Lemon v. Harvey

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JIM LEMON et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 05-949 (RCL)
)
THE HONORABLE JOHN MCHUGH, )
SECRETARY OF THE ARMY et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Upon consideration of defendants’ Motions for Summary Judgment [66, 67, 68],

plaintiffs’ Motion for Summary Judgment [69], plaintiffs’ Statement of Points and

Authorities [70], defendants’ Replies [71, 72, 74], plaintiffs’ Reply [75], the applicable

law, and the Administrative Record [77-1 to -6] herein, the Court finds that the federal

defendants failed to make a convincing case that no Supplemental Environmental Impact

Statement (“SEIS”) was needed. However, plaintiffs’ requested relief is not appropriate

at this time. Therefore, defendants’ Motions for Summary Judgment will be denied in

part and granted in part, and plaintiffs’ Motion for Summary Judgment will be denied.

I. Background

Plaintiffs Jim Lemon and Robin Biser filed a complaint alleging that the Army

and private defendants did not comply with the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4321 et seq., with respect to a redevelopment plan for a

decommissioned Army base. (Compl. [1] at 20–21.) In September 1998, the Army
closed Fort Ritchie, an Army post in Washington County, Maryland. Prior to closure of a

military post, the Defense Base Closure and Realignment Act (“BRAC”) requires the

Secretary of Defense to consult with state and local governments concerning any plan for

reuse of the property by the local community. See 10 U.S.C. § 2687 note (§

2905(b)(2)(D)). Washington County established a Local Redevelopment Authority

(“LRA”) (Admin. R. at 00007–09), which created a Comprehensive Redevelopment Plan

for the property with input from the local government and community. (Id. at 00011–54.)

In April 1997, Washington County approved the Comprehensive Redevelopment Plan for

the reuse of Fort Ritchie. (Def.’s Mot. for Summ. J. [68] at 5.)

The Army evaluated the planned reuse of Fort Ritchie in a Draft Environmental

Impact Statement (“DEIS”). The Army extrapolated from the Comprehensive

Redevelopment Plan to determine three likely development scenarios, or “Reuse

Alternatives” (Low Reuse Alternative, Low-Medium Reuse Alternative, and Medium

Reuse Alternative), which it evaluated in the DEIS. 1 (Admin. R. at 00336–00506.) The

Comprehensive Redevelopment Plan most closely resembled the Low-Medium Reuse

Alternative. (Id. at 00393.) The Low Reuse Alternative and Medium Reuse Alternative

assumed lower and higher amounts, respectively, of building reuse, building construction,

employment, and housing availability than the Low-Medium Alternative. (Id.) These

amounts were reflected in the form of raw numbers. (Id.) After receiving public

comments on the DEIS, the Army issued a Final Environmental Impact Statement

(“FEIS”) in May 1998. (Id. at 00792–00874.) The Court refers to the DEIS and FEIS

collectively as the “EIS.”

1
The Army decided not to consider two other scenarios—High and Medium-High intensity—because they
were unlikely to occur. (Admin. R. at 00867.)

2
 Under the Army’s methodology, any plan could be placed into a “land use

intensity level,” which is different from the Reuse Alternatives described above. 2 The

intensity levels represent a “continuum” of activity levels on a given piece of land. (Id. at

00388.) At the low end of the continuum would be “uses not requiring substantial

building or infrastructure improvements (e.g., open space, parks, conservation districts,

etc.).” (Id.) At the high end would be “uses requiring substantial infrastructure (heavy

manufacturing and industrial facilities, etc.).” (Id.) The Army exercised its own judgment

to decide how to evaluate land use intensity. (Id.) “No national standards exist to

describe what constitutes low-, medium-, and high-intensity land use, and land use

intensity standards used by land use planners vary considerably.” (Id.) Upon evaluation

of various types of indicators, the Army selected five representative intensity parameters:

residential density, employee density (general spaces), employee density (warehouse

spaces) 3 , floor area ratio, and development ratio. 4 (Id.) “The intensity parameters should

be considered together in evaluating the intensity of reuse of a site so as to provide full

context. Use of any single parameter in isolation may unduly emphasize certain aspects

of a site or preclude broader consideration.” (Id. at 00390.) Each Reuse Alternative was

2
Although the Army sometimes conflates the Reuse Alternatives and the generalized intensity levels (see
Admin. R. at 00388), it treats them practically as separate concepts. This is demonstrated by how the Army
describes them quantitatively. The intensity levels are determined using ranges of raw numbers across five
parameters (id. at 00389), but the Reuse Alternatives are assigned specific raw numbers. (Id. at 00393.)
3
It appears there is no warehouse space at Fort Ritchie, nor is any warehouse space planned in any of the
Reuse Alternatives or the COPT plan. (Admin. R. at 01226.) Because this factor appears to be irrelevant, it
is excluded from any further discussions of the Army’s methodology.
4
Residential density “identifies the number of dwelling units per acre.” (Admin. R. at 01226.) Employee
density (general spaces) “indicates the number of square feet available per employee in all types of
facilities at an installation except family housing and warehouses or storage structures.” (Id.) Floor area
ratio “reflects how much development occurs at a site or across an area.” (Id.) Development Ratio “is based
on the amount of developed property in relation to the total amount of the property subject to land use
planning at a given location.” (Id.)

3
placed into one of these intensity levels and named accordingly (i.e., the Low-Medium

Reuse Alternative falls into the low-medium intensity level). (Id. at 00389–93.)

The Maryland General Assembly created the PenMar Development Corporation

(“PenMar”) to help implement the Comprehensive Redevelopment Plan, and in June

1997, the Army recognized PenMar as the LRA for the site. (Id. at 00317–30, 00334.) In

2004, Corporate Office Properties Trust (“COPT”), a development company, developed a

new plan: the Master Plan for Redevelopment of Fort Ritchie (“COPT plan”). (Id. at

01067–01179.) PenMar approved the COPT plan in 2004. (Id. at 01230.)

The Army issued its FEIS in 1998, six years before PenMar approved the COPT

plan. (Id. at 00792, 01230; Def.’s Mot. for Summ. J. [68] at 7.) Upon issuance of the

COPT plan and its approval by the Department of Housing and Urban Development in

October 2005, the Army prepared a Record of Environmental Consideration (“REC”),

which it issued in January 2006. (Admin. R. at 01223–28.) The REC concluded that the

COPT plan presented “no significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or its impact” and that “no

additional analysis under the National Environmental Policy Act (NEPA) [i.e., no SEIS]

[was] required.” (Id. at 01224.) In October 2006, the Army transferred part of Fort

Ritchie to PenMar, which immediately transferred it to COPT. (Def’s Mot. for Summ. J.

[68] at 8.) In November 2007, the Army transferred the remainder of the property to

PenMar, which transferred it to COPT. (Id.)

In May 2005, the plaintiffs filed suit, alleging that the COPT plan gave rise to

violations of the BRAC, NEPA, and National Historic Preservation Act (“NHPA”). In

August 2006, this Court dismissed all three counts of the plaintiffs’ Second Amended

4
Complaint based solely on the issue of standing. See Lemon v. Harvey, 448 F. Supp. 2d

97, 106 (D.D.C. 2006). Plaintiffs appealed the ruling with respect to their claims under

the NEPA and NHPA. (Pls.’ Statement of P. & A. [70] at 11.) The Court of Appeals

reversed, and the current action is on remand from that decision. See Lemon v. Geren,

514 F.3d 1312, 1316 (D.C. Cir. 2008). Plaintiffs voluntarily dismissed their NHPA claim

in October 2008. (Pls.’ Statement of P. & A. [70] at 11.) The only remaining issues are

whether defendants violated the NEPA and whether the Army must issue a SEIS.

The Army moved for summary judgment, arguing that it was not required to issue

a SEIS because it already evaluated possible environmental impacts of the COPT plan in

the EIS. (Def.’s Reply [71] at 3.) It also argues that the REC adequately demonstrates that

the COPT plan’s environmental impacts were analyzed in the EIS. (Def.’s Mot. for

Summ. J. [68] at 17.)

Plaintiffs filed an opposition to defendants’ motions and also moved for summary

judgment. They claim that the NEPA required the Army to supplement its EIS in light of

the COPT plan and changed circumstances, and that it failed to do so. (Pls.’ Statement of

P. & A. [70] at 12.) Plaintiffs make four arguments in support of their Motion for

Summary Judgment. First, plaintiffs allege that the COPT plan represents a substantially

higher development intensity level than contemplated by the Reuse Alternatives

examined in the EIS. (Id. at 13–16.) Second, they claim that the COPT plan imposes

significant new impacts on Fort Ritchie’s historic district, which the Army failed to

evaluate. (Id. at 16–17.) Third, they claim that Washington County’s non-attainment

status for particulate matter under the Clean Air Act is a significant new circumstance

requiring supplementation of the EIS. (Id. at 17–18.) Finally, they allege that the COPT

5
plan creates significant new impacts from an increase in impervious surfaces and the

transfer of the base’s water system to a private entity. (Id. at 18–20.)

II. Legal Standard

Plaintiffs are challenging the Army’s decision not to issue a SEIS, which is a final

agency action. The Administrative Procedures Act (“APA”) provides for judicial review

of final agency action. 5 U.S.C. §§ 702, 704. Summary judgment is normally appropriate

where there is no genuine issue of any material fact and the moving party is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(c). “In a case involving review of a final

agency action under the [APA], however . . . it is the role of the agency to resolve factual

issues to arrive at a decision that is supported by the administrative record, whereas ‘the

function of the district court is to determine whether or not as a matter of law the

evidence in the administrative record permitted the agency to make the decision it did.’”

AFL-CIO v. Chao, 496 F. Supp. 2d 76, 81–82 (D.D.C. 2007) (quoting Occidental Eng’g

Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985)) (internal citation omitted).

The Court must review the Army’s decision not to issue a SEIS for “agency

action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 375–76 (1989). Under this standard, the Court must engage

in a “thorough, probing, in-depth review” of the administrative record to determine

whether the Army’s decision “was based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 415, 416 (1971).

6
 Under the law of this Circuit, an agency has additional burdens of persuasion in

the particular context of NEPA review: the agency must (1) accurately identify the

relevant environmental concern; (2) take a “hard look” at the problem in preparing the

REC; (3) make a “convincing case” that the potential environmental impact is not

significant enough to require a SEIS; and (4) show that “even if there is an impact of true

significance, [a SEIS] is unnecessary because changes or safeguards in the project

sufficiently reduce the impact to a minimum.” 5 Mich. Gambling Opposition v.

Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (citing TOMAC v. Norton, 433 F.3d 852,

861 (D.C. Cir. 2006)). The Court reviews the administrative record only to determine

whether the Army “followed the necessary procedural requirements.” Overton Park, 401

U.S. at 417. Even if this Court disagrees with the Army’s decisions and conclusions, it

may not substitute the agency’s judgment with its own. Id. at 416.

Under the NEPA, an agency must issue a SEIS if (1) “[t]he agency makes

substantial changes in the proposed action that are relevant to environmental concerns” or

(2) “[t]here are significant new circumstances or information relevant to environmental

concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1); 32

C.F.R. § 651.5(g)(2) (implementing NEPA regulations as applied to action by the Army).

Under the second prong of this regulation, a SEIS is required where “new information

‘provides a seriously different picture of the environmental landscape.’” City of Olmstead

Falls, OH v. Fed. Aviation Admin., 292 F.3d 261, 274 (D.C. Cir. 2002) (quoting

5
The additional requirement to make a “convincing case” differs somewhat from the requirements of
Overton Park. The Court of Appeals determined that this additional requirement is appropriate in the
context of the NEPA: “This burden should rest on the Government, both because of the high value placed
on the protection of the environment by the National Environmental Policy Act of 1969, and because of the
risk of error which results from not writing an impact statement on a project requiring one.” Md.-Nat’l
Capital Park & Planning Comm’n v. U.S. Postal Serv., 487 F.2d 1029, 1040 n.10 (D.C. Cir. 1973) (citing
Int’l Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973)).

7
Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984)). The Supreme Court

interprets the NEPA to mean that “[i]f there remains ‘major Federal actio[n]’ to occur,

and if the new information is sufficient to show that the remaining action will ‘affec[t]

the quality of the human environment’ in a significant manner or to a significant extent

not already considered, a supplemental EIS must be prepared.” Marsh, 490 U.S. at 374

(quoting 42 U.S.C. § 4332(2)(C)). Determining how “significant” new information is

requires consideration of “context” 6 and “intensity.” 7 Marsh, 490 U.S. at 374 n.20 (citing

40 C.F.R. § 1508.27).

If the Army’s “hard look” at any changes to the development plan, new

circumstances, or new information indicates that no SEIS is required, it may instead issue

6
“[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. Significance varies
with the setting of the proposed action. For instance, in the case of a site-specific action, significance would
usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term
effects are relevant.” 40 C.F.R. § 1508.27(a).

7
“[Intensity] refers to the severity of impact. Responsible officials must bear in mind that more than one
agency may make decisions about partial aspects of a major action. The following should be considered in
evaluating intensity:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal
agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park
lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly
controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve
unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or
represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant
impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the
environment. Significance cannot be avoided by terming an action temporary or by breaking it down into
small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects
listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of
significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat
that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the
protection of the environment.” 40 C.F.R. § 1508.27(b).

8
a REC. 32 C.F.R. § 651.5(g)(2). “A REC briefly describes the proposed action and

timeframe, identifies the proponent and approving official(s), and clearly shows how an

action . . . is already covered in an existing . . . EIS.” 32 C.F.R. § 651.19.

Thus, if review of the administrative record plainly shows that the Army ignored

“substantial changes” to the development plan, “significant new circumstances,” or

“significant new information,” or if the Army considered relevant factors but failed to

make a “convincing case” that no SEIS was required, the Court must enter judgment for

the plaintiffs. But if the record shows that the Army took a “hard look” at these factors

and convincingly concluded that no SEIS was required, the defendants must prevail.

III. Discussion

The Army argues that it took a “hard look” at the COPT plan and determined in

the REC that any environmental impacts from this plan had already been evaluated in the

EIS. (Def.’s Mot. for Summ. J. [68] at 15, 17.) The Army claims that the EIS evaluated

the impacts of any plan that fell into the low, low-medium, or medium intensity levels,

and because the REC demonstrates that the COPT plan fell into the medium intensity

level, the Army is not required to issues a SEIS. (Def.’s Reply [71] at 6.)

Plaintiffs claim that four factors required the Army to issue a SEIS in light of the

COPT plan. First, they dispute the Army’s claim that it evaluated “any” development

plan that fell within one of the low to medium intensity levels. They argue that the EIS

only evaluated three specific Reuse Alternatives and that the COPT Plan represents a

substantially greater development intensity than contemplated in any of these scenarios.

(Pls.’ Reply [76] at 2–3.) Second, they argue that the COPT Plan will result in significant

9
impacts on the Fort Ritchie historic district, which the Army failed to consider. See 40

C.F.R. § 1508.27(b)(3), (8) (agency should consider “proximity to historic or cultural

resources” and possible adverse effects on sites “listed in or eligible for listing in the

National Register of Historic Places” or on “significant . . . cultural[] or historical

resources”); (Admin. R. at 00444 (describing elements of the historic district)). Third,

they claim that Washington County’s transition to non-attainment status for particulate

matter under the Clean Air Act (Admin. R. at 01228) is a “significant new circumstance,”

and that the Army failed to explain adequately why the adverse air impacts did not

require further analysis. Finally, they argue that the increase in impervious surfaces and

the transfer of Fort Ritchie’s water system to a private entity under the COPT Plan

constitute “substantial project changes” that require examination in a SEIS. The Court

addresses each claim in turn.

a. Greater Development Intensity

Plaintiffs argue that the Army should have issued a SEIS because “the COPT

plan’s increased intensity of development will result in significant environmental

impacts” over and above the impacts of the Reuse Alternatives examined in the EIS.

(Pls.’ Statement of P. & A. [70] at 13.) The Army argues that plaintiffs misunderstand its

methodology, which it claims evaluated the impacts of any plan falling within any of the

three land use intensity levels. The Court finds the Army’s argument unpersuasive.

The Army states that it did not evaluate the impacts of any specific development

plan, but rather assessed the raw numbers of three plans then under consideration (the

Reuse Alternatives) to place them within general “intensity levels.” (Def.’s Reply [71] at

10
5.) It then determined the potential range of impacts that would arise under each intensity

level. (Id.) The Army argues that, because the COPT plan’s land use intensity parameters

cause the plan to fall within one of the intensity levels it already examined, it need not

make any further conclusions about the COPT plan’s potential impacts.

If the Army were in fact following the methodology described, the Court would

have to defer to its conclusions. It appears, however, that the Army did not evaluate the

impacts of generalized intensity levels, but rather examined specific raw numbers

associated with the three Reuse Alternatives. Further, its conclusions about

environmental impacts appear to depend on these raw numbers. The Court does not see

how the Army could have looked at the potential range of impacts when its conclusions

depend on figures specific to each plan. Because the REC does not adequately explain

this discrepancy, the Court cannot accept the Army’s conclusion that the COPT plan will

have no additional impact. Due to the complexity of this case, the Court’s conclusions

about the Army’s methodology require some explanation.

1. The Army’s Methodology

Contrary to its own statements, the Army does not look at a range of potential

impacts under each generalized land use intensity level, but rather draws conclusions

about environmental impacts from raw numbers associated with specific Reuse

Alternatives. The Court concludes that the Army examined the Reuse Alternatives

instead of the intensity levels in part because the Army states as much in the DEIS:

This EIS analyzes reuse of Fort Ritchie, which is expected to occur. The
nature of the reuse cannot be identified precisely. The Army considers the
LRA’s redevelopment plan the primary factor in defining the reuse

11
 scenarios to be considered and evaluates that reuse plan for potential
environmental effects. (Admin. R. at 00387 (emphasis added).)

Additionally, the Army’s evaluation of environmental impacts appears to rely on

the specific raw numbers associated with the Reuse Alternatives and not on the ranges of

numbers associated with the intensity levels. The discussion of impacts on air quality

under the Medium Reuse Alternative, for example, estimates emissions using that

Alternative’s estimate for the specific number of employee commuter trips, construction

vehicle trips, and gallons of paint used. 8 (Id. at 00488–89.) The EIS presents conclusions

about the Medium Reuse Alternative’s environmental impacts based on the emissions

estimated using these specific numbers. (Id. at 00487.) The EIS also relies on specific

raw numbers for its evaluation of soils (id. at 00491), water resources (id. at 00492), and

infrastructure (id. at 00493). The REC, on the other hand, examines land use intensity

parameters—residential density, employee density, floor area ratio, and development

ratio—to place the COPT plan into the medium land use intensity level. From this

placement into the medium intensity level, the Army concludes that the range of impacts

in all areas of environmental concern will be the same under the COPT plan as under the

Medium Reuse Alternative.

Thus, the Army’s logic is as follows: the Medium Reuse Alternative will have X,

Y, and Z impacts on the environment because of the specific amount of construction and

number of employees envisioned under that Reuse Alternative. The Medium Reuse

Alternative land use parameters cause it to fall into the medium land use intensity level.

8
The number of employee commuter trips is itself estimated using the specific number of employees
(3,162) envisioned under this Reuse Alternative. (Admin. R. at 00489.) The amount of paint used is
estimated using the specific amount of new construction and building reuse under this Reuse Alternative.
(Id. at 00488.)

12
The COPT plan also falls into the medium intensity level, therefore, the COPT plan will

also have X, Y, and Z impacts on the environment. Although the Army examined the

amount of construction and number of employees to determine environmental impacts of

the Medium Reuse Alternative, it need not do so to determine the COPT plan’s

environmental impacts. Although the Court cannot tell the Army how to develop its

methodology, it also cannot accept such a strained line of reasoning.

The Army cannot demonstrate NEPA compliance merely by stating that it used a

NEPA-compliant methodology. It must actually use that methodology. The Army argued

that is was examining the potential range of impacts associated with each intensity level,

but from all appearances it examined impacts associated with specific raw numbers, not

ranges. The Army failed to demonstrate adequately that it determined the full range of

impacts within a given intensity level, therefore the Court cannot accept the Army’s

argument that its methodology complied with the NEPA.

2. Inadequacy of the REC

Under the NEPA, the Army must take a “hard look” at any changes to the

development plan, new circumstances, or new information. See Marsh, 490 U.S. at 374,

385; 32 C.F.R. § 651.5(g)(2). If this hard look indicates that no SEIS is required, the

Army may instead issue a REC. 32 C.F.R. § 651.5(g)(2). The REC must “clearly show[]

how an action . . . is already covered in an existing . . . EIS.” Id. § 651.19. The Court

cannot understand how the REC in this case “clearly showed” how the COPT plan was

already covered in the EIS when the EIS did not cover the potential range of impacts

under the medium land use intensity level. The REC examines residential density, square

13
feet per employee, floor area ratio, and development ratio. These parameters may be

useful in determining some impacts, but the Army does not explain nor is it anywhere

evident how they are adequate to determine all impacts presented in the REC. (Admin. R.

at 01227.) The Army itself used other factors, such as the number of employees or

amount of impervious area, to determine environmental impacts on air quality, soils,

water resources, and infrastructure. 9 (Id. at 00487–89, 00491–94.) The REC does not

show even a cursory attempt to make light of these factors or to demonstrate how they

produce the same conclusions as the EIS. The Court decides, therefore, that even if the

Army did take the requisite “hard look” at the COPT plan, it did not adequately explain

itself in the REC.

3. Conclusion

In sum, when deciding whether to issue a SEIS, the Army has the discretion to

determine how it will come to conclusions about environmental impact, but it must

ensure it adheres to the requirements of the NEPA in doing so. In this case, it must take a

“hard look” to determine if a new proposed action presents changes, new circumstances,

or new information beyond what has already been examined in an EIS. See Marsh, 490

U.S. at 374, 385. Second, if the Army determines it need not supplement the EIS, it must

“clearly show” that it took a hard look and that the existing EIS already accounts for any

purported changes, new circumstances or new information in the new proposed action. 32

C.F.R. § 651.19. In the EIS, the Army came to conclusions about environmental impacts

9
Although one might argue that the REC addressed the total number of employees by using employee
density as a proxy, the Army did not attempt, as it did for the Reuse Alternatives, to show the link between
the COPT plan’s employee figures and its impacts on air quality. It is therefore unclear why the impacts on
air quality would be the same under the COPT plan and the Medium Reuse Alternative.

14
using raw numbers associated with specific Reuse Alternatives. In the REC, the Army

failed to examine the COPT plan’s raw numbers and failed to make a convincing case

that those raw numbers were not factors that it should have examined in making a finding

of no significant impact. Before the COPT plan may proceed, the Army must issue either

a SEIS addressing significant impacts of the COPT plan or a new REC that makes a

convincing case why the COPT plan presents no significant impacts above and beyond

those determined in the EIS.

b. Historic Area

Plaintiffs claim that the COPT plan may impose significant impacts on Fort

Ritchie’s historic district. (Compare Admin. R. at 00444–50 (describing and mapping

elements of historic district) with id. at 01174–79 (showing changes to historic district

under COPT plan).) The Court agrees and finds that the Army failed to make a

“convincing case” in the REC that the COPT plan would have no significant impact on

cultural resources. See Mich. Gambling Opposition, 525 F.3d at 29. Therefore, before the

defendants may proceed with the COPT plan, the Army must take the required “hard

look” at possible impacts on the historic district and address these impacts in either a

REC or a SEIS.

Under the NEPA, the Army must issue a SEIS if it makes substantial changes to a

project that are relevant to the environment or if significant new circumstances or

information relevant to the environment come to light. 40 C.F.R. § 1502.9(c)(1); 32

C.F.R. § 651.5(g)(2); see also 42 U.S.C. § 4332. In the context of the NEPA,

“significantly” refers to, inter alia, the severity of the project’s impact on historic or

15
cultural resources and the extent to which the project may cause the loss or destruction of

these resources. 40 C.F.R. § 1508.27(b)(3), (8). If the Army takes the requisite “hard

look” at the project changes, new circumstances, or new information and determines that

“previous analyses and documentation” are adequate to address them and that no

supplemental documentation is required, it must state as much in a REC. 32 C.F.R. §

651.5(g)(2). In order not to issue a SEIS, the Army must either make a “convincing case”

that the project changes or new circumstances will create no significant environmental

impact, or, if it finds there will be significant impact, show that “changes or safeguards in

the project sufficiently reduce the impact to a minimum.” Mich. Gambling Opposition,

525 F.3d at 29.

Here, even if the Army took a “hard look” at project changes inherent in the

COPT plan, the Court finds that the Army failed to make a convincing case in the REC

that no supplemental documentation was required to address possible adverse effects on

Fort Ritchie’s historic district. First, in the REC, the Army fails to consider factors

relevant to possible impacts on Fort Ritchie’s historical and cultural resources. Second,

the COPT plan makes major changes beyond those envisioned in the Comprehensive

Reuse Plan and Reuse Alternatives, but the Army fails to address these changes in the

REC. Finally, in light of these major changes, the Army should have outlined mitigation

measures, but failed to do so.

The Army did not examine factors relevant to historical or cultural resources in

the REC. Although the REC went into great detail in analyzing the COPT plan’s land use

intensity parameters (Admin. R. at 01225–27), it is not at all apparent to the Court how

these land use parameters have any bearing on historical resources. The DEIS confirms

16
this view. The DEIS’s discussion of impacts on historical resources under the Medium

Reuse Alternative does not reference any of the land use intensity parameters. (Id. at

00498.) Instead, the DEIS analyzed the amount of new construction, demolishment, and

reuse of existing structures. This discussion in the DEIS made specific reference to the

raw numbers associated with the Medium Intensity Reuse Alternative, indicating that an

examination of the generalized impacts associated with the medium land use intensity

level would be inadequate to address effects on historical resources. In the REC, the

Army should have either made specific mention of these raw numbers, which it

apparently considered relevant factors in drawing conclusions in the EIS, or it should

have explained why reference to the raw numbers of the COPT plan was unnecessary to

make a finding of no significant impact.

Furthermore, the COPT plan makes major and obvious changes to Fort Ritchie’s

historic district, none of which are addressed in the REC. The Army failed to make a

“convincing case” that these changes were not significant or that changes in the project

were sufficient to mitigate the effects of these changes. In particular, the COPT plan

contemplates the construction of buildings and sports facilities on the historic parade

ground. (See id. at 01174–79.) Examination of the administrative record strongly implies

that building on the parade ground was not envisioned under any of the Reuse

Alternatives examined in the EIS. The Comprehensive Redevelopment Plan on which the

Reuse Alternatives were based assumed that the parade ground would essentially remain

untouched, being “integrated into any new development scenario as a green open space.”

(Id. at 00054.) The Army should have addressed these blatant divergences from the

original Reuse Alternatives and their impacts on Fort Ritchie’s historical resources. At a

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bare minimum, it should have explained in the REC whether and how it would take steps

to mitigate these effects.

The Army argues that it has taken steps to mitigate any negative effects that the

COPT plan may have on Fort Ritchie’s historic district, primarily through institution of a

Programmatic Agreement to reduce impacts on historical resources. (See Def.’s Reply

[71] at 7–11.) This may be true, but the Army did not adequately outline these measures

as they would apply to the COPT plan, as required by 32 C.F.R. § 651.5(g)(2) and this

Circuit’s precedent. See Mich. Gambling Opposition, 525 F.3d at 29; (Admin. R. at

01223–28). Although the Army states in its court filings that the Programmatic

Agreement will avoid or mitigate adverse effects to the historic district (Def.’s Reply [71]

at 8–11), it failed to establish this in the REC. Although the REC mentions the

Programmatic Agreement as part of its section on “Background” (Admin. R. at 01223), it

is clear that the Programmatic Agreement’s adequacy was evaluated only in relation to

PenMar’s Comprehensive Redevelopment Plan and not to the COPT plan. (See id. at

00506.) Therefore, the Army failed to evaluate the adequacy of mitigation efforts in the

face of significant new circumstances or changes.

The Army also implies that its satisfaction of the NHPA’s requirements is

sufficient for purposes of the NEPA. (See Def.’s Reply [71] at 8–9.) The Court clarifies

here that this is not the case. Although the NHPA and NEPA resemble each other in

certain respects 10 , compliance with the NHPA “does not relieve a federal agency of the

duty of complying with the impact statement requirement ‘to the fullest extent possible.’”

10
“Both Acts create obligations that are chiefly procedural in nature; both have the goal of generating
information about the impact of federal actions on the environment; and both require that the relevant
federal agency carefully consider the information produced.” Pres. Coal., Inc. v. Pierce, 667 F.2d 851, 859
(9th Cir. 1982).

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Pres. Coal., 667 F.2d at 859 (quoting 42 U.S.C. § 4332). “To the fullest extent possible”

in this case means that the Army should have either supplemented the EIS or documented

in a REC its reasons for not issuing a SEIS. The Army did neither with respect to impacts

on historic resources, and compliance with the NHPA does not alter this fact.

40 C.F.R. § 1502.9(c)(1) and 32 C.F.R. § 651.5(g)(2) are very clear that a finding

of no significant impact must be documented in a SEIS or REC. If there will be an

impact, an agency seeking to show that a SEIS is unnecessary must demonstrate that

mitigation measures “sufficiently reduce the impact to a minimum.” Mich. Gambling

Opposition, 525 F.3d at 29. The Army failed to do either with respect to possible impacts

of the COPT plan on Fort Ritchie’s historic district. Therefore, the Army and the private

defendants may not move forward with the COPT plan until the Army issues either a

SEIS or REC that complies with these requirements under the NEPA.

c. Washington County’s Non-Attainment Status under the Clean Air Act

Due to the Court’s holding that the COPT plan may not proceed unless and until

the Army either issues a SEIS or a REC that adequately explains its decision not to

supplement the FEIS or its determination that mitigation efforts will suffice, the non-

attainment status issue is not ripe for review at this time. The Army will have to take

another “hard look” to address whether the COPT plan presents changes significant

enough to warrant a SEIS, therefore it will have another opportunity to determine

whether Washington County’s non-attainment status for particulate matter is a

“significant new circumstance.” If it is not a significant new circumstance, the Army will

have the opportunity to make a “convincing case” demonstrating as much. If it is

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significant, the Army may show that mitigation measures “sufficiently reduce the impact

to a minimum.” Mich. Gambling Opposition, 525 F.3d at 29.

d. Increased Impervious Surfaces

Similarly, plaintiffs’ claim regarding increased impervious surfaces under the

COPT plan is also not ripe for review. Because the Army will, at the very least, have to

issue another REC to permit the COPT plan to proceed, it would be inappropriate to order

the Army to issue a SEIS to address this issue. The Army may well take a “hard look”

and find that an increase in impervious surfaces does not represent a “significant” change

necessitating a SEIS. If this turns out to be the case, the Army will have to make a

“convincing case” explaining the reasons for its finding.

e. Transfer of Water System to a Private Entity

Finally, plaintiffs contend that the transfer of Fort Ritchie’s water system to a

private entity will impact surrounding communities by increasing hook-up fees. (Pls.’

Statement of P. & A. [70] at 20.) This argument must fail. As the Army points out,

“[o]nly when socioeconomic effects somehow result from a project’s environmental

impact must they be considered.” (Def.’s Reply [71] at 14 (quoting Hammond v. Norton,

370 F. Supp. 2d 226, 243 (D.D.C. 2005)).) Plaintiffs’ chain of causation does not

implicate environmental impacts; they state that the transfer of the water system itself

may directly cause significant economic impacts without environmental impacts playing

any sort of intermediate role. (See Pls.’ Statement of P. & A. [70] at 20.) Cf. Metro.

Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983) (NEPA requires

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“a reasonably close causal relationship between a change in the physical environment and

the effect at issue”). Although the Army may determine subsequently that it should

address environmental impacts of the transfer of Fort Ritchie’s water system, it need not

do so for the reason that plaintiffs advance.

IV. Conclusion

For the foregoing reasons, the defendants’ Motions for Summary Judgment [66,

67, 68] will be DENIED in part and GRANTED in part, and the plaintiffs’ Motion for

Summary Judgment [69] will be DENIED.

A separate order shall issue this date.

Date

November 10, 2009.

_______/s/_______________
ROYCE C. LAMBERTH
Chief Judge
United States District Court

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