20-2665 R.L. Vallee, Inc. v. Vermont Agency of Transportation

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 3 of New York, on the 17th day of September, two thousand twenty-one. 4 5 PRESENT: JOHN M. WALKER, JR., 6 GUIDO CALABRESI, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 R.L. VALLEE, INC., 11 12 Plaintiff-Appellant, 13 14 WESCO, INC., TIMBERLAKE ASSOCIATES, L.L.P., 15 16 Plaintiffs, 17 18 v. 20-2665-cv 19 20 VERMONT AGENCY OF TRANSPORTATION; 21 STATE OF VERMONT; FEDERAL HIGHWAY 22 ADMINISTRATION, AN AGENCY OF THE 23 UNITED STATES DEPARTMENT OF 1 TRANSPORTATION; PETE BUTTIGIEG, IN HIS 2 OFFICIAL CAPACITY AS SECRETARY OF 3 TRANSPORTATION; STEPHANIE POLLACK, IN 4 HER OFFICIAL CAPACITY AS ACTING 5 ADMINISTRATOR OF THE FEDERAL HIGHWAY 6 ADMINISTRATION; MATTHEW HAKE, IN HIS 7 OFFICIAL CAPACITY AS DIVISION 8 ADMINISTRATOR FOR THE VERMONT 9 DIVISION OF THE FEDERAL HIGHWAY 10 ADMINISTRATION; JOE FLYNN, IN HIS 11 OFFICIAL CAPACITY AS SECRETARY OF THE 12 VERMONT AGENCY OF TRANSPORTATION, 13 14 Defendants-Appellees.* 15 ------------------------------------------------------------------ 16 FOR PLAINTIFF-APPELLANT: DANIEL A. SEFF, MSK 17 Attorneys, Burlington, VT 18 19 FOR FEDERAL DEFENDANTS- MICHAEL T. GRAY (Joshua 20 APPELLEES: Wilson, on the brief), for Todd 21 Kim, Assistant Attorney 22 General, United States 23 Department of Justice, 24 Environment and Natural 25 Resources Division, 26 Jacksonville, FL; Sharon 27 Vaughn-Fair, Lavinia Thomas, 28 United States Department of 29 Transportation, Washington, 30 DC

* The Clerk of Court is directed to amend the official caption to conform with the above caption.

2 1

2 FOR STATE DEFENDANTS- Jenny E. Ronis, Assistant 3 Attorney General, Montpelier,

Appeal from a judgment of the United States District Court for the District

6 of Vermont (Geoffrey W. Crawford, Chief Judge).

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

8 AND DECREED that the judgment of the District Court is AFFIRMED.

9 Plaintiff-Appellant R.L. Vallee, Inc. appeals from the July 8, 2020 judgment

10 of the District Court for the District of Vermont (Crawford, C.J.) denying its

11 motion for summary judgment and granting judgment in favor of the

12 Defendants-Appellees, which include the State of Vermont, the Vermont Agency

13 of Transportation (“VTrans”), the Federal Highway Administration (“FHWA”),

14 and certain individual federal and state government officials. In the operative

15 complaint, R.L. Vallee claims that in 2013 the FHWA arbitrarily and capriciously

16 decided that a planned construction project centered on a highway interchange

17 near Colchester, Vermont was categorically excluded from the requirement to

18 prepare an environmental impact statement. That requirement is imposed by the

3 1 National Environmental Policy Act (NEPA),

et seq. We assume

2 the parties’ familiarity with the underlying facts and record of prior proceedings,

3 to which we refer only as necessary to explain our decision to affirm.

4 We review the District Court’s grant of summary judgment de novo.

5 Friends of Animals v. Romero,

(2d Cir. 2020). “Because NEPA

6 does not itself provide for judicial review, the [Administrative Procedure Act

7 (APA)] controls.” Brodsky v. U.S. Nuclear Regul. Comm’n,

(2d

8 Cir. 2013). With an exception not relevant here, the APA allows judicial review

9 only of “final agency action.”

(emphasis added); see Sharkey v.

10 Quarantillo,

(2d Cir. 2008). Our review is limited and deferential.

11 “[W]e will not vacate an agency’s decision unless it has relied on factors which

12 Congress had not intended it to consider, entirely failed to consider an important

13 aspect of the problem, offered an explanation for its decision that runs counter to

14 the evidence before the agency, or is so implausible that it could not be ascribed

15 to a difference in view or the product of agency expertise.” Nat’l Ass’n of Home

16 Builders v. Defs. of Wildlife,

(2007) (quotation marks omitted).

17 R.L. Vallee first contends that when the District Court entered judgment,

4 1 the FHWA’s 2013 decision did not constitute final agency action—and was

2 therefore unreviewable—because the FHWA reevaluated its earlier decision and

3 concluded that the categorical exclusion “remain[ed] valid.”

.

4 We are not persuaded. Nothing in the record before us suggests that the FHWA

5 questioned the validity of its earlier decision. As the FHWA’s counsel explained

6 during oral argument, the reevaluation focused only on what if any legal

7 requirements had changed since 2013; the FHWA did not review VTrans’s

8 application anew. See App’x 421 (application listing “changes in the scope of

9 work or the design of th[e] project since the issuance of the original [categorical

10 exclusion]”);

(requiring the FHWA to determine “whether an

11 approved environmental document remains valid” before “granting any new

12 approval”).

13 Nor are we persuaded by R.L. Vallee’s argument that the FHWA’s 2013

14 decision was arbitrary and capricious. The FHWA determined that the VTrans

15 project was categorically excluded from NEPA review because it will not involve

16 significant environmental impacts and falls into two categories of projects that

17 often do not. See App’x 590–91;

(a), (d)(1)–(2) (2013). In

5 1 support of its argument, R.L. Vallee relies on West v. Secretary of Department of

2 Transportation,

, 928–29 (9th Cir. 2000), and RB Jai Alai, LLC v.

3 Secretary of Florida Department of Transportation,

, 1317–22

4 (M.D. Fla. 2015). In each of those cases, the courts concluded that the projects at

5 issue should not have been categorically excluded from NEPA review. But the

6 projects at issue in those cases were also very large, involved the construction of

7 an entirely new interchange or overpass, and restricted or expanded the

8 directions or locations that drivers could travel. See West, 206 F.3d at 928; RB Jai

9 Alai,

. By contrast, there is no evidence that the project at

10 issue here will have a significant impact on travel patterns or any other

11 significant environmental impact. See

(a). Although the

12 FHWA acknowledges that the project will relieve congestion around the

13 interchange, we defer to its conclusion that congestion relief alone does not

14 amount to a significant impact on travel patterns. See City of New York v.

15 Interstate Com. Comm’n,

(2d Cir. 1993).

16 R.L. Vallee also contends that the FHWA’s decision was arbitrary and

17 capricious because it improperly categorized a nearby development as a

6 1 cumulative impact rather than an indirect effect of the interchange project, and

2 also because VTrans did not specifically represent that significant impacts would

3 not result, as R.L. Vallee claims is required by the applicable FHWA regulation.

4 See

(d). We reject these arguments substantially for the

5 reasons stated by the District Court.

6 We have considered R.L. Vallee’s remaining arguments and conclude that

7 they are without merit. For the foregoing reasons, the judgment of the District

8 Court is AFFIRMED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk of Court

7