Ports v. U.S. Coast Guard

COALITION FOR HEALTHY PORTS, et al., Plaintiffs, v. THE UNITED STATES COAST GUARD, et al., Defendants.

No. 13-CV-5347 (RA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 24, 2015

OPINION AND ORDER

RONNIE ABRAMS, United States District Judge:

This case concerns the adequacy of the United States Coast Guard's environmental review of a project proposed by the Port Authority of New York and New Jersey to raise the height of the Bayonne Bridge so that larger ships can more readily access the Port of New York and New Jersey (the "Project"). In assessing the Project's environmental impacts, the Coast Guard opted to prepare an environmental assessment ("EA"), rather than a more detailed environmental impact statement ("EIS"). On the basis of this EA, it concluded that Project impacts would be insignificant, and issued a so-called finding of no significant impact ("FONSI").

Plaintiffs Coalition for Healthy Ports, Amy Goldsmith, North Shore Waterfront Conservancy of Staten Island, Inc., The Elm Park Civic Association, Inc., and the Natural Resources Defense Council, Inc. (collectively, "Plaintiffs") appeal from this decision, and contend that the Coast Guard violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., by failing to take a "hard look" at the Project's induced growth, construction, environmental justice, and cumulative effects, and by insufficiently engaging the public in its induced growth analysis. Before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, Defendants' motions are granted in their entirety, and Plaintiffs' motion is denied.

BACKGROUND

I. Statutory Framework

NEPA requires that "all agencies of the Federal Government" prepare an environmental impact statement, or EIS, upon proposing any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "[An EIS is a] detailed statement describing the environmental impact of the proposed action." Pogliani v. U.S. Army Corps of Eng'rs, 306 F.3d 1235, 1237 (2d Cir. 2002); see generally 40 C.F.R. § 1502 (setting out procedural and substantive requirements of such statements).

If it is unclear whether a proposed action will have a "significant" effect on the environment, an agency may first conduct an EA. See 40 C.F.R. §§ 1501.3-1501.4. An EA is a "concise public document . . . that serves to . . . [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement." 40 C.F.R. § 1508.9(a). An EA "examines the environmental aspects of the project in less detailed terms than an EIS," Pogliani, 306 F.3d at 1237, and an agency preparing an EA is required to "involve environmental agencies, applicants, and the public" only "to the extent practicable," 40 C.F.R. § 1501.4(b).

An agency conducting an environmental review—whether an EIS or an EA—must consider and disclose a project's "direct" and "indirect" effects. 40 C.F.R. § 1508.8. "Direct effects" are those that "are caused by the action and occur at the same time and place," 40 C.F.R. § 1508.8(a), and include, among other things, construction-related impacts. "Indirect effects," meanwhile, are those that "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b). Indirect effects include"growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." Id.

NEPA also requires reviewing agencies to consider the "cumulative impacts" of a project. 40 C.F.R. § 1508.7. A "cumulative impact" is the "impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." Id. Cumulative impacts can thus "result from individually minor but collectively significant actions taking place over a period of time." Id.

Finally, as is relevant here, reviewing agencies must also consider a project's environmental justice impacts, an obligation imposed upon federal agencies by executive order See Exec. Order No. 12898, 59 Fed. Reg. 7630 (Feb. 11, 1994) (the "Executive Order"). A presidential memorandum accompanying the Executive Order, as well as subsequent guidance issued by the Council on Environmental Quality ("CEQ"), have clarified the Executive Order's scope in the context of NEPA: "Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the [NEPA]." Presidential Memorandum, Executive Order on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 1 Pub. Papers 241, 242 (Feb. 11, 2014); see also CEQ, Environmental Justice Guidance Under the National Environmental Policy Act (1997) [hereinafter "Environmental Justice Guidance"].

If, on the basis of all the impacts considered and disclosed in an EA, an agency determines that an action will not significantly affect the environment, it must prepare a FONSI. See 40 C.F.R.§ 1501.4. A project can proceed only if the agency has either issued a FONSI, or fully disclosed the anticipated significant impacts of a project in a more detailed EIS. Here, the Coast Guard determined that it need not prepare an EIS, and instead prepared an EA and issued a FONSI.

II, Factual Overview¹

The Bayonne Bridge (the "Bridge") spans the Kill Van Kull, a tidal strait that runs between Staten Island, New York and Bayonne, New Jersey. See AR 4802, 4880. The Kill Van Kull is the primary shipping channel between New York Harbor and the Howland Hook and Port Newark-Elizabeth Marine Terminals, west of the Bridge. See id. at 4802, 4880. There is no alternate shipping route. Id. at 4804. Together with the Brooklyn and Port Elizabeth Terminals east of the Bridge, these four terminals comprise the Port of New York and New Jersey (the "Port")—the largest port on the Eastern Seaboard, and the third-busiest port in the United States. See id.

Cargo arriving at the Port is shipped—by truck or by rail—to a vast swath of the eastern United States, an area divided into a "primary hinterland" and a "secondary hinterland."² See id. at 5181-84. The Port's primary hinterland is the inland area within a 260-mile radius of its terminals, while its secondary hinterland includes the inland area between 260 and 400 miles from its terminals. See id.³ In order to access these inland areas, trucks transporting cargo from the Port'sterminals west of the Bridge must pass through Newark, New Jersey, see AR 5189, which Plaintiffs characterize as an environmental justice community, see Pls. Br. 9.⁴

The existing Bridge restricts access by so-called post-Panamax ships to the Port's terminals west of the Bridge. AR 4808. Post-Panamax ships are a larger class of cargo vessel—approximately 1.5 times the size of existing cargo ships—the shipping industry is expected to adopt on a widespread basis following the completion of the Panama Canal widening project later this year. See id. at 4802, 4805. Whereas the Bridge's existing air draft—the vertical clearance of its roadway over the Kill Van Kull—is 151 feet, id. at 4802, the height of post-Panamax ships is 190 feet, id. at 4805.

A 2009 study conducted by the U.S. Army Corps of Engineers ("USACE"), the Bayonne Bridge Air Draft Study ("BBADA"), id. at 17252-320, estimated that elimination of the Bridge's air draft restriction would produce economic benefits of "a magnitude that would justify the cost of doing so." Id. at 17291. It found that elimination of the restriction would enable "fewer but larger vessels . . . to carry the same amount of commerce" as would otherwise be carried by a larger number of smaller vessels, id. at 17287-88, thus enabling the realization of "transportation cost savings to the nation that are attributable to the economies of scale that may be captured using larger vessels," id. at 17291. The total economic benefit of eliminating this restriction, USACE found, could exceed $3 billion. Id. at 17288.⁵

In 2011, the Port Authority applied to the Coast Guard for an amendment to the Bridge's original construction permit, so that it could undertake the Project to raise the roadway of theBridge and eliminate its existing air draft restriction. See generally id. at 2-332.⁶ The purpose of the Project, as characterized in the Port Authority's permit application, is to "raise the navigational clearance of the Bayonne Bridge to adapt the [sic] current trend in the shipping industry and allow for the port facilities west of the Bayonne Bridge to accept larger Post-Panamax vessels." Id. at 6. In addition, the Project will "bring the bridge into conformance with modem highway and structural design standards." Id.

In October of 2011, the Coast Guard made public its NEPA Work Plan, which provided an overview of the Project, its purpose, potential alternatives, and the topics the Coast Guard expected to consider as part of its environmental review. See id. at 31378-402. The Work Plan also defined the Project's so-called "study area" as consisting exclusively of northern Staten Island and Bayonne; it did not mention Newark, and Newark is not within the Project's study area. Id. at 31396. The Coast Guard convened an interagency meeting regarding the Work Plan on October 11, 2011, and solicited public comments until December 9, 2011. See id. at 4821. In February of 2012, it released a twenty eight-page document responding to the comments it received on the Work Plan, including comments from the Environmental Protection Agency (EPA) and the Federal Highway...