Purple Line Maryland Appeal Brief

USCA Case #17-5132 Document #1689447 Filed: 08/18/2017 Page 1 of 72
NOT YET SCHEDULED FOR ORAL ARGUMENT

________________________
No. 17-5132 (Consolidated with Nos. 17-5161, 17-5174 and 17-5175)

________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA
________________________
FRIENDS OF THE CAPITAL CRESCENT TRAIL, JOHN MACKNIGHT

FITZGERALD AND CHRISTINE REAL DE AZUA,
Plaintiffs-Appellees/Cross-Appellants,
v.
FEDERAL TRANSIT ADMINISTRATION, et al.,
Defendants-Appellants/Cross-Appellees,
STATE OF MARYLAND,
Defendant-Intervenor-Appellant/Cross-Appellees.
________________________
On Appeal from the United States District Court for the District of Columbia
(Richard J. Leon, District Judge)
________________________
OPENING BRIEF FOR APPELLANT STATE OF MARYLAND

________________________
BRIAN E. FROSH
Attorney General of Maryland
ERIC D. MILLER ALBERT M. FERLO JULIE SWEENEY
Perkins Coie LLP Perkins Coie LLP Assistant Attorney General
1201 Third Avenue 700 Thirteenth Street, Maryland Transit Administration
Suite 4900 NW Suite 600 6 St. Paul Street, Suite 1200
Seattle, WA 98101-3099 Washington, D.C. 20005 Baltimore, Maryland 21202
Telephone: 206.359.3773 Telephone: 202.654.6200 Telephone: 410.767.3844
Facsimile: 206.359.4773 Facsimile: 202.654.6211 Facsimile: 410.333.2584
emiller@perkinscoie.com aferlo@perkinscoie.com jsweeney@mta.maryland.gov
Attorneys for State of Maryland
CERTIFICATE AS TO PARTIES, RULINGS,

AND RELATED CASES
Pursuant to Circuit Rule 28(a), the following is a statement of the parties,
amici, rulings, and related proceedings in this case:
I. Parties and Amici

The parties in this proceeding are as follows:
Friends of the Capital Crescent Trail, John MacKnight Fitzgerald and
Christine Real de Azua (collectively Plaintiffs) were plaintiffs in the district
court and are appellees in Case Nos. 17-5132, 17-5161, and 17-5174 and cross-
appellants in 17-5175.
The Federal Transit Administration, the United States Department of
Transportation, the United States Fish and Wildlife Service, and the United States
Department of the Interior were defendants in the district court and are appellants
in Case Nos. 17-5161 and 17-5174.
The State of Maryland was the defendant-intervenor in the district court and
is appellant in Case No. 17-5132.
The amici curiae in the district court proceeding were Prince Georges
County, Maryland, and Montgomery County, Maryland.
i
II. Rulings Under Review

The rulings under review are the Opinion dated August 3, 2016 (JA 1 427-
35), Order dated August 3, 2016 (JA 436-37), Opinion dated November 22, 2016
(JA 661-71), Order dated November 22, 2016 (JA 672-73), Opinion dated May 22,
2017 (JA 818-29), Order dated May 22, 2017 (JA 830), Final Judgment dated May
30, 2017 (JA 836-37), and Opinion dated June 9, 2017 (JA 929-52) issued by
Judge Richard J. Leon in the United States District Court for the District of
Columbia in Fitzgerald, et al. v. Federal Transit Administration, et al., Case No.
14-1471 (D.D.C.).
III. Related Cases
The Court consolidated the Defendants-Appellants appeals, Case Nos. 17-
5161 and 17-5174, and Plaintiffs appeal, Case No. 17-5175 with this case.
Maryland is not aware of any other related case.
1
JA refers to the Joint Appendix filed with this Court on August 18, 2017.
ii
TABLE OF CONTENTS
Page
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............i
GLOSSARY.............................................................................................................ix
JURISDICTIONAL STATEMENT .........................................................................1

STATUTES AND REGULATIONS ........................................................................1
ISSUES PRESENTED FOR REVIEW ....................................................................1

STATEMENT OF THE CASE .................................................................................1
THE NEPA PROCESS........................................................................................2
FTAS POST-NEPA DETERMINATIONS............................................................8
INITIAL PROCEEDINGS IN THE DISTRICT COURT .............................................10
ADDITIONAL NEPA REVIEW IN RESPONSE TO AUGUST 3 ORDER ..................12
FURTHER PROCEEDINGS IN THE DISTRICT COURT ..........................................15
SUMMARY OF ARGUMENT ..............................................................................17
ARGUMENT ..........................................................................................................18
I. FTAS DETERMINATION THAT NO SUPPLEMENTAL EIS WAS
NEEDED TO ASSESS THE METRORAIL RIDERSHIP ISSUES WAS
REASONABLE AND IN ACCORDANCE WITH ITS REGULATIONS ............18
A. The Standard of Review is De Novo with Deference to
the Administrative Agency ......................................................19
B. NEPA Requires a Supplemental EIS Only When New
Information is Significant ........................................................20
C. FTA Reasonably Determined that any Decline in
Metrorail Ridership Would Not Lead to Significantly
Different Environmental Impacts from those Evaluated in
the Final EIS.............................................................................21
D. FTA Reasonably Concluded That the Project Would Still
Meet its Purpose and Need Even if Metrorail Transfers to
the Purple Line Declined .........................................................22
iii
TABLE OF CONTENTS
(continued)
Page
E. FTA Satisfied Any Obligation to Consider and Address

Plaintiffs Declarations ............................................................27
II. EVEN IF THE COURT WERE TO FIND MERIT IN PLAINTIFFS
ARGUMENTS, VACATING FTAS RECORD OF DECISION IS NOT AN
APPROPRIATE REMEDY........................................................................32
A. The District Courts Decision to Vacate the Record of
Decision is Reviewed for an Abuse of Discretion ...................32
B. The Allied-Signal Test Governs a District Courts
Decision on Whether Vacatur is an Appropriate Remedy.......32
C. The District Court Abused Its Discretion in Vacating the
Record of Decision in Its August 3, 2016 Order .....................34
D. The District Court Abused Its Discretion In Refusing to
Grant the States Rule 59(e) Motion to Amend the
Judgment By Reinstating the Record of Decision ...................36
E. The District Court Abused Its Discretion in Refusing to
Reconsider Its Vacatur Order Once FTA and MTA
Produced a New Decision on the Need for a
Supplemental EIS.....................................................................39
CONCLUSION .......................................................................................................41
STATUTORY AND REGULATORY ADDENDUM

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
CERTIFICATE OF SERVICE
iv
TABLE OF AUTHORITIES
PAGE(S)
CASES
Alaska Wilderness Recreation & Tourism v. Morrison,
67 F.3d 723 (9th Cir. 1995) ................................................................................26
*Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commn,
988 F.2d 146 (D.C. Cir. 1993) ................................................................32, 33, 39
Apache Corp. v. F.E.R.C.,
627 F.3d 1220 (D.C. Cir. 2010) ..........................................................................33
Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers,
781 F.3d 1271 (11th Cir. 2015) ..........................................................................33
California Communities Against Toxics v. E.P.A.,
688 F.3d 989 (9th Cir. 2012) ..............................................................................40
City of Grapevine v. Department of Transportation,

17 F.3d 1502 (D.C. Cir. 1994) ............................................................................27
City of Olmsted Falls, OH v. FAA,
292 F.3d 261 (D.C. Cir. 2002) ............................................................................20
Coalition on Sensible Transportation, Inc. v. Dole,

826 F.2d 60 (D.C. Cir. 1987) ..............................................................................25
Covad Commcns, Co. v. F.C.C.,
450 F.3d 528 (D.C. Cir. 2006) ............................................................................29
Davis v. Latschar,
202 F.3d 359 (D.C. Cir. 2000) ............................................................................25
Defenders of Wildlife v. Zinke,

849 F.3d 1077 (D.C. Cir. 2017) ....................................................................19, 31
Del. Riverkeeper v. FERC,

753 F.3d 1304 (D.C. Cir. 2014) ..........................................................................20
v
(continued)
PAGE(S)
EarthReports, Inc. v. F.E.R.C.,

828 F.3d 949 (D.C. Cir. 2016) ............................................................................36
Friends of the Clearwater v. Dombeck,

222 F.3d 552 (9th Cir. 2000) ..............................................................................28
Gerber v. Norton,
294 F.3d 173 (D.C. Cir. 2002) ............................................................................30
Getty v. Federal Savings and Loan Insurance Corp.,
805 F.2d 1050 (D.C. Cir. 1986) ..........................................................................30
International Union, United Mine Workers of America v. Fed. Mine
Safety and Health Administration
920 F.2d 960 (D.C. Cir. 1990) ............................................................................38
Jersey Heights Neighborhood Assn. v. Glendening,

174 F.3d 180 (4th Cir. 1999) ..............................................................................35
*Marsh v. Or. Nat. Res. Council,

490 U.S. 360 (1989) ................................................................................20, 21, 22
Maryland Native Plant Socy v. U.S. Army Corps of Engineers,
332 F. Supp. 2d 845 (D. Md. 2004) ..............................................................34, 41
Myersville Citizens for a Rural Cmty., Inc. v. FERC,

783 F.3d 1301 (D.C. Cir. 2015) ..........................................................................20
*Natl Comm. for the New River, Inc. v. FERC,

373 F.3d 1323 (D.C. Cir. 2004) ..................................................20, 22, 23, 24, 31
Nevada v. Dept of Energy,
457 F.3d 78 (D.C. Cir. 2006) ..............................................................................20
Pub. Citizen, Inc. v. F.A.A.,

988 F.2d 186 (D.C. Cir. 1993) ............................................................................30
vi
(continued)
PAGE(S)
Public Employees for Environmental Responsibility v. Hopper

(PEER),
827 F.3d 1077 (D.C. Cir. 2016) ....................................................................16, 30
RB Jai Alai, LLC v. Secretary of the Florida Dept of Transportation

47 F. Supp. 3d 1353 (M.D. Fla. 2014)................................................................35
Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ............................................................................................20
Simpson v. Young,
854 F.2d 1429 (D.C. Cir. 1988) ..........................................................................30
St. Johns United Church of Christ v. FAA,

550 F.3d 1168 (D.C. Cir. 2008) ..........................................................................25
State of Nebraska Department of Health and Human Services v.

Department of Health and Human Services,
435 F.3d 326 (D.C. Cir. 2006) ......................................................................32, 35
Susquehanna Intl Grp., LLP v. Sec. & Exch. Commn,

__ F.3d __, No. 16-1061, 2017 WL 3389269 (D.C. Cir. Aug. 8,
2017) ...................................................................................................................33
Theodore Roosevelt Conservation Pship v. Salazar,
616 F.3d 497 (D.C. Cir. 2010) ............................................................................31
Thompson v. Clark,
741 F.2d 401 (D.C. Cir. 1984) ............................................................................30
Vermont Yankee Nuclear Power Co. v. NRDC,
435 U.S. 519 (1978) ............................................................................................27
STATUTES
5 U.S.C. 706(2)(A)................................................................................................19
16 U.S.C. 703 - 712 ............................................................................................10
vii
(continued)
PAGE(S)
16 U.S.C. 1531 - 1541 ..................................................................................10, 30

23 U.S.C. 139(l)(2) ...............................................................................................35
28 U.S.C. 1291 ........................................................................................................1

28 U.S.C. 1331 ........................................................................................................1
42 U.S.C. 4332 ..................................................................... 1, 7, 10, 18, 20, 38, 40
49 U.S.C. 5309 ........................................................................................................6

49 U.S.C. 5309(d) ...................................................................................................3
49 U.S.C. 5309(d)(2)(A) .........................................................................................6
49 U.S.C. 5309(d)(2)(A)(i) .....................................................................................6
RULES
Fed. R. Civ. P. 59(e).........................................................................11, 17, 36, 37, 40
REGULATIONS
23 C.F.R. 771.130 .................................................................................................31
23 C.F.R. 771.130(a)(2) ........................................................................................21

40 C.F.R. 1502.9(c)...............................................................................................21
49 C.F.R. 611.105 ...................................................................................................6
78 Fed. Reg. 1992 (Jan. 9, 2013) ............................................................................... 6

79 Fed. Reg. 18,113 ...................................................................................................8
* Authorities upon which we chiefly rely are marked with asterisks
viii
GLOSSARY
EIS Environmental Impact Statement
FTA Federal Transit Administration
MTA Maryland Transit Administration
NEPA National Environmental Policy Act
WMATA Washington Metropolitan Area Transit Authority
ix
JURISDICTIONAL STATEMENT
The district court had jurisdiction under 28 U.S.C. 1331 and issued a final
judgment disposing of all claims on May 30, 2017. (JA 836.) The State of
Maryland filed a timely notice of appeal on May 30, 2017. (JA 838.) This Court
has jurisdiction under 28 U.S.C. 1291.
STATUTES AND REGULATIONS

Pertinent statutes and regulations are included in the Addendum.
ISSUES PRESENTED FOR REVIEW

1. Did the Federal Transit Administration act within its discretion, in
accordance with law, and not arbitrarily and capriciously, when it concluded that a
supplemental environmental impact statement to evaluate Metrorail ridership
issues was not required by the National Environmental Policy Act and the agencys
implementing regulations?
2. If the Court affirms the district court on issue 1 above, did the district
court abuse its discretion when it vacated the Federal Transit Administrations
Record of Decision?
STATEMENT OF THE CASE

The Purple Line (the Project) is a 16.2-mile light rail transit project that
will provide fast and reliable east-west transit service in and between Montgomery
and Prince Georges counties in Maryland. (JA 1027.) The Project is being
developed by the Maryland Transit Administration, a unit of the Maryland
1
Department of Transportation of the State of Maryland (MTA or Maryland).
With 21 stations, the Purple Line will greatly improve public transit connections
among residential neighborhoods, and major employment centers, commercial
areas, and transportation nodes, including downtown Bethesda, downtown Silver
Spring, the University Park commercial corridor, the University of Maryland
campus at College Park, and New Carrollton. (JA 1206-07.) Four of the Purple
Lines 21 stations connect with the Washington Metropolitan Area Transit
Authority (WMATA) Metrorail system. The Project is an integral element of
state, local, and regional transportation and land use plans, including the
metropolitan transportation plan jointly adopted by Maryland, Virginia, and the
District of Columbia according to a federally prescribed process that guides the
allocation of federal transportation funds. (JA 1193.)
THE NEPA PROCESS

Origins of the Purple Line. The Purple Line originated in planning studies
carried out by Montgomery County in the 1970s, when the County first adopted a
master plan calling for a transit line connecting Bethesda to Silver Spring via the
Georgetown Branch a freight rail corridor then still in active use for carrying coal
trains to Georgetown in Washington, D.C. (JA 1206.) Over the next several
decades, the County refined its plans. Eventually, after the corridor ceased to be
used for freight rail traffic, the County purchased the Georgetown Branch right-of-
2
way to be used for construction of a transitway and trail.2 Based on additional
local, regional, and statewide studies, the Project evolved into a proposal to
develop a new east-west transit line between Bethesda in Montgomery County and
New Carrollton in Prince Georges County. (JA 1215-19.)
As a precondition of receiving federal funds, the Purple Line project was
required to undergo a federal environmental review under the National
Environmental Policy Act (NEPA), 42 U.S.C. 4332. In 2003, the Federal
Transit Administration (FTA) and MTA (collectively, the Agencies) began
preparing an environmental impact statement (EIS). (JA 1027-29; 800 at 22.)
In parallel with the NEPA process, Maryland applied to FTA for a grant under
FTAs New Starts program for capital investment grants, 49 U.S.C. 5309(d).
(JA 800-01 at 21, 23.)
Initiation of NEPA Review. On September 3, 2003, FTA published a
notice announcing its intent to prepare an EIS for this proposed high capacity
transit project. (JA 1074.) The notice identified the Projects several goals,
including provid[ing] improved suburb to suburb transit alternatives and enhanced
access to key civic, educational and employment activity centers; improv[ing]
system connectivity and increas[ing] transit usage by providing an essential link to
2
Since acquiring the Georgetown Branch right-of-way in the mid-1990s,
Montgomery County has allowed the right-of-way to be used on an interim basis as
a recreational trail while awaiting construction of the transitway and a permanent
recreational trail. (JA 1070-71.)
3
the Metrorail radial lines, as well as to other rail or bus services in Montgomery
and Prince Georges Count[ies]; and support[ing] economic development and
revitalization through improved connections to central business districts and
activity centers. (JA 1075.)
Range of Alternatives. Over the next several years, the Agencies
developed a range of alternatives to the Project to be considered in the EIS. (JA
1232-34.) Aided by extensive public comments, the Agencies identified eight
alternatives for detailed analysis. (JA 1235.) These included an alternative that
left the existing transportation system essentially unchanged (the No Action
Alternative); an alternative that improved bus service on existing roads (the
Transportation System Management Alternative); three alternatives that involved
constructing a new busway largely separate from lanes carrying automobile traffic
(the Bus Rapid Transit Alternatives); and three alternatives that involved
building a new light rail transit line, also largely separate from existing traffic lanes
(the Light Rail Alternatives). Id. The three Bus Rapid Transit Alternatives and
the three Light Rail Alternatives each involved three distinct levels of investment:
Low, Medium, and High. 3 (JA 1235-36.) The Bus Rapid Transit and Light Rail
Alternatives generally followed similar routes and had essentially the same
3
A higher investment level corresponded to more construction of new
structures to separate the transitway from road traffic, which in turn corresponded
to higher speeds for transit vehicles. (JA 1235-36.)
4
footprint and number of stations, except that one of the Bus Rapid Transit
Alternatives avoided use of the Georgetown Branch right-of-way by following a
more northerly route along Jones Bridge Road. Id.
The Alternatives Analysis/Draft EIS. The Agencies analyzed all eight
alternatives in depth, weighing their relative costs, impacts, and benefits. (JA
1233.) They conducted hundreds of public meetings across the 16-mile corridor.
(JA 1212.) After more than five years of study, they released an Alternatives
Analysis/Draft EIS (Draft EIS) in September 2008. (JA 1213, 1077-90.) The
Draft EIS presented all eight alternatives in an equivalent level of detail and did
not express a preference among them. (JA 1084-86.) The Agencies accepted
comments on the Draft EIS for 90 days twice the length of time required by
regulation and held four public hearings. (JA 1208, 1213.) The Agencies
considered more than 3,300 comments on the Draft EIS. (JA 1208, 1213, 1486.)
The U.S. Environmental Protection Agency, which is required by law to review
and comment on every EIS, gave the Draft EIS its highest rating: LO-1, which
means a lack of objection to the project and that the document itself is complete.
(JA 1558.1.) The agency also noted that [e]nvironmental impacts of each
alternative are relatively low for a 16 mile transitway. Id.
The Locally Preferred Alternative. FTAs New Starts grant application
process, conducted concurrently with the NEPA process, requires the project
5
sponsor to identify a Locally Preferred Alternative. 49 U.S.C.
5309(d)(2)(A)(i); see also 49 C.F.R. 611.105. After the comment period for
the Draft EIS closed, Maryland identified a Light Rail Alternative as its Locally
Preferred Alternative. (JA 1208.) In announcing its decision, Maryland cited
several factors as the basis for adopting a Light Rail Alternative rather than a Bus
Rapid Transit Alternative, including the greater capacity of light rail to
accommodate long-term growth, and light rails greater consistency with the land
use and transportation plans of Montgomery and Prince Georges counties.
Maryland also noted that the other alternatives No Action and the Transportation
System Management Alternatives were not selected because they would not
materially improve east-west transit service in the corridor. (JA 1196-200.)
Approval to Enter Preliminary Engineering. In October 2011, FTA
granted approval for Maryland to advance its Locally Preferred Alternative into the
Preliminary Engineering phase of project development, which, at the time, was a
necessary step toward preparing a Final EIS.4 (JA 1201.)
4
The statute that defines the required steps in the New Starts process 49
U.S.C. 5309 was amended on July 6, 2012, by enactment of the Moving Ahead
for Progress in the 21st Century Act (MAP-21), Pub. L. No. 112-141 (July 6,
2012). Prior to MAP-21, the required steps were preliminary engineering and
final design. As redefined by MAP-21, the required steps are project
development and engineering. See 49 U.S.C. 5309(d)(2)(A); see also 78 Fed.
Reg. 1992 (Jan. 9, 2013) (FTAs final rule implementing MAP-21 changes to the
New Starts project development process).
6
The Final EIS. In August 2013, after an additional five years of analysis
and public outreach, FTA issued the Final EIS. (JA 1205.) The Final EIS
summarized all of the previously considered alternatives, Marylands reasons for
selecting a Light Rail Alternative as its Locally Preferred Alternative, and
additional refinements made to that alternative during development of the Final
EIS. (JA 1231.) The Final EIS also included updated transit ridership forecasts for
the Purple Line. These forecasts were developed in accordance with FTAs
rigorous standards for ridership forecasts used both in NEPA and in New Starts
decision-making. (JA 1267-68, 1543, 1550-52.) The ridership forecasts showed
that nearly three quarters (73%) of Purple Line trips in 2040 would not include
transfers to or from Metro. (JA 1270.) In addition, the Final EIS summarized and
responded to the 3,300 comments addressing the Draft EIS. (JA 1208, 1486.)
Although not a requirement, FTA invited comments on the Final EIS and received
nearly 1,000 additional comments. (JA 1059-60.) None of those comments raised
an issue concerning the effect of Metrorail ridership or safety issues on the Purple
Line.
The Record of Decision. On March 19, 2014, FTA issued its Record of
Decision, explaining its rationale for approving the Purple Line as a light rail
project. (JA 1027-58.) The Record of Decision included FTAs responses to all
substantive comments on the Final EIS. (JA 1059-60.) On March 31, 2014, FTA
7
published a notice in the Federal Register announcing that the Record of Decision
was a final agency action for purposes of judicial review. 79 Fed. Reg.
18,113. That notice initiated a 150-day statute of limitations period, which ended
on August 28, 2014. Id. at 18,114.
FTAS POST-NEPA DETERMINATIONS

After FTA issued the Record of Decision, Plaintiffs submitted three requests
to FTA requesting preparation of a supplemental EIS on various grounds. (JA
2119, 2166, 2375.) With input from MTA, FTA systematically reviewed and
responded to each such request.
FTAs May 2015 Determination. Plaintiffs submitted their first letter to
FTA in June 2014, asserting that a supplemental EIS was needed to evaluate new
information about the potential presence of an endangered species of crustacean
the Hays Spring amphipod in the vicinity of the Purple Line. (JA 2088-109.)
The Agencies met with Plaintiffs and consulted with the U.S. Fish and Wildlife
Service. (JA 2111.) Maryland engaged an expert on the subject to review and
investigate Plaintiffs claims and provide his expert opinion. (JA 2113.) After
considering this information, the Service confirmed that the Hays Spring
amphipod was not present in the vicinity of the project and that the Project would
have no effect on that species. (JA 2112.) Based on that determination, FTA
8
concluded, in May 2015, that a supplemental EIS was not needed on this issue.
(JA 2118.)
FTAs September 2015 Determination. Plaintiffs submitted a second
letter to FTA in July 2015, asserting that a supplemental EIS was needed to address
various cost-saving changes made to the design of the project. (JA 2119-34.) To
assist FTA, Maryland prepared a detailed report describing each specific design
change that Maryland had adopted as part of its effort to minimize project costs
and explaining why the design changes would not cause any significant change in
the Projects environmental impacts. (JA 2143-63.) In September 2015, FTA
determined that those cost-saving changes did not require a supplemental EIS. (JA
2164-65.)
FTAs January 2016 Determination. In October 2015, Plaintiffs
submitted to FTA a third letter, repeating the previous arguments about amphipods
and design changes, and also introducing a host of new arguments on a variety of
topics. (JA 2166-74.) The letter included several declarations from purported
experts challenging the Agencies ridership forecasts and questioning the funding
plan for the Purple Line. (JA 2175-83, 2196-201, 2202-07.) This letter also
asserted, with little explanation or evidence, that newly emerging problems on the
separate Metrorail system operated by WMATA, not MTA required FTA to
prepare a supplemental EIS for the Purple Line. (JA 2167-68.) MTA submitted to
9
FTA a written response addressing each issue raised by Plaintiffs. (JA 2221-57.)
In January 2016, after considering Plaintiffs letter and Marylands response, FTA
again determined that a supplemental EIS was not required to address any of the
issues raised by Plaintiffs. (JA 2258-59.)
INITIAL PROCEEDINGS IN THE DISTRICT COURT

On August 28, 2014, Plaintiffs brought this action against FTA asserting
various alleged violations of NEPA. 5 (JA 30.) Maryland intervened to defend
FTAs Record of Decision. (JA 428.) Over the course of the next year and a half,
Plaintiffs filed an amended complaint and then two supplemental complaints. (JA
75-135, 136-146, 147-157.) Collectively, the amended and supplemental
complaints expanded the scope of the lawsuit to include challenges to FTAs three
postRecord of Decision determinations rejecting Plaintiffs requests for a
supplemental EIS.
In early 2016, the parties filed cross-motions for summary judgment. (JA
262-77, 278-90.) In late July 2016, while those motions were pending, Maryland
and FTA announced that the Full Funding Grant Agreement for the Project would
be executed on August 8, 2016. (JA 801 at 25.) The execution of a Full Funding
5
The complaint also included claims against FTA under the Endangered
Species Act, 16 U.S.C. 1531 - 1541, and the Migratory Bird Treaty Act, 16
U.S.C. 703 - 712, and included additional claims against the U.S. Fish and
Wildlife Service under the Endangered Species Act. The district court ruled
against the Plaintiffs on all of those claims. (JA 836-37, 929-52.)
10
Grant Agreement marks the culmination of FTAs New Starts grant application
process.6
On August 3, 2016, days before the grant agreement was to be signed, the
district court issued a memorandum opinion and order (August 3 Order)
addressing a single issue raised by Plaintiffs and reserving judgment on all other
issues raised in the cross-motions for summary judgment. (JA 427-35, 436-37.)
The court found that FTA had erred in January 2016 when FTA determined that a
supplemental EIS was not required to assess the potential for recent Metrorail
ridership declines and safety issues to affect ridership on the Purple Line, and it
ordered FTA to prepare a supplemental EIS on the Metrorail issue. (JA 427-35,
436-37.) In its August 3 Order, the court also vacated FTAs Record of Decision,
without finding any flaw in the Record of Decision itself. (JA 435.)
On August 23, 2016, the Agencies filed motions to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e), seeking two modifications to the
district courts August 3 Order. (JA 453-73, 483-86.) They asked the court to (1)
allow FTA to decide in the first instance whether any new information concerning
the Metrorail system required preparation of a supplemental EIS and (2) reinstate
the Record of Decision while that additional analysis was prepared. In support of
6
The State has requested a New Starts grant of $900 million. (JA 800-01 at
23.) This amount is less than half of the approximately $2.4 billion needed for
construction of the Purple Line. (Id. 26.)
11
the motions, the Agencies submitted declarations, prepared by their experts,
addressing future Metrorail ridership scenarios and their potential effects on Purple
Line ridership. (JA 2264-77 (Lattuca); JA 2278-85 (Benz); JA 2286-91
(Garliauskas).) In September 2016, Plaintiffs responded by submitting three
declarations of their own. (JA 2292-301 (Saggese); JA 2302-17 (Lysy); JA 2318-
37 (Allen).) With its reply memorandum, FTA submitted another expert witness
declaration directly responding to Plaintiffs declarations. (JA 658-60
(Garliauskas).)
On November 22, 2016, the district court issued a memorandum opinion
granting in part and denying in part the Agencies motions to alter or amend the
judgment. (JA 661-73.) The district court modified its previous order to allow
FTA to make its own assessment of the need for a supplemental EIS (JA 672-73),
but denied the request to reinstate the Record of Decision. (JA 670-71.)
ADDITIONAL NEPA REVIEW IN RESPONSE TO AUGUST 3 ORDER

The MTA November 2016 Report. Following the district courts August 3
Order, MTA worked with FTA to assess the potential effects of Metrorail ridership
and safety issues on the Purple Line. This work occurred over the next several
months and included consideration of the three September 2016 declarations
previously submitted by Plaintiffs in the district court litigation. In November
2016, Maryland submitted a 35-page report to FTA analyzing Metrorail safety and
12
ridership issues in relation to the Purple Line (November 2016 Report). (JA
2338-73.) MTAs November 2016 Report evaluated five scenarios representing
the full range of possible declines in Metrorail ridership, ranging from a near-term
rebound in Metrorail use (Scenario 1) to an extreme scenario in which there
would be no transfers to or from Metrorail, as would be the case if Metrorail
ceased to exist (Scenario 5). (JA 2359-60.) The purpose of Scenario 5 was to
take uncertainties about future Metrorail ridership entirely out of the assessment of
future Purple Line ridership. (JA 2360.)
MTAs November 2016 Report examined how each of the five scenarios
would affect the environmental impacts analysis in the Final EIS, the Purple Lines
ability to meet the Purpose and Need for the Project identified in the Final EIS, and
the basis for selection of a Light Rail Alternative as the States Locally Preferred
Alternative. (JA 2362-72.) MTAs November 2016 Report explained that even
extreme and unrealistic assumptions about future Metrorail ridership did not
undermine or invalidate Marylands original reasons for selecting a Light Rail
option as its Locally Preferred Alternative. (JA 2373.) The report concluded that
the recent Metrorail ridership and safety issues do not constitute the type of new
information or circumstances relevant to environmental concerns that normally
would require preparation of a supplemental EIS under the criteria set forth in
FTAs regulations. Id.
13
Plaintiffs November 2016 Letter. In November 2016, Plaintiffs submitted
to FTA a fourth letter, identifying several old and some new issues and asserting
that FTA should consider them in determining whether to prepare a supplemental
EIS on the Metrorail issue. (JA 2375, 377-80.) Attached to this letter were 287
pages of documents, ranging from news articles to blog posts. (JA 2381-87.) The
attachments to the letter also referenced the three declarations that Plaintiffs had
previously submitted to the district court in September 2016, which MTA and FTA
had considered and responded to in the litigation. (JA 2381.) Plaintiffs letter did
not expand upon the content of the three declarations nor did it explain why they
were relevant to FTAs assessment of whether to supplement the EIS. On
December 7, 2016, MTA submitted to FTA a response addressing the issues raised
in Plaintiffs letter. (JA 2411-19.)
FTAs December 2016 Determination. On December 13, 2016, FTA
issued a determination finding that the Metrorail ridership and safety issues did not
require preparation of a supplemental EIS (December 2016 Determination). (JA
2420-27.) FTA explained that it had considered and reviewed MTAs
November 2016 Report, Plaintiffs fourth letter and attachments, and MTAs
response to that letter. (JA 2420.) FTAs December 2016 Determination reviewed
the five scenarios analyzed in MTAs November 2016 Report and concluded that
all three elements of the Projects Purpose and Need would be met under the first
14
four scenarios, in which Metrorail ridership declines to varying degrees but the
Metrorail system remains in operation. (JA 2425-26.) Even in the highly
unlikely fifth scenario, in which Metrorail transfers to and from Metrorail and the
Purple Line would fall to zero, FTA found that the Purple Line would remain the
alternative that would best meet the Projects overall Purpose and Need because
it would improve east-west transit service in the corridor. (JA 2426.)
FURTHER PROCEEDINGS IN THE DISTRICT COURT

After FTA reached its December 2016 Determination, the Agencies filed
renewed motions for summary judgment in the district court. (JA 697-723, 724-
51.) These motions urged the district court to uphold FTAs December 2016
Determination and to issue a final decision on all of the issues reserved in the
courts August 3 Order. The Agencies also asked the court to reinstate FTAs
Record of Decision. (JA 698, 724.)
On May 22, 2017, the district court issued a memorandum opinion (May 22
Opinion) again requiring FTA to prepare a supplemental EIS on the Metrorail
ridership and safety issues. 7 (JA 818-29.) Noting FTAs finding that the Purple
Line will meet its established purposes, no matter what happens to WMATA
Metrorail, the court stated without further explanation that this is a curious
7
On May 12, 2017, Maryland petitioned this Court for a writ of mandamus
to direct the district court to enter a final appealable judgment. When the district
court issued its May 22, 2017 Order, Maryland voluntarily dismissed its Petition.
15
conclusion. (JA 825.) The court did not identify any specific flaw in that aspect
of FTAs analysis, nor did the court acknowledge or delve into the detailed
analysis that FTA provided to the court. Rather, the court set aside FTAs decision
based on the courts finding that the agency had not specifically responded to the
three declarations referenced by Plaintiffs in their November 2016 letter. (JA 822.)
The court acknowledged that FTA was not obligated to defer to the substantive
conclusions included in those declarations, but cited Public Employees for
Environmental Responsibility v. Hopper (PEER), 827 F.3d 1077 (D.C. Cir.
2016), for the proposition that an agency may not disregard materials that were
included in the administrative record on remand, and it concluded that [t]he facts
here could not be more similar. (JA 827-28.) The district court did not address
whether to reinstate FTAs Record of Decision, which therefore remained vacated.
Because the Record of Decision remained vacated, Maryland was unable to
proceed with the Project.
On May 30, 2017, the district court issued what it described as a final and
appealable order granting summary judgment in favor of FTA and Maryland on
all remaining issues in the case and noted that an opinion would follow. (JA 836-
37.) On the same date, Maryland filed a notice of appeal. (JA 838.)
On June 9, 2017, the district court issued a memorandum opinion addressing
all issues in the case other than the issue decided in its May 22 Opinion. (JA 929-
16
52.) In the June 9 Opinion, the district court rejected each of Plaintiffs challenges
to the Final EIS and Record of Decision, as well as Plaintiffs remaining
challenges to FTAs post-Record of Decision determinations.
Plaintiffs later filed a motion to alter the judgment pursuant to Rule 59(e),
asking the court to clarify what issues it had decided in its June 9 Opinion. (JA
1014.) Plaintiffs then filed a motion to enforce the judgment, asking the district
court to order FTA to provide details on how it was complying with the order to
prepare a supplemental EIS. (JA 1023.) On July 31, 2017, the district court denied
both of Plaintiffs motions. (JA 1022, 1023.)
On July 19, 2017, this Court granted Marylands emergency motion for a
stay pending appeal. By doing so, this Court reinstated FTAs Record of Decision.
SUMMARY OF ARGUMENT
The administrative record amply confirms that FTA acted lawfully in
December 2016 when it concluded, based on expert analysis, that it did not need to
supplement its Final EIS for the Purple Line to evaluate the effects of hypothetical
future declines in Metrorail ridership. FTAs decision that it did not need to
prepare a supplemental EIS was reasonable and made in accordance with its
regulations and relevant case law. A supplemental EIS is needed only when new
information presents a seriously different picture of the environmental impacts of
an agencys decision. FTAs detailed analysis found that even an extreme decline
17
in the number of Metrorail riders using the Purple Line, down to zero, would not
result in new or different environmental impacts that it had not fully considered.
FTAs analysis also showed that even if few or no Metrorail riders used the Purple
Line, the selected light rail option was still the most effective alternative to achieve
the three elements of the Projects Purpose and Need. FTA went beyond what was
required in fully considering and addressing the three declarations submitted by
Plaintiffs.
Even if the district courts decision to require a supplemental EIS were valid,
under this Courts precedent it is inappropriate for the district court to order
vacatur of FTAs Record of Decision. This precedent precludes vacating an
agency decision where, as here, the disruption resulting from vacatur is substantial
and there is reason to believe that, if given the opportunity, the agency will be able
to substantiate its decision on remand. Further, any error found in FTAs
December 2016 Determination on the Metrorail issue did not provide a basis for
vacating the Record of Decision.
ARGUMENT
I. FTAS DETERMINATION THAT NO SUPPLEMENTAL EIS WAS NEEDED TO

ASSESS THE METRORAIL RIDERSHIP ISSUES WAS REASONABLE AND IN
ACCORDANCE WITH ITS REGULATIONS.
Applying the applicable standards under NEPA and its own regulations, FTA
reasonably concluded in its December 2016 Determination that potential declines
18
in Metrorail ridership would not result in significant environmental impacts
beyond those evaluated in the Final EIS and thus did not warrant preparation of a
supplemental EIS. FTA then considered whether potential declines in Metrorail
ridership would affect the Purple Lines ability to meet its Purpose and Need or
change the basis for selecting a Light Rail Alternative. FTA concluded that the
fate of Metrorail ridership, whatever it might be, would not require a supplemental
EIS for the Project. The district courts May 22 Opinion requiring FTA to prepare
a supplemental EIS on the Metrorail ridership and safety issues ignored both
FTAs reasoning and well-established law. FTAs December 2016 Determination
was not arbitrary and capricious, and the district court erred in setting it aside.
A. The Standard of Review is De Novo with Deference to the

Administrative Agency.
This Court reviews the grant or denial of summary judgment de novo and
will set aside agency action only when it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2)(A). This
Courts review is highly deferential to the agency, while according no particular
deference to the judgment of the district court. Defenders of Wildlife v. Zinke,
849 F.3d 1077, 1082 (D.C. Cir. 2017) (citations omitted).
19
B. NEPA Requires a Supplemental EIS Only When New

Information is Significant.
When reviewing an agencys compliance with NEPA, this Court asks
whether the agency has adequately considered and disclosed the environmental
impact of its actions. Del. Riverkeeper v. FERC, 753 F.3d 1304, 1313 (D.C. Cir.
2014). The Court applies a rule of reason to an agencys NEPA analysis and
has repeatedly refused to flyspeck the agencys findings in search of any
deficiency no matter how minor. Myersville Citizens for a Rural Cmty., Inc. v.
FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (quoting Nevada v. Dept of Energy,
457 F.3d 78, 93 (D.C. Cir. 2006)).
NEPA is intended to ensure that agencies consider the environmental
impacts of their decisions and that the public is provided an opportunity to have
input into those decisions. Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 349 (1989). To effectuate these purposes, NEPA calls for an agency to
prepare an EIS to analyze the reasonably foreseeable environmental impacts of
major federal actions. Id.; 42 U.S.C. 4332. Having prepared an EIS, an agency
is not required to supplement it every time new information comes to light after
the EIS is finalized. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373 (1989).
Rather, a supplemental EIS is required only where new information provides 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
20
Olmsted Falls, OH v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002)) (emphasis in
original). As the Supreme Court has explained, a contrary rule would render
agency decisionmaking intractable, always awaiting updated information only to
find the new information outdated by the time a decision is made. Marsh, 490
U.S. at 373.
FTAs NEPA regulations echo these standards by calling for preparation of a
supplemental EIS only if [n]ew information or circumstances relevant to
environmental concerns and bearing on the proposed action or its impacts would
result in significant environmental impacts not evaluated in the EIS. 23 C.F.R.
771.130(a)(2) (emphasis added); see also 40 C.F.R. 1502.9(c).
C. FTA Reasonably Determined that any Decline in Metrorail

Ridership Would Not Lead to Significantly Different
Environmental Impacts from those Evaluated in the Final
EIS.
Building on the analysis contained in MTAs November 2016 Report, and
taking into account information provided by Plaintiffs, FTA conducted its own
independent evaluation of whether any decline in Metrorail ridership and related
safety issues warranted preparation of a supplemental EIS under its NEPA
regulations. (JA 2420.) FTA concluded that any changes in ridership that might
result from a reduction in transfers to and from the Metrorail system would not
significantly alter the environmental impacts of the Project. Specifically, FTA
found that a reduction in Metrorail ridership would not alter the physical impacts
21
of the Project, which would have the same footprint regardless of the number of
riders using it. (JA 2423-24.) FTA also 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. (JA 2424.)
In fact, FTA concluded that the environmental impacts from the Project would be
less significant, not greater, if the frequency of service were reduced as a result of a
decline in ridership. Id.
FTA appropriately relied upon the informed opinions of its own experts
when determining that, under a range of hypothetical scenarios, lower ridership
levels would not significantly change the environmental impacts of the Project. An
agencys determination that the new information is not significant enough to
warrant preparation of a supplemental EIS is entitled to deference and should be
upheld unless a plaintiff can show that it is arbitrary and capricious. Marsh, 490
U.S. at 376-78; Natl Comm. for the New River, 373 F.3d at 1330. Plaintiffs have
not come close to making such a showing here.
D. FTA Reasonably Concluded That the Project Would Still Meet its
Purpose and Need Even if Metrorail Transfers to the Purple Line
Declined.
FTA also reasonably concluded that any declines in Metrorail ridership
would not affect the ability of the Purple Line to achieve its Purpose and Need, and
22
would not undermine FTAs rationale for approving the Purple Line as a light rail
project.
The Final EIS identified three Purpose and Need elements for the Project:
(1) To provide faster, more direct, and more reliable east-west

transit service connecting major activity centers in the Purple
Line corridor at Bethesda, Silver Spring, Takoma/Langley Park,
College Park, and New Carrollton;
(2) To provide better connections to Metrorail services located

in the corridor; and
(3) To improve connectivity to the communities in the corridor

located between the Metrorail lines.
(JA 1215, 2425.)
In its December 2016 Determination, FTA found that the first and third
elements of the Purpose and Need do not depend on Metrorail and would be
achieved by the Purple Line regardless of the Metrorail ridership and safety issues.
(JA 2425.) In other words, even if Metrorail ridership were to continue to decline,
the Project would still improve east-west transit, connect communities along the
corridor, and connect major activity centers in and between Bethesda, Silver
Spring, College Park and New Carrollton. Id.
FTA then explained that the second element of the Purpose and Need
improving Metrorail connections was developed to address the radial orientation
of the Metrorail system. (JA 2426.) Rail travel between certain suburban
Maryland Metrorail stations requires lengthy trips into and out of Washington,
23
D.C. Id. FTA found that under the first four scenarios evaluated in MTAs
November 2016 Report, in which Metrorail transfers to the Purple Line decline to
various degrees but the Metrorail system remains operating, the Purple Line would
remain an attractive alternative to those lengthy trips and would thus meet the
second element of the Projects Purpose and Need. Id. FTA further observed that,
only under the highly unlikely fifth scenario, in which transfers between the
Purple Line and Metrorail fall to zero, would the Project not necessarily meet the
connection to Metrorail element of the Purpose and Need. Id. FTA noted,
however, that this unlikely eventuality would
not affect the choice between alternatives . . . because no alternative

would be capable of meeting that element of the Purpose and Need, as
it relies on the existence of the Metrorail system. Moreover, the
corresponding increases in roadway congestion would amplify the
extent to which the project meets the first and third elements of
Purpose and Need, making the Preferred Alternative still the best able
to meet the overall Purpose and Need, even under this highly unlikely
scenario.
Id.
The district court did not refer to or discuss the agencys rationale for
reaching its conclusion, and instead simply commented that it was curious that
the agency had found that the Purpose and Need would still be met no matter
what happens to . . . Metrorail. (JA 825 (emphasis in original).) The district
courts criticism is ill-founded, because FTAs rationale for its conclusion was
specific and well-supported. Nothing in the district courts decision provides any
24
basis for finding FTAs decision on this issue to be arbitrary and capricious. The
court should have deferred to FTAs expert analysis of highly technical issues
involving projections of passenger demand. St. 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). When
the decision whether to prepare a supplemental EIS involves technical issues
within the agencys area of expertise, courts generally defer to the informed
discretion of the responsible federal agencies. Davis v. Latschar, 202 F.3d 359,
369 (D.C. Cir. 2000) (citations omitted); 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).
In the district court, Plaintiffs argued that FTA effectively modified an
objective of the Project when it decided that a supplemental EIS was not required
to address the possibility of reductions in Metrorail transfers to the Purple Line.
As the summary above demonstrates, Plaintiffs are wrong. FTA explicitly
considered and discussed the effect of a decline in Metrorail ridership on the three
elements of the Projects Purpose and Need, and concluded that except in the
entirely unrealistic and unforeseeable scenario in which Metrorail ceased to exist,
the Project still would meet all elements of the Purpose and Need. And even for
Scenario 5 (the unrealistic no Metrorail scenario), FTA articulated a rational
25
basis for finding that the Project remained the best alternative to meet the overall
Purpose and Need. (JA 2425-26.)
As a result, this is not a case like Alaska Wilderness Recreation & Tourism
v. Morrison, 67 F.3d 723 (9th Cir. 1995), in which the court required a
supplemental EIS to consider new alternatives in light of the actual not
hypothetical cancellation of a contract that formed the entire basis for eliminating
certain alternatives from consideration. See 67 F.3d at 730 ([T]he cancellation of
the . . . contract, which opened for consideration alternatives which could not be
freely reviewed when the . . . contract was in force, is an event requiring serious
and detailed evaluation.). Here, FTA considered a full range of alternatives
against all three elements of the Purpose and Need and concluded that the light rail
option was the alternative that best met these elements. (JA 1231-66.) FTA
determined with reasoned analysis that even an extreme decline in Metrorail
transfers to the Purple Line would not change this conclusion or result in
environmental impacts that were not fully considered in the Final EIS. Unlike the
situation in Alaska Wilderness, there is no fundamental change in factual
underpinnings for assessing how different alternatives achieve, or do not achieve,
the Projects Purpose and Need.
Reduced to its essence, Plaintiffs argument is that FTA must prepare a
supplemental EIS, including an entirely new alternatives analysis based on the
26
fanciful assumption that Metrorail will cease to function. But NEPA is grounded
in consideration of reasonably foreseeable circumstances. See City of Grapevine v.
Department of Transportation, 17 F.3d 1502, 1503 (D.C. Cir. 1994) (NEPA
requires an EIS describing the reasonably foreseeable environmental impact of
the project and feasible alternatives); Vermont Yankee Nuclear Power Co. v.
NRDC, 435 U.S. 519, 551 (1978) (NEPA alternatives are governed by a rule of
reason). Hundreds of thousands of riders rely upon Metrorail every day.
Permanently abandoning the Metrorail system would be as unrealistic as closing
the Capital Beltway, demolishing the 14th Street Bridge, or eliminating Metrobus
service. No legitimate purpose under NEPA could be served by requiring FTA and
Maryland to spend taxpayer dollars evaluating in a supplemental EIS how the need
for the Purple Line would change based on such an improbable and unforeseeable
event.
E. FTA Satisfied Any Obligation to Consider and Address Plaintiffs

Declarations.
The district courts sole reason for rejecting FTAs December 2016
Determination was its mistaken conclusion that FTA failed to discuss[] or
analy[ze] the three declarations Plaintiffs referenced in the materials attached to
their November 25 Letter to FTA. (JA 827.) That statement reflects a
misunderstanding of FTAs analysis of the record before it and of the applicable
law.
27
First, in its December 2016 Determination, which was filed with the court
(JA 674), FTA specifically stated that it considered and reviewed additional
materials, including the three declarations referenced by the district court:
In addition to the Technical Report, FTA considered and reviewed,

the following additional documents prior to issuing this memorandum:
(1) Letter and attachments (including hyperlinks) from Friends of the
Capital Crescent Trail to the U.S. Department of Transportation, FTA,
Maryland Department of Transportation, and MTA (dated Nov. 25,
2016); (2) MTA Memorandum, Response to Plaintiffs Letter of
November 25, 2016 (dated Dec. 7, 2016); and (3) Letter and
attachments from Friends of the Capital Crescent Trail to U.S.
Department of Transportation, FTA, and the U.S. Department of the
Interior (dated Oct. 9, 2015).
(JA 2420.) This statement makes clear that FTA considered Plaintiffs submission
in its entirety, along with MTAs submission, in deciding whether a supplemental
EIS was required on the Metrorail issue. Moreover, FTA considered MTAs
response to Plaintiffs submission, and MTAs response itself included a point-by-
point response to every substantive issue raised in the body of Plaintiffs letter.
(JA 2411-19.) FTA did not respond separately to each item attached to or
referenced in Plaintiffs letter, but it had no obligation to do so considering
whether to prepare a supplemental EIS. See, e.g., Friends of the Clearwater v.
Dombeck, 222 F.3d 552, 560 (9th Cir. 2000) (Agency does not need to seek public
comment when deciding whether to prepare a supplemental EIS).
Second, the record as a whole makes clear that MTAs and FTAs entire
analysis of the Metrorail issue was developed in response to Plaintiffs
28
declarations. The declarations were filed in the district court on September 9,
2016, as part of Plaintiffs response to Marylands motion to amend the judgment.
(JA 494-640.) To the extent that the declarations addressed the issue of Metrorail
ridership, they contended that a recent decline in Metrorail ridership could be more
long-lasting and severe than was assumed in an August 2016 declaration from
MTAs ridership expert, Greg Benz. (JA 2297-99, 2303-07, 2319-22.) After
receiving Plaintiffs declarations, MTA worked with FTA to develop the five
scenarios analyzed in MTAs November 2016 Report, which specifically
considered an extreme scenario that assumed no Metrorail transfers to or from the
Purple Line. Thus, far from ignoring Plaintiffs declarations, the Agencies
developed the five scenarios in MTAs November 2016 Report specifically to take
into account the declarants hypotheses that there could be severe, long-term
decline in Metrorail ridership.
Moreover, much of Plaintiffs declarations addressed issues unrelated to
Metrorail ridership, such as the declarants disagreements with FTAs original
passenger forecasts for the Purple Line and their personal preferences for a
different alternative. FTA had no obligation to respond to these issues as they
were not relevant to its assessment of whether preparation of a supplemental EIS
was warranted on the Metrorail ridership issue. See Covad Commcns, Co. v.
F.C.C., 450 F.3d 528, 550 (D.C. Cir. 2006) (The failure to respond to comments
29
is significant only insofar as it demonstrates that the agencys decision was not
based on a consideration of the relevant factors. (quoting Thompson v.
Clark, 741 F.2d 401, 409 (D.C. Cir. 1984)); Pub. Citizen, Inc. v. F.A.A., 988 F.2d
186, 197 (D.C. Cir. 1993) (requirement to respond to comments is not particularly
demanding); Simpson v. Young, 854 F.2d 1429, 1435 (D.C. Cir. 1988) ([t]he
agency need only state the main reasons for its decision and indicate it has
considered the most important objections).
In finding fault with FTAs December 2016 Determination, the district court
incorrectly relied on PEER, 827 F.3d 1077, where 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. PEER is inapposite, however, because unlike the agency in PEER, FTA did
not disregard the declarations, but expressly reviewed and considered the
declarations and other information submitted by Plaintiffs. Id. at 1090.
Equally misplaced was the district courts reliance on Gerber v. Norton, 294
F.3d 173 (D.C. Cir. 2002), and Getty v. Federal Savings and Loan Insurance
Corp., 805 F.2d 1050 (D.C. Cir. 1986). Both cases address an agencys failure to
consider a factor that a statute specifically mandated to be considered. Here, the
district court never found, nor does the record show, that FTA failed to consider a
relevant factor. In fact, as discussed above, FTA assessed each of the factors
30
required to be considered when determining whether a supplemental EIS is needed.
See 23 C.F.R. 771.130 (identifying factors to consider in evaluating whether to
prepare a supplemental EIS). (JA 2423-26.)
In sum, FTA fulfilled its obligation to take a sufficiently hard look at the
Metrorail ridership and related maintenance and safety issues. Theodore Roosevelt
Conservation Pship v. Salazar, 616 F.3d 497, 510 (D.C. Cir. 2010). FTA
reasonably concluded that no supplemental EIS was required because the new
information about the Metrorail ridership and safety issues (1) would not result in
significant environmental impacts that FTA had not previously considered, (2) did
not undermine FTAs conclusion that the Project meets the Projects Purpose and
Need, and (3) did not undermine FTAs basis for approving Marylands choice of
Light Rail as the Locally Preferred Alternative. In keeping with the highly
deferential review that is appropriate for agency decisions, Defenders of Wildlife,
849 F.3d at 1082, this Court should defer to FTAs reasonable conclusion that a
supplemental EIS was not required because the information did not constitute a
seriously different picture of the environmental landscape when compared to what
was presented in the Final EIS. Natl Comm. for the New River, 373 F.3d at 1330.
31
II. EVEN IF THE COURT WERE TO FIND MERIT IN PLAINTIFFSARGUMENTS,

VACATING FTAS RECORD OF DECISION IS NOT AN APPROPRIATE
REMEDY.
For the reasons already explained, FTA acted reasonably and in accordance
with applicable law in considering and rejecting the need for Plaintiffs requested
supplemental EIS. Even if this Court were to reach a different conclusion,
however, vacating the Record of Decision would be inappropriate under the
circumstances of this case. Irrespective of whether its decision was otherwise
erroneous, the district court abused its discretion when it vacated the Record of
Decision and refused to reconsider the vacatur. The district court failed to apply
the Allied-Signal standard properly when it initially decided to vacate FTAs
Record of Decision and again when it declined to reconsider that decision.
A. The District Courts Decision to Vacate the Record of Decision is

Reviewed for an Abuse of Discretion.
A district courts decision to vacate an agencys determination is reviewed
for an abuse of discretion. State of Nebraska Department of Health and Human
Services v. Department of Health and Human Services, 435 F.3d 326, 330 (D.C.
Cir. 2006).
B. The Allied-Signal Test Governs a District Courts Decision on

Whether Vacatur is an Appropriate Remedy.
In Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commn, 988 F.2d 146
(D.C. Cir. 1993), this Court established the standard for deciding whether to vacate
32
an agency order found to be invalid. The Court held that vacatur is not an
automatic consequence of an error in an agencys order. Instead, [t]he decision
whether to vacate depends on the seriousness of the orders deficiencies (and thus
the extent of doubt whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be changed. Id. at 151-152
(citation omitted). Where there is a serious possibility that the [agency] will be
able to substantiate its decision on remand, this Court has declined to vacate an
agencys decision. Id.; see also Apache Corp. v. F.E.R.C., 627 F.3d 1220, 1223
(D.C. Cir. 2010). As recently as this month, this Court reaffirmed the continuing
applicability of the Allied-Signal factors when the Court declined to vacate an
agency decision despite concluding that the agencys lack of reasoned
decisionmaking rendered its action arbitrary and capricious. Susquehanna Intl
Grp., LLP v. Sec. & Exch. Commn, __ F.3d __, No. 16-1061, 2017 WL 3389269,
at *6 (D.C. Cir. Aug. 8, 2017); see id. at *8 (citing Allied-Signal); id. (deeming
vacatur inappropriate because the SEC may be able to approve the Plan once
again, after conducting a proper analysis on remand, and unwinding the Plan in
the interim would be . . . a logistical nightmare.).
Correct application of the Allied-Signal factors depends on circumstances
that exist at a particular time. See Black Warrior Riverkeeper, Inc. v. U.S. Army
Corps of Engineers, 781 F.3d 1271, 1289 (11th Cir. 2015) (declining to vacate
33
agency decision at this time); Maryland Native Plant Socy v. U.S. Army Corps
of Engineers, 332 F. Supp. 2d 845, 863 (D. Md. 2004) (same).
C. The District Court Abused Its Discretion in Vacating the

Record of Decision in Its August 3, 2016 Order.
In explaining its determination to vacate the Record of Decision, the district
court stated that [w]hile a temporary halt in the project is not ideal, it would make
little sense and cause even more disruption if defendants were to proceed with the
project while the [supplemental EIS] was being completed, only to subsequently
determine that another alternative is preferable. (JA 435.) The court pointed to
no evidence supporting its finding that keeping the Record of Decision in effect
would cause even more disruption than would result from vacating it, and the
court reached that conclusion without first asking the parties to address the likely
consequences of vacatur. Id. Nevertheless, even if there had been some support
for the district courts assessment, its conclusion was incorrect.
In the same order, the district court decided to reserve judgment on all
other claims in Plaintiffs complaint pending production of the supplemental EIS.
(JA 428.) Those reserved claims included challenges to the Final EIS. Thus, at
the time the district court vacated the Record of Decision, it had not yet ruled on
the claims that directly challenged the adequacy of the Final EIS upon which the
Record of Decision was based. An order vacating an agencys decision upon a
finding that the decision is inadequate constitutes an exercise of a courts equitable
34
discretion. State of Nebraska, 435 F. 3d at 330. The primary purpose of vacatur is
to prevent implementation of a decision that has been found to be inadequate or
illegal. Here, however, the August 3 Order (JA 436-37) vacated a decision that the
district court had not found to be inadequate or illegal: FTAs March 2014 Record
of Decision.
FTAs Record of Decision and its decision not to prepare a supplemental
EIS are two separate decisions, each subject to review in its own right. In 23
U.S.C. 139(l)(2), Congress has specified that the preparation of a supplemental
environmental impact statement when required shall be considered a final agency
action distinct from the agencys Record of Decision and subject to its own
statute of limitations. Courts have also recognized this distinction. See Jersey
Heights Neighborhood Assn. v. Glendening, 174 F.3d 180 (4th Cir. 1999) (the
initial decision to approve a project and a subsequent decision not to supplement
the NEPA analysis prepared for that initial approval are separate decisions, each
with its own statute of limitations); RB Jai Alai, LLC v. Secretary of the Florida
Dept of Transportation 47 F. Supp. 3d 1353, 1365 (M.D. Fla. 2014) (applying a
separate statute of limitation to challenges to a Record of Decision and to
subsequent decisions not to prepare a supplemental EIS because they were separate
decisions).
35
Here, the only NEPA violation found by the district court in its August 3
Order was that FTA had erred in its January 2016 decision not to prepare a
supplemental EIS. At no time did the district court find a flaw in the Final EIS or
Record of Decision, and, in fact, the court later found them both to be valid. As a
result, the district court erred by vacating the Record of Decision when concluding
that there was a flaw in FTAs wholly distinct January 2016 decision not to prepare
a supplemental EIS. Vacating a valid Record of Decision is not a proper remedy
when a court concludes that postRecord of Decision events require preparation of
a supplemental EIS. EarthReports, Inc. v. F.E.R.C., 828 F.3d 949, 959 (D.C. Cir.
2016) ([T]he courts review is limited to the administrative record before the
agency at the time of its decision.).
D. The District Court Abused Its Discretion In Refusing to

Grant the States Rule 59(e) Motion to Amend the
Judgment By Reinstating the Record of Decision.
In its Rule 59(e) motion filed on August 23, 2016, Maryland asked the
district court to reconsider its order vacating the Record of Decision and outlined
the disruptive consequences that would flow from maintaining that order. (JA 453,
457-59, 467-72.)8 Maryland noted that the Project was being developed through a
8
The district court never asked for separate briefing to address remedy.
Maryland, in its supplemental summary judgment brief, asked the court for an
opportunity to address the cascading consequences that would flow from a
decision to vacate the Record of Decision. (JA 318.) However, the district court
36
public-private partnership contract under which the private partner was responsible
for financing, developing, designing, and constructing the Purple Line, and for
operating and maintaining the Purple Line for 30 years.9 For example, the
schedule developed by the private partner was extremely complex, with almost
6,000 discrete activities that will need to be coordinated and sequenced over the
six-year design and construction period. (JA 446 at 29.) Any delay in that type
of complex schedule would require resequencing of many of the tasks in the
schedule, resulting in further delay and cost. This delay would result in substantial
increased costs due to the complexity and scope of the work planned to occur on a
project of this magnitude and to the intricate and timed financial investments and
commitments of the private participants and local, state, and federal governments.
(Id. at 30-32.)
Notwithstanding the significant harm to Maryland and the public from the
vacatur, the district court refused to amend its order vacating the Record of
Decision. Instead, the court noted that the disruptive consequences factor of the
Allied-Signal test compelled the decision to deny the request to reinstate the
Record of Decision. (JA 670.) The court further stated that Maryland had
issued its August 3 Order vacating the Record of Decision without further briefing
on the issue.
9
The consequences of delay are fully explained in the Declaration of
Charles Lattuca, submitted to the district court by Maryland as part of the Rule
59(e) motion. (JA 439, 448-52 at 41-60.)
37
discussed the disruptive consequences as if they occur in a vacuum and found
that vacatur ensures that the project will proceed only with the benefit of a fully
fleshed out consideration of the issues required by NEPA. (JA 670-71.) But
under Allied-Signal and other cases addressing the vacatur issue, the disruptive
consequences to be considered are the consequences flowing from the interim
change that would result from vacating the agency decision only to later reinstate
it once the agency had provided an adequate explanation for its actions in other
words, the consequences of an interim change that may itself be changed.
International Union, United Mine Workers of America v. Fed. Mine Safety and
Health Administration 920 F.2d 960, 967 (D.C. Cir. 1990).
The district court erred in two ways. First, the court misunderstood the
nature of the disruptive-consequences consideration by focusing on changes that
would occur through implementation of the Project if the Record of Decision were
kept in place, rather than on the disruptive consequences flowing from vacatur of
the Record of Decision, which had been in place for over two years by the time of
the courts order. Second, by failing to re-weigh those consequences in light of the
more detailed explanation of the disruptive consequences provided by Maryland,
the district court, in effect, issued a preliminary injunction without making any of
the findings required to support such extraordinary relief.
38
E. The District Court Abused Its Discretion in Refusing to

Reconsider Its Vacatur Order Once FTA and MTA
Produced a New Decision on the Need for a Supplemental
EIS.
When the district court first ordered vacatur of the Record of Decision in its
August 3 Order, it relied on its finding that FTAs January 2016 decision not to
prepare a supplemental decision was flawed. (JA 434-35.) In response to the
Courts August 3 Order, FTA, with MTAs assistance, prepared a new analysis of
the Metrorail ridership issue. After considering this new analysis, FTA determined
again that a supplemental EIS was not warranted. (JA 674-85.) Both MTA and
FTA asked the Court to lift its order vacating the Record of Decision based on
FTAs new determination not to supplement and because the disruptive
consequences of vacatur had increased. (JA 697-723, 724-51.) After the court
again concluded in its May 2017 Opinion that FTA needed to prepare a
supplemental EIS, the court failed to mention the Allied-Signal factors or consider
whether they favored continuing the vacatur of the Record of Decision.
The court erred when it failed to reevaluate the vacatur remedy at that time.
The language in Allied-Signal is clear. A decision to vacate a particular order
depends on the seriousness of the orders deficiencies. Allied-Signal, 988 F.2d at
151. The order to be vacated is the order that has been found to have
deficiencies, not any other related order. The district courts May 22 Opinion
reviewed and rejected FTAs December 2016 Determination not the March 2014
39
Record of Decision or the January 2016 determination. Indeed, the court found
only a single flaw in the December 2016 Determination: a failure to address three
declarations submitted by Plaintiffs addressing perceived faults in a preliminary
analysis prepared by Maryland to support its August 2016 Rule 59(e) motion. The
district court also failed to weigh the seriousness of that single flaw in the
December 2016 Determination as required under the Allied-Signal standard. Thus,
the district court erred by refusing to reconsider the appropriateness of the order
vacating the March 2014 Record of Decision, when the only NEPA error found by
the court concerned FTAs December 2016 Determination not to prepare a
supplemental EIS.10 In addition, the district court again erred in failing to reweigh
the disruptive consequences in light of the new information provided by MTA
addressing how continued vacatur of the Record of Decision caused irreparable
harm to Maryland. (JA 747-51 at 11-19.)
Finally, even when the disruptive consequences consist primarily of
financial consequences, courts have found vacatur an inappropriate remedy. See
California Communities Against Toxics v. E.P.A., 688 F.3d 989, 993-994 (9th Cir.
2012) (declining to vacate an EPA rule where [s]topping construction [on a power
plant] would . . . be economically disastrous in light of the fact that it was a
10
The district court further abused its discretion by failing to reconsider
vacatur after its May 30 Order upholding the FEIS and the Record of Decision on
all other grounds.
40
billion-dollar venture employing 350 workers); Maryland Native Plant Socy,
332 F. Supp. 2d at 862-63 (finding vacatur inappropriate when a private developer
stands to lose hundreds of thousands of dollars, if not more, if the uncertainty of a
vacatur is introduced, even though the Corps may eventually be able to articulate
sustainable reasons for its decision). Given that the only flaw found by the
district court in FTAs December 2016 Determination was a perceived failure on
the part of FTA to respond directly to declarations submitted by Plaintiffs, it is
clear that the disruptive consequences of an interim change to the status of the
Project caused by vacating the Record of Decision could be easily avoided by
requiring FTA to further respond to those declarations. Vacating the Record of
Decision under these circumstances conflicts with this Courts precedent.
CONCLUSION
For the foregoing reasons, this Court should reverse that portion of the final
judgment that orders FTA to prepare a supplemental environmental impact
statement and should reverse the district courts order vacating FTAs March 2014
Record of Decision.
41
Dated: August 18, 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 State of Maryland
42
STATUTORY AND REGULATORY ADDENDUM
TABLE OF CONTENTS
Addendum Page
23 U.S.C. 139 .......................................................................................................1
42 U.S.C. 4332 .....................................................................................................2
49 U.S.C. 5309 .....................................................................................................4

23 C.F.R. 771.109 ................................................................................................6
23 C.F.R. 771.111 ................................................................................................8

23 C.F.R. 771.130 ................................................................................................12
40 C.F.R. 1502.9 ..................................................................................................14
49 C.F.R. 611.105 ................................................................................................15

23 U.S.C. 139. Efficient environmental reviews for project decisionmaking.

(l) Limitations on Claims.
(1) In general.Notwithstanding any other provision of law, a claim arising
under Federal law seeking judicial review of a permit, license, or approval issued
by a Federal agency for a highway or public transportation capital project shall
be barred unless it is filed within 180 days after publication of a notice in the
Federal Register announcing that the permit, license, or approval is final
pursuant to the law under which the agency action is taken, unless a shorter time
is specified in the Federal law pursuant to which judicial review is allowed.
Nothing in this subsection shall create a right to judicial review or place any
limit on filing a claim that a person has violated the terms of a permit, license, or
approval.
(2) New information.The Secretary shall consider new information received
after the close of a comment period if the information satisfies the requirements
for a supplemental environmental impact statement under section 771.130 of title
23, Code of Federal Regulations. The preparation of a supplemental
environmental impact statement when required shall be considered a separate
final agency action and the deadline for filing a claim for judicial review of such
action shall be 180 days after the date of publication of a notice in the Federal
Register announcing such action.
ADDENDUM 1
42 U.S.C. 4332. Cooperation of agencies; reports; availability of

information; recommendations; international and national coordination of
efforts.
The Congress authorizes and directs that, to the fullest extent possible: (1) the
policies, regulations, and public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in this chapter, and (2) all
agencies of the Federal Government shall
(A) utilize a systematic, interdisciplinary approach which will insure the integrated
use of the natural and social sciences and the environmental design arts in planning
and in decisionmaking which may have an impact on mans environment;
(B) identify and develop methods and procedures, in consultation with the Council
on Environmental Quality established by subchapter II of this chapter, which will
insure that presently unquantified environmental amenities and values may be
given appropriate consideration in decisionmaking along with economic and
technical considerations;
(C) include in every recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the
proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of mans environment and
the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be
involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall
consult with and obtain the comments of any Federal agency which has jurisdiction
by law or special expertise with respect to any environmental impact involved.
Copies of such statement and the comments and views of the appropriate Federal,
State, and local agencies, which are authorized to develop and enforce
environmental standards, shall be made available to the President, the Council on
Environmental Quality and to the public as provided by section 552 of title 5, and
shall accompany the proposal through the existing agency review processes;
ADDENDUM 2
(D) Any detailed statement required under subparagraph (C) after January 1, 1970,
for any major Federal action funded under a program of grants to States shall not
be deemed to be legally insufficient solely by reason of having been prepared by a
State agency or official, if:
(i) the State agency or official has statewide jurisdiction and has the
responsibility for such action,
(ii) the responsible Federal official furnishes guidance and participates in such
preparation,
(iii) the responsible Federal official independently evaluates such statement
prior to its approval and adoption, and
(iv) after January 1, 1976, the responsible Federal official provides early
notification to, and solicits the views of, any other State or any Federal land
management entity of any action or any alternative thereto which may have
significant impacts upon such State or affected Federal land management entity
and, if there is any disagreement on such impacts, prepares a written assessment
of such impacts and views for incorporation into such detailed statement.
The procedures in this subparagraph shall not relieve the Federal official of his
responsibilities for the scope, objectivity, and content of the entire statement or of
any other responsibility under this chapter; and further, this subparagraph does not
affect the legal sufficiency of statements prepared by State agencies with less than
statewide jurisdiction.
(E) study, develop, and describe appropriate alternatives to recommended courses
of action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources;
(F) recognize the worldwide and long-range character of environmental problems
and, where consistent with the foreign policy of the United States, lend appropriate
support to initiatives, resolutions, and programs designed to maximize international
cooperation in anticipating and preventing a decline in the quality of mankinds
world environment;
(G) make available to States, counties, municipalities, institutions, and individuals,
advice and information useful in restoring, maintaining, and enhancing the quality
of the environment;
(H) initiate and utilize ecological information in the planning and development of
resource-oriented projects; and
(I) assist the Council on Environmental Quality established by subchapter II of this
chapter.
ADDENDUM 3
49 U.S.C. 5309. Fixed guideway capital investment grants.

(d) New Fixed Guideway Grants.
(1) Project development phase.
(A) Entrance into project development phase.A new fixed guideway
capital project shall enter into the project development phase when
(i) the applicant
(I) submits a letter to the Secretary describing the project and
requesting entry into the project development phase; and
(II) initiates activities required to be carried out under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with
respect to the project; and
(ii) the Secretary
(I) responds in writing to the applicant within 45 days whether the
information provided is sufficient to enter into the project
development phase, including, when necessary, a detailed description
of any information deemed insufficient; and
(II) provides concurrent notice to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on
Transportation and Infrastructure of the House of Representatives of
whether the new fixed guideway capital project is entering the project
development phase.
(B) Activities during project development phase.Concurrent with the
analysis required to be made under the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.), each applicant shall develop sufficient
information to enable the Secretary to make findings of project justification
and local financial commitment under this subsection.
(C) Completion of project development activities required.
(i) In general.
Not later than 2 years after the date on which a project enters into the
project development phase, the applicant shall complete the activities
required to obtain a project rating under subsection (g)(2) and submit
completed documentation to the Secretary.
ADDENDUM 4
(ii) Extension of time.Upon the request of an applicant, the Secretary

may extend the time period under clause (i), if the applicant submits to
the Secretary
(I) a reasonable plan for completing the activities required under this
paragraph; and
(II) an estimated time period within which the applicant will complete
such activities.
(2) Engineering phase.
(A) In general.A new fixed guideway capital project may advance to the
engineering phase upon completion of activities required under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated
by a record of decision with respect to the project, a finding that the project
has no significant impact, or a determination that the project is categorically
excluded, only if the Secretary determines that the project
(i) is selected as the locally preferred alternative at the completion of the
process required under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.);
(ii) is adopted into the metropolitan transportation plan required under
section 5303;
(iii) is justified based on a comprehensive review of the projects
mobility improvements, the projects environmental benefits, congestion
relief associated with the project, economic development effects
associated with the project, policies and land use patterns of the project
that support public transportation, and the projects cost-effectiveness as
measured by cost per rider; and
(iv) is supported by an acceptable degree of local financial commitment
(including evidence of stable and dependable financing sources), as
required under subsection (f).
(B) Determination that project is justified.In making a determination
under subparagraph (A)(iii), the Secretary shall evaluate, analyze, and
consider
(i) the reliability of the forecasting methods used to estimate costs and
utilization made by the recipient and the contractors to the recipient; and
(ii) population density and current public transportation ridership in the
transportation corridor.
ADDENDUM 5
23 C.F.R. 771.109. Applicability and responsibilities.
(a)
(1) The provisions of this regulation and the CEQ regulation apply to actions
where the Administration exercises sufficient control to condition the permit or
project approval. Actions taken by the applicant which do not require Federal
approvals, such as preparation of a regional transportation plan are not subject to
this regulation.
(2) This regulation does not apply to, or alter approvals by the Administration
made prior to the effective date of this regulation.
(3) Environmental documents accepted or prepared after the effective date of this
regulation shall be developed in accordance with this regulation.
(b) It shall be the responsibility of the applicant, in cooperation with the
Administration to implement those mitigation measures stated as commitments in
the environmental documents prepared pursuant to this regulation. The FHWA will
assure that this is accomplished as a part of its program management
responsibilities that include reviews of designs, plans, specifications, and estimates
(PS&E), and construction inspections. The FTA will assure implementation of
committed mitigation measures through incorporation by reference in the grant
agreement, followed by reviews of designs and construction inspections.
(c) The following roles and responsibilities apply during the environmental review
process:
(1) The lead agencies are responsible for managing the environmental review
process and the preparation of the appropriate environmental review documents.
(2) Any applicant that is a State or local governmental entity that is, or is
expected to be, a direct recipient of funds under title 23, U.S. Code, or chapter 53
of title 49 U.S. Code, for the action shall serve as a joint lead agency with the
Administration in accordance with 23 U.S.C. 139, and may prepare
environmental review documents if the Administration furnishes guidance and
independently evaluates the documents.
(3) The Administration may invite other Federal, State, local, or federally-
recognized Indian tribal governmental units to serve as joint lead agencies in
accordance with the CEQ regulation. If the applicant is serving as a joint lead
agency under 23 U.S.C. 139(c)(3), then the Administration and the applicant will
decide jointly which other agencies to invite to serve as joint lead agencies.
ADDENDUM 6
(4) When the applicant seeks an Administration action other than the approval of
funds, the role of the applicant will be determined by the Administration in
accordance with the CEQ regulation and 23 U.S.C. 139.
(5) Regardless of its role under paragraphs (c)(2) through (c)(4) of this section, a
public agency that has statewide jurisdiction (for example, a State highway
agency or a State department of transportation) or a local unit of government
acting through a statewide agency, that meets the requirements of section
102(2)(D) of NEPA, may prepare the EIS and other environmental review
documents with the Administration furnishing guidance, participating in the
preparation, and independently evaluating the document. All FHWA applicants
qualify under this paragraph.
(6) The role of a project sponsor that is a private institution or firm is limited to
providing technical studies and commenting on environmental review
documents.
(d) When entering into Federal-aid project agreements pursuant to 23 U.S.C. 106,
it shall be the responsibility of the State highway agency to ensure that the project
is constructed in accordance with and incorporates all committed environmental
impact mitigation measures listed in approved environmental review documents
unless the State requests and receives written FHWA approval to modify or delete
such mitigation features.
ADDENDUM 7
23 C.F.R. 771.111. Early coordination, public involvement, and project

development.
(a)
(1) Early coordination with appropriate agencies and the public aids in
determining the type of environmental review documents an action requires, the
scope of the document, the level of analysis, and related environmental
requirements. This involves the exchange of information from the inception of a
proposal for action to preparation of the environmental review documents.
Applicants intending to apply for funds should notify the Administration at the
time that a project concept is identified. When requested, the Administration will
advise the applicant, insofar as possible, of the probable class of action and
related environmental laws and requirements and of the need for specific studies
and findings which would normally be developed concurrently with the
environmental review documents.
(2) The information and results produced by, or in support of, the transportation
planning process may be incorporated into environmental review documents in
accordance with 40 CFR 1502.21, and 23 CFR 450.212(b) or 450.318(b). In
addition, planning products may be adopted and used in accordance with 23 CFR
450.212(d) or 450.318(e), which implement 23 U.S.C. 168.
(b) The Administration will identify the probable class of action as soon as
sufficient information is available to identify the probable impacts of the action.
(c) When both the FHWA and FTA are involved in the development of a project,
or when the FHWA or FTA acts as a joint lead agency with another Federal
agency, a mutually acceptable process will be established on a case-by-case basis.
(d) During the early coordination process, the lead agencies may request other
agencies having an interest in the action to participate, and must invite such
agencies if the action is subject to the project development procedures in 23 U.S.C.
139. Agencies with special expertise may be invited to become cooperating
agencies. Agencies with jurisdiction by law must be requested to become
cooperating agencies.
The FHWA and FTA have developed guidance on 23 U.S.C. Section 139 titled
SAFETEA-LU Environmental Review Process: Final Guidance, November 15,
2006, and available at http://www.fhwa.dot.gov or in hard copy upon request.
(e) Other States, and Federal land management entities, that may be significantly
affected by the action or by any of the alternatives shall be notified early and their
views solicited by the applicant in cooperation with the Administration. The
ADDENDUM 8
Administration will prepare a written evaluation of any significant unresolved

issues and furnish it to the applicant for incorporation into the environmental
assessment (EA) or draft EIS.
(f) In order to ensure meaningful evaluation of alternatives and to avoid
commitments to transportation improvements before they are fully evaluated, the
action evaluated in each EIS or finding of no significant impact (FONSI) shall:
(1) Connect logical termini and be of sufficient length to address environmental
matters on a broad scope;
(2) Have independent utility or independent significance, i.e., be usable and be a
reasonable expenditure even if no additional transportation improvements in the
area are made; and
(3) Not restrict consideration of alternatives for other reasonably foreseeable
transportation improvements.
(g) For major transportation actions, the tiering of EISs as discussed in the CEQ
regulation ( 40 CFR 1502.20) may be appropriate. The first tier EIS would focus
on broad issues such as general location, mode choice, and areawide air quality and
land use implications of the major alternatives. The second tier would address site-
specific details on project impacts, costs, and mitigation measures.
(h) For the Federal-aid highway program:
(1) Each State must have procedures approved by the FHWA to carry out a
public involvement/public hearing program pursuant to 23 U.S.C. 128 and 139
and CEQ regulation.
(2) State public involvement/public hearing procedures must provide for:
(i) Coordination of public involvement activities and public hearings with the
entire NEPA process.
(ii) Early and continuing opportunities during project development for the
public to be involved in the identification of social, economic, and
environmental impacts, as well as impacts associated with relocation of
individuals, groups, or institutions.
(iii) One or more public hearings or the opportunity for hearing(s) to be held
by the State highway agency at a convenient time and place for any Federal-
aid project which requires significant amounts of right-of-way, substantially
changes the layout or functions of connecting roadways or of the facility being
improved, has a substantial adverse impact on abutting property, otherwise has
a significant social, economic, environmental or other effect, or for which the
FHWA determines that a public hearing is in the public interest.
ADDENDUM 9
(iv) Reasonable notice to the public of either a public hearing or the

opportunity for a public hearing. Such notice will indicate the availability of
explanatory information. The notice shall also provide information required to
comply with public involvement requirements of other laws, Executive orders,
and regulations.
(v) Explanation at the public hearing of the following information, as
appropriate:
(A) The project's purpose, need, and consistency with the goals and
objectives of any local urban planning,
(B) The project's alternatives, and major design features,
(C) The social, economic, environmental, and other impacts of the project,
(D) The relocation assistance program and the right-of-way acquisition
process.
(E) The State highway agency's procedures for receiving both oral and
written statements from the public.
(vi) Submission to the FHWA of a transcript of each public hearing and a
certification that a required hearing or hearing opportunity was offered. The
transcript will be accompanied by copies of all written statements from the
public, both submitted at the public hearing or during an announced period
after the public hearing.
(vii) An opportunity for public involvement in defining the purpose and need
and the range of alternatives, for any action subject to the project development
procedures in 23 U.S.C. 139.
(viii) Public notice and an opportunity for public review and comment on a
Section 4(f) de minimis impact finding, in accordance with 49 U.S.C. 303(d). 4
The FHWA and FTA have developed guidance on Section 4(f) de minimis impact
findings titled Guidance for Determining De Minimis Impacts to Section 4(f)
Resources, December 13, 2005, which is available at http://www.fhwa.dot.gov or
in hard copy upon request.
(3) Based on the reevaluation of project environmental documents required by
771.129, the FHWA and the State highway agency will determine whether
changes in the project or new information warrant additional public involvement.
(4) Approvals or acceptances of public involvement/public hearing procedures
prior to the publication date of this regulation remain valid.
(i) Applicants for capital assistance in the FTA program:
ADDENDUM 10
(1) Achieve public participation on proposed projects through activities that

engage the public, including public hearings, town meetings, and charettes, and
seeking input from the public through the scoping process for environmental
review documents. Project milestones may be announced to the public using
electronic or paper media (e.g., newsletters, note cards, or emails) pursuant to 40
CFR 1506.6. For projects requiring EISs, an early opportunity for public
involvement in defining the purpose and need for action and the range of
alternatives must be provided, and a public hearing will be held during the
circulation period of the draft EIS. For other projects that substantially affect the
community or its public transportation service, an adequate opportunity for
public review and comment must be provided.
(2) May participate in early scoping as long as enough project information is
known so the public and other agencies can participate effectively. Early scoping
constitutes initiation of NEPA scoping while local planning efforts to aid in
establishing the purpose and need and in evaluating alternatives and impacts are
underway. Notice of early scoping must be made to the public and other
agencies. If early scoping is the start of the NEPA process, the early scoping
notice must include language to that effect. After development of the proposed
action at the conclusion of early scoping, FTA will publish the Notice of Intent if
it is determined at that time that the proposed action requires an EIS. The Notice
of Intent will establish a 30-day period for comments on the purpose and need
and the alternatives.
(3) Are encouraged to post and distribute materials related to the environmental
review process, including but not limited to, NEPA documents, public meeting
announcements, and minutes, through publicly-accessible electronic means,
including project Web sites. Applicants are encouraged to keep these materials
available to the public electronically until the project is constructed and open for
operations.
(4) Are encouraged to post all environmental impact statements and records of
decision on a project Web site until the project is constructed and open for
operation.
(j) Information on the FTA environmental process may be obtained from: Director,
Office of Human and Natural Environment, Federal Transit Administration,
Washington, DC 20590. Information on the FHWA environmental process may be
obtained from: Director, Office of Project Development and Environmental
Review, Federal Highway Administration, Washington, DC 20590.
ADDENDUM 11
23 C.F.R. 771.130. Supplemental environmental impact statements.

(a) A draft EIS, final EIS, or supplemental EIS may be supplemented at any time.
An EIS shall be supplemented whenever the Administration determines that:
(1) Changes to the proposed action would result in significant environmental
impacts that were not evaluated in the EIS; or
(2) New information or circumstances relevant to environmental concerns and
bearing on the proposed action or its impacts would result in significant
environmental impacts not evaluated in the EIS.
(b) However, a supplemental EIS will not be necessary where:
(1) The changes to the proposed action, new information, or new circumstances
result in a lessening of adverse environmental impacts evaluated in the EIS
without causing other environmental impacts that are significant and were not
evaluated in the EIS; or
(2) The Administration decides to approve an alternative fully evaluated in an
approved final EIS but not identified as the preferred alternative. In such a case,
a revised ROD shall be prepared and circulated in accordance with 771.127(b).
(c) Where the Administration is uncertain of the significance of the new impacts,
the applicant will develop appropriate environmental studies or, if the
Administration deems appropriate, an EA to assess the impacts of the changes,
new information, or new circumstances. If, based upon the studies, the
Administration determines that a supplemental EIS is not necessary, the
Administration shall so indicate in the project file.
(d) A supplement is to be developed using the same process and format (i.e., draft
EIS, final EIS, and ROD) as an original EIS, except that scoping is not required.
(e) A supplemental draft EIS may be necessary for major new fixed guideway
capital projects proposed for FTA funding if there is a substantial change in the
level of detail on project impacts during project planning and development. The
supplement will address site-specific impacts and refined cost estimates that have
been developed since the original draft EIS.
(f) In some cases, a supplemental EIS may be required to address issues of limited
scope, such as the extent of proposed mitigation or the evaluation of location or
design variations for a limited portion of the overall project. Where this is the case,
the preparation of a supplemental EIS shall not necessarily:
(1) Prevent the granting of new approvals;
ADDENDUM 12
(2) Require the withdrawal of previous approvals; or

(3) Require the suspension of project activities; for any activity not directly
affected by the supplement. If the changes in question are of such magnitude to
require a reassessment of the entire action, or more than a limited portion of the
overall action, the Administration shall suspend any activities which would have
an adverse environmental impact or limit the choice of reasonable alternatives,
until the supplemental EIS is completed.
ADDENDUM 13
40 C.F.R. 1502.9. Draft, final, and supplemental statements.

Except for proposals for legislation as provided in 1506.8 environmental impact
statements shall be prepared in two stages and may be supplemented.
(a) Draft environmental impact statements shall be prepared in accordance with the
scope decided upon in the scoping process. The lead agency shall work with the
cooperating agencies and shall obtain comments as required in part 1503 of this
chapter. The draft statement must fulfill and satisfy to the fullest extent possible
the requirements established for final statements in section 102(2)(C) of the Act. If
a draft statement is so inadequate as to preclude meaningful analysis, the agency
shall prepare and circulate a revised draft of the appropriate portion. The agency
shall make every effort to disclose and discuss at appropriate points in the draft
statement all major points of view on the environmental impacts of the alternatives
including the proposed action.
(b) Final environmental impact statements shall respond to comments as required
in part 1503 of this chapter. The agency shall discuss at appropriate points in the
final statement any responsible opposing view which was not adequately discussed
in the draft statement and shall indicate the agency's response to the issues raised.
(c) Agencies:
(1) Shall prepare supplements to either draft or final environmental impact
statements if:
(i) The agency makes substantial changes in the proposed action that are
relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts.
(2) May also prepare supplements when the agency determines that the purposes
of the Act will be furthered by doing so.
(3) Shall adopt procedures for introducing a supplement into its formal
administrative record, if such a record exists.
(4) Shall prepare, circulate, and file a supplement to a statement in the same
fashion (exclusive of scoping) as a draft and final statement unless alternative
procedures are approved by the Council.
ADDENDUM 14
49 C.F.R. 611.105. Definitions.

The definitions established by Titles 12 and 49 of the United States Code, the
Council on Environmental Quality's regulation at 40 CFR parts 1500- 1508, and
FHWA-FTA regulations at 23 CFR parts 450 and 771 are applicable. In addition,
the following definitions apply:
Corridor-based bus rapid transit project means a bus capital project where the
project represents a substantial investment in a defined corridor as demonstrated by
features such as park-and-ride lots, transit stations, bus arrival and departure
signage, intelligent transportation systems technology, traffic signal priority, off-
board fare collection, advanced bus technology, and other features that support the
long-term corridor investment.
Current year means the most recent year for which data on the existing transit
system and demographic data are available.
Early system work agreement means a contract, pursuant to the requirements in 49
U.S.C. 5309(k)(3), that allows some construction work and other clearly defined
elements of a project to proceed prior to execution of a full funding grant
agreement (FFGA). It typically includes a limited scope of work that is less than
the full project scope of work and specifies the amount of New Starts funds that
will be provided for the defined scope of work included in the agreement.
EGA means an expedited grant agreement.
Engineering is a phase of development for New Starts projects during which the
scope of the proposed project is finalized; estimates of project cost, benefits, and
impacts are refined; project management plans and fleet management plans are
developed; and final construction plans (including final construction management
plans), detailed specifications, final construction cost estimates, and bid documents
are prepared. During engineering, project sponsors must obtain commitments of all
non-New Starts funding.
ESWA means early system work agreement.
Extension to fixed guideway means a project to extend an existing fixed guideway
or planned fixed guideway.
FFGA means a full funding grant agreement.
Fixed guideway means a public transportation facility that uses and occupies a
separate right-of-way or rail line for the exclusive use of public transportation and
other high occupancy vehicles, or uses a fixed catenary system and a right of way
usable by other forms of transportation. This includes, but is not limited to, rapid
rail, light rail, commuter rail, automated guideway transit, people movers, ferry
ADDENDUM 15
boat service, and fixed-guideway facilities for buses (such as bus rapid transit) and
other high occupancy vehicles. A new fixed guideway means a newly-constructed
fixed guideway in a corridor or alignment where no such guideway exists.
FTA means the Federal Transit Administration.
Full funding grant agreement means a contract that defines the scope of a New
Starts project, the amount of New Starts funds that will be contributed, and other
terms and conditions.
Horizon year means a year roughly 10 years or 20 years in the future, at the option
of the project sponsor. Horizon years are based on available socioeconomic
forecasts from metropolitan planning organizations, which are generally prepared
in five year increments such as for the years 2020, 2025, 2030, and 2035.
Locally preferred alternative means an alternative evaluated through the local
planning process, adopted as the desired alternative by the appropriate State and/or
local agencies and official boards through a public process and identified as the
preferred alternative in the NEPA process.
Long-range transportation plan means a financially constrained long-range plan,
developed pursuant to 23 CFR Part 450, that includes sufficient financial
information for demonstrating that projects can be implemented using committed,
available, or reasonably available revenue sources, with reasonable assurance that
the Federally supported transportation system is being adequately operated and
maintained. For metropolitan planning areas, this would be the metropolitan
transportation plan and for other areas, this would be the long-range statewide
transportation plan. In areas classified by the Environmental Protection Agency as
nonattainment or maintenance of air quality standards, the long-range
transportation plan must have been found by DOT to be in conformity with the
applicable State Implementation Plan.
Major capital transit investment means any project that involves the construction
of a new fixed guideway, extension of an existing fixed guideway, or a corridor-
based bus rapid transit system for use by public transit vehicles.
NEPA process means those procedures necessary to meet the requirements of the
National Environmental Policy Act of 1969 (NEPA), as amended, at 23 CFR Part
771; the NEPA process is completed when the project receives a categorical
exclusion, a Finding of No Significant Impact (FONSI) or a Record of Decision
(ROD).
New Starts means a new fixed guideway project, or a project that is an extension to
an existing fixed guideway, that has a total capital cost of $250,000,000 or more or
ADDENDUM 16
for which the project sponsor is requesting $75,000,000 or more in New Starts
funding.
New Starts funds mean funds granted by FTA for a New Starts project pursuant to
49 U.S.C. 5309(d).
No-build alternative means an alternative that includes only the current
transportation system as well as the transportation investments committed in the
Transportation Improvement Plan (TIP) (when the horizon year is 10 years in the
future) or the fiscally constrained long-range transportation plan (when the horizon
year is 20 years in the future) required by 23 CFR Part 450.
Secretary means the Secretary of Transportation.
Small Starts means a new fixed guideway project, a project that is an extension to
an existing fixed guideway, or a corridor-based bus rapid transit system project,
with a total capital cost of less than $250,000,000 and for which the project
sponsor is requesting less than $75,000,000 in Small Starts funding.
Small Starts funds mean funds granted by FTA for a Small Starts project pursuant
to 49 U.S.C. 5309(h).
Small Starts project development is a phase in the Small Starts process during
which the scope of the proposed project is finalized; estimates of project costs,
benefits and impacts are refined; NEPA requirements are completed; project
management plans and fleet management plans are further developed; and the
project sponsors obtains commitment of all non-Small Starts funding. It also
includes (but is not limited to) the preparation of final construction plans
(including construction management plans), detailed specifications, construction
cost estimates, and bid documents.
ADDENDUM 17
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of
Rule 27(d)(2) of the Federal Rules of Appellate Procedure. As measured by the
word-processing system used to prepare this brief, the brief contains 9604 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
CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2017, a copy of the foregoing document
was served via the CM/ECF system on all counsel of record.
Date: August 18, 2017 /s/ Albert M. Ferlo

Albert M. Ferlo

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USCA Case #17-5132 Document #1689447 Filed: 08/18/2017 Page 1 of 72

NOT YET SCHEDULED FOR ORAL ARGUMENT

No. 17-5132 (Consolidated with Nos. 17-5161, 17-5174 and 17-5175)

IN THE UNITED STATES COURT OF APPEALS

FRIENDS OF THE CAPITAL CRESCENT TRAIL, JOHN MACKNIGHT

OPENING BRIEF FOR APPELLANT STATE OF MARYLAND

CERTIFICATE AS TO PARTIES, RULINGS,

amici, rulings, and related proceedings in this case:

I. Parties and Amici

Friends of the Capital Crescent Trail, John MacKnight Fitzgerald and

Christine Real de Azua (collectively Plaintiffs) were plaintiffs in the district

The Federal Transit Administration, the United States Department of

in Case Nos. 17-5161 and 17-5174.

is appellant in Case No. 17-5132.

County, Maryland, and Montgomery County, Maryland.

II. Rulings Under Review

Columbia in Fitzgerald, et al. v. Federal Transit Administration, et al., Case No.

III. Related Cases

The Court consolidated the Defendants-Appellants appeals, Case Nos. 17-

Maryland is not aware of any other related case.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............i

JURISDICTIONAL STATEMENT .........................................................................1

ISSUES PRESENTED FOR REVIEW ....................................................................1

E. FTA Satisfied Any Obligation to Consider and Address

STATUTORY AND REGULATORY ADDENDUM

City of Grapevine v. Department of Transportation,

Coalition on Sensible Transportation, Inc. v. Dole,

Defenders of Wildlife v. Zinke,

Del. Riverkeeper v. FERC,

EarthReports, Inc. v. F.E.R.C.,

Friends of the Clearwater v. Dombeck,

Jersey Heights Neighborhood Assn. v. Glendening,

*Marsh v. Or. Nat. Res. Council,

Myersville Citizens for a Rural Cmty., Inc. v. FERC,

*Natl Comm. for the New River, Inc. v. FERC,

Pub. Citizen, Inc. v. F.A.A.,

Public Employees for Environmental Responsibility v. Hopper

RB Jai Alai, LLC v. Secretary of the Florida Dept of Transportation

Robertson v. Methow Valley Citizens Council,

St. Johns United Church of Christ v. FAA,

State of Nebraska Department of Health and Human Services v.

Susquehanna Intl Grp., LLP v. Sec. & Exch. Commn,

16 U.S.C. 1531 - 1541 ..................................................................................10, 30

28 U.S.C. 1291 ........................................................................................................1

42 U.S.C. 4332 ..................................................................... 1, 7, 10, 18, 20, 38, 40

49 U.S.C. 5309 ........................................................................................................6

49 U.S.C. 5309(d)(2)(A) .........................................................................................6

49 U.S.C. 5309(d)(2)(A)(i) .....................................................................................6

23 C.F.R. 771.130(a)(2) ........................................................................................21

49 C.F.R. 611.105 ...................................................................................................6

78 Fed. Reg. 1992 (Jan. 9, 2013) ............................................................................... 6

* Authorities upon which we chiefly rely are marked with asterisks

FTA Federal Transit Administration

MTA Maryland Transit Administration

NEPA National Environmental Policy Act

WMATA Washington Metropolitan Area Transit Authority

has jurisdiction under 28 U.S.C. 1291.

STATUTES AND REGULATIONS

ISSUES PRESENTED FOR REVIEW

supplemental environmental impact statement to evaluate Metrorail ridership

STATEMENT OF THE CASE

developed by the Maryland Transit Administration, a unit of the Maryland

Department of Transportation of the State of Maryland (MTA or Maryland).

among residential neighborhoods, and major employment centers, commercial