growth as well as planned industrial and residential development in the area. The project was proposed to include two separate stages. Stage 1 would include an overpass over State Route 5 as well as entrance and exit ramps to I-5. Stage two would consist of “upgrades” to the Stage 1 interchange, by rerouting additional connectors and reconstructing an existing interchange “adjacent” to the proposed new interchange.
The City considered environmental impacts of the increased growth in an environmental impact statement prepared under a state statute, the Washington Growth Management Act. Washington Department of Transportation (”WSDOT”) prepared a series of environmental reports analyzing the impacts of the proposed interchange. None of the studies prepared predicted any significant environmental impacts from the proposed interchange.
April 1996, the Federal Highway Administration (”FHWA”) and WSDOT jointly released an environmental document designed to meet the requirements of a “documented categorical exclusion” as allowed under 23 C.F.R. 771.117(d) of FHWA’s NEPA regulations. Construction of the interchange commenced soon thereafter. Construction was completed and the interchange open to traffic by October, 1997.
Case Summary.
Plaintiff filed a complaint in federal district court, seeking an injunction halting all work on the interchange, as well as a declaration that the interchange required preparation of a full environmental impact statement prior to final approval of the project. The district court dismissed all claims. The Ninth Circuit reversed.
Key Holdings.
Mootness
• The court found that the case was not moot, even though the interchange had been built and was in use. The court noted that because Stage 2 of the project had not yet been built, effective relief could still be fashioned. In a separate “remedy” discussion, the Court determined that a full environmental impact statement on the interchange (Stage 1) could result in restrictions on the use of the interchange, changes in design of the interchange that would lessen environmental impacts, or a determination that the interchange should be removed. The court also noted that because the Stage 2 portion of the project had not yet been commenced, FHWA could prepare a separate environmental analysis for that stage.
2
NEPA
• Categorical Exclusions. The court noted that FHWA’s NEPA regulations (23 C.F.R. 771.117(a)) “forbid” the use of a categorical exclusion for a project that “will have significant impacts on travel patterns.” The court then found it “axiomatic that a new, fully-directional interchange cannot simultaneously relieve traffic congestion and yet have no significant impact on travel patterns.” The court rejected FHWA’s assertion that the project fell within the scope of 23 C.F.R. 771.117(d)(7) (”Approvals for changes in access control”) finding that none of the examples of categorically excluded projects included in FHWA’s regulations “approaches the magnitude of this project – an entirely new, $18.6 million, four-lane, ‘fully-directional’ interchange constructed over a former Superfund site….”
West v. U.S. DOT
Court
Date Citation
U.S. Court of Appeals, 9th Cir. Mar. 20, 2000 206 F. 3d 920 (9th Cir. 2000)