Case 3:10-cv-00007-JGH-DW Document 184-2 Filed 01/26/13 Page 1 of 8 PageID #: 3305


Case No. 3:10-CV-00007-JGH-DW Judge John G. Heyburn II

Memorandum in Support of CARTs Motion for Leave to Amend the Complaint Comes now the Plaintiff Coalition for Advancement of Regional Transportation, by Counsel and offers this Memorandum in Support of the Motion for Leave to Amend CART’s Complaint for Declaratory and Injunctive Relief, (ECF Doc # 124) to conform to the pleadings and to include claims arising after the original filing date of September 4, 2012. 1. Granting leave to amend the Complaint will not prejudice Defendants

CART Plaintiff’s motion under Rule 15(a) for leave to amend their Complaint is supported by good cause, will not prejudice he non-movant and serves the interest of justice. Federal Rule of Civil Procedure 15. Amended and Supplemental Pleadings, provides, (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. The motion is prompted by recent discovery of relevant documents not in the record, recent policy announcements by the President and recent reductions in the actual cost of construction of



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the modified selected alternative . The proposed amendments to the Complaint do not alter the existing enumerated facts and claims but add two claim sections that Defendants will have to Answer. The prior work of the Defendants is not sacrificed and the new burden in responding is minimal and should not result in disturbance of the existing scheduling Order. Defendant’s are proceeding with their project regardless of the briefing schedule. The amendments are additional claims under NEPA rules with jurisdiction provided by the APA. Neither amendment section seeks to establish a new cause of action under a new statutory regieme or different relief outside of that already pled—to enjoin Defendants and vacate the RROD; “Generally, leave to amend is "freely given when justice so requires." Keweenaw Bay Indian Cmty. v. State of Michigan, 11 F.3d 1341, 1348 (6th Cir. 1993) (quoting Fed.R.Civ.P. 15(a)). . . . Denial may be appropriate, however, where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also 3 Moore's Federal Practice § 15.14[1] (3d ed.1997). Ordinarily, delay alone, does not justify denial of leave to amend. Sec. Ins. Co. v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1009 (6th Cir. 1995); see also Tefft v. Seward, 689 F.2d 637, 639 n. 2 (6th Cir. 1982) ("Delay that is neither intended to harass nor causes any ascertainable prejudice is not a permissible reason, in and of itself to disallow an amendment of a pleading."). At some point, however, "delay will become 'undue,' placing an unwarranted burden on the court, or will become 'prejudicial,' placing an unfair burden on the opposing party." Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). The Plaintiff’s have good cause to file the amendment sections now because the record did not include the fact basis of the new claims, which are based on independently discovered information. Changes in the cost of the project were announced in December 2012 and after the original Complaint was filed. Therefore the delay is reasonable, the prejudice to Defendants minimal and leave should be "freely given when justice so requires."



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1. CART alleges bad faith where FHWA and state Defendants deliberately omitted greenhouse gas findings. By chance, on January 21, 2013, and after filing its Brief under the scheduling Order, CART discovered in the online archives of Louisville Metro Government, two greenhouse gas emissions reports. The reports were developed for Metro Government between 2005 and November 2008. Plaintiff’s discovered the two documents, Exhibit 1 and 2 to the Motion, in a search of the Metro Government website at See Exhibit 3 attached, Metro Government webpage search for “Trinity Consultants.” Plaintiff’s had no prior knowledge of these reports and they are not made part of the administrative record. Exhibit 1, Green House Gas Emissions Inventory Report, Louisville Metro Government November 2008, performed by Trinity Consultants, One Copley Parkway, Suite 310, Morrisville, North Carolina 27560. Exhibit 2, Transportation Group Report. Greenhouse gas emissions inventories of Metro Louisville are relevant and significant in the context of the recently announced federal policy to combat climate change. Both EPA and federal policy guidance referenced in the Amendments create a context that makes the findings in the reports a “significant” environmental impact. 40 CFR § 1508.27 defining “significantly.” EPA comments to the SFEIS specifically referred to expected significant climate impacts that the Defendants should have considered in scoping and selection of alternatives.
Greenhouse Gas (GHG) Emissions The SDEIS ·states, "FHWA does not believe it is informative at this point to consider greenhouse gas emissions in an Environmental Impact Statement (EIS). The climate impacts of GHG emissions are global in nature," (page 5-114). FHWA concludes that they cannot usefully evaluate GHG emissions in this EIS in the same manner that other vehicle emissions are addressed. As correctly noted in the SEIS, CEQ has proposed four steps to modernize and reinvigorate NEP A. In particular, CEQ issued draft guidance for public comment on, among other issues, when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions ( 100218nepa-consideration-effects-ghg-draft-guidance.pdf).



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The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEP A. It provides practical tools for agency reporting, including a presumptive threshold of25,000 metric tons of carbon dioxide equivalent (C02e) emissions from the proposed action to trigger a quantitative analysis, and instructs Federal agencies regarding how to assess the effects of climate change on the proposed action and their design. The draft guidance does not apply to land and resource management actions, and does not propose to regulate greenhouse gases. Recommendations: While this guidance is not yet final (and thus, not required), we recommend that the assessment explicitly reference the draft guidance, describe the elements of the draft guidance, and to the relevant extent, provide the assessments suggested by the guidance. For example, EPA recommends that the project sponsors thoroughly consider the need for measures to manage potential climate-related impacts due to expected increases in storm frequency and intensity, such as increased floodwater flows and needed drainage capacity in the design of this project. EPA also notes that as of January 2011, certain greenhouse gases are now regulated under the Clean Air Act, further emphasizing the need to perform an appropriate level of analysis for this suite of compounds. The CEQ document noted above provides such guidance.

January 9, 2012, SDEIS Comments Letter to Janice Osadczuk, U.S.DOT, FHWA from Heinz J. Meuller, Chief NEPA Program Office. AR1_00001698. FHWA declined to make the analysis. " While FHWA acknowledges the global significance of climate change, it does not believe it is informative at this point to consider greenhouse gas emissions in an Environmental Impact Statement (EIS). The climate impacts of GHG emissions are global in nature. Analyzing how alternatives evaluated in an EIS might vary in their relatively small contribution to a global problem will not better inform decisions.” AR1–-0000752 Chapter 5 SFEIS 5-139 Environmental Consequences. In declining to perform the analysis FHWA made no reference to the existing professional GHG Inventory performed for Metro Government. The relevant findings of this study, that light rail transportation alternatives should be promoted in Metro Louisville because the area has the third largest per capita greenhouse gas emissions in the country, should have been integrated into alternatives selection. Justice requires the Complaint be amended to include the new claim that, “Defendant’s failure to consider greenhouse gas emissions to re-evaluate project alternatives significantly violated NEPA.” The tools to perform the analysis were readily available to Defendants. See attached   4  

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Exhibit 4 Passenger vehicle GHG emissions. EPA provides Greenhouse gas emissions technical guidance for local transportation planners The guidance includes information on using the MOVES computer program to model GHG emissions. Performing the GHG analysis would not have caused Defendants to incur unreasonable expense. The Mayors November 2008 GHG Inventory Report was available to Defendants well before the June 2011 issuance of the Purpose and Need White Paper that ratified the prior 2003 alternatives selection. AR1_00001070. The October 17, 2011 Alternatives Evaluation Document, likewise contains no consideration of the Mayor’s 7% GHG reduction goals in rejecting mass transit alternatives. AR1_00001108. In light of the discovery of a professional grade greenhouse gas emissions inventory supporting a finding that the local MPO area is a nationally high GHG per capita emissions level, CART alleges the Defendants complete omission of any reference to the study and its findings in the SFEIS or RROD is a significant omission requiring vacation of the RROD. Defendants access to KIPDA and local government during the period of the study and its relevance to regional transportation planning gives rise to the reasonable inference that FHWA and state Defendants knew about the study, but deliberately suppressed it to avoid its inconvenient implications. This completely abrogates the agencies duty under 42 U.S.C. § 4332(2)(c) for a detailed study of environmental impacts and to assure integrity of the analysis. The “Report of the Transportation Group” Exhibit 2, included findings: • GHG emissions associated with transportation in the Louisville Metro Area in 2006 were found to be responsible for 29.2% of anthropogenic GHG emissions. • Together these mobile sources were responsible for 5.6 million tons of CO2e emissions in Jefferson County. • Transportation sector in the Louisville Metro area was the largest sector of GHG emissions – residential was slightly less at 28.9%



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• A significant portion of these transportation related emissions can be attributed to single occupancy vehicles. • Transportation is the fastest-growing source of U.S. GHGs, accounting for 47 percent of the net increase in total U.S. emissions since 1990. • Transportation is also the largest end-use source of CO2, which is the most prevalent greenhouse gas. ” Production of CO2 is related to the amount of fuel combusted and the fuel’s carbon content, and its emission rate cannot be affected by vehicle emissions control technologies. CH4 and N2O, also significant GHG’s, can be affected; however they only account for a small percent of the transportation GHG total (2% nationally in 20032). The report concludes: In order for the recommendations of this committee to be successful, these institutions, and the public at large, must undergo a shift in culture. The National Surface Transportation Policy and Revenue Study Commission's report to Congress provides an example regarding "cultural shift": Our Nation will need to put more emphasis on transit and intercity passenger rail and make them a priority for our country. A cultural shift will need to take place across America to encourage our citizens to take transit or passenger rail when the option is given. Plaintiff’s procedural rights are injured by the Defendant’s failure to include and use GHG facts relevant to the MPO in selecting alternatives and presenting an accurate and thorough picture of significant environmental impacts of the project. The RROD should be vacated and FHWA required to reconsider the project alternatives including public transit to meet the 7% GHG reduction goals established for our area. Deliberate suppression of relevant documents from the SFEIS by FHWA and state Defendants is action in bad faith supporting an expansion of the record. The final decision to ignore and not consider GHG emissions was arbitrary and capricious and not in conformity with law. APA 5 U.S.C. § 706(2)(A).



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Defendants must perform a supplemental EIS to consider removing tolls

The second proposed amendment is prompted by the announcement of lower than anticipated construction cost estimates. The Court may take judicial notice that Defendants state transportation agencies announced: The Indiana Finance Authority (IFA) Board this morning made the preliminary selection of WVB East End Partners, a team of Walsh Investors LLC, VINCI Concessions S.A.S., Bilfinger Berger PI International Holding GmbH and other regional, national and international firms. The preferred proposal would design and build the East End Crossing for $763 million, which is 23 percent less than previous cost estimates. A design-build team headed by Walsh Construction Co., of Chicago, has been awarded the job of building the Downtown Crossing portion of the Louisville-Southern Indiana Ohio River Bridges Project. The Walsh team, one of three engineering teams that competed for the largest transportation construction project in Kentucky history, last month submitted the “best value” bid. It included a proposal to complete the project by December 2016 – nearly 19 months ahead of deadline – at a construction cost of $860 million, which would be $90 million below the cabinet’s estimate. The total cost that was used initially to consider tolling as a funding method was based upon the two bridge alternative cost of $ 4.067 billion in 2007. AR3_00000198. But in 2013 the two bridge project with Spaghetti junction rebuild costs only $ 1.6 billion. This is a 60 % reduction in total cost and the major cost reduction is a significant new circumstance and requires a supplemental EIS to consider removing tolls. 40CFR 1502.9(c)(1)(i-ii) provides:
(c) Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

The plan to use tolling has long term and adverse impacts to the community including: That the cost of creating a collection and enforcement system for tolls will have operation costs above $ 1billion of itself; that tolling will cause unknown traffic diversion behavior with drivers seeking non-tolled crossings producing new congestion and pollution impacts; that the   7  

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cost of tolling will impose disproportionate impacts tot Title VI populations. These impacts will in turn spawn costly mitigations and otherwise impact policy. The Court may take judicial notice of the fact that House Bill 129 introduced January 11, 2013, in the Kentucky State legislature and would mandate a refundable income tax credit to compensate for LSIORBP tolling impacts to low income drivers and exempt TARC buses from tolls. These exemptions would throw more of the tolling burden on daily job commuters. Wherefore Plaintiff CART provides this Memorandum in support of its Motion for Leave to Amend the Complaint.

January 26, 2013

Respectfully submitted, S/ CLARENCE H. HIXSON Attorney for Plaintiff CART 1336 Hepburn Avenue Louisville, KY 40204 (502) 758-0936




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