Piedmont Environmental Council; Sierra Club v. United States Department of Transportation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 PIEDMONT ENVIRONMENTAL COUNCIL;
SIERRA CLUB,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION; RODNEY E. SLATER,
in his official capacity as Secretary
of the United States Department of
Transportation; FEDERAL HIGHWAY
ADMINISTRATION; KENNETH R.
WYKLE, in his official capacity as
Administrator, Federal Highway
Administration; DAVID S. GENDELL,
in his official capacity as Regional
Administrator, Region 3, Federal No. 01-2286  Highway Administration; ROBERTO
FONSECA-MARTINEZ, in his official
capacity as Division Administrator,
Virginia Division, Region 3, Federal
Highway Administration; NORMAN
Y. MINETA, in his official capacity
as Secretary of the United States
Department of Transportation;
MARY PETERS, Administrator,
Federal Highway Administration;
WHITTINGTON W. CLEMENT, Secretary
of the Virginia Department of
Transportation and Chairman of the
Commonwealth Transportation
Board,
Defendants-Appellees. 

-- 1 of 8 --

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-98-4-C)
Argued: December 3, 2002
Decided: February 7, 2003
Before WILLIAMS and TRAXLER, Circuit Judges, and
Richard L. WILLIAMS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed in part and remanded in part with instructions to dismiss by
unpublished per curiam opinion.
COUNSEL
ARGUED: Deborah M. Murray, SOUTHERN ENVIRONMENTAL
LAW CENTER, Charlottesville, Virginia, for Appellants. Robert
Harris Oakley, Environment & Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. ON BRIEF: Thomas L. Sansonetti, Assistant Attorney
General, Andrew C. Mergen, Susan Pacholski, Environment & Natu-
ral Resources Division, John L. Brownlee, United States Attorney,
Julie C. Dudley, Assistant United States Attorney, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appel-
lees; Jerry W. Kilgore, Attorney General, Christopher D. Eib, Assis-
tant Attorney General, Suzanne T. Ellison, Assistant Attorney
General, Richmond, Virginia, for Appellee Clement.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 2 of 8 --

OPINION
PER CURIAM:
Piedmont Environmental Council (PEC) and the Sierra Club, the
plaintiffs, appeal the August 21, 2001, order of the district court,
which granted summary judgment in favor of the defendants on eight
of the nine counts alleged by PEC and the Sierra Club in their com-
plaint. PEC and the Sierra Club alleged that the actions of the defen-
dants relating to construction of a bypass west of Route 29 in
Charlottesville, Virginia violated the National Environmental Policy
Act (NEPA), 42 U.S.C. § 4321 et seq., and Section 4(f) of the Depart-
ment of Transportation Act, (Section 4(f)), 49 U.S.C. § 303; 23
U.S.C. § 138. The district court agreed with the plaintiffs on Count
Two of their complaint, and granted summary judgment in their favor
on that count. The defendants did not appeal that ruling and that count
is not before the court. As to the remaining counts, PEC and the
Sierra Club contend that the district court erred in its conclusion that
the defendants complied with the requirements of NEPA and Section
4(f). The defendants ask this court to affirm the order of the district
court. Additionally, the defendants assert that the plaintiffs lack stand-
ing to bring these challenges. For the reasons stated below, we affirm
in part and remand in part with directions to dismiss.
This action arose from the lengthy study of traffic congestion along
the Route 29 corridor in and around Charlottesville, Virginia, and the
ultimate decision to construct a bypass west of Route 29 to help alle-
viate traffic congestion. The facts and procedural background are out-
lined extensively in the opinion of the district court, Piedmont
Environmental Council v. United States Department of Transporta-
tion, 159 F. Supp. 2d 260 (W.D. Va. 2001), which is incorporated
herein by reference.
The district court’s review of the defendants’ actions is governed
by the Administrative Procedure Act, 5 U.S.C. § 706. Pursuant to that
Act, the district court may overturn an agency’s decision only if the
administrative record reveals that the decision was "arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. § 706(2)(A). The district court must make a "searching
and careful" inquiry into the facts and determine "whether the deci-
3 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 3 of 8 --

sion was based on a consideration of all the relevant factors and
whether there has been a clear error of judgment," but the court may
not substitute its own judgment for that of the agency. Citizens to Pre-
serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Because
the appellate court reviews a grant or denial of summary judgment de
novo, we review the Federal Highway Administration’s decisions
under the same standards applicable in the district court.
NEPA establishes "a national policy of protecting and promoting
environmental quality." Hughes River Watershed Conservancy v.
Glickman, 81 F.3d 437, 443 (4th Cir. 1996). NEPA does not place
substantive requirements on federal agencies, but to ensure that deci-
sions are well-informed, NEPA requires certain procedures be fol-
lowed before an agency undertakes a project that may affect the
environment. Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350-51 (1989). NEPA’s purposes include ensuring that an
agency "will have available, and will carefully consider, detailed
information concerning significant environmental impacts" and that
"the relevant information will be made available to the larger audi-
ence that may also play a role in both the decisionmaking process and
the implementation of that decision." Id. at 349. NEPA’s procedural
requirements also serve the purpose of assuring the public that an
agency has considered environmental impacts in making its decision.
Id. Once "the adverse environmental effects of the proposed action
are adequately identified and evaluated," however, an agency is enti-
tled to decide that "other values outweigh the environmental costs"
and pursue the project. Id. at 350-51. In determining whether NEPA’s
procedural requirements were followed, the court must determine,
from the administrative record, whether the agency took a "hard look"
at the environmental consequences, and if so, whether the agency’s
decision was arbitrary and capricious. Hughes River, 81 F.3d at 443.
Serving a similar purpose, Section 4(f) provides:
The Secretary [of Transportation] may approve a transporta-
tion program or project requiring the use . . . of publicly
owned land of a public park, recreation area, or wildlife and
waterfowl refuge of national, State, or local significance, or
land of an historic site of national, State or local significance
. . . only if —
4 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 4 of 8 --

(1) there is no prudent and feasible alternative to
using that land; and
(2) the program or project includes all possible
planning to minimize harm to the park, recre-
ation area, wildlife and waterfowl refuge, or
historic site resulting from the use.
49 U.S.C. § 303(c); 23 U.S.C. § 138. In reviewing an agency’s deci-
sion to determine whether it complied with Section 4(f), a court must
conduct a three-part inquiry. Overton Park, 401 U.S. at 415-17. First,
the court must determine whether the Secretary "acted within the
scope of his authority," meaning that the Secretary "could have rea-
sonably believed that in this case there are no feasible alternatives or
that alternatives do involve unique problems." Id. at 415-16. Second,
the court must determine whether the Secretary’s decision was "‘arbi-
trary, capricious, an abuse of discretion, or otherwise not in accor-
dance with law.’" Id. at 416 (quoting 5 U.S.C. § 706(2)(A)). Finally,
the court must determine whether the Secretary "followed the neces-
sary procedural requirements." Id. at 417.
Although the issue was not raised before the district court, the
defendants now argue that the plaintiffs lack standing. Accordingly,
before addressing the merits of the appeal, we must examine whether
the plaintiffs have standing to bring these challenges.
Litigants must have a sufficient personal interest in the outcome of
the litigation in order to establish standing pursuant to Article III of
the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). The issue of standing is jurisdictional, and it may be raised
for the first time on appeal. Hodges v. Abraham, 300 F.3d 432, 443
(4th Cir. 2002). The plaintiffs, as the parties invoking federal jurisdic-
tion, must show three elements to establish standing: (1) that they suf-
fered an "‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;" (2) that the
injury is "fairly traceable to the challenged action of the defen-
dant[s];" and (3) that the injury is likely to be redressed by a favorable
decision by the court. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v.
Defenders of Wildlife, 504 U.S. at 560-61). An organization may sue
5 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 5 of 8 --

as the representative of its members only if it establishes that its mem-
bers "would otherwise have standing to sue in their own right."
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. at 180-
81. An organization must also show that "the organization seeks to
protect interests germane to the organization’s purpose; and [that] nei-
ther the claim asserted nor the relief sought requires the participation
of individual members in the lawsuit." Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir. 2000)
(en banc).
Here, the plaintiffs, as organizations, are proper parties to bring a
suit as long as at least one member would have standing to sue in his
or her own right. The defendants admit that the plaintiffs satisfy the
final two elements of standing, but they argue that the first element,
injury in fact, is not met because the plaintiffs fail to identify any spe-
cific member of either organization who has suffered an "invasion of
a legally protected interest." Defenders of Wildlife, 504 U.S. at 560.
Allegations in a complaint are not sufficient to defeat summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The jurisdictional issue of standing is subject to the same requirement
as other elements of a claim on summary judgment, and the plaintiffs
must show, by affidavits or other evidence, "specific facts" that iden-
tify individual members with a specific injury who satisfy the ele-
ments of standing in their own right and thereby create standing for
PEC and the Sierra Club to sue on their behalf. Defenders of Wildlife,
504 U.S. at 561; Fed. R. Civ. P. 56(e). Although no affidavits were
submitted to the district court on this issue, where a challenge to
standing is raised for the first time on appeal, additional evidence may
be submitted to the court of appeals. Sierra Club v. Environmental
Protection Agency, 292 F.3d 895, 899 (D.C. Cir. 2002).
Plaintiffs submitted declarations of Robert R. Humphris, a member
of PEC, and Beth S. Kuhn, a member of the Sierra Club, in an attempt
to remedy the standing issue. We grant the plaintiffs’ motion for leave
to submit those declarations and accept them as part of the record, but
we find that they are nonetheless insufficient to establish standing on
all counts of the plaintiffs’ complaint.
The defendants conceded at oral argument, and we agree, that the
declarations establish standing for the plaintiffs to bring a challenge
6 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 6 of 8 --

under NEPA with respect to the bypass and to challenge compliance
with Section 4(f) with respect to the school complex. However, we
also agree with the defendants that the plaintiffs fail to establish
standing to challenge compliance with Section 4(f) with respect to
Schlesinger Farm and Westover. The declarations submitted by the
plaintiffs provide no statement that the individuals will suffer "actual
and imminent" direct injury with respect to those properties. See
Defenders of Wildlife, 504 U.S. at 560. In fact, the declarations are
void of any mention of Schlesinger Farm or Westover. "[T]he ‘injury
in fact’ test requires more than an injury to a cognizable interest. It
requires that the party seeking review be himself among the injured."
Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972). We also find
that the plaintiffs have no standing to raise a challenge based on the
endangered species, the James Spineymussel. Like the Schlesinger
Farm and Westover properties, there is no evidence that the represen-
tative members who supplied the declarations derive any enjoyment
or benefit from the endangered species, and the plaintiffs fail to estab-
lish that they have a "concrete and particularized" interest in the
James Spineymussel that will be harmed by the proposed construc-
tion. See Defenders of Wildlife, 504 U.S. at 560. Therefore, the plain-
tiffs have no standing to challenge the agency’s action on that ground.
Count Five of the plaintiffs’ complaint addresses the Schlesinger
Farm and Westover properties. Because we find that the plaintiffs
have no standing on that issue, we remand to the district court with
instructions to dismiss Count Five. Count One of the plaintiffs’ com-
plaint alleges various deficiencies in the Final Environmental Impact
Statement, including the argument that the defendants failed ade-
quately to consider the direct environmental impacts of the proposed
bypass on the James Spineymussel population. Although the plaintiffs
have an insufficient interest in the James Spineymussel for that alone
to create standing to challenge the project, the plaintiffs have estab-
lished other grounds that create standing on Count One of their com-
plaint. The plaintiff organizations include members who own property
directly adjacent to the proposed bypass route, and the plaintiffs’
interest in their land, the Reservoir, the drinking water, and the school
complex property satisfy the requirement that the plaintiffs will suffer
an injury in fact from construction of the proposed bypass. Thus, they
have standing to challenge the Federal Highway Administration’s
actions under NEPA and under Section 4(f) with regard to the school
7 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 7 of 8 --

complex. Therefore, with the exception of Count Five, the plaintiffs
have established standing for all counts in their complaint.
Having resolved the question of standing, we next address the mer-
its of the appeal on Counts One, Three, Four, Six, Seven, Eight, and
Nine. We have carefully reviewed the extensive record, and as to
those counts, we affirm based on the reasoning of the district court.
The agency followed all proper procedures as required by NEPA and
Section 4(f). The Federal Highway Administration took a "hard look"
at the environmental consequences of the various alternatives, fol-
lowed all proper procedures, and its decision was not arbitrary or
capricious. Likewise, the agency acted within the scope of its author-
ity with respect to the Section 4(f) property at the school complex, its
decision was not arbitrary and capricious, and all proper procedures
were followed.
We therefore affirm the district court’s grant of summary judgment
in favor of the defendants on Counts One, Three, Four, Six, Seven,
Eight, and Nine, and we remand with instructions for the district court
to dismiss Count Five.
AFFIRMED IN PART, REMANDED IN PART
WITH INSTRUCTIONS TO DISMISS
8 PIEDMONT ENVIRONMENTAL COUNCIL v. US DEPT. TRANSPORTATION

-- 8 of 8 --