Physicians for Soc. Responsibility v. Buttigieg

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PHYSICIANS FOR SOCIAL RESPONSIBILITY et al., Plaintiffs, v. PETE BUTTIGIEG et al., Defendants.

Civil Action No. 24-61 (TJK)

United States District Court, District of Columbia

September 8, 2024

MEMORANDUM OPINION

TIMOTHY J. KELLY United States District Judge

The Rocky Flats National Wildlife Refuge in Colorado is located on land surrounding what was once a nuclear weapons production site. After nuclear production stopped, a multi-billiondollar and years-long cleanup effort ensued until federal and state agencies certified that the Refuge was safe and “acceptable for unrestricted use and unlimited exposure.” The Refuge was then transferred to the U.S. Fish and Wildlife Service, or FWS, which opened it and a network of internal trails to the public. FWS then cooperated with the Federal Highway Administration-the FHWA-to authorize a project to improve upon and add to those trails.

Plaintiffs a group of environmental and public-health advocates, are concerned that radioactive contaminants persist in the local ecosystem, largely because of the discovery, about five years ago, of the colloquially termed “Bill Ray particle”-a soil sample that reflected a plutonium level above the regulatory limit. In summary, they believe that FWS and FHWA failed to adequately consider the health risks when they authorized the trail development project. So they sued, alleging that these agencies violated the Administrative Procedure Act and federal environmental law and moved to preliminarily enjoin them from proceeding with the project. Because the Court finds that Plaintiffs have failed to show that such extraordinary relief is justified here, it will deny their motion.

I. Background

A. Statutory and Regulatory Background

The National Environmental Policy Act, or NEPA, 42 U.S.C. §§ 4321-4347, is the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a). It seeks to ensure that federal agencies “adequately assess the environmental impacts of actions they undertake.” City of Oxford v. FAA, 428 F.3d 1346, 1352 (11th Cir. 2005). But it “does not mandate particular results” to accomplish its environmental goals. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Instead, “NEPA imposes only procedural requirements on federal agencies.” DOT v. Pub. Citizen, 541 U.S. 752, 756 (2004) (emphasis added).

One of those requirements is that agencies prepare a “detailed statement” for “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). That “detailed statement” is known as an environmental impact statement, or EIS. See 40 C.F.R. § 1508.11.^[1]But an EIS is required only for actions that “significantly affect[]” the environment. 42 U.S.C. § 4332(C) (emphasis added). To determine whether an action will have a “significant” environmental impact, agencies evaluate the “context” and “intensity” of the action. 40 C.F.R. § 1508.27. “[Context] means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality.” Id. § 1508.27(a). And “[intensity] refers to the severity of impact,” which should be determined by an evaluation of several factors. Id. § 1508.27(b). Most relevant here, those factors include (1) “[t]he degree to which the proposed action affects public health or safety,” (2) “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial,” and (3) “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.” Id. § 1508.27(b).

Agencies rely on these considerations to prepare an environmental assessment, or EA. See 40 C.F.R. § 1508.9. This assessment, which precedes the preparation of an EIS, is a “concise” public document that “[b]riefly” discusses the environmental impacts of, and alternatives to, a proposal for federal action. Id. If the EA results in a finding that the environmental impact of some action would be significant, an EIS must then be prepared. But if the EA concludes otherwise, then the agency may issue a “finding of no significant impact,” or FONSI, and the NEPA process is complete. See id. § 1508.13.

B. Factual Background

The Rocky Flats site in Colorado used to be home to a nuclear weapons production facility. But in the early 1990s, the federal government closed the site and began to clean it up. ECF No. 8-5 at 8. In October 2005, after ten years and over $7 billion in expenditures, the cleanup ended. ECF No. 8-4 at 2. Those efforts removed 21 tons of nuclear material and over 800 structures, including six plutonium facilities. Id.; see also ECF No. 8-5 at 13.

While that cleanup was ongoing, in 2001, Congress passed the Rocky Flats National Wildlife Refuge Act, Pub. L. No. 107-107, 115 Stat. 1012 (2001), which sought to convert the site into the Refuge it is today. The Act declared that “[t]he national interest requires that . . . cleanup and closure of the entire site be completed safely, effectively, and without unnecessary delay and that the site thereafter be retained by the United States and managed so as to preserve the value of the site for open space and wildlife habitat.” Id. § 3172(a)(4). The Act also declared that the “Rocky Flats site provides habitat for many wildlife species, including a number of threatened and endangered species,” and that “[e]stablishing the site as a unit of the National Wildlife Refuge System will promote the preservation and enhancement of those resources for present and future generations.” Id. § 3172(a)(5).

To prepare the Refuge for that future as part of the National Wildlife Refuge System, FWS completed a Comprehensive Conservation Plan and corresponding EIS in the mid-2000s. See ECF No. 8-17 at 6. That document analyzed “the impacts of various alternatives to construct any infrastructure to support future public visitation” of the Refuge. Id. Specifically, it evaluated four alternatives. Id. at 9. And “[a]fter public review and comment, the FWS ultimately chose” an alternative that provided for wildlife, habitat, and public use. Id. That alternative, it found, “best satisfie[d] the missions of the FWS and the National Wildlife Refuge System, the direction of the Rocky Flats National Wildlife Refuge Act of 2001, and the long-term needs of the habitats and wildlife at the Rocky Flats.” Id. Consistent with all the above, FWS “anticipated that over the next 15 years visitor use facilities would include 12.8 miles of multi-use trail, 3.8 miles of hiking-only trail, a visitor contact station, interpretive overlooks, viewing blinds, and associated access and parking facilities.” Id.

Then, in 2006, three agencies-the U.S. Department of Energy (“DOE”), the U.S. Environmental Protection Agency (“EPA”), and the Colorado Department of Public Health and Environment (“CDPHE”)-jointly issued a final cleanup “Corrective Action Decision/Record of Decision,” or “CAD/ROD.”^[2] See ECF No. 8-5. These agencies distinguished between two parts of the Rocky Flats site: the “Central Operable Unit” and the “Peripheral Operable Unit.” Id. at 1. DOE would retain jurisdiction over the Central OU because it required “institutional and physical controls, incorporating continued monitoring and maintenance.” Id. at 3. But as to the Peripheral OU, the agencies concluded that “no hazardous substances, pollutants, or contaminants occur in [it] above levels that allow for unlimited use and unrestricted exposure.” Id. at 5. The CAD/ROD also found that “[c]onditions in the Peripheral OU are acceptable for unrestricted use and unlimited exposure” because “the risk and dose from low levels of residual radionuclides in the Peripheral OU were well within the EPA's acceptable risk range.”^[3]Id. at 64-65. Thus, DOE selected “No Action” as the corrective remedy for the Peripheral OU. Id. at 64.

As a result of all this, EPA certified in 2007 that the cleanup had reached such a point that the Peripheral OU would be removed from the “CERCLA National Priorities List.”^[4] See National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List, 72 Fed.Reg. 29,276, 29,276 (May 25, 2007). That list contains “national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States.” 54 Fed.Reg. 41,015, 41,015 (Oct. 4, 1989). In removing the Peripheral OU from the list, EPA declared that it “poses no significant threat to public health or the environment and, therefore, no further remedial measures pursuant to CERCLA are appropriate.” 72 Fed.Reg. at 29,276.

Thus, DOE transferred jurisdiction over the Peripheral OU to FWS, which would manage it as the Rocky Flats National Wildlife Refuge. See also ECF No. 8-17 at 6.

In September 2018, FWS opened to the public a network of internal trails in the Refuge. ECF No. 8-17 at 5. Two years later, FWS issued an EA for the project at issue here, which it called “Improved Visitor Access to the Rocky Flats National Wildlife Refuge.” See generally id. This project “would improve the 8.2 mile non-motorized trail within the refuge also known as the Rocky Mountain Greenway Trail.” Id. at 5. And it “would also include: (1) the creation of improved ‘off-road' connections to existing regional trail systems, (2) minor improvements to the refuge's existing main entrance and parking area, and (3) support [for] a partner-led project funded through the Federal Lands Access Program (FLAP) to create two additional connections to adjacent open space lands.” Id.

As this extended history of the Refuge lands reflects, FWS's EA for this project came long after DOE, EPA,...