Feds Dodge Enviro Claims Over Minn. Light Rail

     MINNEAPOLIS (CN) – The Federal Transit Administration will not face claims that its proposed light-rail system in Minnesota violates environmental law, a federal judge ruled.
     The Lakes and Parks Alliance of Minneapolis LPA sued the FTA and the Metropolitan Council in Minnesota Federal Court in September 2014, claiming the parties’ decision to move ahead with the light-rail project prior to the completion of a full environmental review violated the National Environmental Policy Act and the Minnesota Environmental Policy Act.
     The proposed light-rail line would run from downtown Minneapolis to the southwestern Twin Cities and would cut through the Kenilworth Corridor, a 1.5 mile stretch of environmentally sensitive land containing a bike and pedestrian trail.
     After considering numerous alternatives, the FTA and the council moved forward with a plan that includes the construction of a single tunnel under a portion of the corridor.
     In compliance with state law, the project was approved by the local and county governments it will affect in August 2014, even though a full environmental impact statement had not yet been completed.
     The environmentalists filed suit shortly thereafter, and the defendants moved to dismiss the complaint for lack of jurisdiction and failure to state claim.
     U.S. District Court Judge John R. Tunheim determined that the FTA is entitled to sovereign immunity and dismissed the NEPA claim against the agency.
     Tunheim explained in his opinion that district courts lack jurisdiction to hear claims against federal agencies unless sovereign immunity has “been expressly waived.”
     In the case of NEPA claims, the Administrative Procedure Act is generally regarded as the only such waiver.
     The environmentalists had argued that NEPA allows for judicial review prior to the completion of an impact statement and cited two cases to buttress its argument.
     But Tunheim disagreed, writing that “the cited cases detract from, rather than help the LPA’s case.”
     The judge added that “only Congress can waive sovereign immunity” and that “the LPA cites no authority – in NEPA, any statutory language regarding the Council on Environmental Quality, or elsewhere – to the contrary.”
     He concluded: “Thus, even if NEPA contained an explicit waiver of sovereign immunity, the regulation could not waive sovereign immunity because it is not an act of Congress.”
     The Metropolitan Council did not escape the LPA’s NEPA claim, although Judge Tunheim determined that only a “limited cause of action” exists in this regard.
     The group had cited the Fourth Circuit case Wildlife Federation v. Limehouse – which dealt with the construction of a bridge in South Carolina – and asked the court for an opportunity “to intercede before NEPA’s environmental review process is rendered meaningless by the Met Council’s actions under the municipal consent regime.”
     Tunheim concluded that “the LPA has certainly provided sufficient allegations, at least at this early stage of the proceedings, to show that the Met Council’s actions pursuant to the municipal consent process could dramatically alter or reduce, or change the cost of, the alternatives available to the FTA during its environmental review.”
     However, Tunheim also pointed out that “the court passes no judgment at this point about whether the municipal consent process has violated the letter of spirit of the environmental review processes required by law.”
     As to the group’s state-law environmental claim, the judge noted that they can only challenge a final decision by the council – which hasn’t happened yet – leaving the court with no jurisdiction to hear the MEPA claim.
     Tunheim concluded his 46-page opinion with a strongly worded summation that appeared to give little hope to the environmentalists going forward.
     “No one should read more into this opinion than what it is: a determination that the court has jurisdiction to hear the LPA’s cause of action against the Met Council under NEPA and under the state’s municipal consent statutes for light rail construction,” Tunheim wrote. “The LPA has sufficiently stated a cause of action under these two statutes. The question presented is whether under the unique facts of this case the Met Council has improperly limited the choices available during the remaining stages of environmental review under NEPA. Whether the LPA can demonstrate sufficient facts to obtain summary judgment and the relief sought is a separate matter to be determined at a later time.”

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