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In the case of Bair v. California Department of Transportation, 982 F.3d 569, 2020 U.S. App. LEXIS 37604 (9th Cir. 12/2/2020), a number of individuals and environmental groups (hereinafter referred to collectively as “Bair”) alleged a proposed highway project through a state park failed to comply with NEPA, the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970).
The federal district court had determined that defendant California Department of Transportation (Caltrans) had arbitrarily and capriciously relied upon a 2010 Environmental Assessment (2010 EA), as supplemented and revised. Specifically, the district court held the 2010 EA had failed to sufficiently consider certain “significant issues.” Accordingly, the district court enjoined Caltrans from continuing the project until Caltrans “finalized an appropriate environmental impact statement (EIS).” Caltrans appealed the judgment of the district court to the 9th Circuit Court of Appeals.
Save the Redwoods
Richardson Grove State Park (the Grove) comprises approximately 2,000 acres within the redwood forests of southern Humboldt County, California, and is bisected by United States Highway 101.
Within the Grove, Highway 101 is a two-lane highway “on a nonstandard alignment” with tight curves, narrow travel lanes and roadway shoulders. A number of trees, including old-growth redwood trees, abut the roadway as it meanders through the Grove. In light of antiquated roadway design, there are restrictions on the types of vehicles that may travel that portion of the highway.
Sixty-five-foot-long “California Legal” trucks are permitted, but industry-standard Surface Transportation Assistance Act of 1982 (STAA) trucks generally are not. STAA trucks are longer than California Legal trucks and can carry larger cargo volumes, although both classes of trucks are subject to the same weight limitation. Because of their longer length, STAA trucks navigating the highway’s tight curves frequently “off-track” into the opposing traffic lane or onto the roadway shoulder.
In 2007, Caltrans learned that the existing roadway could be strategically widened to render it accessible to STAA trucks, and Caltrans developed the Richardson Grove Operational Improvement Project (the Project) to do just that. The Project involved slightly widening the roadway and straightening some curves in certain locations along a one-mile stretch of Highway 101, largely within the Grove. Its purposes were to accommodate STAA truck travel, improve the safety of Highway 101, and improve the movement of goods into Humboldt County. The speed limit would remain unchanged at 35 miles per hour. Caltrans assumed responsibility for obtaining environmental approval for the Project pursuant to NEPA. Under federal law, the U.S. Secretary of Transportation is authorized to enter into a memorandum of understanding, in which a State assumes “the responsibilities of the Secretary with respect to one or more highway projects within the State under the National Environmental Policy Act of 1969.” 23 U.S.C. § 327(a)(2)(A), (B)(i).
2010 Original Project Proposal
The original 2010 EA included extensive analysis of the Project’s environmental effects and efforts to minimize those effects, developed in consultation with the California Department of Parks and Recreation (State Parks). More than 100 pages of the 2010 EA were devoted to analyzing various environmental impacts, such as the effects on the nearby South Fork Eel River, the Grove and its recreation facilities, economic growth, traffic, water quality, noise, local plant and animal species (particularly old-growth redwood trees), and protected or threatened species.
Caltrans ultimately determined that the impacts to the Grove would be minor and would primarily consist of “tree removal resulting from cuts and fills that are necessary to accommodate the highway improvements,” as well as the effect on trees whose structural root zones were within the construction area.
Although some trees would be removed, none of those would be old-growth redwoods. While construction would occur in the structural root zones of fewer than 80 old-growth redwoods, plans were made to mitigate its effects, including raising the height of the roadbed where possible to avoid severing tree roots and using a thinner roadbed material to allow greater permeability.
In light of those measures, both the Caltrans arborist (Darin Sullivan) and the arborist hired by Save the Redwoods League (Dennis Yniguez) determined that the Project as proposed in 2010 “would not significantly impact the root health of the old growth trees adjacent to the construction.” Caltrans subsequently issued an EA and Finding of No Significant Impact (FONSI) for the Project in May 2010.
2010 and 2014 Litigation
In a 2010 lawsuit, Bair claimed the Caltrans EA/FONSI violated NEPA. The federal district court agreed and granted partial summary judgment to Bair. In so doing, the district court ordered Caltrans to undertake additional studies, such as preparing new maps of each old-growth redwood tree, its root health zone and the environmental impacts to each tree. Caltrans then revised its analysis accordingly.
After commissioning a tree report from arborist Yniguez, Caltrans issued a 2013 Supplement to the 2010 EA. Caltrans then took public comments, responded to them, and finally issued a NEPA re-validation for the Project in January 2014. Caltrans had found that the 2010 EA and FONSI remained valid. In 2014, Bair again challenged the re-validated Project, but Caltrans withdrew the FONSI in light of an adverse ruling in a parallel proceeding in the state California Court of Appeal.
Following the original issuance of the EA in 2010, Caltrans had modified the Project to reduce its impact, primarily by narrowing the proposed roadbed (roadway shoulders). The modified Project would now require the removal of 38 trees, none of which are old-growth redwoods. Construction would occur within the structural root zones of 78 old-growth redwood trees, 72 of which are within the Grove.
Caltrans, once again, retained arborist Yniguez to evaluate the effects of the revised Project on the redwoods and to produce two reports summarizing his conclusions. In general, Yniguez determined that the Project “would not have any substantial detrimental effect on individual old-growth redwoods or the overall health of the stand of redwoods in Richardson Grove.”
These reports were based on scientific literature regarding redwoods and Yniguez’s three decades of experience as an arborist. Yniguez had made multiple site visits to the Grove (including a helicopter flight to evaluate tree crowns). He also reviewed materials provided by Caltrans, including the EA as well as detailed schematic drawings of all trees with root zones within the Project area. Yniguez assessed each tree individually to determine the likely effect on its health from the root zone disturbances created by the Project, both with and without mitigation measures.
Yniguez concluded that “none of the proposed highway alterations is of sufficient magnitude to threaten the health or stability of any old-growth redwood,” because “disturbances would be confined to a small percentage of the area occupied by roots and would be well within the adaptive capabilities of the trees.” Further, in the absence of proposed mitigation measures, Yniguez found “the limited root disturbance would be inconsequential to the appearance, stability, and continued health of the old-growth redwoods in Richardson Grove.”
Caltrans largely agreed with Yniguez’s analysis, but also considered other evidence, including: scientific literature about the resilience, health and development of redwoods and their root systems generally; the condition of the particular old-growth redwood trees in the Project area; and the specific activities and mitigation measures comprising the Project. According to Caltrans, “in no case would root disturbance have a significant detrimental effect on the health or stability of old-growth redwoods.” Accordingly, in May 2017, Caltrans issued revisions to the EA and a new FONSI.
In response, Bair, again, renewed claims similar to those in earlier litigation, alleging various violations of NEPA. The district court once again granted Bair partial summary judgment as to some of the NEPA claims. In the opinion of the district court, Caltrans had not adequately considered the following identified issues in the revised EA/FONSI: (1) whether redwoods would suffocate when more than half of their root zones were covered by pavement; (2) whether construction in a redwood’s structural root zone would cause root disease; (3) whether traffic noise would increase because of the larger size of the STAA trucks or because of increased numbers of trucks; and (4) whether redwoods would suffer more frequent and severe damage as a result of strikes by STAA trucks.
Because of those deficiencies, the district court held the revised EA was inadequate because Caltrans had not taken the requisite NEPA “hard look” at the environmental impacts of the Project. In light of those supposed shortcomings in the revised EA, the district court concluded that substantial questions had been raised as to the effects of the Project, and it ordered Caltrans to prepare an EIS. The district court also enjoined Caltrans from proceeding with the Project until the EIS was finalized. Caltrans appealed.
NEPA APA Review
As cited by the federal appeals court: “Agency decisions that allegedly violate NEPA are reviewed under the Administrative Procedure Act (APA)” and federal courts “set aside those decisions only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Further, the appeals court noted NEPA “requires a federal agency to prepare a detailed statement on the environmental impact of major Federal actions significantly affecting the quality of the human environment” in an EIS. On the other hand, the appeals court acknowledged that NEPA regulations would alternatively “allow an agency to prepare a more limited document, an Environmental Assessment (EA), if the agency’s proposed action would not clearly require the production of an EIS.” 40 C.F.R. § 1501.4(b)-(c).
As described by the court, an EA is “a concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS.” 40 C.F.R. § 1508.9(a)-(b). If the agency determines that an EIS is not required, it issues a FONSI, which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment.
Pursuant to judicial review under the APA, the federal appeals court acknowledged: “the agency’s decision to issue an EA/FONSI in lieu of an EIS can be set aside only upon a showing that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In so doing, the court would review an EA/FONSI to determine “whether the agency has taken a hard look at the consequences of its actions, based its decision on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project’s impacts are insignificant.”
While conducting a “searching and careful” judicial review, the federal appeals court acknowledged that such review was “nevertheless, narrowly circumscribed, and we cannot substitute our own judgment for that of the agency.” In particular, the federal appeals court was mindful that federal judges “are not a panel of scientists that instructs the agency how to validate its hypotheses, chooses among scientific studies, or orders the agency to explain every possible scientific uncertainty.”
Applying this appropriate APA standard of judicial review to the revised Caltrans EA/FONSI at issue, the federal appeals court had to determine whether Caltrans had considered the relevant factors and provided a convincing statement of reasons to support its FONSI for the highway widening project. In so doing, the appeals court would consider whether Caltrans’ explanation was reasonable or arbitrary and capricious with regard to the following relevant factors: redwood tree suffocation, root zones construction, traffic noise/volume and collision with trees.
Redwood Tree Suffocation
In the opinion of the federal appeals court, “Caltrans sufficiently considered the effect of paving over portions of tree root zones.” In particular, the appeals court found arborist Yniguez and Caltrans had “thoroughly assessed the amount of paving that would be placed over the root zone of each tree”:
Yniguez specifically relied in part upon Caltrans’ selection of permeable material, the minor and limited areas of new asphalt, and Caltrans’ decision to narrow the proposed roadway shoulders where possible in reaching his conclusion that the Project would not create extreme stress in the redwoods or overwhelm their natural resilience.
As a result, the appeals court held this agency decision was not arbitrary and capricious. On the contrary, the court found Caltrans had “considered the possibility that paving could harm the trees, but simply (and reasonably) concluded that there was sufficient evidence to the contrary.” The federal appeals court, therefore, concluded: “The district court erred in concluding that the EA failed to adequately consider the effects of paving over portions of the root zones of certain trees.”
Root Zones Construction
Similarly, the federal appeals court found that “Caltrans appropriately considered the extent and effect of the construction activity that would occur in the structural root zones of redwood trees, including construction guidelines in a State Parks handbook.” In the opinion of the court: “The record plainly belies Bair’s contention that Caltrans failed to consider the effects of construction.”
As characterized by the federal appeals court, “the record is replete with Caltrans’ comprehensive analyses of the extent and effects of construction activity in the root zones of individual trees.” Moreover, the court found “the sentence in State Parks’ handbook that recommended that no construction should take place in the structural root zone of a protected tree” did not necessarily apply to “the affected redwoods or influenced State Parks’ opinion of the Project.” Regardless, the federal appeals court acknowledged that Caltrans was not obligated to defer to or adopt the opinion of State Parks regarding the environmental impacts of the Project.
According to the court, “NEPA anticipates that the administrative record may contain contradictory and conflicting opinions, expert and otherwise, and does not require an agency to follow all recommendations made by commentators, other agencies, or experts.” As a result, “to the extent that the recommendation in State Parks’ handbook is relevant here,” the federal appeals court found “Caltrans could (and did) reasonably refuse to follow it, especially when Caltrans relied upon evidence specifically pertaining to the effects of construction on redwoods, in general, and the redwoods in the Project area, in particular.” The federal appeals court, therefore, concluded the federal district court had also “erred when it decided that Caltrans failed to sufficiently consider the State Parks handbook and the impact of construction in the structural root zones of old-growth redwoods.”
Traffic Noise and Volume
The federal appeals court then addressed the claim that the EA had inadequately considered the environmental impacts traffic volume and noise associated with widening the highway. The Caltrans EA had concluded that truck traffic would not increase as a result of the Project. In the opinion of the court, Caltrans had “properly relied upon record evidence to do so, including: a survey of regional business owners, traffic studies in nearby areas suggesting little latent demand for the route, and the fact that highway capacity would be unchanged.”
Pursuant to appropriate judicial review under the APA, the appeals court conceded “Caltrans’ conclusion that traffic would not increase is entitled to deference.” Similarly, in light of the conclusion in the EA that truck traffic would not increase, the court found “Caltrans also reasonably concluded that traffic noise would not appreciably increase.”
In making this determination, the federal appeals court noted “the district court had stated that it believed STAA trucks would be noisier than California Legal trucks because their tractor units are bigger and heavier.” In making this statement, the federal appeals court found the district court had “cited no evidence for its assumptions about the size and weight of STAA tractor units, or its belief about their noise in comparison to California Legal trucks.”
In conducting APA review of agency action, the federal appeals court cautioned: “A district court has no more license to act as ‘a panel of scientists’ than we have.’” Accordingly, the federal appeals court held: “the district court erred when it decided that Caltrans failed to adequately consider how the visitor experience to the Grove would be affected by the presence of STAA trucks, particularly with regard to whether they would be more numerous or generate more noise.”
Collisions With Trees
The federal appeals court also considered whether the district court had erred in determining that Caltrans should have analyzed whether the Project could cause trees to suffer more frequent collisions with trucks. Because STAA trucks are longer and more difficult to maneuver, the federal district court had found the trees could potentially “sustain more damage from collisions because STAA trucks are heavier and their engine compartments more protruding than California Legal trucks.”
Under APA review, the federal appeals court conceded that “it is arbitrary and capricious for an agency to entirely fail to consider an important aspect of the problem.” On the other hand, the court noted:
An agency is not required to address in detail every single comment to prove that it considered the relevant factors, much less to anticipate conclusory supposition about speculative and tangential effects that are not supported by evidence in the record.
As to collision frequency, the federal appeals court recognized “the undisputed purpose of the Project is to widen the road in order to provide room for off-tracking STAA trucks.” Accordingly, the appeals court found Caltrans had reasonably concluded the Project would “decrease the incidence of vehicles colliding with trees.” In so doing, the court rejected plaintiff Bair’s assumption that the Project would increase the risk of collisions because “the pavement will be closer to some trees.” Applying appropriate judicial review under the APA, the federal appeals court held: “Caltrans’ conclusions regarding the frequency of collisions were reasonable and entitled to deference, especially because they pertain to an ‘area of agency expertise.’”
Moreover, as to damage severity, the appeals court had “not located any comments or documents in the administrative record which indicate that STAA trucks would cause more damage when they strike trees.” Accordingly, in the opinion of the appeals court, “the district court’s speculation that trees would suffer more severe damage from collisions because of the weight or shape of STAA trucks is not supported by any evidence in the record.” As a result, the federal appeals court held: “It was reasonable for Caltrans’ EA not to anticipate that unfounded speculation.” The appeals court, therefore, rejected Bair’s argument that a responsibly drafted Caltrans EA would necessarily require Caltrans to “amass evidence demonstrating the comparative damage caused to trees by collisions with STAA trucks and California Legal trucks.”
As a result, the federal appeals court was “satisfied that Caltrans took a hard look at the consequences of the Project, and adequately considered the relevant factors.” While “Bair or the district court may disagree with Caltrans’ conclusions,” the appeals court noted such disagreement “does not constitute a NEPA violation.” On the contrary, in this case, the federal appeals court concluded “the district court erred in finding Caltrans’ EA arbitrary and capricious and in setting aside the 2017 FONSI.”
The federal appeals court, therefore, reversed the district court’s judgment “requiring Caltrans to produce an EIS and enjoining it from continuing the Project until it has done so.” The appeals court, however, remanded this case back to the district court for further proceedings to consider Bair’s other claims regarding defects in the Caltrans consideration of the Project, including alleged violations of section 4(f) of the Department of Transportation Act and section 7 of the Wild and Scenic Rivers Act. On remand, the federal appeals court expressed the expectation that “the district court will now expeditiously consider and dispose of those remaining claims;” noting: “The parties have engaged in contentious litigation over the (relatively limited) Project for more than ten years.”
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Link to law review articles archive (1982 to present).