Indian River Cnty. v. Dep't of Transp.
This text of 348 F. Supp. 3d 17 (Indian River Cnty. v. Dep't of Transp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
CHRISTOPHER R. COOPER, United States District Judge
TABLE OF CONTENTS
I. Background...24
A. Factual Background...24
1. The proposed project...24
2. The Secretary's bond allocation...24
3. The environmental review process...25
B. Procedural Background...26
II. Analysis...27
A. The Bond Allocation...27
1. Section 142(m)...28
2. Section 147(f)...36
B. NEPA Compliance...42
1. Public-safety effects of the project...43
2. Effects of vessel queuing at railroad bridges over navigable waters...50
3. Alternatives to the route and the use of moveable bridges...53
4. Noise impacts...55
5. Changes to freight operations...59
III. Conclusion...62
AAF Holdings, Inc. ("AAF") plans to construct and operate an express passenger railway connecting Orlando and Miami, Florida. The initial segment of the line between Miami and West Palm Beach is currently operational. The extension of the line to Orlando is still in the planning stages. To help AAF finance the extension, the U.S. Department of Transportation has allocated $1.15 billion in federally tax-exempt bonds to be issued by a Florida economic development agency.
The planned extension of the railway will run through Indian River County on Florida's Treasure Coast. The County and its Emergency Services District (together, "Indian River County" or "Plaintiff") have long objected to the project. In this, its second lawsuit challenging the project, Indian River County seeks summary judgment on two grounds. First, it contends that the Department of Transportation exceeded its authority in allocating the bonds because the project is not eligible to receive tax-exempt funding under two separate provisions of the Internal Revenue Code. Second, the County maintains that the Federal Railway Administration ("FRA") violated the Administrative Procedure Act ("APA") and the National Environmental Policy Act ("NEPA") by conducting a flawed and incomplete review of the public health and safety consequences of the project. Defendants the Department of Transportation, its component FRA, *24and several of its officers (together, "federal Defendants," "the Department," or "FRA") filed a cross motion for summary judgment, as did AAF, which has intervened as a defendant. Because the Department's allocation met the tax code's requirements and the FRA's review complied with NEPA, the Court will deny Indian River County's motion for summary judgment and grant the federal Defendants' and AAF's.
I. Background
A. Factual Background
1. The proposed project
AAF is in the process of constructing a private passenger train service that will ultimately provide service between Miami and Orlando. Phase I of the project currently operates from Miami to West Palm Beach. AR 65115-16. Phase II will run from West Palm Beach north along Florida's east coast to Cocoa and then west and inland to Orlando. Id. AAF plans to lay a second track along a 128.5 mile stretch of single-track train corridor owned by the Florida East Coast Railway ("FECR") from West Palm Beach north to Cocoa. AR 65115. This track is currently used only by freight trains, some of which carry hazardous materials, but historically was used by both freight and passenger trains. AR 73914. This corridor is referred to in the record and by the parties as either the FECR Corridor or the N-S Corridor. AR 65115. The N-S Corridor bisects Indian River County. AR 73572. AAF also proposes constructing a new 40-mile track that would connect Cocoa and Orlando. This stretch of track is referred to as the E-W Corridor. AR 65115.
AAF plans to operate thirty-two passenger trains per day in addition to the FECR freight trains that now run along the N-S Corridor. AR 65116. These trains would run through Indian River County for twenty-one miles. AR 73753. There are thirty "grade crossings" in the County. Id. A grade crossing is an intersection where the railway crosses a road or path at the same level or grade, rather than an intersection where trains cross over or under the road using an overpass or tunnel. In addition to these grade crossings, the trains will traverse bridges that are either fixed or moveable (i.e. , draw bridges). Two of these moveable bridges are at issue in this case: the St. Lucie River Bridge and the Loxahatchee River Bridge. AR 73915. When these bridges are in the "down" position, trains can cross over but boats on the river cannot cross under.
2. The Secretary's bond allocation
AAF is partially financing the railway project through private activity bonds ("PABs") issued by the Florida Development Finance Corporation ("FDFC"), an agency of the State of Florida. Congress has authorized the United States Department of Transportation to allocate tax-exempt authority to PABs used to finance specific types of transportation projects. See
In November 2016, the Department, at AAF's request, withdrew the provisional allocation and replaced it with a $600 million allocation of PAB authority to finance only Phase I of the project. SeeIndian River Cty. v. Rogoff("Indian River Cty. III"),
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CHRISTOPHER R. COOPER, United States District Judge
TABLE OF CONTENTS
I. Background...24
A. Factual Background...24
1. The proposed project...24
2. The Secretary's bond allocation...24
3. The environmental review process...25
B. Procedural Background...26
II. Analysis...27
A. The Bond Allocation...27
1. Section 142(m)...28
2. Section 147(f)...36
B. NEPA Compliance...42
1. Public-safety effects of the project...43
2. Effects of vessel queuing at railroad bridges over navigable waters...50
3. Alternatives to the route and the use of moveable bridges...53
4. Noise impacts...55
5. Changes to freight operations...59
III. Conclusion...62
AAF Holdings, Inc. ("AAF") plans to construct and operate an express passenger railway connecting Orlando and Miami, Florida. The initial segment of the line between Miami and West Palm Beach is currently operational. The extension of the line to Orlando is still in the planning stages. To help AAF finance the extension, the U.S. Department of Transportation has allocated $1.15 billion in federally tax-exempt bonds to be issued by a Florida economic development agency.
The planned extension of the railway will run through Indian River County on Florida's Treasure Coast. The County and its Emergency Services District (together, "Indian River County" or "Plaintiff") have long objected to the project. In this, its second lawsuit challenging the project, Indian River County seeks summary judgment on two grounds. First, it contends that the Department of Transportation exceeded its authority in allocating the bonds because the project is not eligible to receive tax-exempt funding under two separate provisions of the Internal Revenue Code. Second, the County maintains that the Federal Railway Administration ("FRA") violated the Administrative Procedure Act ("APA") and the National Environmental Policy Act ("NEPA") by conducting a flawed and incomplete review of the public health and safety consequences of the project. Defendants the Department of Transportation, its component FRA, *24and several of its officers (together, "federal Defendants," "the Department," or "FRA") filed a cross motion for summary judgment, as did AAF, which has intervened as a defendant. Because the Department's allocation met the tax code's requirements and the FRA's review complied with NEPA, the Court will deny Indian River County's motion for summary judgment and grant the federal Defendants' and AAF's.
I. Background
A. Factual Background
1. The proposed project
AAF is in the process of constructing a private passenger train service that will ultimately provide service between Miami and Orlando. Phase I of the project currently operates from Miami to West Palm Beach. AR 65115-16. Phase II will run from West Palm Beach north along Florida's east coast to Cocoa and then west and inland to Orlando. Id. AAF plans to lay a second track along a 128.5 mile stretch of single-track train corridor owned by the Florida East Coast Railway ("FECR") from West Palm Beach north to Cocoa. AR 65115. This track is currently used only by freight trains, some of which carry hazardous materials, but historically was used by both freight and passenger trains. AR 73914. This corridor is referred to in the record and by the parties as either the FECR Corridor or the N-S Corridor. AR 65115. The N-S Corridor bisects Indian River County. AR 73572. AAF also proposes constructing a new 40-mile track that would connect Cocoa and Orlando. This stretch of track is referred to as the E-W Corridor. AR 65115.
AAF plans to operate thirty-two passenger trains per day in addition to the FECR freight trains that now run along the N-S Corridor. AR 65116. These trains would run through Indian River County for twenty-one miles. AR 73753. There are thirty "grade crossings" in the County. Id. A grade crossing is an intersection where the railway crosses a road or path at the same level or grade, rather than an intersection where trains cross over or under the road using an overpass or tunnel. In addition to these grade crossings, the trains will traverse bridges that are either fixed or moveable (i.e. , draw bridges). Two of these moveable bridges are at issue in this case: the St. Lucie River Bridge and the Loxahatchee River Bridge. AR 73915. When these bridges are in the "down" position, trains can cross over but boats on the river cannot cross under.
2. The Secretary's bond allocation
AAF is partially financing the railway project through private activity bonds ("PABs") issued by the Florida Development Finance Corporation ("FDFC"), an agency of the State of Florida. Congress has authorized the United States Department of Transportation to allocate tax-exempt authority to PABs used to finance specific types of transportation projects. See
In November 2016, the Department, at AAF's request, withdrew the provisional allocation and replaced it with a $600 million allocation of PAB authority to finance only Phase I of the project. SeeIndian River Cty. v. Rogoff("Indian River Cty. III"),
The Department approved the application and provisionally allocated $1.15 billion in PAB authority on December 20, 2017. AR 74324-26. Its provisional allocation letter conditioned final allocation on several requirements, including compliance with all applicable federal laws, as well as "a final bond counsel tax and validity opinion ... issued at the time of the closing of the bond issue in substantially the form provided with the application." AR 74324. While FDFC will issue the bonds, AAF is responsible for marketing and selling them to investors. The parties have represented that the bonds will be marketed in the next several weeks.
3. The environmental review process
AAF originally sought federal loan funding for the project through the Railroad Rehabilitation and Improvement Financing ("RRIF") program. RRIF loans are subject to NEPA review.
FRA completed a draft EIS in September 2014. AR 74164. The draft attracted some 15,400 public comments.
The FEIS selects AAF's preferred route as the best alternative for the project and determines that no further environmental review is necessary. AR 73578. The FEIS itself is 646 pages long and separately includes numerous appendices including maps and analyses of noise impacts, navigation patterns, and more. The FEIS and ROD outline the purpose of and need for the project, the alternatives considered, the affected environment, the potential environmental *26consequences of the project and reasonable alternatives, and the historic properties affected by the project. The FEIS also includes a chapter on measures that would avoid, minimize, or mitigate impacts that would result from the project. AAF has committed to implementing a series of mitigation measures during both the construction and operation phases of the project.
As part of the NEPA process, AAF retained the environmental consulting firm Vanasse Hangen Brustlin ("VHB") as a third-party advisor to FRA. This arrangement was memorialized in an agreement between FRA, VHB, and AAF. See AR 1045-62. Under that agreement, VHB's "scope of work, approach, and activities shall be under the sole supervision, direction, and control of the FRA." AR 1046. AAF also hired its own consultant, Amec Foster Wheeler ("Amec"). In general, Amec conducted initial technical work, which it then submitted to VHB and FRA for review and comment. AR 897-98; see also AR 1062. The record includes a series of technical memoranda produced by Amec on issues like noise and vibration. See, e.g., AR 61081-238 (Amec's "Technical Memorandum No. 5 Noise and Vibration for AAF Passenger Rail Project"). The record also reflects significant back-and-forth regarding those memoranda between VHB and FRA on the one hand and Amec and AAF on the other. See, e.g., AR 1083-87, 1305-43, 1561-62, 7302-06, 7349-51 (charts setting forth VHB/FRA comments on Amec technical memoranda and Amec/AAF responses).
B. Procedural Background
As noted above, this is the second time Indian River County has sued in this Court to prevent or delay the Secretary of Transportation's allocation of tax-exempt bond issuance authority to finance the AAF project. In 2015, both Indian River County and nearby Martin County, through which the proposed railway would also run, sought (among other relief) a preliminary injunction vacating the Secretary's authorization of the tax exemption, which allocated PAB authority for both phases of the project. See Indian River Cty. I,
Following Indian River County I, the Court granted the counties permission to conduct jurisdictional discovery to demonstrate that, but for the PAB allocation, AAF would not complete the railway. Subsequently, *27the Department of Transportation moved to dismiss the counties' suits. The Court concluded that through jurisdictional discovery, the counties had shown "that invalidating [the Department's] decision to authorize ... PABs would significantly increase the likelihood that AAF would not complete ... the project." Indian River Cty. v. Rogoff ("Indian River Cty. II"),
Following the Court's decision in Indian River County II that the counties had stated valid claims, AAF withdrew its application for a PAB allocation. It replaced that application, which had sought to use the bonds to finance both phases of the project, with an application for a smaller allocation to be used only for Phase I. Because Phase I dealt only with a portion of the proposed railway that did not run through the plaintiff counties, the Court dismissed the cases at moot. Indian River Cty. III,
Since then, AAF applied for an allocation to help finance Phase II, which the Department of Transportation provisionally approved. Indian River County, initially joined by Martin County and a group of concerned citizens, has again sued. They contend that the PAB allocation violated two provisions of the Internal Revenue Code and that FRA did not comply with its requirements under NEPA. AAF again intervened as a defendant. The parties all moved for summary judgment. The Court held a hearing on these motions on November 27, 2018. Shortly before this hearing, Martin County and the citizens group reached a settlement with the federal Defendants and AAF and, therefore, are no longer plaintiffs in the case.
II. Analysis
A. The Bond Allocation
To facilitate Phase II of the AAF railway, the Secretary of Transportation provisionally allocated tax-exempt authority to $1.15 billion in PABs to be issued to finance the project. The Secretary of Transportation's allocation is subject to review under the APA.
Indian River County contends that the Secretary's allocation violated two provisions of the Internal Revenue Code. A brief overview of the statutory scheme *28contextualizes these challenges and the Department and AAF's responses. Congress has authorized interest earned on certain types of PABs to be exempted from federal taxation. See
The Secretary's allocation is necessary, but not sufficient, for a bond to be tax-exempt because it finances a "qualified highway or surface freight transfer facilit[y]."
In this case, Indian River County alleges first that the Secretary violated the statute because the AAF passenger railway is ineligible for a PAB allocation under § 142(m). The County also contends that, in any event, because it has not approved the bond issue as § 147(f) requires, the PABs cannot be tax exempt. The Court turns to each of these statutory provisions.
1. Section 142(m)
Indian River County alleges that the Secretary's allocation of PAB authority to the AAF railway violated
a. Zone of Interests
Before the Court reaches the substance of Indian River County's § 142 claim, it "must ... inquire whether the plaintiff[ ] fall[s] within the class of persons whom Congress has authorized to sue under the Administrative Procedure Act."
*29Mendoza v. Perez,
When Martin County advanced its § 142 claim in the last round of litigation, the Court concluded that it had not cleared this hurdle. In that instance, like Indian River County does here, Martin County asserted interests in public safety, environmental protection, and historic preservation. Indian River Cty. II,
In this litigation, Indian River County has advanced stronger arguments, focusing appropriately on the interests at stake in § 142 itself. Indian River County contends that these interests are illuminated by § 147(f), which requires State or local government approval for certain PABs to qualify for tax exemption. "In applying the zone-of-interests test, [courts] do not look at the specific provision said to have been violated in complete isolation[.]" Fed'n for Am. Immigration Reform, Inc. ("FAIR") v. Reno,
The Court concludes that the two provisions do bear an integral relationship. They form adjacent requirements for PABs used to finance certain categories of facilities to qualify for tax-exempt status: § 142 enumerates the types of facilities, and § 147(f) ensures public approval and *30democratic accountability for their construction.2 Absent § 147(f) approval, PABs used to finance a § 142 facility cannot be tax-exempt; and PABs approved pursuant to § 147(f) are not tax-exempt unless they are used to finance a § 142 facility. Cf. Wash. All. of Tech. Workers v. DHS,
Most importantly, each requirement evinces a common purpose: ensuring that when the public fisc forgoes revenue through tax-exempt bonds, those bonds are used to benefit the public. As the Court explained in Indian River County II: "Congress enacted
The committee believes that new restrictions are needed on [bonds] to help eliminate inappropriate uses and to help restore the benefit of tax-exempt financing for traditional governmental purposes. However, the committee believes that, in general, state and local governments are best suited to determine the appropriate uses of [bonds]. The committee believes that providing tax exemptions for the interest on certain [bonds] may serve legitimate purposes in some instances provided that the elected representatives of the state or local governmental unit determine after public input that there will be substantial public benefit from issuance of the obligations[.]
S. Rep. No. 97-494(I), at 168 (1982).
This suggests a common purpose: § 142 reflects congressional judgment about the types of projects that benefit the public enough to warrant tax-exempt financing, and § 147(f) creates a mechanism of democratic accountability by which the public can confirm that a particular project does indeed confer public benefit. Cf. Nat'l Petrochemical & Refiners Ass'n v. EPA,
The same legislative history and interlocking purpose compel the Court to reconsider its holding in Indian River County II that local governments fall outside § 142's zone of interests. Indian River *31County has properly focused its attention not on SAFETEA as a whole, but on § 142 itself and its purpose of "support[ing] the development and construction of certain kinds of projects with significant public benefits[.]" Indian River Cty. II,
b. The merits of the County's Section 142(m) claim
Moving to the merits of Indian River County's § 142 claim, the County contends that the Secretary's allocation is inconsistent with the statute because Phase II is not a "qualified highway or surface freight transfer facilit[y],"
Section 142 defines "qualified highway or surface freight transfer facilities" to include "any surface transportation project which receives Federal assistance under title 23, United States Code[.]"
i. Whether the AAF project is a "surface transportation project" within the meaning of § 142(m)(1)(A)
The plain meaning of § 142(m)(1)(A) is unambiguous. It defines "qualified highway or surface freight transfer facilities" to include "any surface transportation project[.]"
Congress's use of "any" further indicates as much: "Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.' " United States v. Gonzales,
Indian River County nonetheless insists that the plain text of § 142(m)(1)(A) cannot be read in isolation and that its context indicates that it refers only to highway projects. Relying on the principle of noscitur a sociis -a word is known by the company it keeps-the County highlights several contextual clues to contend that when Congress said "any surface transportation project," it was actually referring only to highways.
First, the County notes that § 142(m)(1)(A) must be read in light of the word "highway" in the phrase that it is defining: "qualified highway or surface freight transfer facilities."
Second, Indian River County notes that when Congress added "qualified highway or surface freight transfer facilities" to § 142, the statute already listed fourteen other types of facilities eligible for PABs financing. See
Third, Indian River County points to the fact that § 142(m)(1)(A)'s limiting provision references Title 23-i.e. , that a surface transportation project constitutes a "qualified highway or surface freight transfer facilit[y]" only if it "receives Federal assistance under title 23, United States Code[.]"
Indian River County also invokes the canon expressio unius est exclusio alterius -that "expressing one item of an associated group or series excludes another left unmentioned," Chevron U.S.A., Inc. v. Echazabal,
Put simply, if Congress had intended for the addition of "qualified highway or surface freight transfer facilities" to cover only highway projects, it would have made that clear. For example, it could have defined "qualified highway ... facilities" to include only highway surface transportation projects, instead of "surface transportation project[s]." It did not do so. Instead, it used a definition that referred to "any surface transportation project," evincing broad inclusion.
As such, the Court has little trouble concluding that § 142(m) supports the Secretary's allocation of PAB authority to a passenger rail project, assuming it receives Title 23 funds.3
ii. Whether the project received Title 23 funding
Indian River County also contends that Phase II was ineligible for a PAB allocation because the project has not "receive[d] Federal assistance under title 23, United States Code," as required by § 142(m)(1)(A).
Here, the Secretary approved the allocation based on an application submitted by AAF. The application contains the following information concerning Title 23 funding:
The planning process for All Aboard Florida started in December 2011. Since then, approximately $9 million from Section 130 of U.S. Code Title 23 has been invested in the entire corridor to improve railway-highway grade crossings and prepare the corridor for growth in rail traffic. Future investments from the Section 130 program are planned for future calendar years. The Florida Department of Transportation administers the Section 130 program on behalf of the State of Florida.
AR 74235; see also AR 73549-62.
Indian River County objects that this Title 23 funding went to FECR, the freight railway line on whose tracks AAF's passenger trains will run. In other words, the County contends that FECR, not AAF, received the Title 23 funding and AAF merely benefitted from it. As an initial matter, § 142(m)(1)(A) requires that PABs be allocated to a "project which receives Federal assistance under title 23, United States Code[.]"
But at the same time, as the Department has tacitly acknowledged, see Hr'g Tr. at 64:9-23, the statutory requirement that a project receive Title 23 funding cannot be construed so broadly as to allow the Department to bootstrap a project into PAB eligibility based solely on an incidental and unintentional benefit from the funds. In other words, the record must support the conclusion that the funds were disbursed to benefit the project.
The record here supports the Secretary's conclusion that the project received Title 23 funding. Florida's Department of Transportation disbursed approximately $9 million to account for increased rail traffic on the FECR railway after AAF commenced planning its project. AR 74235, 73549-62. To be sure, there were planned increases in FECR freight traffic as well, but the record indicates that a disproportionate amount of the Title 23 funding was disbursed only after the AAF project began. Over the ten-year period from 2005 through 2014, the railway received approximately $21 million dollars in Title 23 funding, approximately 43% of which came in the three years following the commencement of AAF's planning. AR 73549-62. Given that the AAF project received substantial attention in Florida, the Court is skeptical that the State's Department of Transportation disbursed (and increased) this Title 23 funding without the knowledge-if not purpose-of benefitting the project. In short, the record indicates that this is not an instance in which the AAF project was such an ancillary or unintended beneficiary of the funds as to prevent the Secretary from concluding that it had "receive[d] Federal assistance under title 23[.]"
Indian River County also alleges that the Department inappropriately interpreted § 142(m)(1)(A) to allow PAB authority to finance the entire railway corridor based on the expenditure of Title 23 funds for discrete highway-rail crossings along that corridor. The Secretary's conclusion-that the highway-rail crossings sufficed to render the whole corridor eligible for PAB allocation-is consistent with longstanding Department interpretation of what constitutes a "project" for purposes of § 142(m)(1)(A). Immediately following SAFETEA's passage, the Federal Highway Administration ("FHA") wrote to the IRS to indicate its view that "the most reasonable reading ... permits the proceeds of [PABs] authorized by this provision to be used on the entire transportation facility that is being financed and constructed even though only a portion of that facility receives Federal assistance under title 23." AR 73546. FHA explained that a narrower reading of "project" would cause States, which disburse Title 23 funds, to sprinkle the funds along whole facilities in order to make them eligible for PAB allocation, rather than continuing the practice of using them at discrete portions of facilities. AR 73546-47. Concluding that Congress did not intend § 142(m)(1)(A) to change disbursement practices, FHA interpreted the provision to reflect a broader definition of "project" than just the specific portion of a facility financed by Title 23 funding. FHA's analysis reflects a reasonable assessment of congressional intent and the statutory text, and the Secretary's interpretation of § 142(m)(1)(A) in this case conforms to it.
*36The Court therefore concludes that Phase II of the AAF railway is a project that received Title 23 funding. Because it is also a surface transportation project, the Court will grant summary judgment to the federal Defendants and Intervenor-Defendant on this claim.
2. Section 147(f)
Indian River County also challenges the use of PABs as a violation of
a. Failure to state a claim
The Department asks the Court to dismiss Indian River County's § 147(f) claim because the Secretary "is not required to investigate whether Section 147's requirements have been met before [she] makes a PAB allocation." Fed. Defs.' MSJ at 27. It explains the Secretary's responsibilities under the statutory scheme begin and end with § 142 : she must determine only whether a project is a "qualified highway or surface freight transfer facility" and, if so, whether to allocate to that project a portion of the $15 billion in tax-exempt PABs authorized by Congress. Section 147, the Department contends, presents a wholly distinct requirement for PABs to qualify for tax-exempt status into which the Secretary need not inquire before allocating PABs. Consequently, according to the Department, even if Indian River County's allegations regarding § 147(f) were true, they would have no bearing on the legality of the allocation but would concern only an assessment of the future tax liability of bondholders.
While it does not appear that the statutory scheme imposes any obligation on the Secretary to police § 147(f) compliance, the record indicates that the Secretary did consider such compliance in this particular instance. AAF's application for a PAB allocation highlighted its view that § 147(f)'s requirements had been met by Florida's approval. AR 74221 ("AAF has already successfully completed the necessary hearings and approvals required under" § 147(f).). As part of the application, AAF submitted two documents indicating as much. First, it provided a resolution by the FDFC, the Florida governmental entity responsible for issuing the bonds, approving their planned issue. AR 74240-53. The resolution included FDFC's finding that § 147(f) requirements were satisfied by a properly noticed public hearing held in Tallahassee and subsequent approval by a Florida official delegated powers by the State's Governor. AR 74242-44. Second, AAF submitted a proposed bond counsel tax and validity opinion by the law firm Greenberg Traurig, based on its review of the record and applicable laws. AR 74254-57. That opinion determined that "interest on the Bonds ... is excludable from gross income for purposes of federal income taxation under existing laws as enacted and construed[.]" AR 74256. The Department invited submission of both documents. While there are no formal requirements for PAB allocation applications, the Department has indicated that "to facilitate [its] consideration of [an] application," applicants "may wish" to include, among other information, "a copy of a resolution ...
*37authorizing the issuance of a specific issue of obligations," and a "Form of Bond Counsel Opinion or date by which a draft letter will be provided."
Importantly, the Department's provisional PAB allocation in this case conditioned final allocation on the bond counsel's opinion. It explained that final allocation was based on several requirements, the first of which was "a final bond counsel tax and validity opinion ... issued at the time of the closing of the bond issue in substantially the form provided with the application." AR 74324. That condition indicates that the Department sought assurances that the allocation it made would involve bonds otherwise compliant with tax-exemption requirements. It also indicates that the Department was satisfied with bond counsel's analysis, which assumes § 147(f) compliance by virtue of its conclusion that the bonds are tax exempt.
The Court's analysis here is informed by the nature of the allocation. Even accepting the Department's contention that it is not responsible for policing compliance with § 147(f), the fact remains that it is responsible for allocating highly-sought-after tax-benefits from a finite pool. In this case, the Department has used $1.15 billion of the $15 billion in that pool to support Phase II of the project. The Court is skeptical that the Department would formally allocate $1.15 billion in bond authority absent some confidence that the bonds would indeed be tax-exempt. Otherwise, the Department would be wasting nearly ten percent of the finite resource Congress empowered it to administer. The bonds here will be issued and offered for sale imminently, and the Department has given no indication that they are legally infirm. It has not questioned the bond counsel opinion that the bonds will be properly tax-exempt. It has not suggested that the bonds fail to comply with any "applicable Federal law," a further condition of the final allocation. See AR 74325. In short, it appears that the Department has implicitly concluded that the State-level public approval satisfied § 147(f) requirements. Moreover, in this litigation, the Department has embraced AAF's view that the State-level public approval satisfied those requirements. See Fed. Defs.' Reply at 10 ("Thus, here, the State of Florida's approval is sufficient to satisfy Section 147(f).").
It bears emphasizing that the Court's holding on this issue is fact bound. The Court's conclusion is not that the statutory scheme requires the Department of Transportation to police compliance with § 147(f) or any other requirement for tax exemption. Nor can the Court conclude that the Department makes assessments of § 147(f) compliance for every allocation. Rather, it concludes only that, in this particular case, the Department has interpreted § 147(f) as satisfied-an assessment rooted in AAF's application and supporting materials, the Department's provisional allocation letter and the conditions it enumerated, the fact that the bonds will be issued imminently and the Department has not raised any § 147(f) concerns, and the Department's position in this litigation that AAF's arguments on the merits are correct.
Under these circumstances, then, the Court finds it appropriate to reach the merits of the County's § 147(f) claim.
b. Section 147(f) merits
While Indian River County has stated a valid claim under § 147(f), the claim is not meritorious, and the Court will grant summary *38judgment to the federal Defendants and AAF.
For PABs to be "qualified" and thus tax-exempt, § 147(f) requires public approval by:
(i) the governmental unit-
(I) which issued such bond, or
(II) on behalf of which such bond was issued, and
(ii) each governmental unit having jurisdiction over the area in which any facility, with respect to which financing is to be provided from the net proceeds of such issue, is located (except that if more than 1 governmental unit within a State has jurisdiction over the entire area within such State in which such facility is located, only 1 such unit need approve such issue).
Indian River County does not dispute that the issuer approval complied with § 147(f)(i). Nor does it dispute that because the State issued the bonds, its issuer approval was tantamount to host approval by the State. See 26 C.F.R. § 5f.103-2(c)(3). The County's claim, rather, is that the State's approval alone was insufficient to satisfy § 147(f)(2)(A)(ii) without approval at the county level as well.
Indian River County contends that the plain text of § 147(f)(2)(A)(ii) unambiguously requires the County to approve the bond issue before the bonds achieve qualified status. It maintains that because it is a "governmental unit having jurisdiction over the area in which" the railway "is located," its approval is necessary unless the parenthetical exception applies. And the exception does not apply, the County argues, because Phase II runs through five counties, so this is not an instance in which "more than 1 governmental unit ... has jurisdiction over the entire area ... in which [the] facility is located."
But even without the parenthetical exception, § 147(f)(2)(A)(ii) is ambiguous in its requirement that "each governmental unit having jurisdiction" over the relevant area approve the bond issue. Congress did not define the term "governmental unit" beyond indicating that it excludes the federal government. See
Hoping to sidestep ambiguity in the term "governmental unit," Plaintiff urges the Court to apply a limiting principle implicit in § 147(f), noting that approval requirements are satisfied by approval "by the applicable elected representative" of a government unit, which includes "an elected legislative body of such unit" or "the chief elected executive officer."
*39Section 147(f) also anticipates situations in which a governmental unit may not have an "applicable elected representative,"
Even setting aside these types of entities, Indian River County's position would mean that every single city and town through which Phase II runs would have to approve the bonds' issuance in order for them to be tax exempt, even if all of the counties encompassing those jurisdictions approved the issue. Congress passed § 147(f) to promote democratic accountability and safeguard State and local governments' input on projects as a means of ensuring tax exemptions benefit the public. Affordable Hous. Dev. Corp. v. City of Fresno,
The absurdity of Plaintiff's view is further revealed by its interpretation of § 147(f)(2)(A)(ii)'s parenthetical exception "that if more than 1 governmental unit within a State has jurisdiction over the entire area within such State in which such facility is located, only 1 such unit need approve such issue." Plaintiff reads this to mean that State approval alone suffices only in such a situation. But that would mean a State could approve a facility over local government objections only if the local government had jurisdiction over the entire facility. Under Plaintiff's view, if, for example, the facility were entirely within Indian River County, Florida's approval would suffice, even if Indian River County opposed it, because both Florida and the County would share jurisdiction over the entire area. But, because Phase II spans four other counties within the State, Florida's approval is insufficient. It would be a bizarre outcome, to say the least, if a State could approve financing of a facility over a political subdivision's objection if the facility were located entirely within that subdivision but could not do so when the facility traverses multiple subdivisions. Why would Congress empower a county to override its State's desire to finance a facility in every instance except those in which it is uniquely affected? This only compounds the absurdity of Plaintiff's reading of the non-parenthetical portion of § 147(f) to require assent from every single local government through which Phase II runs. The Court cannot accept this reading. Cf. Griffin v. Oceanic Contractors, Inc.,
In short, there is substantial ambiguity in the requirement of approval by "each governmental unit" with jurisdiction over the facility. In the face of such ambiguity, the Court considers whether the Department's implicit interpretation-that *40the State's approval alone satisfied § 147(f)(2)(A)(ii) -"is based on a permissible construction of the statute in light of its language, structure, and purpose." Nat'l Treasury Emps. Union,
First, the legislative history indicates that, notwithstanding ambiguous statutory language, Congress intended State approval to suffice in situations like this. The Conference Committee reports included language "intend[ed] to clarify the application of the rule requiring a public hearing and approval by an elected official or legislative body in order to issue [PABs]." The reports explained:
Where the facilities are located entirely within the geographic jurisdiction of the issuing governmental unit, only one public hearing and approval are required even though the facilities may be located in several different subdivisions of the issuing governmental unit.
...
For example, where a governor of a state is to approve the issuance of bonds for facilities located in that state (even though located in several counties), only the state is required to have a public hearing on the bond issue.
H.R. Rep. No. 97-760, at 517 (1982) (Conf. Rep.); S. Rep. No. 97-530, at 517 (1982) (Conf. Rep.).
The example is precisely on point. Here, Florida's Governor, through his representative, approved the issuance of bonds for the facilities. Per the Conference Committee reports, that approval suffices and the fact that the facilities run through several political subdivisions of the State does not undermine its sufficiency.
Second, the Department's implicit acceptance of the sufficiency of the State's approval is consistent with IRS regulations implementing § 147(f). Those regulations define "governmental unit" to mean "a State, territory, a possession of the United States, the District of Columbia, or any political subdivision thereof." 26 C.F.R. § 5f.103-2(g)(1). Plugging the relevant part of that definition into § 147(f) yields a requirement of approval by "each State or political subdivision thereof having jurisdiction" over the relevant area. This phrase by itself doesn't answer the key question one way or the other, because it is not immediately clear what work the word "or" does in this context. It could signify that every unit with jurisdiction-whether a State or its political subdivision-must approve the issue; it could also signify that each State with jurisdiction, or each political subdivision with jurisdiction, must approve the issue.
Fortunately, the same IRS regulations provide examples that answer any lingering questions and confirm that it is the latter. Example 5 is particularly instructive:
County M proposes to issue an industrial development bond to finance a project located partly within the geographic jurisdiction of County M and partly within the geographic jurisdiction of County N. Both counties are located in State X. The part of the project in County N is also located partly within the geographic jurisdiction of City O and partly within the geographic jurisdiction of City P. Under the provisions [implementing issuer approval], County M must give issuer approval. Additionally, under the provisions [implementing host approval], either State X, County N, or both Cities O and P, must give host approval.
This example removes any doubt that a higher-level government unit's approval suffices to satisfy § 147(f)(2)(A)(ii), whether or not its political subdivisions approve. That is why County N's approval obviates *41the need for Cities O and P to give their own approval, and why State X's approval obviates the need for County N's approval.
Given clear legislative intent and the long-standing regulations interpreting the statute, the Court concludes that it is reasonable to interpret § 147(f)(2)(A)(ii) as satisfied by State-level approval in this instance. This is also consistent with Congress's purpose, which was to build in some level of democratic accountability to ensure that tax-exempt bonds finance only those projects that actually benefit the public. That goal is achieved if every area in which a facility is located falls within the constituency of an approver.
This reading of the statute is not inconsistent with § 147(f)(2)(A)(ii)'s parenthetical exception, on which Plaintiff heavily relies as the sole exception where State approval suffices. The regulatory examples help clarify that this exception is designed to permit approval by a lower-level government without the need for higher-level approval. In one of the examples, "State X proposes to issue an industrial development bond to finance a facility located partly within the geographic jurisdiction of State X and partly within the geographic jurisdiction of State Y," with the "portion of the facility located in State Y ... entirely within the geographic jurisdiction of City Z." 26 C.F.R. § 5f.103-2(h)(7). In this instance, "either State Y or City Z must give host approval as that part of the facility to be located outside State X will be entirely within the geographic jurisdiction of each unit."
To avoid doubt and facilitate this understanding, the IRS's regulations further provide that "if property to be financed ... is located within two or more governmental units but not entirely within either of such units, each portion of the property which is located entirely within the smallest respective governmental units may be treated as a separate facility."
In sum, reading § 147(f)(2)(A)(ii)'s parenthetical exception to empower a local government to approve a facility without waiting for the State is consistent with the congressional purpose of financing facilities that benefit the public while ensuring democratic accountability. Once a local government with jurisdiction over the entire facility concludes that it is worthwhile, it would make little sense to force it to wait for the State to act. The exception is a mechanism for facilitating local government assent to a project in the face of State intransigence. Plaintiff's interpretation, on the other hand, would turn a shield into a sword and allow a local government to veto a State's approval.
Plaintiff's understanding of § 147(f) would yield absurd results and runs head first into the Conference reports in which Congress announced its intention that *42"where a governor of a state is to approve the issuance of bonds for facilities located in that state (even though located in several counties), only the state is required to have a public hearing on the bond issue." H.R. Rep. No. 97-760, at 517 (1982) (Conf. Rep.); S. Rep. No. 97-530, at 517 (1982) (Conf. Rep.).
The Secretary's implicit conclusion that these PABs comply with § 147(f)'s public approval requirement is consistent with longstanding IRS regulations. Those regulations, in turn, effectuate Congress's clearly expressed intent and are a reasonable interpretation of the statute. The Court will therefore grant summary judgment to the federal Defendants and Intervenor-Defendant on this issue.
B. NEPA Compliance
Indian River County also alleges that the environmental review for Phase II conducted by FRA did not comply with the National Environmental Policy Act ("NEPA"),
NEPA requires federal agencies to take a "hard look" at the environmental consequences of significant actions they propose to undertake. Theodore Roosevelt Conservation P'ship v. Salazar ("Theodore Roosevelt Conservation P'Ship II"),
NEPA's core is the requirement that an agency prepare an Environmental Impact Statement ("EIS") for any proposed major federal action "significantly affecting the quality of the human environment[.]"4
Because NEPA does not provide an independent cause of action, plaintiffs bring their NEPA claims under the general review provision of the APA.
Indian River County challenges five separate aspects of FRA's NEPA review. It contends that FRA failed to adequately analyze: (1) the public-safety consequences of more and faster trains traveling along the rail line; (2) the impact of boats having to queue at closed railroad bridges waiting for trains to pass; (3) the available route and bridge alternatives; (4) the anticipated noise generated by the trains; and (5) the projected increase in freight train speeds due to planned track enhancements. A common theme of the County's complaints is that FRA did not analyze certain issues in a manner or with a level of detail that it would have preferred, and failed to comply with NEPA's "look before leaping" directive by deferring necessary studies until after the NEPA process. With those broad critiques in mind, the Court will address the five alleged deficiencies in turn.
1. Public-safety effects of the project
Under NEPA, an agency must take a "hard look" at any impact the proposed action may have on "public health or safety." Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers,
Indian River County contends that FRA failed to adequately consider several risks to public safety by deferring necessary safety studies until after the NEPA process was complete. Specifically, the County highlights what it perceives are inadequacies with respect to pedestrian safety, train collisions, and delays experienced by emergency responders waiting at crossings for trains to pass. Pls.' MSJ at 11. FRA and AAF counter that the agency thoroughly examined the project's public-safety impacts using the information available, considered and responded to numerous public comments regarding safety, and incorporated mandatory mitigation requirements in the FEIS. Based on its review, FRA concluded that the project would have an overall positive effect on public health and safety because the project includes planned track improvements and safety enhancements and would result in more people using trains rather than cars, *44leading to safer roads with fewer accidents and less pollution. AR 73589.
The Court starts with Plaintiff's underlying concern that the agency abdicated its responsibility to conduct an independent public safety evaluation by deferring any "hard look" until after the NEPA process is complete and "shuffl[ing]" responsibility to respond to public-safety concerns "off to AAF." Pls.' MSJ at 11. In support of that contention, the County relies on a response from AAF that was ultimately incorporated into the FEIS: "Consistent with FRA safety requirements, which are not part of the NEPA process, AAF will develop a Hazard Analysis and System Safety Program Plan prior to the start of the operations." AR 38707, 73658. Plaintiff protests that NEPA is a "look before you leap" statute, requiring the agency to conduct a thorough investigation of the significant safety and environmental impacts before taking a major federal action. Hr'g Tr. at 13:17-14:3. In the County's view, had FRA "looked"-that is, conducted a safety analysis as part of the NEPA process-it would have disclosed and more specifically addressed the three specific safety issues identified above.
The trouble for the County is that FRA does not contend that the Hazard Analysis and System Safety Program Plan ("SSP Plan"), prepared pursuant to FRA regulations,5 replaces NEPA. Rather, these are two separate requirements. Under NEPA, FRA must take a hard look at the safety impacts of the project, and that is what FRA did. The agency considered and disclosed a wide number of safety impacts of the project based on the information available at the time and then reasonably concluded that the increased safety risks from more and faster trains could be mitigated. These mitigation measures include grade-crossing improvements; installation of Positive Train Control ("PTC")-a system of dynamically monitoring and controlling train movements-across both passenger and freight trains; construction of fencing in locations along the line where pedestrians are more likely to cross the tracks illegally; and coordination with local officials regarding emergency vehicles. AR 74056-58. So while the County is correct that the future SSP Plans "do not obviate the need for the hard look and public airing that NEPA demands," Pls.' Reply at 8, FRA independently met its NEPA obligations in this regard.
The Court now moves to Indian River County's more specific safety concerns.
a. Pedestrian safety
Indian River County first contends that FRA and AAF overlooked serious risks to pedestrian safety at both "formal" and "informal" crossings. Before discussing these arguments, it is helpful to define some of these train terms. Pedestrians cross train tracks at either "formal" or "informal" crossings. Formal crossings are those that pedestrians are supposed to use. We all recognize them: pathways or roads, signage, and signals indicating when a train is coming and when it is safe to cross. Informal crossings are the opposite, ones that pedestrians are not supposed to use but sometimes do. Informal crossings will be somewhere on the "mainline" of the railroad-that is, anywhere along the tracks other than at the formal, at-grade crossings-where a pedestrian can scamper across. Finally, pedestrians can cross tracks legally or illegally. A pedestrian crosses legally by waiting, at a formal crossing, for the "all clear" and complying with the signals. One crosses the tracks illegally by either jaywalking at a formal crossing or "trespassing" across the tracks at an informal crossing.
*45i. Formal crossings
With respect to formal crossings, Indian River County originally contended that AAF's planned grade-crossing improvements were only voluntary and that any mitigation requirements were contingent on localities agreeing to pay for ongoing maintenance. Pls.' MSJ at 16. Both FRA and AAF have clarified, however, that despite some ambiguity in the FEIS, the grade-crossing improvements are mandatory mitigation measures. See Fed. Defs.' MSJ at 31-32; AAF MSJ at 12.6 Accordingly, AAF will be required to "implement and fund initial grade crossing safety enhancements identified in the Diagnostic Team Report." AR 74137; see also AR 74054 (FEIS concluding that the project "would result in enhancing public safety with improvements to grade crossing signal equipment for vehicular and pedestrian traffic"). And it is AAF that will pay the cost of making these initial grade-crossing safety improvements. AR 73718. Based on these representations, the County's "concern that the grade-crossing improvements will not be implemented at all has been put to rest." Pls.' Reply at 11.7
And these improvements are extensive. The required safety features are the result of a diagnostic safety review, a thorough study of 349 total grade crossings conducted by FRA's Office of Railroad Safety-Highway Rail Crossing and Trespasser Program Division, in which Indian River County participated. AR 73718-19. The diagnostic team made a series of crossing-related recommendations, all of which were adopted. See AR 74137. These measures include implementing sidewalk gates in particular locations, formal pedestrian crossings wherever sidewalks exist on either side of the tracks, PTC along the entire project, and four quadrant gates (which consist of automatic flashing light signals and gates) at grade crossings. AR 73718-24; see also AR 49371-85. Thus, contrary to the County's concerns, the FEIS requires AAF to implement a variety of safety measures and improvements at formal crossings to ensure pedestrian safety.
ii. Informal crossings
With respect to informal crossings, the County insists that even if FRA reviewed the safety risks at formal at-grade crossings, it completely overlooked the risk to trespassing pedestrians on the mainline. Pls.' MSJ at 13; Pls.' Reply at 3. Plaintiff says that these pedestrians risk being blind-sided by high-speed passenger trains, which can be hard to see and harder still to hear until too late. Pls.' MSJ at 13. It argues that "there is no 'existing analysis' in the FEIS, or elsewhere in the record, of the safety impacts of the Project on pedestrians on the FECR corridor outside of formal grade crossings." Pls.' Reply at 7.
The record demonstrates otherwise. The FEIS expressly considers the possibility of trespassers-including pedestrians who cross on the mainline at "informal" crossings or against signals at formal grade-crossings-and proposes mitigation measures *46to address the problem.8 The suggested approach is two-fold: encouraging pedestrians to use formal crossings and erecting fencing to prevent them from using informal ones.
First, encouraging pedestrians to use formal crossings. As explained above, the FEIS and ROD require AAF to implement a series of improvements to grade crossings, including pedestrian gates, paths to connect sidewalks on either side of the tracks, and flashing lights. The FEIS is clear that one reason to require these improvements is to encourage pedestrians to use formal crossings: "The infrastructure and safety improvements that are incorporated in the Project will reduce illegal and unsafe trespass on the rail line, and improve safety for area residents by adding sidewalks at grade crossings." AR 73657. This statement in the FEIS is consistent with the recommendations of FRA's on-site engineering field report, which expressed concerns in 2014 that AAF was not seriously committed to implementing necessary security measures. See AR 48371. That field report was shared with the diagnostic team which, as described above, produced a report that set forth the mitigation measures that AAF will be required to implement. The field report explained:
Trespassing is an epidemic along this corridor. Rather than encourage it, it is recommended per my field notes at those particular locations-["certain locations along the corridor in which sidewalks are present on both sides of the railroad right-of-way, but do not follow through"]-to equip sidewalk approaches with a visual and gated barrier. This is to provide safe passage of pedestrians through a very active rail line and prevents them from walking into an open railway corridor; or directing them onto the street-irrespective if there is an agreement or not.
AR 49373. In light of this discussion, it cannot be said that FRA did not analyze the underlying problem of pedestrian crossings and come up with at least one response: create formal crossings where pedestrians are most likely to cross (i.e. , where there are sidewalks on either side of the tracks).
FRA also adopted another response: fencing to keep pedestrians from running across the tracks at informal crossings. The FEIS explains that the FECR Corridor already has fencing in "specific areas" where trespassing has been a problem. AR 73858. Among other safety features-like warning signs, flashing signals, a public-awareness program coordinated with Florida Operation Lifesaver, and PTC-the project will either improve existing fencing or add fencing where it is lacking:
For the E-W Corridor standard FDOT highway fencing, or its equivalent, will be added throughout the length of the corridor where the track is at-grade that will restrict and seal the railroad right-of-way from public access.... Fencing on the N-S Corridor would be upgraded based on existing public access locations and the potential for conflicts with the increased train frequency.
AAF will conduct [Right of Way] Field Surveys to observe, document, and provide recommendations to minimize trespassing by employing fencing, warning *47signage, public outreach/information, and other appropriate measures as required.
AR 74059. The FEIS does not specify the "specific designs" for the fencing, explaining that fencing will be added "where an FRA hazard analysis review determines that fencing is required for safety; this will be in populated areas where restricting access to the rail corridor is necessary for safety." AR 73717; see also AR 74059 ("Fencing on the N-S Corridor would be upgraded based on existing public access locations and the potential for conflicts with increased train frequency. Specific designs for fencing will be developed as the project advances.").
Conceding, perhaps, that the FEIS considers trespassing, the County nonetheless contends that FRA failed to take a hard look at the problem in two ways. Neither contention is persuasive.
First, the County suggests that the FEIS understates the risks pedestrians face by relying on "stale and limited data on the history of accidents involving FECR trains." Pls.' Reply at 3. The FEIS indicates that between 2007 and 2011-when only freight trains were running on the N-S Corridor-there were ten total fatalities "not at grade crossings" between Cocoa and Miami. AR 73856 (Table 4.4.4-2). These deaths could have involved "a range of accident types, including derailments, accidents between trains, trains and humans, or between trains and objects on the tracks."
And second, the County contends that by not identifying specific locations or designs for fencing until "sometime after project approval," FRA again "kicks the can down the road" on safety issues. Pls.' MSJ at 13 (citing AR 74059). According to the County, "artful language about future 'recommendations' being included in a post-approval study by AAF does not pass muster ... under NEPA." Pls.' MSJ at 14.
NEPA, however, does not require the level of detail the County seeks. As the Supreme Court has cautioned, "there is a fundamental distinction [ ] between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated ... and a substantive requirement that a complete mitigation plan be actually formulated and adopted."
*48Robertson,
b. Train-on-train collisions
Next, the risk of train accidents. The County maintains that the "FEIS contains no analysis of whether the Project will adversely affect public safety by increasing the likelihood of train-on-train collisions." Pls.' MSJ at 17. Not so. As the County itself acknowledges, the FEIS identifies the risk of train-on-train accidents and concludes that the installation of PTC and other measures will mitigate that risk.
It was. The FEIS discloses that the reintroduction of high-speed passenger trains to the existing freight traffic on the N-S Corridor "may increase the frequency of opportunities for conflict between trains." AR 74056. The FEIS also concludes that "safety improvements at crossings, an upgraded PTC system, enhanced security, and improved communications among emergency responders would be a beneficial effect, serving to minimize potential conflicts and their consequences."
In addition to PTC and improvements to the FECR tracks, the FEIS notes that AAF will implement other measures to decrease the risk of collision, including "a passenger train emergency preparation plan, safety and security certification plan, and several FECR safety procedures." AR 74056. And because there are "no anticipated changes in the frequency or quantity of hazardous materials to be transported" on the corridor, the FEIS concludes that these safety precautions will reduce the risk that a freight train involved in an accident will spill hazardous materials. AR 74060. Relatedly, the FEIS emphasizes *49that under the project, "[h]azardous materials would continue to be transported consistent with applicable statutes, rules and regulations." Id.; AR 65275.
In light of these improvements and safety measures, the government draws an apt parallel to the undersigned's decision in Committee of 100 on Federal City v. Foxx,
c. Emergency vehicles
Finally, the County contends that FRA failed to take the requisite hard look at the adverse impact the project could have on emergency vehicle response times. In simple terms, it is concerned that emergency responders-that is, EMTs, firefighters, and police-may be unduly delayed either because their routes will be detoured to avoid project-related construction or because they'll have to wait more frequently for trains to pass formal crossings. The County believes the FEIS should have (1) disclosed the specific location of road closures that could impede emergency responders during construction and (2) addressed the impact that more frequent train traffic and related grade-crossing closures will have on response times. Pls.' MSJ at 21-22.
Several parts of the record reveal that the FEIS took the requisite hard look at both issues. The FEIS clearly discloses the risk that project construction could interfere with emergency vehicle traffic. AR 74036. Critically, the FEIS also identifies how "to minimize disruption and to maintain emergency access" during construction: AAF will coordinate planned closures and detours with local emergency responders. Id.; AR 73659, 73914-15. While it is true that the FEIS does not specify, as the County wishes, the particular roads that will be closed and when, Slater is again instructive: "Perhaps [the County] would prefer [FRA] to set forth in the final EIS a comprehensive plan detailing precisely which streets will be closed, and which alternative routes will be established, but that is not mandated by NEPA." Slater,
2. Effects of vessel queuing at railroad bridges over navigable waters
Plaintiff next turns to the project's impact on boats waiting or queuing to cross through the draw bridges at the St. Lucie and Loxahatchee rivers over which the N-S Corridor track runs. When a train passes over one of these bridges, the bridges obviously must be in the "down" position. And because the bridges are not particularly high, boats cannot pass underneath when trains cross over. By adding thirty-two passenger trains daily to the existing freight traffic, these bridges naturally will be in the down position much more often.
The County concedes that FRA discloses that the project would lead to increased wait times at the bridges but contends that the agency failed to take a hard look at the impact that these longer wait times would have on public safety and the environment. Pls.' MSJ at 27-28. The County describes a slew of boats waiting for the bridges to go up, idling their engines during the wait to hold their place in the queue against the current, all the while consuming more fuel, producing more pollution, and endangering marine life. While the Court agrees with Plaintiff that these kinds of potential effects are not to be downplayed, it concludes that FRA performed an adequate analysis of vessel wait times for purposes of NEPA.
The FEIS relies on the 2014 and 2015 Navigation Discipline Reports prepared by Amec. See FEIS Appendices 4.1.3-B1 & 4.1.3-B2 (AR 49486-671). Based on these reports and extensive navigation modeling analyses, the FEIS discloses that the project will increase vessel queuing time at the moveable bridges as a result of increased train traffic. AR 73934. For example, the average weekday closure time at the St. Lucie River Bridge is projected to be 6.6 hours under the 2016 No-Action Alternative11 and 9.8 hours under the Project Alternative. AR 73920 (Table 5.1.3-4). An additional three hours of bridge closures may seem like a lot but FRA cautions that the more relevant figure is the average wait time per closing rather than the total closure time per day. The average non-zero wait time12 for boats is projected to be 6.9 minutes under the No-Action Alternative and 8.6 minutes under the Project Alternative. AR 73927. The FEIS also acknowledges that "[i]n the absence of mitigation, the potentially increased queue lengths and durations could adversely affect boater safety ...." AR 73934. The FEIS proceeds to explain, however, that "AAF has committed to implementing mitigation measures ... that will reduce queuing and associated safety concerns by providing mariners with a fixed schedule of bridge closures and durations."
The County essentially demands a closer analysis of the safety and environmental impacts of increased wait times for boats than that described above. However, under the applicable " 'rule of reason' standard, such detailed second-guessing of an agency's choices is not the proper role of this Court." WildEarth Guardians v. Bureau of Land Mgmt.,
As an initial matter, FRA advanced a reasonable basis for its conclusion that the projected increased vessel queuing would not be as dramatic as the initial navigational modeling analyses conducted by Amec suggested. The agency believed the analyses conservatively estimated wait times for three reasons. First, "[t]he model uses a conservative value of 40 seconds as the minimum gap time between all boats approaching the crossing." AR 49638; see also AR 49640. However, the FEIS found that "the observed time is almost half that." AR 49640 (emphasis added). Second, in response to comments on the draft EIS, Amec and FRA updated their analysis in the 2015 Navigation Discipline Report to rely on data regarding summer rather than winter boat traffic. AR 49635, 73917, 74042. There is significantly more boat traffic during the summer than winter, which means that the anticipated vessel wait times will be lower for much of the year.
The County advances three criticisms of FRA's analysis and conclusion that wait times will not be too severe. First, it suggests that the modeling should not have considered the "passing allowed" scenario in light of the Coast Guard's warning. Pls.' Reply at 15-16. However, as Amec emphasized in its Report, "a system with no boats passing is not representative of observed conditions." AR 49645; see also AR 49638. It was reasonable for the FEIS to present the modeling results based on data consistent with observed conditions.
Second, the County asserts that FRA unreasonably and without explanation focused on the "80th percentile" volume of boat arrivals, ignoring the busiest days of boat traffic represented by the 90th percentile volume and underestimating vessel queuing and its attendant negative effects. However, the record is clear that FRA made a reasoned choice to use the 80th percentile. This value refers to "the value that exceeds 80% of the wait times of all boats, etc. For example, if the [80th percentile]
*52wait time of all boats was 11.7 minutes, this means that 80% of the boats waited 11.7 minutes or less and 20% waited longer than 11.7 minutes." AR 49640. In other words, the 80th percentile value represents a "typical high volume day." AR 73917. FRA decided to focus on the 80th percentile rather than daily averages in response to comments that the draft EIS had "underestimated impacts ... by using average day values." AR 38687. Those commenters suggested using "a methodology similar to traffic analysis," such as using 80th percentile values, instead.
And third, the County faults FRA for failing to factor in the role of "hazardous currents." Pls.' MSJ at 27-28. Commenters on the draft EIS also expressed concern that the modeling did not reflect realistic boating behavior because it "assume[s] that boats could safely hold their positions in a queue, regardless of tides, currents, vessel wake, and other factors." AR 73916. But FRA disclosed this assumption-"[t]he model does not account for the complex interaction of tides, currents, vessel wake, and boater behavior"-and explained that the model "represents the most realistic situation of boat arrivals and bridge operations possible using modeling technology."
FRA also reasonably concluded that most of the vessel queuing-overstated as FRA believed it was-could be mitigated, likewise supporting the agency's decision not to delve deeper into the safety impacts of queuing. The modeling analysis "does not take into consideration any of the mitigation strategies" that AAF will be required to implement to reduce queue times. AR 49648. Those mitigation requirements include a publicly-available set schedule for bridge closures, notification signs with countdowns to help boaters plan trips accordingly, increased communication with local authorities during holidays and special events, and a "coordination plan" with the U.S. Coast Guard. AR 74138-39. The FEIS ultimately concludes that these mitigation measures "will reduce queuing and associated safety concerns." Id.; see also AR 49648 (2015 Navigation Discipline Report concluding that "[i]f these strategies are used by the boating community, the non-zero wait times"-that is, the waiting time for boats that actually experience some delay-"will decrease and any potential impact to the industry can be significantly avoided"). This makes sense: If boaters know when the bridges will be *53opened or closed, they can plan accordingly to avoid waits.
Under the rule of reason, then, the FEIS's discussion of vessel queuing and its related effects was adequate under NEPA. While the County may want a more detailed analysis of each environmental and safety impact, FRA reasonably drew the line, concluding that such analysis was not necessary given that the initial projected wait times were conservative and that most wait times could be mitigated.
3. Alternatives to the route and the use of moveable bridges
"At the 'heart' of the EIS is the agency's evaluation of the potential environmental impacts of all 'reasonable alternatives' for completing the action." Theodore Roosevelt Conservation P'ship II,
Indian River County contends that FRA shirked its duty to meaningfully consider alternatives by unreasonably deferring to AAF in two instances. The record, however, demonstrates otherwise. FRA properly considered AAF's goals for the project within reason and independently verified information provided by the company.
a. Alternative routes
The County first complains that FRA narrowly defined the purpose of the project to mirror AAF's goals. This, in turn, led FRA to select "AAF's preferred corridor without adequately considering alternatives," including what the County suggested in a comment to the FEIS as a more appropriate route that would have avoided populated areas and aging railroad bridges. Pls.' MSJ at 29-30; AR 64683.
Because the goals of a project delineate the universe of reasonable alternatives, the Court begins with FRA's stated goals for the project. See Union Neighbors United, Inc. v. Jewell,
FRA's decision to evaluate alternatives "primarily in light of whether they could be constructed and operated in accordance with AAF's financial model," AR 73685; AR 65120, was also appropriate: "[W]here a federal agency is not the sponsor of a project, 'the Federal government's consideration of alternatives may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project.' " City of Grapevine, Tex. v. Dep't of Transp.,
FRA considered four alternative routes, including the preferred FECR route, for connecting Orlando and West Palm Beach. AR 15741; AR 73680-84. As relevant here, FRA concluded that an alternative, inland route using tracks owned and operated by CSX Transportation was not feasible for a variety of reasons: AAF did not have the operating rights needed for the CSX-owned route; it would need to purchase or lease land to create a new rail connector between the FECR route and the CSX route to connect Phases I and II; the route would require extensive upgrades to the track, grade crossings, and new infrastructure; trip times using the CSX route would exceed the 3 hour and 15 minute target for the project; and the CSX route would result in the highest potential adverse direct and indirect impacts to wetlands and protected species compared to the other routes. AR 15757, 15760, 15765; AR 73681, 73686.
In response to the FEIS, the County proposed as another alternative the so-called "K Branch" route, which would partially run on CSX tracks. See AR 64683. FRA responded to this suggestion in Appendix C to the ROD by explaining that the K Branch route "would not meet the project purpose and need for the same reasons that the CSX alternative was dismissed in the EIS"-that is, the "route is controlled in part by CSX, and FRA concluded that it was not reasonable to assume that AAF could secure operating rights." AR 65266. Moreover, "the lack of control over operations and the longer route length would result in trip times exceeding the approximately 3-hour run time[ ] that is part of AAF's purpose."
This response makes clear that FRA did not, as the County argues, "refuse[ ] to consider" the K Branch route. See Pls.' Reply at 21. FRA considered the alternative, concluded it was not feasible for the same reasons as another infeasible alternative, and said as much. The case law does not require more. See Friends of Capital Crescent Trail v. Fed. Transit Admin.,
b. Bridge alternatives
Second, Plaintiff contends that FRA did not independently review and verify AAF's assertions, presented in the FEIS at Table 3.3-14, that it was not feasible to construct alternatives to the existing bridges at the St. Lucie and Loxahatchee Rivers that would not result in increased vessel queuing. Pls.' Reply at 18; AR 73728. To advance its point, the County emphasizes that AAF "prepared the one-page table" of bridge alternatives "and there is nothing in the record to indicate that anyone at FRA reviewed the information before copying it verbatim into the FEIS." Pls.' Reply at 18.
*55But it is not dispositive that AAF or its consultant (rather than FRA) prepared the chart so long as FRA conducted an "independent review" of the information before including it in the FEIS. See Comm. of 100,
FRA posed 123 questions to AAF regarding the draft EIS. AR 38897. One of these focused on alternatives to the two moveable bridges. FRA commented that the "FEIS should evaluate other bridge options," including higher moveable bridges and fixed bridges that could support passenger and/or freight trains. AR 38930. In response, AAF prepared a chart that walked through those possible alternatives for the St. Lucie River and Loxahatchee River Bridges. Ultimately, the chart explains that the four alternatives are not feasible for a variety of reasons. AR 38931-32. And, contrary to the County's assertion that FRA simply copied and pasted this chart into the FEIS with no independent analysis, FRA replied to AAF's responses in an email: "we've done a preliminary review of the materials that AAF has provided in response to our questions. On the whole, these seem to answer the questions. We're having our technical experts do further review on the analyses ...." AR 39151 (emphasis added). And finally, FRA emphasized throughout the FEIS that "[a]s required by NEPA, FRA has reviewed the alternatives analysis, required AAF to evaluate alternatives other than the proposed action, and has verified the analyses." AR 73674. FRA's "statement[s] that it performed an independent review" of the materials provided by AAF "is afforded a presumption of validity, which [Plaintiff] ha[s] not rebutted." Comm. of 100,
4. Noise impacts
The County next argues that FRA's analysis was inadequate under NEPA because, it contends, the agency failed to follow applicable guidance on evaluating the noise impacts of a rail project. Pls.' MSJ at 30. Plaintiff identifies what it believes are two fundamental departures from agency guidance: FRA conducted a general, rather than detailed, noise analysis and FRA calculated, rather than measured, existing noise levels, which led the agency to omit a key source of noise in its analysis.
The ROD says that "[n]oise and vibration have been assessed according to guidelines specified in FRA's High-Speed Ground Transportation Noise and Vibration Impact Assessment guidance manual [and] the Federal Transit Administration's (FTA) Noise and Vibration Impact Assessment guidance manual." AR 65131. The FRA manual "provides guidance and procedures for the assessment of potential noise and vibration impacts resulting from proposed high-speed ground transportation [ ] projects." AR 13032.13 The FTA
*56manual does the same "for projects with conventional train speeds below 90 mph."
The County argues that this approach represents an arbitrary departure from agency guidance. The D.C. Circuit has sent mixed signals as to "[w]hether an agency must account for a departure" from its non-binding guidance. See Friends of Blackwater v. Salazar,
But whether an agency is required to merely act reasonably or adequately account for departures from non-binding guidance, the Court concludes that FRA's approach in this case comports with NEPA. As FRA explains, the noise-assessment manuals are "inherently flexible, and do not require the use of a particular level of analysis." Fed. Defs.' MSJ at 43. The County does not contest that the relevant guidance is non-binding. In addition, the agency has explained why it prepared only a general assessment for purposes of the FEIS. According to the ROD, "Noise and Vibration Impacts for the north-south corridor relied on the [applicable guidance] methodologies appropriate for the level of design of the alternatives evaluated in the FEIS." AR 65132. Critically, "[b]ecause advanced engineering is now available for the north-south route, AAF will conduct [a] Detailed Noise and Vibration Assessment throughout the corridor."
The County also argues that FRA unreasonably departed from agency guidance by calculating, rather than measuring, noise. Agency guidance explains that where, as here, "the proposed high-speed rail project corridor is to be shared with an existing rail transit corridor ... noise measurements at representative locations along the corridor are essential to estimate noise accurately." AR 13080. This does not appear contingent on whether the agency conducts a general assessment or detailed analysis. Contrary to the guidance, Amec, the consultant that prepared the underlying technical memorandum that forms the basis of the noise information included in the FEIS, did not measure existing noise along the N-S Corridor. AR 61110. Instead, it calculated existing noise based on a variety of variables and then compared its calculations to the observed noise measurements of a 2010 Environment Assessment ("EA") for Amtrak along the same corridor.
First, the County argues that by failing to measure existing noise, FRA omitted a key source of noise as a variable in its assessment of current noise levels: the use of warning horns along the mainline. Pls.' Reply at 23. To establish a baseline for its noise analysis, Amec modeled current noise by focusing only on existing freight operations, the primary source of noise along the N-S Corridor. AR 73772. As explained above, Amec calculated existing noise and then validated its calculations by comparing them to the measured noise in the 2010 Amtrak EA. AR 61110. Table 3-3 of the Amec noise analysis presents the difference between the calculated noise exposure and the observed noise exposure from the 2010 EA.
What accounts for this difference on the mainline? Amec assumed that trains would only sound their warning horns at or near crossings, not on the mainline. Id."However, based on documentation within the Amtrak EA, warning horns were observed at both the mainline and crossing monitoring locations."
The FEIS also does not explain why it likewise focuses exclusively on the use of *58warning horns at formal crossings. According to the FEIS, along the N-S Corridor, "noise impacts [from the project] would primarily be due to the increased frequency of warning horns use at at-grade crossings ." AR 73950 (emphasis added). To mitigate this noise, the FEIS notes that "AAF has committed to installing stationary wayside horns at each of the 117 grade crossings between Cocoa and West Palm Beach where severe, unmitigated impacts would occur using locomotive-mounted horns." AR 73942. Wayside horns-which are pole-mounted horns that are quieter than train horns and sound only at the crossings-have "been shown to substantially reduce the noise footprint" at an intersection "without compromising safety at the grade crossing."
The County argues that FRA's conclusion overlooks the unmitigated noise from warning horns on the mainline. It turns out this is partially true. Both the agency and AAF confirmed at the hearing that the noise analysis did not take into account the use of warning horns along the mainline. Hr'g Tr. at 28:22-29:1; id. at 38:8-12. Even so, this omission is not fatal to the agency's satisfaction of its NEPA obligations. Like any agency, FRA's actions are "entitled to a presumption of regularity" and, if the Court "can 'reasonably discern' the agency's path, it should uphold the agency's decision." Weiss v. Kempthorne,
Although the agency certainly could have been clearer, the Court is able to reasonably discern the agency's rationale for not including the use of warning horns on the mainline as a variable in its noise analysis. As explained above, the FEIS concludes that "noise impacts [from the project] would primarily be due to the increased frequency of warning horns use at at-grade crossings." AR 73950. Implicit in this conclusion is that other sources of noise, including the use of warning horns along the mainline, were not significant contributors of noise. Although the agency neglected to expressly articulate why, the record suggests that the agency concluded mainline warning horns were not a significant source of noise because they would be used only rarely and randomly. In response to one of the County's noise-related comments on the FEIS, FRA explained that "[t]rain-mounted horns may still need to be sounded at all locations along the rail corridor under emergency conditions." AR 65289. This implies that the agency concluded that the use of mainline warning horns was both rare (because they would be sounded only in emergencies) and difficult to measure (because emergencies are unpredictable). This is consistent with counsel for AAF's representation at the hearing that the use of warning horns on the mainline is "a random immeasurable event" in response to unpredictable trespassing along the line. Hr'g Tr. at 39:17.
Under the rule of reason, the Court must consider the "practical limitations on the agency's analysis," including "the information available at the time" as well as the availability of appropriate modeling. See Wilderness Soc'y v. Salazar,
*59N. Slope Borough,
Second, the County argues that Amec and FRsA overlooked the effect that a new "turnout" (that is, an additional line of track that allows a slower moving train to pull off the mainline to let a faster moving train pass) would have on the historic Lyric Theater in Martin County. But as AAF points out, FRA expressly considered the noise impact to historic sites like the theater and concluded "there will be no noise impacts" after the required mitigation. See AAF's Reply at 12; AR 74070, 74073 (Table 5.4.5-3). FRA responded similarly after receiving comments on the FEIS regarding the theater from Martin County. See AR 65276.
5. Changes to freight operations
Finally, the County contends that FRA expressly declined to consider the potential impacts of an increase in the speed of freight trains caused by the project's infrastructure improvements. Pls.' MSJ at 23-26. This argument lacks support in the record. In its comment about general effects on community character, Indian River County also expressed concern about freight trains, explaining that "freight operations can be anticipated to intensify with the Project, and the speed of freight trains will increase to up to 70 mph." AR 65268. FRA responded that the number of freight trains running along the N-S Corridor was higher as recently as 2006 and that "[a]ny potential changes to the existing freight operations along the FECR Corridor are outside the scope of this FEIS."
The FEIS explains that the "addition of passenger rail service" to the N-S Corridor, where freight trains currently run, "would require modifying the mostly single-track system to a mostly double track system, which would be used by both passenger and freight operations. This will improve freight efficiency by increasing average operating speeds." AR 73907; see also AR 73733 (Table 3.3-16 depicting average freight train speed in Indian River County as 38.57 mph under the "No-Action Alternative" and 43.45 mph under the project); AR 73906 (explaining that under the No-Action Alternative, "freight speeds would not increase"). The FEIS ultimately concludes that this increased efficiency means "the Project would have beneficial impacts on future freight traffic along the N-S Corridor." AR 73907.
Perhaps conceding that the FEIS at least discloses the potential for faster freight trains, the County faults FRA for not considering four negative impacts of project-related changes to freight operations: (1) the public-safety effect of faster freight trains, (2) increased noise and vibrations from faster freight trains, (3) the potential shift of freight traffic from day to night to accommodate the passenger-train schedule, and (4) the threat to the structural stability of the older St. Lucie River Bridge from faster freight trains. Pls.'
*60MSJ at 24. The Court addresses these potential effects in turn.
a. Public-safety impacts of faster freight trains
First, as explained supra Section II.B(1)(b), FRA determined that the project would have an overall beneficial effect on safety because AAF would be required to introduce a variety of safety features, including a Positive Train Control system interoperable between passenger and freight trains as well as improved grade crossings. The agency was not required to separately analyze the public-safety ramifications of marginally faster (by 5 mph on average) freight trains given that these safety measures would benefit both passenger and freight trains, which the agency acknowledged would be moving at increased speeds.
b. Noise and vibration impacts of faster freight trains
Second, FRA offers two responses to the County's argument that its noise and vibration analysis overlooked an increase in freight speed: first, quite simply, the analysis did take "into account the characteristics of future passenger and freight rail operations, including speed," Fed. Defs.' MSJ at 37; and second, in any event, faster freight trains would not have "a significant impact on overall noise conditions" because FRA concluded that warning horns are the predominant cause of noise along the N-S Corridor, Fed. Defs.' Reply at 18. FRA's first argument is belied by the record but its disregard for noise from faster freight trains is harmless largely because of its second argument.
The record is clear that FRA's noise analysis does not consider the incremental noise increase from faster freight trains. Rather, the analysis takes into account freight trains only to establish the baseline level of noise based on calculated current freight operations. See AR 61108. The FEIS as well focuses on freight trains only to calculate the baseline, not as a potential source of additional noise based on an incremental increase in speed. That document discloses that the Project will "result in long-term noise and vibration adverse impacts," including "along the N-S Corridor due to the increase (greater than doubling) of vibration events as a result of adding passenger train service to the existing freight operations." AR 73942 (emphasis added).
The County raised its concern that the noise and vibration analysis does not account for faster freight trains in their comments on the FEIS. See AR 65289. It explained, "[t]he increases in freight train average operating speeds and maximum operating speeds as a direct result of the Project can be expected to increase noise and vibration.... None of these Project effects were taken into account in the general [noise] assessment." Id. FRA's response is similar to the one it advances here: "The FEIS addresses this issue as follows: ... 'freight operations are expected to continue with a planned annual growth of 3 percent. This continued growth will likely result in marginal increases in noise levels through possible increases in train speed, frequency, and length.' " Id. (alterations in original) (quoting AR 73951). But critically, the FEIS cites to the No-Action Alternative , not the impact of the project and its attendant increase in freight train speed. FRA concluded that in the absence of the project, predicted growth in freight operations would lead to some changes in those operations' noise impact. But again, FRA's response demonstrates that the parties have been talking past each other on the specific issue of incremental noise increases from faster freight trains as a result of the project since the comment period on the FEIS.
*61The Court must therefore determine whether this omission was prejudicial. Under the APA, the Court "shall" take into account "the rule of prejudicial error."
The Court concludes that the agency's failure to take into account potential incremental increases in noise from slightly faster freight trains was harmless. The reason is two-fold. First, the FEIS anticipates that freight trains are to go only approximately 5 mph faster because of the Project. See AR 73733 (Table 3.3-16 reflecting a 4.88 mph increase in speed for freight trains traveling through Indian River County and a 5.30 mph increase in speed for freight trains traveling through Martin County). The County fails to convince the Court that this slight increase in speed would lead to a significant increase in noise. And second, the FEIS concludes that the main source of noise from the project would be the "increased frequency of warning horn use at at-grade crossings" rather than train-related noise. AR 73950. Indeed, the FEIS concluded that noise on the mainline would increase only marginally (by 0.2 to 0.3 dBA) from the addition of 32 high-speed passenger trains per day, AR 73953, suggesting that noise from the trains themselves pales in comparison to that of their horns at crossings.
c. Noise impacts of nighttime freight trains
Third, in response to Indian River County's comment on the FEIS that adding passenger trains "is likely to shift freight trains to nighttime hours due to scheduling conflicts," FRA explained that "[f]uture passenger and freight train operations and the period of the day they are anticipated to occur has been analyzed based on FECR's anticipated future passenger and freight demands." AR 65289. The County fails to provide evidence that, contrary to this response, the noise analysis ignored the anticipated train schedule. Instead, Plaintiff points to Table 5.2.2-1, a table setting forth the "Proposed Passenger Rail Operations" which assumes two passenger trains per night and does not discuss freight trains. AR 73944. That this specific table does not reflect the timing of freight traffic does not prove that the agency did not do so at all. In fact, the Amec report clearly demonstrates that the noise analysis contemplated at least some nighttime freight traffic. That report explains that "[a]ccording to historical trends ..., approximately half of the freight operations occur at night (10 pm to 7 am) and half during the day (7 am to 10 pm)." AR 61109. Table 3-1 on that same page presents the "2016 Projected Existing Conditions Rail Operations (North-South Corridor)," which contemplates 11 freight trains per night.
d. St. Lucie River Bridge and faster freight trains
And fourth, the County faults FRA for not including "discussion of the vibration impacts to the structural stability of the St. Lucie Bridge from the increased use and train speeds." Pls.' MSJ at 24. But an agency need not discuss an impact that is "merely conceivable" and, at its worst, minimal: AAF determined that the bridge is "structurally sound," AR 73727, and in any event, freight trains were projected to go just 5 mph faster over the bridge.
* * *
Agency action is rarely perfect. But NEPA does not demand perfection. Instead, it requires that an agency take a *62"hard look" at the reasonably foreseeable impacts of a proposed major federal action. The extensive FEIS, appendices, comment responses, and Record of Decision together demonstrate that FRA met that requirement here. The Court will therefore grant Defendants' and Intervenor-Defendant's motions for summary judgment on Indian River's NEPA claim, and deny the County's motion for summary judgment on that claim.
III. Conclusion
For the foregoing reasons, the Court will grant Defendants' Motion for Summary Judgment, grant Intervenor-Defendant's Motion for Summary Judgment, and deny Plaintiff's Motion for Summary Judgment. A separate Order shall accompany this Memorandum Opinion.
Related
Cite This Page — Counsel Stack
348 F. Supp. 3d 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indian-river-cnty-v-dept-of-transp-cadc-2018.