City of Dania Beach v. U.S. Army Corps of Eng'rs

CITY OF DANIA BEACH, FLORIDA, et al., Plaintiffs,

v. U.S. ARMY CORPS OF ENGINEERS, Defendant,andBROWARD COUNTY, FLORIDA, Intervenor/Defendant.

CASE NO. 12-60989-CIV-COHN/ROSENBAUM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Dated: July 6, 2012

ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

THIS CAUSE is before the Court upon Plaintiffs' Motion for Preliminary Injunction [DE 4] ("Motion"). The Court has carefully considered the Motion, Defendant U.S. Army Corps of Engineers' Response [DE 15] ("Corps Response"), Defendant/Intervenor Broward County's Response [DE 22] ("Broward County Response"), Plaintiffs' Reply to the U.S. Army Corps of Engineers' Response [DE 18] ("Corps Reply"), Plaintiffs' Reply to Broward County's Response [DE 28] ("Broward County Reply"), the argument of counsel at the July 3, 2012 hearing, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiffs City of Dania Beach, Rae Sandler, and Grant Campbell (collectively "Plaintiffs") filed suit against Defendant U.S. Army Corps of Engineers (the "Corps") onMay 23, 2012. Complaint [DE 1]. The Complaint challenges a permit the Corps issued which allows Intervenor/Defendant Broward County¹ to fill approximately 8.87 acres of wetlands and secondarily impact 39.17 acres of wetlands in order to expand Runway 9R/27L ("South Runway") at the Fort Lauderdale-Hollywood International Airport (the "Airport"). Id. ¶ 1. Plaintiffs contend that the Corps issued the permit without considering the impact of increased noise levels on the health of residents in neighborhoods in the City of Dania Beach, thus violating both the National Environmental Policy Act ("NEPA") and the Clean Water Act ("CWA"). Id. ¶ 2. Plaintiffs argue that the Corps authorized the permit for the South Runway despite another practicable alternative, namely a north parallel runway ("North Runway"), which would have resulted in less noise and environmental impacts. Id. ¶ 3.

Plaintiffs seek a declaration from this Court that the permit issued by the Corps violates NEPA, the CWA, and the Administrative Procedure Act ("APA"), to vacate the Corps' record of decision and the permit, and to enjoin the Corps and Broward County (collectively "Defendants") from any further construction of the South Runway until it complies with NEPA, the CWA, and the APA. Complaint at 20-21. On May 24, 2012, Plaintiffs filed the instant Motion which seeks to enjoin further construction of the South Runway while the Court considers Plaintiffs' Complaint on the merits. Both the Corps and Broward County oppose the Motion.

II. DISCUSSION

A. Legal Standards.

To obtain a preliminary injunction, a plaintiff must establish: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the defendant is not enjoined; (3) the threatened injury to plaintiff outweighs the harm an injunction may cause defendant; and (4) the injunction would not disserve the public interest. See Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). "[A] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to each of the four prerequisites." Four Seasons Hotels & Resorts. B.V. v. Consorcio Barr. S.A., 320 F.3d 1205, 1210 (11th Cir. 2003) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998) (internal citations and quotations omitted)).

The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h, is "essentially a procedural statute that requires federal agencies to inform themselves of the environmental effects of proposed federal actions." Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of Ena'rs, 374 F. Supp. 2d 1116, 1123 (S.D. Fla. 2005) (citing Sierra Club v. U.S. Army Corps of Ena'rs, 295 F.3d 1209, 1214 (11th Cir. 2002)). When an agency proposes any "major [f]ederal action[] significantly affecting the quality of the human environment," NEPA mandates the preparation of an environmental impact statement ("EIS"). 42 U.S.C. § 4332(2)(C). "Agencies are not required to duplicate the work done by another federal agency which also has jurisdiction over a project." Sierra Club, 295 F.3d at 1215. When a project has both a lead agency and cooperating agencies, a cooperating agency may adopt an EIS signed by a lead agency, provided itconducts "an independent review of the statement" and finds that its "comments and suggestions have been satisfied." Id. (quoting 40 C.F.R. § 1506.3(c)).

"If, after the original EIS is prepared, the agency 'makes substantial changes in the proposed action that are relevant to environmental concerns,' or if there are 'significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,' the agency is required to prepare a supplemental environmental impact statement" ("SEIS"). Id. (quoting 40 C.F.R. § 1502.9(c)(1)). The standard for determining when a SEIS is required is "essentially the same" as the standard for determining when an EIS is required, Id. at 1215-16 (quoting Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. Unit A July 1981)).² If "'the post-[original EIS] changes in the [project] will have a "significant" impact on the environment that has not previously been covered by the [original] EIS,'" a supplement is necessary, Id. at 1216 (quoting Nat'l Wildlife Fed'n v. Marsh, 721 F.2d 767, 782 (11th Cir.1983)).

The Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., "prohibits the discharge of pollutants, including dredged spoil, into waters of the United States, except in compliance with various sections of the CWA." Fla. Keys Citizens Coal., Inc., 374 F. Supp. 2d at 1124. Section 404(a) of the act authorizes the Secretary of the Army to issue permits for the discharge of dredged or fill material into waters of the United States. 33 U.S.C. § 1344(a). "Waters of the United States" include wetlands. 33 C.F.R.§ 328.3(a), (b).

"Challenges to agency action under NEPA are governed by the arbitrary-and-capricious standard set forth in the Administrative Procedure Act [("APA")], 5 U.S.C. § 706(2)(A)." Wildlaw v. U.S. Forest Serv., 471 F. Supp. 2d 1221, 1231 (M.D. Ala. 2007) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-76 (1989); N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir.1990)).³ The APA requires that a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The arbitrary and capricious review standard is a "deferential one." Wild law. 471 F. Supp. 2d at 1231 (citing Fund for Animals. Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996)). The court may not substitute its own judgment for that of the agency. Id. (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Skinner. 903 F.2d at 1539)). The court must also "look beyond the scope of the decision itself to the relevant factors that the agency considered . . . to ensure that the agency took a 'hard look' at the environmental consequences of the proposed action." Sierra Club, 295 F.3d at 1216 (citations omitted).

"An agency has met its 'hard look' requirement if it has examine[d] the relevant i data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (quoting Motor VehicleMfrs. Ass'n, 463 U.S. at 43 (internal quotation marks omitted)). A court may overturn a agency's decision as arbitrary and capricious under "hard look" review only if: "(1) the decision does not rely on the factors that Congress intended the agency to consider; (2) the agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise." id (citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43). The burden of establishing that the decision was arbitrary and capricious falls upon the party seeking to overturn the agency decision. Sierra Club. 935 F. Supp. at 1565; Citizens for Smart Growth v. Peters. 716 F. Supp. 2d 1215, 1221 (S.D. Fla. 2010).

B. Plaintiffs Have Failed to Demonstrate a Likelihood of Success on the Merits.

Plaintiffs first argue that they are likely to succeed on the merits. Motion at 9. Plaintiffs contend that the Corps violated NEPA by failing to disclose or analyze how high noise levels caused by the South Runway expansion would affect the health of Dania Beach residents despite Plaintiffs repeatedly raising this issue with the federal agencies, Id. at 10-11. Plaintiffs also state that neither the 2008 EIS, 2011 Written Reevaluation, nor the 2011 Memorandum for Record/Environmental Assessment addressed the health effects of high noise levels on residents and that the Corps' failure to prepare a SEIS regarding these health effects "render[ed] arbitrary and capricious its decision." Id. at 11. Finally, Plaintiffs contend that the Corps violated the CWA by approving the South Runway because a practicable alternative, i.e. the North Runway, existed which would avoid or minimize wetlands impacts. Id. at 14.

Both the Corps and Broward County dispute that Plaintiffs will suffer irreparableharm. The Corps argues that it fully complied with NEPA because, as a cooperating agency, it was required to defer to the Federal Aviation Administration ("FAA") on analysis of aviation issues such as noise. Corps Response at 7. The Corps also contends that it was not required to prepare a SEIS because the 2008 EIS "extensively discusses noise impacts using an established methodology and the Corps reasonably relied upon it; information regarding health impacts was not 'new'; and a...