The following article by Peter Callaghan was posted on MinnPost on February 25, 2015.
Southwest Light Rail Route Opponents Get Their (first) Day in Court
MinnPost photo by Peter Callaghan
It was less about lakes and parks and more about legal standing and ripeness but Wednesday’s federal court hearing opened the first test of a legal challenge to the process that selected the route for the Southwest Light Rail project.
Lakes and Parks Alliance v. the Federal Transit Administration and the Metropolitan Council seeks to halt the alignment selection process until a supplemental draft environmental impact statement is released this spring. The opponents of the alignment that passes between Lake of the Isles and Cedar Lake in southwest Minneapolis are arguing that the EIS must be in hand before — not after — the cities along the route give their consent.
But before Alliance lawyers can make that case, they had to head off a motion by the government agencies to dismiss the lawsuit. Only after the EIS is released, only after public comment is received, only after the Met Council and the FTA decide it is adequate and only after the FTA issues a record of decision can the Alliance or others seek federal court review, they argued.
“It is a basic tenet of administrative law that federal agencies are first allowed to weigh the evidence and then make a final determination before judicial review is appropriate,” said Craig Baune, representing the FTA. While the consents given by the cities — from Minneapolis to Eden Prairie — are in hand, any substantive change in the alignment due to the pending EIS will trigger a repeat of the municipal consent process, said Charlie Nauen for the Met Council.
Baune and Nauen made other arguments as well: that there is no private cause of action, that the plaintiffs lack legal standing under the National Environmental Policy Act, that any injury that might be prevented by slowing the process is “conjectural” or speculative. But the oral arguments and questions by U.S. District Court Judge John R. Tunheim focused heavily on timing — when should the substantive arguments about the process be made?
The counterargument to the agencies’ request for dismissal, first articulated Wednesday in a question from Tunheim, is that it could be too late by the end of the EIS process. If the decision was really made during the municipal consent process last year, and that decision was made on a preliminary and incomplete draft EIS, then now is the time to hear challenges.
Asked Tunheim: “Why isn’t this case for NEPA purposes different because of the presence of the municipal consent statute which appears to have moved this process much-further down the way, because of local agreement, than your typical NEPA case…I guess the issue is whether the train, so to speak, has long ago left the station by the time the EIS is done.”
The Met Council is following two paths at the same time — one a planning process that includes municipal consent and one an environmental process that includes the EIS, Nauen said in response. There will be time for both citizens and government agencies to comment and even sue at the end of the decision-making process.
“It is not the train leaving the station, to quote the court, in an unalterable way,” Nauen said. “The court would not want to get involved in an intermediate challenge in the midst of a complicated environmental review.”
Lewis Remele, who argued against dismissal of the Alliance challenge, said the municipal consent process for the alignment through the Kenilworth Corridor came after numerous side agreements with cities. That makes the alignment all-but-predetermined.
“They’ve all agreed that this is going to be the alignment and to suggest that that’s going to change in the future? That’s not going to happen,” Remele said. And to the Met Council’s argument that all alignments are still on the table — including routing existing freight rail traffic through St. Louis Park rather than co-locating it with new light rail track through Kenilworth — would be a surprise to that city’s elected officials.
“Clearly they got municipal consent from St. Louis Park because they promised they would never consider that,” Remele said. “How could that be a more stark example of eliminating reasonable alternatives.”
Remele also pointed out that among the documents that are, under state law, to be presented to cities before they give municipal consent is an EIS. But the draft EIS used for the consent process had been completed four years earlier and was already known to need additional work — the supplemental draft EIS that is still not available for public review.
“We’re not asking you to say they have to do ‘a’ versus ‘b’ or ‘b’ versus ‘c.’ We’re asking you to hit the pause button, to hit the reset button.”
Tunheim said he would consider the arguments and the written briefs and make a decision on whether to dismiss the case “just as quickly as possible.” If he does not dismiss, a hearing on the Alliance’s motion for summary judgement is set for March 9.