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Fath v. Texas Department of Transportation

United States Court of Appeals, Fifth Circuit

July 17, 2018

SHUDDE FATH; SAVE BARTON CREEK ASSOCIATION; FRIENDS OF THE WILDFLOWER CENTER; CAROLE KEETON; FRANK CLOUD COOKSEY; JERRY JEFF WALKER; SUSAN WALKER; DOCTOR LAURIE DRIES; SAVE OUR SPRINGS ALLIANCE, INCORPORATED; MOPAC CORRIDOR NEIGHBORS ALLIANCE; THE FRIENDSHIP ALLIANCE OF NORTHERN HAYS COUNTY, INCORPORATED; CLEAN WATER ACTION, Plaintiffs - Appellants
v.
TEXAS DEPARTMENT OF TRANSPORTATION; CENTRAL TEXAS REGIONAL MOBILITY AUTHORITY, Defendants - Appellees

          Appeal from the United States District Court for the Western District of Texas

          Before JOLLY, JONES, and HAYNES, Circuit Judges.

          PER CURIAM

         Plaintiffs challenge Texas's plans for three highway projects in Austin. They argue Texas violated the National Environmental Policy Act ("NEPA") by treating the projects as separate projects in studying their environmental impact, instead of as a single project, and also by not studying "cumulative impact." The district court held that Texas complied with NEPA. For the reasons set forth below, we AFFIRM.

         I. Factual and Procedural Background

         Texas has proposed several new highways to alleviate horrific traffic in Austin. It wants to build overpasses where Texas State Highway Loop 1 (colloquially known as "MoPac") intersects with two existing streets, so that MoPac would pass under those streets. It is also in the midst of extending State Highway 45 West by about four miles, with a tolled freeway that will run from MoPac's southern tip and down into bordering Hays County. Finally, it has plans to add express lanes on eight miles of MoPac.

         For the overpass project, the Texas Department of Transportation ("TxDot") conducted an initial NEPA review, known as an Environmental Assessment.[1] Based on studies prepared between 2014 and 2015, TxDot concluded that the overpass project would not cause any significant environmental effects and so no further study was needed under NEPA. Separately, TxDot, along with the Central Texas Regional Mobility Authority, studied the Highway 45 project pursuant to state environmental law; the agencies did not study it under NEPA because the state is not receiving federal aid for the project, so they concluded NEPA did not apply. The agencies are still in the initial phase of reviewing the envisioned express lanes on MoPac.

         Plaintiffs, including environmental groups and local residents, filed this suit under NEPA and the Administrative Procedure Act, challenging the highway studies. They raise concerns about the potential combined impact of the highways on the Edwards Aquifer and endangered or protected species, including the golden-cheeked warbler and the Barton Springs and Austin blind salamanders. The district court denied Plaintiffs' motion for a preliminary injunction, and this court affirmed on the sole issue presented, which was whether the district court used the right regulatory framework. After a subsequent bench trial, the district court concluded that TxDot complied with NEPA and all applicable regulations. Plaintiffs now appeal.

         II. Standard of Review

         We review the district court's legal conclusions de novo. Fritiofson v. Alexander, 772 F.2d 1225, 1240 (5th Cir. 1985), abrogated on other grounds by Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669 (5th Cir. 1992). When a district court sits as the initial reviewing court of an administrative agency's decisions, "we must give great deference to the district court's conclusions" and "hesitate to reverse" if the district court based its judgment on lengthy evidentiary proceedings, factual inferences, and witness credibility determinations. See Sabine River, 951 F.2d at 678-79 (quoting in part N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1539 (11th Cir. 1990)). Otherwise, we review de novo, which entails asking whether an agency's actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See id. at 679; 5 U.S.C. § 706. Under this highly deferential standard, we have the "least latitude in finding grounds for reversal." Sabine River, 951 F.2d at 678 (quoting N. Buckhead Civic Ass'n, 903 F.2d at 1538). The test is ordinarily met only

if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

         III. Discussion

         A. Separate ...


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