Maryland Motion To Expedite - Purple Line Lawsuit - July 3, 2017 Filing

USCA Case #17-5132 Document #1682460 Filed: 07/03/2017 Page 1 of 24
No. 17-5132
____________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA
____________________
STATE OF MARYLAND,
DEFENDANT-INTERVENOR-APPELLANT
v.
FRIENDS OF THE CAPITAL CRESCENT TRAIL, JOHN MCKNIGHT

FITZGERALD AND CHRISTINE REAL DE AZUA
PLAINTIFFS-APPELLEES
____________________
APPELLANTS MOTION TO EXPEDITE
136072497.4
TABLE OF CONTENTS
Page
BACKGROUND FACTS .........................................................................................2
ARGUMENT ............................................................................................................4
1. Continued Delay is Causing Appellants Irreparable Injury ................. 5
2. The District Courts Opinions are Subject to Substantial

Challenge ..............................................................................................9
A. The District Court Abused Its Discretion in Failing to

Reconsider Its Order Vacating the Record of Decision............. 9
B. The FTA Properly Determined That an SEIS Is Not

Needed......................................................................................11
3. The Public and Persons Not Before the Court Have an Unusual
Interest in Prompt Disposition............................................................16
PROPOSED SCHEDULE ......................................................................................17
CONCLUSION .......................................................................................................17
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
-i-
TABLE OF AUTHORITIES
Page
CASES
Allied Signal v. Nuclear Regulatory Commn,
988 F.2d 146 (D.C. Cir. 1993) ............................................................................10
Coalition on Sensible Transportation, Inc. v. Dole,

826 F.2d 60 (D.C. Cir. 1987) ..............................................................................12
Gerber v. Norton,
294 F.3d 173 (D.C. Cir. 2002) ............................................................................15
Getty v. Federal Savings and Loan Insurance Corp.,
805 F.2d 1050 (D.C. Cir. 1986) ..........................................................................15
Marsh v. ONRC,
490 U.S. 360 (1989) ............................................................................................11
Monsanto v. Geertson Seed Farms,

561 U.S. 139 (2010) ............................................................................................11
Montrose Parkway Alternatives Coal. v. U.S. Army Corps of
Engineers,
405 F. Supp. 2d 587 (D. Md. 2005) ...................................................................... 7
Natl Comm. for the New River, Inc. v. FERC,
373 F.3d 1323 (D.C. Cir. 2004) ..........................................................................11
Public Employees for Environmental Responsibility (PEER) v.

Hopper,
827 F.3d 1077 (D.C. Cir. 2016) ....................................................................14, 15
Sierra Club, Inc. v. Bostick,

539 F. Appx 885 (10th Cir. 2013) ....................................................................... 8
Sierra Club v. United States Army Corps of Engineers,

990 F. Supp. 2d 9 (D.D.C. 2013) .......................................................................... 7
St. Johns United Church of Christ v. FAA,

550 F.3d 1168 (D.C. Cir. 2008) ..........................................................................12
-ii-
TABLE OF AUTHORITIES
(continued)
Page
Winter v. NRDC,
555 U.S. 7 (2008) ..................................................................................................5
Wisc. Gas Co. v. FERC,

758 F.2d 669 (D.C. Cir. 1985) .............................................................................. 5
STATUTES
16 U.S.C. 703712 ................................................................................................3
16 U.S.C. 1531-1544 ............................................................................................3
23 U.S.C. 138 ..........................................................................................................3
28 U.S.C. 1657 ....................................................................................................1, 4

42 U.S.C. 4321-4370m .....................................................................................3, 6
49 U.S.C. 303 ..........................................................................................................3
REGULATIONS
23 C.F.R. 771.109(c)(5) ........................................................................................15
23 C.F.R. 771.130(c).......................................................................................15, 16
OTHER AUTHORITIES
D.C. Circuit, Handbook of Practice and Internal Procedures (Jan. 26,
2017) .....................................................................................................................4
-iii-
Pursuant to 28 U.S.C. 1657 and Local Rule 27, the Appellant, State of
Maryland, respectfully moves this Court for expedited briefing and oral argument
in the above-captioned appeal. Expediting this appeal is essential, because the
District Courts decision to reject the expert opinion of the Federal Transit
Administration (FTA) and to vacate FTAs Record of Decision (ROD)
threatens the continued viability of the Purple Line (or the Project), a planned
16-mile-long transit line between Bethesda, in Montgomery County, and New
Carrollton, in Prince Georges County. The Purple Line has been in the planning
and approval process for well over a decade. It has broad support. Congress has
appropriated $325 million of a $900 million commitment to the Project, and the
two Counties have committed approximately $335 million to the Project.
The district courts final judgment, long-delayed and issued only after the
State sought mandamus relief in this Court, has already caused financial harm to
the State, threatens further losses to the State and its taxpayers, and promises to
deprive the public of the many benefits that would result from the Project. With
the fate of the Project in the balance, this appeal requires immediate attention by
this Court. The State has previously moved this Court to stay the district courts
judgment pending appeal, and now seeks expedited consideration of the merits to
ensure that the delay inherent in following the standard briefing schedule for an
appeal does not determine the future of the project.
1
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The harm to the State, exacerbated by the district courts delay in resolving
the cross-motions for summary judgment, arises from the district courts August 3,
2016 Order (August 3 Order) (Exhibit 1), which vacated FTAs ROD approving
the Purple Line for federal funding. In the absence of that ROD, federal funding
necessary for the Project remains unavailable. The district court vacated the ROD
based on its mistaken conclusion that more analysis was needed on the impact of
recent ridership declines and safety issues on the Washington Metrorail system.
Exhibit 2. Nine months later, on May 22, 2017, after further analysis of that issue
by the State and FTA, the district court rejected the FTAs expert conclusions and,
once again, ordered the preparation of a supplemental environmental impact
statement (SEIS). Exhibit 3.
With the ROD still vacated and federal funding unavailable, the State lacks
the ability to proceed with construction of the Project. With each passing day, the
continued delay costs the State millions of dollars and places the Project in greater
jeopardy. Prompt consideration of this matter is needed to avoid the continuing
and irreparable harm to the State and its residents.
BACKGROUND FACTS
The history of this case is set out in the States Motion for a Stay Pending
Appeal and will not be repeated at length here. Following a lengthy and thorough
2
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analysis of environmental impacts required by the National Environmental Policy
Act (NEPA), 42 U.S.C. 4321-4370m, FTA issued its ROD approving the
Purple Line Project on March 19, 2014. On August 16, 2014, an organization and
two individual plaintiffs sued the FTA, the U.S. Department of Transportation, and
two other federal agencies under NEPA the Migratory Bird Treaty Act, 16 U.S.C.
703712, the Endangered Species Act, 16 U.S.C. 1531-1544, and Section
4(f) of the Department of Transportation Act, 23 U.S.C. 138 and 49 U.S.C.
303. The State intervened to protect its substantial interests in the Project. Exhibit
4.
On August 3, 2016, the district court (1) granted partial summary judgment
to Appellees, finding that FTA had failed to take a hard look at new information
about Washington Metropolitan Area Transit Authoritys (WMATA) Metrorail
safety issues and ridership decline; (2) directed FTA to prepare an SEIS addressing
that single issue; and (3) vacated the ROD, which is a predicate to receiving the
Federal funding for the Project. Exhibits 1 and 2. Subsequently, in November
2016, the district court modified its order to allow FTA to determine first if an
SEIS was required. (Nov. 22 Order). Exhibit 5.
In December 2016, FTA filed its Determination (FTA Determination)
with the district court that no SEIS was needed. Exhibit 6. On May 22, 2017, the
district court rejected FTAs Determination based solely on its finding that FTA
3
136072497.4
had failed to consider three declarations submitted by Appellees to FTA. Exhibit
3. On May 30, 2017, the court issued a final judgment granting summary
judgment to Defendants on all issues raised by Plaintiffs except the single NEPA
SEIS issue decided in the May 22 Opinion. Exhibit 7. 1 The State filed its notice
of appeal that same day. On June 21, 2017, the State moved this Court to stay that
portion of the judgment that vacated the ROD pending appeal.
ARGUMENT
The State meets the requirements for expedited consideration of this appeal
under both 28 U.S.C. 1657(a) (mandating expedited review where good cause is
shown) and this Courts Local Rule 27. Good cause exists to expedite and action
if the delay will cause irreparable injury and . . . the decision under review is
subject to substantial challenge, or if the public generally, or persons not before
the Court, have any unusual interest in prompt disposition. U.S. Court of Appeals
for the D.C. Circuit, Handbook of Practice and Internal Procedures at 33 (Jan. 26,
2017). Here, good cause exists for an expedited appeal schedule given the
irreparable harm from the continued delay in resolving this litigation, the
significant errors in the district courts decisions, and the strong public interest in
1
On June 9, 2017, the court issued an opinion explaining its rationale for disposing
of the remaining issues in the case. Exhibit 8.
4
136072497.4
rapidly resolving a case that jeopardizes an important transportation project
designed to benefit many thousands of individuals and businesses.
1. Continued Delay is Causing Appellants Irreparable Injury
The Courts August 3 Order vacating the ROD has significant, immediate,
and potentially devastating consequences for the Project and for other non-Project
related transportation capital and maintenance projects planned by the State.
Declaration of Pete Rahn (Rahn Decl.) 56-78 (Exhibit 9). These harms easily
satisfy the irreparable harm standard.
For an injury to be irreparable, it must be both certain and great; it must
be actual and not theoretical. Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.
Cir. 1985); see also Winter v. NRDC, 555 U.S. 7, 22 (2008) (injury must be likely
to occur). Applying these standards, the State has and will continue to suffer
irreparable harm from the August 3 Order vacating the ROD.
The States injuries are both certain and great. Because the ROD remains
vacated, the federal funds anticipated for the Project have been delayed more than
nine months, already causing significant financial harm to the State. Exhibit 9,
66-71. That delay greatly increases the probability that the Project will need to
be abandoned to prevent further financial harm to the State. Even now, the cost to
the State of cancellation of the Project has grown to more than $800 million. Id.
74. This amount includes (1) funds expended to date in development of the
5
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Project of approximately $545 million; (2) delay costs, which could reach
approximately $150 million for an estimated 12-month delay; and (3) termination
costs, which could reach approximately $200 million. Id. 2 These harms are real,
certain and substantial.
The harm to the State is not limited to the potential loss of over $800
million. The irreparable harm includes the tremendous loss to the tens of
thousands of workers, students, and other residents of the State who would use a
transit line connecting Montgomery and Prince Georges Counties, as well as the
lost and deferred jobs associated with the Projects construction. See Declaration
of Charles E. Lattuca (Exhibit 10) 45-49; 56-57. Cf. 42 U.S.C. 4370m-6(b)
(directing courts to consider potential negative effects on jobs when considering
whether to issue preliminary injunctive relief in cases under the National
Environmental Policy Act).
Moreover, the Project includes the replacement of eight bridges in the
Counties several of which are currently structurally deficient. Major
maintenance or replacement work by the Counties on these bridges was put on
hold pending implementation of the Project. One bridge was recently closed to
2
In anticipation of receiving the $325 million that Congress has already
appropriated for this Project, the State has expended that amount using State
taxpayer dollars to carry out ongoing and long lead-time pre-construction
activities, such as real property acquisitions, engineering and design, soil and
geotechnical analysis, utility relocations and community and small business
outreach and involvement. Exhibit 9, 33.
6
136072497.4
vehicular traffic, causing school buses and emergency vehicles to take longer
routes to reach their destinations. Exhibit 9 77. As of June 1, 2017, the State no
longer has sufficient funds to continue funding pre-construction activities and
began an orderly process of suspending Purple Line activities. Third Declaration
of Charles E. Lattuca (Exhibit 11) at 2.
In addition to the direct implications for the Project, because of the
expenditure of State funds on pre-construction activities that were expected to be
reimbursed by appropriate federal funds, a delay in obtaining federal funding for
this Project will also require the State to begin delaying or eliminating other
transportation projects from the States transportation plans to make up the
shortfall. Exhibit 9 at 78.
Appellees have incorrectly argued, and the district court wrongly concluded,
that these injuries may be ignored because they allegedly are self-inflicted. First,
courts routinely consider the financial and other harms that a project sponsor
would suffer from a delay in construction when deciding what relief to provide for
a Federal agencys NEPA violation. See, e.g., Montrose Parkway Alternatives
Coal. v. U.S. Army Corps of Engineers, 405 F. Supp. 2d 587, 600 (D. Md. 2005)
(rejecting plaintiffs self-inflicted theory); Sierra Club v. United States Army
Corps of Engineers, 990 F. Supp. 2d 9, 42-43 (D.D.C. 2013) (considering harm to
a developer that had committed major resources to the project). Courts have
7
136072497.4
held that the harm to a developer caused by delaying a project is to be considered
self-inflicted only in the limited context in which there is evidence of
wrongdoing. See Sierra Club, Inc. v. Bostick, 539 F. Appx 885, 892-95 (10th Cir.
2013) (distinguishing prior cases in the 10th Circuit in which the court had
disregarded harm as self-inflicted). There is no evidence or claim of wrongdoing
here. The State entered into a public-private partnership agreement (P3
Agreement) with the private partner on April 7, 2016, well after the ROD was
issued on March 14, 2014, in the absence of any request for preliminary injunctive
relief by Appellees, and before the district court vacated the ROD in August 2016.
Appellees self-inflicted harm rationale makes no sense, because the only way
for a project sponsor to avoid self-inflicted harm would be to self-enjoin once
a lawsuit challenging its project is filed, regardless of the merits of such a lawsuit.
The reality is that the harms suffered by the State and its citizens are
substantial, certain, and irreparable and cannot be ignored. The financial losses to
the State are not recoverable, and the continued delays in receiving federal funds
for the Project threatens its viability. Immediate attention to the appeal is essential
to minimize these irreparable harms.
8
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2. The District Courts Opinions are Subject to Substantial

Challenge
The district courts opinions are subject to substantial challenge in at least
two respects. First, the court abused its discretion in vacating the ROD having
found no flaws in the ROD itself or in the underlying Final Environmental Impact
Statement. Second, the court failed to give the FTA Determination the level of
deference it deserved and erred in finding it to be arbitrary and capricious.
A. The District Court Abused Its Discretion in Failing to

Reconsider Its Order Vacating the Record of Decision.
The district courts August 3 Order vacated the ROD based on the finding
that FTA erred in its initial determination not to prepare an SEIS on the Metrorail
ridership issue. The court stated that vacating the ROD would only result in a
temporary halt in the project and that proceeding while an SEIS was prepared
might ultimately lead to more disruption if a different preferred alternative were
identified. Exhibit 2 at 9. The district courts November 22 Order rejected the
States request to reinstate the ROD. See Exhibit 5.
The FTA Determination satisfied the requirements of the remand by
considering the effect of scenarios comprising all possible impacts of a decline of
Metrorail ridership on the Project. The courts failure to address the States request
to reinstate the ROD, once the requirements of its remand had been met,
9
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constitutes an abuse of discretion under the test established in Allied Signal v.
Nuclear Regulatory Commn, 988 F.2d 146 (D.C. Cir. 1993).
When the State and FTA filed their renewed motions for summary judgment
in December 2016 along with FTAs Determination, both again requested that the
district court reinstate the ROD. Exhibits 12 (State) and 13 (FTA). The State
provided a declaration explaining that the passage of time from the August 3 Order
had caused a change in circumstances that would result in severe financial harm to
the State and threatened the continued viability of the Project. See Second
Declaration of Charles Lattuca (Exhibit 12 at attachment 2). The State
demonstrated that it could be liable for significant delay and termination damages,
and that the Project and its benefits to the citizens of the State would be delayed or
lost if the ROD were not reinstated. Id. 12-14.
In its May 22 Opinion, the court again ignored the requests to reinstate the
ROD and the disruptions that could result from failing to do so. Exhibit 3.
Moreover, with its finding in the May 30 Final Judgment that the underlying Final
Environmental Impact Statement and ROD are valid (Exhibit 7 at 2), it is now
clear that vacating the ROD was not, and cannot be, based on any flaw in the ROD
itself. The courts refusal to reinstate the ROD operates as a de facto injunction
preventing the State from moving forward with the Project, having been issued
without considering the four-factor test governing injunctive relief under NEPA.
10
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Monsanto v. Geertson Seed Farms, 561 U.S. 139, 157-58 (2010). Appellees have
never requested such relief.
B. The FTA Properly Determined That an SEIS Is Not

Needed.
In Marsh v. ONRC, 490 U.S. 360, 374 (1989), the Supreme Court held that
to require an SEIS every time new information comes to light would render
agency decision-making intractable, always awaiting updated information only to
find the new information outdated by the time a decision is made. In this Court,
an agencys obligation to prepare an SEIS depends on whether new circumstances
or new information create a seriously different picture of the environmental
landscape. Natl Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1330
(D.C. Cir. 2004) (citing City of Olmsted Falls, OH v. FAA, 292 F.3d 261, 274
(D.C. Cir. 2002)) (emphasis in original).
Here, FTA fulfilled its obligation to take a hard look at the Metrorail
ridership and related maintenance and safety issues and properly concluded that
those issues did not create a seriously different picture of the environmental
landscape. FTA, in issuing its Determination, relied heavily on a detailed expert
report submitted by the Maryland Transit Administration (MTA), which
analyzed the impact on the Project of five different Metrorail ridership scenarios.
Exhibit 14 (MTA Report).
11
136072497.4
The MTA Report and FTA Determination confirm that, even in the most
extreme and highly unlikely scenario in which the number of Purple Line trips
involving transfers via Metrorail falls to zero, the projected 50,000 passengers
riding the Purple Line every day still justify going forward with the Project.
Exhibit 14 at 35 (MTA Report); Exhibit 6 at 4 (FTA Determination). They also
found that any reduction in Metrorail ridership would not alter the physical impacts
of the Project, which would have the same footprint regardless of the number of
riders using it. See e.g., Exhibit. 14 at 32-34; Exhibit 6 at 4. And the agencies
found that even the most drastic reduction in Metrorail ridership would not alter
the operational impacts of the Project in any material way, because the frequency
of service would not be reduced. Exhibit 14 at 34; Exhibit 6 at 5. Further, even if
the frequency of service were reduced, the environmental impacts from the Project
would be lower, not greater. Id.
The MTA Report was prepared and reviewed by FTA and MTA experts
with substantial knowledge and experience in forecasting ridership for public
transportation projects. An agency is entitled to rely upon the informed opinions
of its own experts when addressing highly technical issues, such as forecasting
ridership levels for transit projects. See Coalition on Sensible Transportation, Inc.
v. Dole, 826 F.2d 60, 66, 67 (D.C. Cir. 1987) ([T]echnical disputes of [this] sort
[are] most fit for expert administrative resolution and judicial deference); St.
12
136072497.4
Johns United Church of Christ v. FAA, 550 F.3d 1168, 1172 (D.C. Cir. 2008) (an
extreme degree of deference is due to the agencys determination involving
forecasts of passenger demands).
The district court, however, failed to afford the agencies reasoned and
expert determinations the level of deference they deserved. Although the district
court criticized the FTA Determination based on what it characterized as a
curious conclusion that the Project will meet the purpose and need as established
by FTA and MTA no matter what happens to Metrorail, it ignored FTAs
rationale for reaching that conclusion. Exhibit 3 at 8 (emphasis in original). The
FTA Determination specifically addresses how the Projects overall Purpose and
Need would be met even with no passengers transferring from Metrorail to the
Purple Line. While one element of the Purpose and Need for the Project would not
be met with respect to connections to Metrorail, the FTA determined that the
Metrorail element of Purpose and Need was irrelevant in that case to a
consideration of alternatives because no alternative would be capable of meeting
that element of Purpose and Need under that extreme and highly unlikely
scenario. Exhibit 6 at 7. 3 Moreover, the corresponding increases in roadway
3
The Purpose and Need is centered on providing more reliable ride between all
Metrorail stations and other transit services within the project corridor. The
Preferred Alternative will also improve connectivity to communities in the corridor
to better link people to employment and activities in the corridor and beyond.
ROD at AR1_000003 (Exhibit 15).
13
136072497.4
congestion [from the decline in Metrorail ridership] would amplify the extent to
which the project meets the other elements of Purpose and Need for the Purple
Line, making the Project still the best able to meet the overall Purpose and Need,
even under this highly unlikely scenario. Id.
The courts sole reason for rejecting FTAs Determination that FTA failed
to discuss[] or analy[ze] the three declarations Appellees submitted to the FTA
regarding the impact of Metrorail ridership declines on the viability of the Purple
Line is also erroneous. Exhibit 3 at 10. In reaching this decision, the court relied
on Public Employees for Environmental Responsibility (PEER) v. Hopper, 827
F.3d 1077 (D.C. Cir. 2016), a case that is inapposite both factually and legally. In
PEER, this Court determined that the U.S. Fish and Wildlife Service erred in not
considering information submitted by plaintiffs when the agency reconsidered a
decision under the Endangered Species Act, but that determination was based on
the conclusion that the agency itself had reopened the record on remand by
basing its decision on information supplied by the project developer, a private
entity. 827 F.3d at 1090.
Unlike the agency in PEER, FTA here considered Appellees submittal and
MTAs response to it. Exhibit 6 at 1. Appellees declarations asserted that an
earlier MTA assessment of the impact of Metrorail ridership declines was flawed
because it assumed that Metrorail ridership would recover and failed to consider a
14
136072497.4
more severe decline in Metrorail ridership. Appellees declarations claimed that
FTA needed to consider the impact of a continued decline in Metrorail, to a point
at which Metrorail itself was no longer a viable part of the transportation system in
the Washington metropolitan area. See Exhibit 16 at AR6_00303-05, 309-13, 325-
28. The MTA Report presents a scenario that analyzes that precise situation, and
FTA appropriately relied upon MTAs Report to support its Determination. See 23
C.F.R. 771.109(c)(5), 771.130(c).
Also, unlike in PEER, FTA did not reopen the record by using the MTA
Report, nor did it have any obligation to do so. FTAs regulations require the
applicant in this case MTA to develop appropriate environmental studies to
assess the impacts of the new information. 23 C.F.R. 771.130(c); see Exhibit 6
at 1 (citing this regulation as basis for asking for input from MTA). Although FTA
analyzed the concerns raised by the three declarations, it was not required to seek
or accept comments or analysis from anyone other than the applicant when
preparing a reevaluation under 23 C.F.R. 771.130(c).
Nor do Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002) or Getty v. Federal
Savings and Loan Insurance Corp., 805 F.2d 1050 (D.C. Cir. 1986), also relied
upon by the district court, support its May 22 Opinion. Both cases address an
agencys failure to consider a factor specifically mandated to be considered by
statute. Here, the court never found, nor does the record show, that FTA failed to
15
136072497.4
consider a relevant factor. In fact, the FTA Determination assesses each of the
required factors to be considered when determining whether an SEIS is needed.
See 23 C.F.R. 771.130 (identifying factors to consider in evaluating whether to
prepare an SEIS); Exhibit 6 at 4-7.
3. The Public and Persons Not Before the Court Have an Unusual
Interest in Prompt Disposition.
The public has an unusual and exceedingly strong interest in prompt review.
Without prompt consideration of this matter, the public is at risk of losing the
many significant benefits from the project, including reliable and rapid east-west
travel, support for community revitalization and transit-oriented development, and
connecting thousands of people to jobs. 4 The State has conducted numerous
studies showing the overwhelming need for additional transit in the corridor. Both
Prince Georges and Montgomery Counties, in their amicus briefs (Exhibits 17 and
18), outline the depth of the two Counties support and need for this Project.
Indeed, both Counties have committed to providing substantial financial support to
the Project, and both are relying on the economic development that will result from
the Project. Further Congress has reviewed the Project and determined that it is
eligible for funding. To that end, it has appropriated $325 million to implement
4
See, e.g., https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grant-
programs/capital-investments/60926/md-bethesda-new-carrollton-national-capital-
purple-line-fy-18-profile.pdf (describing benefits from project).
16
136072497.4
the project, in three separate appropriations. 5 The support for the Project from the
local level to Congress is strong and supports the need for prompt resolution of this
matter.
PROPOSED SCHEDULE
In light of the need for expedition in this appeal, Appellants proposed the
following briefing schedule: 6
Appellants Opening Brief: July 20, 2017
Briefs of any Amici in Support of Appellant July 27, 2017
Appellees Brief August 10, 2017
Briefs of Any Amici in Support of Appellees August 17, 2017
Appellants Reply Brief August 24, 2017
CONCLUSION
For the foregoing reasons and good cause shown, the State respectfully
requests that consideration of this matter be expedited, that the Court issue an order
5
See Exhibit 9 30. Congress appropriated $100 million for the Purple Line in
fiscal year 2015; an additional $100 million in fiscal year 2016; and an additional
$125 million in fiscal year 2017.
6
As required by Local Rule 27, the State has consulted with Appellees and the
other defendants regarding this motion. Appellees have indicated that they will
oppose this motion and do not agree with the proposed briefing schedule. The
United States Defendants, including FTA, have indicated that they do not oppose
this motion.
17
136072497.4
setting the above briefing schedule, and that the Court direct the Clerk to schedule
oral argument on the earliest available date following the completion of the
briefing.
Dated: July 3, 2017 Respectfully submitted,
BRIAN E. FROSH
Attorney General of Maryland
JULIE SWEENEY
Assistant Attorney General
Maryland Transit Administration
6 St. Paul Street, Suite 1200
Baltimore, MD 21202-1614
Telephone: 410.767.3844
Email: JSweeney@mta.maryland.gov
Eric D. Miller
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: 206.359.3773
Facsimile: 206.359.4773
Email: emiller@perkinscoie.com
/s/ Albert M. Ferlo

ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6200
Facsimile: 202.654.6211
Email: aferlo@perkinscoie.com
Attorneys for Appellant
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136072497.4
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of
Rule 21(d)(i) of the Federal Rules of Appellate Procedure. As measured by the
word-processing system used to prepare this brief, the brief contains 4,007 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and
complies with the type style requirements of Fed. R. App. P. 32(a)(6), because it
has been prepared in a 14 point proportionally spaced roman-style typeface (Times
New Roman).
/s/ Albert M. Ferlo

Albert M. Ferlo
136072497.4
CERTIFICATE OF SERVICE
I hereby certify that on July 3, 2017, a copy of the foregoing document was
served via the CM/ECF system on all counsel of record.
Date: July 3, 2017 /s/ Albert M. Ferlo

Albert M. Ferlo
136072497.4

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USCA Case #17-5132 Document #1682460 Filed: 07/03/2017 Page 1 of 24

IN THE UNITED STATES COURT OF APPEALS

FRIENDS OF THE CAPITAL CRESCENT TRAIL, JOHN MCKNIGHT

APPELLANTS MOTION TO EXPEDITE

BACKGROUND FACTS .........................................................................................2

2. The District Courts Opinions are Subject to Substantial

A. The District Court Abused Its Discretion in Failing to

B. The FTA Properly Determined That an SEIS Is Not

Coalition on Sensible Transportation, Inc. v. Dole,

Monsanto v. Geertson Seed Farms,

Public Employees for Environmental Responsibility (PEER) v.

Sierra Club, Inc. v. Bostick,

Sierra Club v. United States Army Corps of Engineers,

St. Johns United Church of Christ v. FAA,

Wisc. Gas Co. v. FERC,

28 U.S.C. 1657 ....................................................................................................1, 4

49 U.S.C. 303 ..........................................................................................................3

in the above-captioned appeal. Expediting this appeal is essential, because the

Administration (FTA) and to vacate FTAs Record of Decision (ROD)

16-mile-long transit line between Bethesda, in Montgomery County, and New

two Counties have committed approximately $335 million to the Project.

appeal does not determine the future of the project.

once again, ordered the preparation of a supplemental environmental impact

statement (SEIS). Exhibit 3.

jeopardy. Prompt consideration of this matter is needed to avoid the continuing

and irreparable harm to the State and its residents.

analysis of environmental impacts required by the National Environmental Policy

703712, the Endangered Species Act, 16 U.S.C. 1531-1544, and Section

4(f) of the Department of Transportation Act, 23 U.S.C. 138 and 49 U.S.C.

about Washington Metropolitan Area Transit Authoritys (WMATA) Metrorail

Federal funding for the Project. Exhibits 1 and 2. Subsequently, in November

SEIS was required. (Nov. 22 Order). Exhibit 5.

In December 2016, FTA filed its Determination (FTA Determination)

had failed to consider three declarations submitted by Appellees to FTA. Exhibit

portion of the judgment that vacated the ROD pending appeal.

subject to substantial challenge, or if the public generally, or persons not before

rapidly resolving a case that jeopardizes an important transportation project

designed to benefit many thousands of individuals and businesses.

1. Continued Delay is Causing Appellants Irreparable Injury

related transportation capital and maintenance projects planned by the State.

satisfy the irreparable harm standard.

For an injury to be irreparable, it must be both certain and great; it must

irreparable harm from the August 3 Order vacating the ROD.

certain and substantial.

of Charles E. Lattuca (Exhibit 10) 45-49; 56-57. Cf. 42 U.S.C. 4370m-6(b)

(directing courts to consider potential negative effects on jobs when considering

whether to issue preliminary injunctive relief in cases under the National

Environmental Policy Act).

Moreover, the Project includes the replacement of eight bridges in the

Counties several of which are currently structurally deficient. Major

maintenance or replacement work by the Counties on these bridges was put on

longer has sufficient funds to continue funding pre-construction activities and

began an orderly process of suspending Purple Line activities. Third Declaration

of Charles E. Lattuca (Exhibit 11) at 2.

In addition to the direct implications for the Project, because of the

expenditure of State funds on pre-construction activities that were expected to be

reimbursed by appropriate federal funds, a delay in obtaining federal funding for

transportation projects from the States transportation plans to make up the

shortfall. Exhibit 9 at 78.

a Federal agencys NEPA violation. See, e.g., Montrose Parkway Alternatives

(rejecting plaintiffs self-inflicted theory); Sierra Club v. United States Army

Corps of Engineers, 990 F. Supp. 2d 9, 42-43 (D.D.C. 2013) (considering harm to