[00:00:03] Speaker 00:
Case number 17-5132 at L. John M. Fitzgerald at L. Versus Federal Transit Administration at L. State of Maryland Appellant.

[00:00:12] Speaker 00:
Mr. McArdle for Federal Appellants, Cross Appellees, FTA at L. Mr. Furlow for Appellants, Cross Appellees, State of Maryland.

[00:00:19] Speaker 00:
And Mr. Glitzenstein for Appellees, Cross Appellants, John M. Fitzgerald at L. Mr. McArdle.

[00:00:30] Speaker 04:
Good morning and may it please the court, Kevin McCardell on behalf of the Federal Transit Administration.

[00:00:35] Speaker 04:
The opponents have agreed to divide their time.

[00:00:38] Speaker 04:
I'll be sharing my time then with Mr. Furlow for the state of Maryland.

[00:00:41] Speaker 04:
I'll be taking 13 minutes, Mr. Furlow will be taking seven, and I'd like to reserve three minutes for rebuttal.

[00:00:48] Speaker 04:
With the Court's permission, I plan to address, first, FTA's primary issue on appeal, whether the District Court erred in ordering FTA to prepare a Supplemental Environmental Impact Statement, an SCIS, to address Metro Rail's recent safety and ridership issues.

[00:01:06] Speaker 04:
Then I'd like to address two issues that the appellants have raised on appeal.

[00:01:10] Speaker 04:
First, whether the FEIS properly focused – the final environmental impact statement – the FEIS properly focused on the locally preferred alternative and the no-action alternatives.

[00:01:22] Speaker 04:
And second, whether FTA adequately analyzed the Purple Line's potential growth-inducing impacts.

[00:01:29] Speaker 04:
At the onset, however, I think it's important to emphasize that this is a NEPA case, and NEPA has one overarching central objective, and that's to ensure that the agency considers the environmental consequences of its decision with the benefit of meaningful public participation before it takes action.

[00:01:47] Speaker 04:
I think in this case, in many ways, the plaintiff's claims don't implicate

[00:01:51] Speaker 04:
NEPA's core objective, but rather amount to a disagreement with the wisdom of the agency's decision to proceed with a light rail option.

[00:02:00] Speaker 02:
Trying to think about the district court's perspective on this case, just assume for the moment the purple line is the stool and there are three legs to the stool, and one of those is the connection with Metro.

[00:02:14] Speaker 02:
And so questions have arisen about that leg in a very dramatic way in recent times.

[00:02:23] Speaker 02:
What's your response looking at it from that perspective as to why, in your view, the district court abused its discretion?

[00:02:36] Speaker 04:
Well, Your Honor, I think the Marsh decision from the Supreme Court makes clear that the standard for determining whether an SEIS is required is the same as the standard for determining whether an EIS is required in the first instance.

[00:02:48] Speaker 04:
Does the new information indicate that the project will have any new environmental impacts that weren't previously analyzed?

[00:02:57] Speaker 02:
So your response is the footprint remains the same, but if under this

[00:03:03] Speaker 02:
concept that I suggested in my question, the nature of some of the footprint remains the same, but not necessarily the entire footprint, does it?

[00:03:16] Speaker 04:
Well, the environmental footprint doesn't change at all.

[00:03:18] Speaker 04:
And that's actually undisputed.

[00:03:20] Speaker 04:
There's no contention on appeal or even in the district court that Metro's troubles will change the Purple Line's environmental impact.

[00:03:28] Speaker 02:
Well, if Metro disappears or it becomes prohibitively expensive to ride Metro, won't that have an environmental impact?

[00:03:38] Speaker 04:
That would, Your Honor, affect perhaps the wisdom of the agency's decision to proceed or the validity of its decision under the substantive governing statute.

[00:03:46] Speaker 04:
But if there's no change in environmental impacts, then there's no basis for ordering a new environmental impact statement.

[00:03:53] Speaker 02:
And the changes that have been identified, is it the federal government's position then that those are just too minor to take into account, the green track, for example?

[00:04:07] Speaker 04:
Well, the green track was the subject of a detailed analysis prepared by the state of Maryland at FTA's request.

[00:04:15] Speaker 04:
And that detailed analysis illustrated that with or without green track,

[00:04:19] Speaker 04:
project would result in a net improvement in stormwater treatment.

[00:04:23] Speaker 02:
So under your own regulations, that issue has been thoroughly addressed already?

[00:04:28] Speaker 04:
Correct.

[00:04:30] Speaker 01:
Can I ask a question about the regulations?

[00:04:32] Speaker 01:
So on the how you factor in the ridership data about Metro, the two regulations have different wording, the two regulations that are in play.

[00:04:45] Speaker 01:
But is your view that the difference in wording just doesn't have any difference in actual interpretation?

[00:04:51] Speaker 04:
That's correct in light of the Morrish decision, Your Honor, where the court made clear in a case where the court actually looked at the CEQ regulation, which is, I think, what Your Honor is referring to, that the standard under the rule of reason is, do the environmental impacts change?

[00:05:07] Speaker 04:
And is the change significant?

[00:05:09] Speaker 04:
That's the sole question that needs to be answered for determining whether an SEIS is required.

[00:05:15] Speaker 06:
Let me ask you a hypothetical, which will help me figure out exactly what your legal position is.

[00:05:21] Speaker 06:
I appreciate it.

[00:05:22] Speaker 06:
It's not what you think is actually happening, so don't fight my hypothetical.

[00:05:27] Speaker 06:
Let's assume.

[00:05:29] Speaker 06:
Imagine the new information is that very few people are now going to travel east to west for whatever reason, because of metro or whatever.

[00:05:36] Speaker 06:
There's just new evidence that very few people are going to travel east to west.

[00:05:41] Speaker 06:
It is true, as you say, that all of the build alternatives have the same footprint.

[00:05:47] Speaker 06:
But the bus alternative doesn't have the same footprint.

[00:05:51] Speaker 06:
One of the reasons for rejecting the bus alternative was roads are too congested, et cetera, et cetera.

[00:05:56] Speaker 06:
But if very few people are now going to travel east to west, then the bus alternative doesn't create as much congestion.

[00:06:03] Speaker 06:
Under those circumstances, would you still say that an SCIS is not required?

[00:06:07] Speaker 04:
Your Honor, very few people are going to travel east or west.

[00:06:10] Speaker 04:
That calls into question the entire purpose of the project.

[00:06:13] Speaker 06:
You're right.

[00:06:14] Speaker 06:
Again, please don't fight the hypothetical here.

[00:06:17] Speaker 06:
In other words, what I'm asking is it's possible that the number of travelers could change in a way that affect the environmental consequences of a choice between alternatives.

[00:06:31] Speaker 06:
Do you agree with that?

[00:06:34] Speaker 06:
I know you don't think that happened in this case, but at some places in your brief you seem to be arguing that this is all about the environment and no changes in the numbers or economic consequences can ever be considered for purposes of deciding whether to have an SCIS.

[00:06:51] Speaker 06:
And I'm imagining a circumstance where the economic change, demographic change, whatever, is such that it makes a difference between two different alternatives, one of which has a lower environmental impact than another.

[00:07:03] Speaker 04:
But your hypothetical doesn't change the environmental impacts.

[00:07:06] Speaker 06:
It does between, in the way I'm asking you, doesn't it change it between two alternatives, between any of the build alternatives and the bus alternatives?

[00:07:16] Speaker 04:
It changes the wisdom of the agencies to proceed with light rail.

[00:07:20] Speaker 06:
Well, let me just ask, let's proceed this, because maybe I am understanding your legal point correctly, in which case I think you have a serious problem.

[00:07:29] Speaker 06:
So maybe think about this very carefully, OK?

[00:07:32] Speaker 06:
So the build alternatives has environmental impacts for the trail.

[00:07:35] Speaker 06:
There's just no doubt about that.

[00:07:37] Speaker 06:
Correct.

[00:07:38] Speaker 06:
If there were another alternative, which only required five more buses a day or something like that, had no significant new environmental impact,

[00:07:48] Speaker 06:
If you chose the build alternative, you would have a big environmental impact.

[00:07:54] Speaker 06:
If you chose the bus alternative, you would have a small environmental impact.

[00:08:00] Speaker 06:
Is that not the kind of change in environmental impact that NEPA requires you to analyze?

[00:08:07] Speaker 06:
Not just which you prefer, but you would need to examine whether it was reasonable or not to pick the obviously lower environmental impact rather than the obviously higher environmental impact.

[00:08:19] Speaker 04:
But suppose, Your Honor, that the environmental impacts of the bus service, the bus alternative that you've described, were thoroughly discussed in the EIS.

[00:08:27] Speaker 04:
And they haven't changed at all.

[00:08:29] Speaker 06:
No, I understand that.

[00:08:31] Speaker 06:
And in the end, you choose which alternative you want.

[00:08:35] Speaker 06:
But I'm asking about a change of information.

[00:08:37] Speaker 06:
Your original information was that there wasn't going to be any difference.

[00:08:42] Speaker 06:
You had enough East West traffic that a bus alternative was not possible because of the congestion, et cetera.

[00:08:49] Speaker 06:
Now I'm offering you a

[00:08:53] Speaker 06:
kind of new information which makes that alternative possible again.

[00:08:57] Speaker 06:
Doesn't it have to be reconsidered under those circumstances?

[00:09:01] Speaker 04:
It sounds, Your Honor, to me, the new information bears on the wisdom of the choice, and the appropriate remedy, if there were one, would be to challenge the agency's substantive decision on the grounds that the basis for the substantive choice have changed.

[00:09:14] Speaker 04:
But if there's, since NEPA focuses on environmental impacts.

[00:09:17] Speaker 06:
Yeah, the new alternative I'm proposing would have an effect not on which one you like better, but on the environmental consequences of each.

[00:09:27] Speaker 04:
Well, you're suggesting that there's been a change so fundamental that a brand new alternative that they haven't studied.

[00:09:33] Speaker 06:
No, one that you did study, but that you studied under an assumption of the number of riders that is no longer good.

[00:09:41] Speaker 04:
The Supreme Court's been pretty clear, though, Your Honor, that the information that NEPA requires an agency to consider is information about environmental impacts.

[00:09:50] Speaker 04:
And if that's been accurately and thoroughly disclosed in the EIS,

[00:09:55] Speaker 04:
And the impacts haven't changed.

[00:09:56] Speaker 06:
Well, I'm going to ask this only once more to be sure that we're clear about this.

[00:09:59] Speaker 06:
But I think I'm now clear on what your position is.

[00:10:02] Speaker 06:
In other words, it only turns out that you would assume there are 100,000 riders.

[00:10:08] Speaker 06:
And therefore, your choice between the bus and a build was in favor of the bus, a build, because the bus would also cause environmental problems and wouldn't work.

[00:10:20] Speaker 06:
Now it turns out there's only going to be two riders.

[00:10:23] Speaker 06:
Okay, and you now have a choice about building a...

[00:10:30] Speaker 06:
on the track in a way that hurts the environment or just putting five more riders on one bus.

[00:10:38] Speaker 06:
You don't think you have to reevaluate whether you've made the right decision to not choose the bus.

[00:10:43] Speaker 04:
I think in all likelihood you would, but it would be under the substantive governing statute because NEPA doesn't, it doesn't preclude the agency from making an unwise choice as long as the environmental impacts have been adequately disclosed.

[00:10:58] Speaker 06:
I think I have your position.

[00:10:59] Speaker 04:
Thank you.

[00:10:59] Speaker 04:
I see I'm already cutting into my rebuttal time.

[00:11:03] Speaker 06:
Any further questions for now?

[00:11:05] Speaker 06:
I'd save it if I were you.

[00:11:06] Speaker 06:
Okay, thank you, Your Honor.

[00:11:17] Speaker 05:
Good morning, Your Honor.

[00:11:18] Speaker 05:
Albert Furlow here for the State of Maryland.

[00:11:21] Speaker 05:
I have seven minutes.

[00:11:22] Speaker 05:
I'd like to reserve two minutes for rebuttal.

[00:11:25] Speaker 05:
you're on a judge Garland to pick up on your hypothetical.

[00:11:30] Speaker 05:
There is case law out there where courts have ordered an SEIS in a situation that you have outlined in your hypothetical.

[00:11:41] Speaker 06:
So you would not take the

[00:11:44] Speaker 06:
strong position that your colleague is taking?

[00:11:47] Speaker 05:
I think my position would be slightly more nuanced in the sense that if there is a change in circumstances that undercuts the fundamental purpose and need for a project, I think that needs to be looked at.

[00:11:59] Speaker 01:
Under NEPA?

[00:12:00] Speaker 05:
Pardon me?

[00:12:00] Speaker 01:
Under NEPA.

[00:12:01] Speaker 05:
Under NEPA.

[00:12:02] Speaker 05:
But practically speaking, my guess is that if that hypothetical was real,

[00:12:12] Speaker 05:
The project sponsor would look at this and say, what am I doing?

[00:12:14] Speaker 05:
I'm not doing this project and pull out.

[00:12:18] Speaker 02:
Well, be careful here, because I thought the whole premise of your position and the federal government was, essentially, everything's been studied to death here.

[00:12:31] Speaker 02:
What is being brought to the district court's attention now

[00:12:36] Speaker 02:
is something that was known, that was studied, was evaluated.

[00:12:43] Speaker 02:
And further, Maryland did this ridership scenario to respond to concerns about ridership.

[00:12:54] Speaker 02:
And it took the position that

[00:12:57] Speaker 02:
The Purple Line is not plagued by the problems that Metro is facing.

[00:13:04] Speaker 02:
So I think both the Chief Judge and I are just pushing a little to understand where the NEPA line ends and the wisdom of the project begins.

[00:13:17] Speaker 02:
And I thought the position that you were taking was

[00:13:21] Speaker 02:
We have studied everything.

[00:13:24] Speaker 02:
There's nothing new here.

[00:13:25] Speaker 02:
People continue to disagree about the wisdom of this project.

[00:13:30] Speaker 02:
But in terms of the NEPA issues, it's studied.

[00:13:34] Speaker 02:
There may be other statues that come into play at the next phase.

[00:13:40] Speaker 02:
that would require some further study, but not at the NEPA.

[00:13:46] Speaker 02:
And that was my three stool analysis.

[00:13:49] Speaker 02:
One of the purposes falls out.

[00:13:51] Speaker 02:
What happens?

[00:13:51] Speaker 02:
No NEPA?

[00:13:53] Speaker 02:
Or is that just a policy question?

[00:13:55] Speaker 05:
Well, Your Honor, I think jumping out of the hypothetical that Judge Garland posed in the current case,

[00:14:04] Speaker 05:
The issue was raised about impact of metro rail ridership on the validity of the purple line and the EIS there.

[00:14:15] Speaker 05:
And the state, in conjunction with FTA, did an analysis of what that impact actually would be.

[00:14:24] Speaker 05:
And it looked at the environmental impacts that would arise out of a decrease in ridership.

[00:14:32] Speaker 05:
It looked at whether or not the Purple Line, as proposed, and as the locally preferred alternative, would continue to meet the purpose and need

[00:14:45] Speaker 05:
And whether or not there needed to be additional analysis in a supplemental EIS.

[00:14:54] Speaker 05:
In doing that, the state developed a reevaluation document that's in the record that proposed five different scenarios of levels of ridership of metro at various levels of reduction all the way down to zero.

[00:15:14] Speaker 05:
And in looking at the extremely hypothetical and not reasonably foreseeable zero scenario, the analysis concludes and FTA concurred that even if there are no passengers going back and forth from Metro, which no one believes to be reasonably foreseeable, the Purple Line remains a valid project.

[00:15:37] Speaker 05:
And the alternatives as analyzed are still sufficient.

[00:15:43] Speaker 05:
because the Purple Line meets the purpose and need.

[00:15:47] Speaker 05:
No one in the case has ever really posited as a possibility that Metro ceases to exist.

[00:15:57] Speaker 05:
Metro's currently carrying 500,000 to 600,000 people a day.

[00:16:01] Speaker 05:
Yes, there are acknowledged problems with Metro, but those are problems that three different jurisdictions are working together or trying to work together to resolve.

[00:16:12] Speaker 05:
The state has looked at the need for a east-west corridor transit line that connects Bethesda to New Carrollton and has decided that given the conditions that are there, it makes sense and is desirable to build a light rail transit line that connects those two endpoints, but also connects in between communities that are woefully underserved by transit

[00:16:42] Speaker 01:
to allow those people to get to the job centers.

[00:16:51] Speaker 01:
illustration.

[00:16:51] Speaker 01:
So those are the two other legs.

[00:16:52] Speaker 01:
So if you're talking about the leg that only involves Metrorail, because there's the two other purposes too.

[00:16:58] Speaker 01:
I thought part of your argument with respect to the one leg, which is the Metrorail, is that even if you assume a situation in which ridership declines significantly, the question is whether that affects the choice between the alternatives.

[00:17:11] Speaker 01:
And all of the alternatives seek to pursue the same purpose.

[00:17:14] Speaker 01:
And so if you have a decline in ridership

[00:17:17] Speaker 01:
Metro, then of course that's going to have an impact on this leg, because we're talking about this leg basically dropping out of the picture because there's no Metro rail ridership.

[00:17:25] Speaker 01:
But that's equally true of the other alternatives too, including the bus ones.

[00:17:28] Speaker 01:
They also seek to connect the Metro rail stations, but if the ridership declines, then it's going to equally adversely affect those alternatives as well.

[00:17:37] Speaker 05:
Right.

[00:17:38] Speaker 05:
Yes, Your Honor, that's true.

[00:17:40] Speaker 05:
But to bring it out of the hypothetical into reality, and NEPA doesn't require agencies to engage in endless speculation.

[00:17:50] Speaker 05:
They require agencies to look at impacts that are reasonably foreseeable and look at things, potential impacts, potential circumstances that are reasonably foreseeable.

[00:18:03] Speaker 05:
And the notion

[00:18:05] Speaker 05:
that Metro ceases to exist or that the 500,000 people who are currently or 600,000 people currently riding on Metro every day are finding some other way to get to and from their jobs or to new jobs is not reasonably foreseeable.

[00:18:23] Speaker 05:
There's no rule of reason that allows you to reach that type of conclusion and to examine that type of scenario.

[00:18:32] Speaker 05:
The state did it in its re-evaluation as basically a check to see what happens if there are no writers.

[00:18:40] Speaker 05:
And what happens if there are no writers, then as is in that report and as FK concurred,

[00:18:49] Speaker 05:
If there are no riders and people aren't riding Metro, then people are moving around by other means, which means that there's more congestion on roadways that would make a transit line between these two endpoints connecting these various communities that much more valuable.

[00:19:04] Speaker 05:
That was part of the analysis that was looked at, and it was determined that even in an extreme scenario, the Purple Line, that connects these points on Metro, and these points on Metro aren't just Metro stops.

[00:19:17] Speaker 05:
They're MARC commuter train stops, they're bus transit stops, they're transit facilities, they're a focal point for bus routes.

[00:19:25] Speaker 05:
So the project itself, even under an extreme reduction in ridership by metro, remains a very valid and useful facility for the citizens of the state of Maryland.

[00:19:47] Speaker 06:
Thank you.

[00:19:48] Speaker 05:
Good morning.

[00:19:58] Speaker 03:
Mr. Furlough's acknowledgment that Chief Judge Garland's hypothetical would, in fact, require or could potentially require a supplemental deep analysis is interesting.

[00:20:11] Speaker 03:
But what's far more relevant to this court is the government's position, which is buried in their own decision document, that the only thing they looked at and will look at in a scenario like this is whether the environmental impacts

[00:20:25] Speaker 03:
of the particular option that's been selected have increased.

[00:20:29] Speaker 03:
That they do not look at whether the justification for the project has been in any way lessened.

[00:20:35] Speaker 03:
They do not look at whether other less environmentally destructive alternatives might come to the fore that have previously been rejected in light of new developments.

[00:20:44] Speaker 03:
And I respectfully submit to the court, that's as far as you need to go to resolve this case, because that position makes no sense at all.

[00:20:52] Speaker 03:
And at the very least, it warrants a remand for the agency to explain why that approach makes any sense, either in the abstract, or I could also run the court through why it makes a difference in this particular case in light of the specific information that, in fact, has been brought to bear in terms of the ridership impact.

[00:21:14] Speaker 02:
I think your argument proceeds on a number of assumptions.

[00:21:19] Speaker 02:
And we do have to look at the record that's before this Court.

[00:21:24] Speaker 02:
And there is a thorough analysis of alternatives in terms of environmental impact.

[00:21:31] Speaker 02:
Would you agree with that?

[00:21:33] Speaker 03:
No, Your Honor, I would not agree with that in the following sense.

[00:21:35] Speaker 02:
So that is not an issue that you have raised

[00:21:39] Speaker 02:
on appeal.

[00:21:41] Speaker 03:
Your Honor, we have raised an argument that the actual final EIS itself did not have an adequate comparison of alternatives in two basic ways.

[00:21:50] Speaker 03:
One, Your Honor, it only compared the final EIS, only compared Maryland's preferred choice to taking no action whatsoever, which we submit is a

[00:22:01] Speaker 03:
almost nonsensical comparison from any of the standpoint.

[00:22:03] Speaker 02:
Well, they, they, but I need to focus your argument really because I understand you can take the extreme positions, but I think we're more in the center trying to understand what the district court was concerned about in terms of the arguments you presented.

[00:22:18] Speaker 02:
And you heard me say to Council Maryland that I thought their position was we have studied everything

[00:22:27] Speaker 02:
essentially, over these years.

[00:22:30] Speaker 02:
And what's coming to us now basically is asking us to reconsider some of the wisdom of what's happened, not significant new matter that hasn't been examined before.

[00:22:46] Speaker 02:
And I wonder if you could just focus on that aspect.

[00:22:48] Speaker 03:
Yes, Your Honor, I will, because I think that's a mischaracterization both of what their argument has been as well as what the district court held.

[00:22:56] Speaker 03:
But the district court held is that from a NEPA standpoint, when you have a new development that calls into question, in a serious way, at least one, as your honor's own question posited, one of the three rationales for the project, that is the interconnectedness with Metrorail, but also calls into question the underlying fundamental rationale for the project as a whole.

[00:23:19] Speaker 03:
And in response to Judge Sreenivasan's question about all of the alternatives being affected equally,

[00:23:24] Speaker 03:
Your Honor, if you look at Joint Appendix, page 1199, which is Maryland's choice of alternatives, it was heavily dependent upon not only several of the rationales that have been posited here today, but also upon the ability to meet ridership projections beyond the year 2040, and was explicitly based upon the ability to meet a certain capacity.

[00:23:44] Speaker 03:
Now, this gets to one of the other questions that we have brought up, which has not been addressed to this point, which I think is very important.

[00:23:51] Speaker 03:
which is that we had experts submit more than 25 pages of detailed critiques, new critiques, your honor, in light of the ridership information in the metro rail problems, explaining why alternatives previously rejected, including on the basis that the 2040 and beyond horizon was no longer of concern.

[00:24:11] Speaker 06:
What's your best affidavit paragraph that you're talking about?

[00:24:19] Speaker 06:
I have several, Your Honor.

[00:24:20] Speaker 06:
I only need the best.

[00:24:22] Speaker 06:
I'll move on to second best later, but let's start with best.

[00:24:26] Speaker 03:
I appreciate that, Your Honor.

[00:24:27] Speaker 03:
If you look at Joint Appendix page 2306 through 07,

[00:24:34] Speaker 03:
which is Dr. Lisey explaining, among other things, that one of the critical assumptions that was made when an SEIS was not being prepared was that 27 percent of the ridership would be drawn from Metrorail.

[00:24:48] Speaker 06:
Okay, so that's not new information.

[00:24:51] Speaker 06:
That's his claim about what was already in it.

[00:24:53] Speaker 06:
Where is his statistical analysis of the change in ridership?

[00:24:59] Speaker 03:
If he didn't do his own statistical analysis, but what he did do is explain why the 43% figure is enormously important in light of the declining ridership.

[00:25:10] Speaker 06:
I got that part, but we're talking about new information about ridership.

[00:25:15] Speaker 06:
Where is his number as to what the new ridership is likely to be, and where is it supported?

[00:25:21] Speaker 06:
Well, he doesn't himself come up with his own analysis, but what I would also refer to, because I do think that that's... Give me the best sentence in his... I'm having trouble finding here what the new evidence is.

[00:25:36] Speaker 06:
Yes, everybody knows that Metrorail has gone down.

[00:25:40] Speaker 06:
The question is, what will it be like five years from now, 10 years from now?

[00:25:45] Speaker 06:
I don't see any analysis in his affidavit of what it will be.

[00:25:51] Speaker 03:
Your Honor, these declarations were submitted on remand, not on an SCIS process.

[00:25:56] Speaker 03:
Just to be clear about this, we submitted these declarations three days after the district court remand when the district court said the agency has to decide whether to do an SCIS.

[00:26:06] Speaker 06:
Yes.

[00:26:06] Speaker 06:
So in order to decide what it certainly can't, or maybe you think it is.

[00:26:11] Speaker 06:
I'll ask you the hypothetical.

[00:26:12] Speaker 06:
In your view, if someone who is an expert announces your numbers are wrong,

[00:26:19] Speaker 06:
and other numbers exist, but I'm not going to tell you what they are.

[00:26:22] Speaker 06:
I'm not going to do any kind of statistical analysis.

[00:26:25] Speaker 06:
I'm not going to do any kind of projection that can be evaluated.

[00:26:29] Speaker 06:
All I'm telling you is I'm an expert, and I think your numbers are wrong.

[00:26:31] Speaker 06:
Is that enough to require an SEIS?

[00:26:35] Speaker 03:
I think it's enough to require the agency to respond to the critique.

[00:26:38] Speaker 03:
OK, that's yet a different question.

[00:26:40] Speaker 03:
That they did not do.

[00:26:42] Speaker 06:
Let's do one question at a time.

[00:26:44] Speaker 06:
Is that enough to require an SEIS?

[00:26:47] Speaker 06:
An expert just says,

[00:26:49] Speaker 06:
Your numbers are wrong, but the expert does not tell you what the likely numbers are going to be.

[00:26:55] Speaker 03:
I think it's enough to establish, if the critique is sufficiently strong, that there is in the language of the CQ regulation significant new information that bears upon whether the project should go forward in that form.

[00:27:08] Speaker 03:
And in answer to your honor's question, I can give you – you didn't like my first one as much.

[00:27:12] Speaker 03:
Perhaps you might like my second one.

[00:27:14] Speaker 03:
I'm still waiting.

[00:27:16] Speaker 03:
Well, let me give you another citation, which is – So we're skipping that one.

[00:27:21] Speaker 03:
I would like to explain why the 43% figure is very important, because it was not relied upon in the agency's own decision document, and they never explained why the 43% metro rail-related ridership was not the correct figure.

[00:27:36] Speaker 03:
So it's ultimately the agency's obligation to explain its decision.

[00:27:40] Speaker 06:
Well, what they've said, I mean, I do want to see the see the projection, but what their explanation is, is even if it were that number, it wouldn't make a difference to us.

[00:27:50] Speaker 06:
And they explain why.

[00:27:51] Speaker 06:
Now, I appreciate you don't agree with their explanation, but they do say that any of a number of reductions from their original figure, not enough to make a difference in the environmental consequences.

[00:28:04] Speaker 06:
But is it you have another place where there's an actual well, there's another place where

[00:28:09] Speaker 03:
FTA itself used a different figure, Your Honor, and that is referred to in the declaration from Mr. Allen, who has been doing transportation modeling.

[00:28:18] Speaker 03:
And this is at page 2320 of the Joint Appendix, where he explains and makes sure I'm providing this accurately, Your Honor.

[00:28:36] Speaker 03:
And Mr. Allen explains in his declaration that, according to a website, and this is new information, 2015 information, that FDA itself disclosed a ridership figure of 56,100 as the baseline figure.

[00:28:51] Speaker 03:
And they, in fact, use a number which is substantially higher than that in their analysis, which is almost 70,000 daily ridership.

[00:28:59] Speaker 03:
And Mr. Allen said, if you use the FDA's own 2015 figure, which post-states the EIS,

[00:29:05] Speaker 03:
then even as a baseline matter in terms of looking at metro rail decline, you would have a much different number potentially.

[00:29:12] Speaker 03:
Now that, again, is an issue raised by an expert with undisputed expertise, never addressed in the FTA's decision document.

[00:29:21] Speaker 02:
Actually, I mean, you keep saying these things, and I just have to say that's not the way the document reads in all fairness.

[00:29:32] Speaker 02:
They did address decline in ridership.

[00:29:36] Speaker 02:
and specifically incorporated by reference these types of analyses.

[00:29:47] Speaker 02:
And that's why I thought the Chief Judge was focusing you on what's new.

[00:29:53] Speaker 03:
That is new, Your Honor.

[00:29:54] Speaker 03:
That 2015 number.

[00:29:55] Speaker 02:
No.

[00:29:55] Speaker 02:
It's the difference between an expert saying, I disagree.

[00:29:59] Speaker 02:
They know experts disagree.

[00:30:01] Speaker 02:
Because your declarations have been submitted

[00:30:05] Speaker 02:
twice the same declarations and then some new declarations.

[00:30:10] Speaker 02:
So they've been before Maryland and the FTA.

[00:30:16] Speaker 02:
What's new?

[00:30:18] Speaker 03:
Well, again, the declaration was submitted, but they didn't say anything about the discrepancies and the problems identified in the declaration.

[00:30:25] Speaker 03:
And I would submit under this court's precedent.

[00:30:26] Speaker 02:
Because they've already addressed that the ridership decline is not going to make a difference.

[00:30:33] Speaker 02:
That's what I'm trying to understand.

[00:30:34] Speaker 02:
In other words, the SEIS requires you to come up with significant new information that's not been addressed.

[00:30:43] Speaker 02:
Or you could say, I assume, adequately addressed.

[00:30:46] Speaker 03:
Well, our point is adequately addressed, Rhonda.

[00:30:48] Speaker 03:
There's no question they put out a paper saying, here's our ultimate decision.

[00:30:53] Speaker 03:
But if you look at, for example, page JA2422, I think this answers your question specifically, and I hope answers Chief Judge Garland's question, where they refer to the baseline that they're using for the scenarios of 69,000.

[00:31:08] Speaker 03:
And Mr. Allen said, your own more recent documentation shows that you should be using a much lower baseline figure.

[00:31:15] Speaker 03:
That was never responded to.

[00:31:17] Speaker 03:
And in fact, the government in its reply brief says, well, if you look at a declaration that we submitted before the decision was made by an FTA official, she purports to explain that discrepancy on the grounds that did not include

[00:31:32] Speaker 03:
special trips, University of Maryland trips and such.

[00:31:36] Speaker 03:
And that is simply not the case.

[00:31:37] Speaker 03:
And this highlights why we have problems in this case.

[00:31:40] Speaker 03:
If you look at their own EIS, and I'm referring specifically to Joint Appendix

[00:31:50] Speaker 03:
page 1271 through 72.

[00:31:53] Speaker 03:
In fact, that number did include special trips.

[00:31:57] Speaker 03:
If you look at Maryland's own analysis, which is Joint Appendix 2353, they acknowledge the 69,000 included special trips.

[00:32:05] Speaker 03:
So you have a flagrant inconsistency between the post hoc declaration that they're relying upon and the documents themselves, including Maryland's own analysis.

[00:32:16] Speaker 03:
And I say this not to convince the court,

[00:32:19] Speaker 03:
that there's no possible answer to these points.

[00:32:22] Speaker 03:
I say it to convince the court that under this court's most basic standards of administrative review, not answering any of these concerns or answering any of these objections, we believe is an APA violation, as well as failing to adequately address the issues from a NEPA standpoint.

[00:32:40] Speaker 03:
And in response to Your Honor's question, we believe that the information

[00:32:44] Speaker 03:
does establish the standard is satisfied for an SCIS, but at the very least, we respectfully submit that under the public employees ruling from this court, there has to be some acknowledgement of these experts' views and some response on some of these discrepancies they came up with.

[00:33:02] Speaker 06:
Why isn't the nature of their response

[00:33:07] Speaker 06:
is a series of scenarios in which their number of east-west trips that come off of Metro have reduced significantly, even down to almost zero.

[00:33:21] Speaker 06:
And their position is we're building this for three different reasons, back to Judge Rogers' three-legged stool, and that even if the number is reduced,

[00:33:34] Speaker 06:
And no one seriously, including your experts, say it's going to go to zero.

[00:33:39] Speaker 06:
Even if it's reduced, the state still has an interest in helping people get from places where they live to places where there are jobs from east to west, and helping people between those two locations to get into either of the other two locations.

[00:33:58] Speaker 06:
If those purposes don't change, the other purpose that may be slightly less valuable but is still there, and under those circumstances, there's no environmental difference.

[00:34:09] Speaker 06:
Why isn't that a good enough response?

[00:34:13] Speaker 06:
rather than having to engage directly with the numbers question.

[00:34:18] Speaker 06:
As long as their position is, the numbers don't matter.

[00:34:21] Speaker 06:
As long as we continue to believe there are people who want to travel east and west.

[00:34:27] Speaker 06:
Your data doesn't go at all to either of the other two legs of the triad.

[00:34:32] Speaker 06:
It only goes to one.

[00:34:34] Speaker 03:
Well, certainly that's Maryland's position, but the question is for the federal agency, which is being asked to give out nearly a billion dollars in money, the question is whether or less environmentally destruction of alternatives.

[00:34:44] Speaker 03:
And just to be clear about this, because I haven't had a chance to sort of emphasize this,

[00:34:49] Speaker 03:
This is an environmentally destructive project.

[00:34:52] Speaker 03:
It's going on right now.

[00:34:53] Speaker 03:
Trees and forests are being destroyed in places of great importance to members of the local communities.

[00:34:59] Speaker 03:
It will destroy more than 5,000 acres of streams and other wetlands.

[00:35:03] Speaker 03:
It will impair historic neighborhoods.

[00:35:05] Speaker 03:
It will unearth more than 200 hazardous waste sites and result in stormwater runoff.

[00:35:11] Speaker 03:
They prepared an EIS because this had

[00:35:14] Speaker 03:
extremely significant direct impacts.

[00:35:16] Speaker 03:
Now, as Your Honors know, we've also raised an important issue that I think is adequately addressed in the briefs, and happy to discuss further, that their analysis of indirect effects was completely lacking, in our view, especially under the court's recent Sierra Club ruling, which says you actually have to engage in a serious analysis of indirect effects.

[00:35:35] Speaker 03:
But even putting, I think that's an important context, because under Your Honors hypothetical,

[00:35:40] Speaker 03:
to the extent that a critical part of their objective was to meet certain ridership projections.

[00:35:45] Speaker 03:
And other alternatives may be able to further those objectives in a significant way without incurring as many, perhaps most of these impacts.

[00:35:55] Speaker 03:
That's precisely what the point of NEPA analysis is all about.

[00:35:58] Speaker 03:
The point of NEPA is to inform agency decision making.

[00:36:02] Speaker 02:
All right.

[00:36:02] Speaker 02:
But in the final environmental statement, the federal government incorporated

[00:36:11] Speaker 02:
I reference the analysis of the several alternatives beyond the no-build and the local preference.

[00:36:23] Speaker 02:
Why isn't that sufficient?

[00:36:26] Speaker 03:
Well, two reasons, Your Honor.

[00:36:27] Speaker 03:
One, if you look at the final FTA decision not to do an SEIS, they didn't incorporate any alternatives analysis at all.

[00:36:35] Speaker 02:
No.

[00:36:36] Speaker 02:
I'm back at the FEIS.

[00:36:38] Speaker 02:
They did at that point.

[00:36:39] Speaker 02:
And at the FEIS... I'm sorry, Your Honor.

[00:36:42] Speaker 02:
So the analysis is there.

[00:36:45] Speaker 02:
And now the question is,

[00:36:48] Speaker 02:
did they have to do another environmental analysis because, as I understand it, in your view, they didn't adequately consider the alternatives.

[00:37:03] Speaker 02:
But that's the FEIS challenge, isn't it?

[00:37:07] Speaker 03:
Well, I think it's both, Your Honor.

[00:37:08] Speaker 03:
I mean, we do have an FEIS challenge.

[00:37:10] Speaker 02:
Well, it's both, but the district court rejected your challenges to the FEIS.

[00:37:16] Speaker 02:
That's true.

[00:37:16] Speaker 02:
Basically saying that there was.

[00:37:18] Speaker 02:
The district court didn't say this in height verba, but basically rejecting your view that there was an inadequate analysis of alternatives.

[00:37:32] Speaker 02:
and we thought that we had a great with the district court and then you disagree with the district court if that is a district court's position then on what basis could he order you to do and s e i a s because what he said in both his merits analysis is a picture analysis was that you have at the very least

[00:37:50] Speaker 03:
had new developments which bear upon an aspect of the purpose of the project, which calls into question, exactly as we've been discussing, whether less environmentally destructive and, in his view, of also importance less financially impactful alternatives should be considered.

[00:38:06] Speaker 03:
And let me also answer, Your Honor, this way, because I want to make sure I get this out before I sit down.

[00:38:12] Speaker 03:
There was an additional impact that has been raised by Dr. Lissy, which I did not refer to before, and that is the potential impact on what he refers to as the cannibalization of the ridership from the existing transportation systems.

[00:38:25] Speaker 03:
And so even – I think we are on sound ground in saying that – What does he mean by that?

[00:38:29] Speaker 03:
What does that mean?

[00:38:31] Speaker 03:
Well that means that if you look at their own rationale for the project, it will take ridership away from the existing resource impoverished or released resource strapped system.

[00:38:42] Speaker 03:
Because one of the ostensible rationales for the project is that people who travel between metro rail, if you for example consider Bethesda and Silver Spring, will now take the purple line instead of traveling on the metro system.

[00:38:55] Speaker 06:
And the environmental impact of that?

[00:38:56] Speaker 03:
Well, to the extent that looking at the entire community in terms of how it's using a transportation system, nobody's disagreed that that is a part of an environmental analysis because ridership has an impact on other aspects, including development, et cetera.

[00:39:13] Speaker 06:
But even the... I understand you think people should be made to go all the way through the entire loop so that

[00:39:20] Speaker 03:
Well, we're not saying that they should necessarily be thank you.

[00:39:22] Speaker 06:
So that they pay fares to Metrorail?

[00:39:25] Speaker 03:
Well, no, we're simply saying that that's an aspect of the repercussions of what they're doing that should be considered.

[00:39:30] Speaker 06:
Yeah, but what is the environmental repercussions of, the negative environmental repercussions of having people take

[00:39:40] Speaker 06:
a direct route across the U, rather than taking an indirect route all the way through.

[00:39:47] Speaker 06:
It has to be an environmental impact of some kind.

[00:39:50] Speaker 03:
Well, if it accelerates the demise of the metro rail system, that has an enormous impact on the entire community, including socioeconomic impacts, which under the CEQ regulations do have to be addressed.

[00:40:00] Speaker 03:
In fact... But they did evaluate.

[00:40:02] Speaker 06:
I mean, I thought maybe the strongest argument

[00:40:05] Speaker 06:
that they make about the environmental justice question is it allows people from the east to work in the west.

[00:40:12] Speaker 06:
Otherwise, their ability to work is very difficult and they locate the environmental justice communities as being in Prince George's County.

[00:40:22] Speaker 06:
And one of the purposes as I understand in reading the EIS is to enable people to actually get to work without taking an hour or more to get to work.

[00:40:33] Speaker 06:
Well, how do you balance these off?

[00:40:36] Speaker 03:
Well, I don't think it's necessarily, that is ultimately the agency's decision to balance.

[00:40:41] Speaker 03:
All we're arguing again is a narrow NEPA point if they have to at least adequately look at both the good and the bad.

[00:40:48] Speaker 03:
And that is what the court said in the Sierra Club decision recently in looking at the pipeline and whether or not there would be greenhouse gas emissions.

[00:40:55] Speaker 03:
We have to look at the good and the bad.

[00:40:57] Speaker 03:
And in the CQ regulations, point blank say that the fact that an agency ultimately believes that a project will be beneficial does not mean you do not look at potentially adverse effects.

[00:41:07] Speaker 03:
And in response to Your Honor's question more pointedly,

[00:41:10] Speaker 03:
There are two elements to that.

[00:41:11] Speaker 03:
One is if it actually accelerates the decline of the metro rail system, that will have enormously negative impacts, especially when nobody knows where the money to operate metro is going to come from.

[00:41:23] Speaker 03:
And the second point in terms of those environmental justice effects, and I appreciate, Your Honor, bringing that up,

[00:41:29] Speaker 03:
One of the indirect effects issues that was not addressed is what's going to happen to environmental justice communities that cannot afford the increase in rents as well as the other increase in living expenses.

[00:41:40] Speaker 03:
They make a very brief mention of it in their underlying NEPA document.

[00:41:46] Speaker 03:
But as Casa de Meral and others pointed out, there's no serious scrutiny of that impact.

[00:41:50] Speaker 03:
So I don't disagree with Your Honor that there may be benefits.

[00:41:53] Speaker 03:
Nobody's ever disagreed that there may be some benefits.

[00:41:56] Speaker 03:
But the NEPA question is, have all the benefits and the costs been adequately considered, both underlying NEPA analysis and as a supplemental matter we respectfully submit?

[00:42:05] Speaker 03:
that has not been the case.

[00:42:06] Speaker 03:
As Your Honor knows, we raised the green track issue as well.

[00:42:08] Speaker 03:
It's the one I haven't touched on.

[00:42:10] Speaker 03:
They clearly committed to doing this as a mitigation measure, particularly in the portion of the Capitol Crescent Trail, a great concern to my clients.

[00:42:17] Speaker 03:
They just dispensed with that with no public comment, let alone a NEPA process.

[00:42:21] Speaker 03:
We respectfully submit that it's also a NEPA violation and warrant some additional scrutiny.

[00:42:27] Speaker 06:
Any further questions?

[00:42:28] Speaker 06:
Thank you.

[00:42:28] Speaker 03:
Thank you very much.

[00:42:35] Speaker 04:
Since it came up on, how much time?

[00:42:41] Speaker 04:
Your honor, since it came up in Mr. Gliftonstein's presentation, I'd like to just revisit your hypothetical to make sure there's no disconnect.

[00:42:47] Speaker 04:
You know, one of the key objectives of this project was to facilitate east-west transit in the corridor.

[00:42:54] Speaker 04:
And if that objective goes away, then

[00:42:58] Speaker 04:
and the objectives of the project change, then we agree that a new EIS could be required because the objectives of the project dictate the reasonable range of alternatives.

[00:43:08] Speaker 04:
So if you change your objectives, then at least in some instances, you'd have to analyze a new range of alternatives that might achieve those objectives.

[00:43:18] Speaker 04:
But in that situation, we'd be talking about starting over.

[00:43:21] Speaker 06:
I think we're on the same page.

[00:43:23] Speaker 06:
I understand now.

[00:43:23] Speaker 06:
Let me just ask in response to

[00:43:27] Speaker 06:
question I asked of your opponent, which was what part of the affidavit was most significant, and he pointed out that the expert says that your side's analysis of the baseline is incorrect, and not only incorrect, but inconsistent with subsequent data from Metrorail, and that that, although you posited scenarios that go down from a baseline, you haven't posited ones that go down from the accurate baseline, at least as stated by the expert.

[00:43:57] Speaker 06:
And that your document rejecting the need for an SCIS doesn't address that question.

[00:44:05] Speaker 04:
Two responses.

[00:44:06] Speaker 04:
The first is these affidavits we're talking about were filed in the litigation.

[00:44:10] Speaker 04:
And in response to that very affidavit, we submitted a rebuttal affidavit explaining that the plaintiff's declarant was totally wrong because the two figures he was referring to were based on different metrics.

[00:44:22] Speaker 04:
So that was a litigation issue, raised as a litigation issue, that we responded to and addressed.

[00:44:27] Speaker 04:
There was no need for us to go back and repeat the response in responding to the court's order to look at whether an SCIS was required.

[00:44:34] Speaker 06:
Can you just tell me which affidavit was your response?

[00:44:37] Speaker 04:
It's cited in our brief on this exact point.

[00:44:40] Speaker 04:
And also, much of the affidavits go to this issue of whether the initial ridership estimates were valid.

[00:44:48] Speaker 04:
And that was an issue at summary judgment that the court specifically reserved ruling on when he ordered us to address whether an SCIS was required.

[00:44:55] Speaker 04:
So that was not something we had to look at during the remand.

[00:44:59] Speaker 04:
That was a separate issue on which he reserved judgment and ultimately ruled against the plaintiffs that plaintiffs elected not to appeal.

[00:45:05] Speaker 06:
Well, what do you think you were directed to look at on remit?

[00:45:08] Speaker 04:
To see how a change in metro rail ridership would affect our projections, which is exactly what we did.

[00:45:15] Speaker 06:
But not the specific change that their experts were talking about?

[00:45:19] Speaker 06:
Not the reduction in the base?

[00:45:21] Speaker 04:
Well, we addressed that in the litigation when the affidavit was first filed.

[00:45:28] Speaker 04:
And also, I'd like to address a comment that was made that, well, all we looked at was whether there'd be new environmental impacts, and that's totally incorrect.

[00:45:38] Speaker 04:
We also addressed whether the project would still meet the purpose and need, even in the event of a significant decline in metro, and we demonstrated that it would.

[00:45:48] Speaker 04:
The need for reliable east-west transit in the corridor hasn't changed.

[00:45:52] Speaker 04:
Purple Line will continue to address it.

[00:45:54] Speaker 04:
And the Purple Line will continue to facilitate connections to Metro under any scenario in which the system exists.

[00:46:00] Speaker 04:
And we also critically, Maryland and FDA, Maryland in particular, explained why a decline in Metro rail ridership doesn't change the comparative value of alternatives at all.

[00:46:11] Speaker 04:
And it doesn't enhance some unidentified supposedly environmentally more benign alternative.

[00:46:17] Speaker 04:
The comparison of alternatives doesn't change at all.

[00:46:21] Speaker 04:
court has any more questions.

[00:46:24] Speaker 06:
Do you need time?

[00:46:26] Speaker 06:
I'll just give you, I know you're over but we let the opponent go over so I'll give you a minute.

[00:46:32] Speaker 05:
I actually just wanted to clarify one point that the opponents mentioned about ridership levels and the implication was that Maryland selected the light rail in order to accommodate increased ridership levels.

[00:46:49] Speaker 05:
Well that's true

[00:46:51] Speaker 05:
It's absolutely true.

[00:46:53] Speaker 05:
But it wasn't increased ridership levels that were going to be on Metro.

[00:46:56] Speaker 05:
It's increased ridership levels that are based upon the fact that population numbers are expected to rise over the course of the 30, 40, 50, 60 years that this project will remain in place.

[00:47:14] Speaker 06:
But some of that

[00:47:16] Speaker 06:
direct transfers between Bethesda and New Carrollton must be as a consequence of more riders on Metro.

[00:47:24] Speaker 06:
Absolutely, so there aren't more riders on Metro.

[00:47:26] Speaker 05:
He has a point well He has a point only but to an extent your honor because it's it's that that just discounts the fact that ridership has come there are 21 stations on this line and Ridership is coming from all 21 stations and as the population level increases the need for this product that this facility Becomes even more critical.

[00:47:45] Speaker 06:
Thank you your honor questions.

[00:47:46] Speaker 06:
Okay.

[00:47:47] Speaker 06:
Thank you.

[00:47:47] Speaker 06:
We'll take the matter under submission