IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRIENDS OF THE CAPITAL CRESCENT TRAIL, et al., Plaintiffs, Case No. 1:14-cv-01471-RJL v. FEDERAL TRANSIT ADMINISTRATION, etal., Federal Defendants, -end- MARYLAND TRANSIT ADMINISTRATION, Defendant-Intervenor. PLAINTIFFS’ RESPONSE TO STATE OF MARYLAND'S MOTION FOR EXPEDITIOUS RULING ON SUMMARY JUDGMENT MOTIONS ‘The Defendant-Intervenor State of Maryland has requested that the Court enter final judgment “as expeditiously as possible, but no later than April 28, 2017 resolving the pending summary judgment motions.” Mot. at 1. Altematively, Maryland requests that the Court “vacate that portion of its August 3, 2016 Order that vacated the Record of Decision [“ROD”].” Id. As explained below, Plaintiffs defer to the Court as to the proper handling and prioritization of its caseload. However, Maryland’s implication that the Court has somehow been less than “expeditious” in managing this case is baseless, and Maryland has set forth no justification for the April 28 deadline Maryland asks the Court to impose on itself. Maryland’s alternative request that the Court reverse its vacatur ruling is, in effect, yet another motion for reconsideration on thatelement of relief. Yet Maryland has not even purported to apply the stringent standard for reconsideration, let alone set forth any new facts that would justify granting such relief at this time. To the contrary, developments over the last several months, including the federal government's own budget proposals for projects such as the Purple Line, reinforce, rather than undermine, the propriety and importance of maintaining vacatur of the ROD. STATEMENT OF FACTS Insofar as the underlying premise of Maryland’s motion is that the Court has not been sufficiently “expeditious” in its management of this litigation, that premise is groundless. If anything, as a brief review of the prior proceedings demonstrates, it is Defendants’ tactical decisions that have needlessly lengthened the litigation. Initial summary judgment briefing was completed on May 25, 2016. See ECF No. 62. The next day the Court issued a Minute Order setting a hearing on the cross-motions for summary judgment. See 5/25/16 Minute Order. After holding a hearing on June 15, 2016 — at which the Court made no secret of its concer that Defendants had given short shrift to the myriad safety and reliability problems of the Metrorail system and their relationship to the ridership projections for the Purple Line — the Court issued its partial summary judgment ruling on August 3, 2016, granting summary judgment and vacating the ROD. See Friends of the Capital Crescent Trail v. FTA, 200 F. Supp. 3d 248, (D.D.C. 2016). The Court explained that that it could not “tum a blind eye to the recent extraordinary events involving seemingly endless Metrorail breakdowns and safety issues” ~ issues that continue unabated to this day, along with ever-escalating question about how Metrorail will even be funded /d. at 253-54. The Court vacated the ROD and ordered preparation of a Supplemental EIS (“SEIS”) so that the FTA could assess whether “another alternative is preferable” in view of the recent information that “calls into question, at a minimum, whethernearly a billion dollars in federal funding should ultimately be committed to a project for which serious questions have been raised as to its future viability.” Jd, at 254, Defendants could have responded to that ruling by promptly embarking on preparation of the SEIS the Court said was called for. Instead, Defendants moved for reconsideration, arguing that they should be afforded another opportunity to consider, in the first instance, the need for an SEIS and that the ROD should be reinstated in the meantime. On November 22, 2016, the Court modified its summary judgment holding in a “one limited respect” by affording Defendants the additional opportunity they requested to assess whether an SEIS should be prepared. Friends of the Capital Crescent Trail v. FTA, _ F. Supp. 3d__, 2016 WL 6901251, at ** 3-4 (D.D.C. Nov. 22,2016). At the same time, the Court “decline{d] to reinstate the Purple Line ROD” because of the “disruptive consequences of allowing [the project] to proceed without the necessary NEPA analysis” and because “[vJacatur ensures that the project will proceed only with the benefit of a fully fleshed out consideration of the issues required by NEPA.” Id. (emphasis added). Again, Defendants could have responded to that ruling by promptly embarking on an SEIS, informed by public and independent expert opinion as required by the NEPA implementing regulations. They did not. Nor, contrary to Maryland’s assertion, did Defendants engage in any other “additional NEPA analysis.” Mot. at 5. Instead, Defendants prepared and submitted to the Court a patently result-oriented justification for not engaging in any further NEPA analysis, notwithstanding the breakdown in the Metrorail system with which the Purple Line is expressly designed to integrate. As explained in Plaintiffs’ response, this one-sided justification, in conflict with Circuit precedents and basic APA standards, does not even acknowledge, let alone meaningfully address, the views of leading non-government experts that the Metrorail problems do indeed have an enormous bearing on the longstanding justification for the project; that thereare in fact viable and far less costly and environmentally harmful alternatives; and that the Purple Line project will actually exacerbate and accelerate Metrorail’s decline and that of other transit systems in the area, in violation of 49 U.S.C. § 5309(0)(1), by diverting scarce funding and ridership from the existing Metro and transit system. See ECF No. 119. And while Defendants urged the Court to engage in the time-consuming task of ruling on ail of the issues addressed in the underlying summary judgment motions, See ECF No. 115 at 2, Plaintiffs suggested that the Court, as before, could expedite matters by again focusing at this juncture on the need for an SEIS, as the Court did in its initial summary judgment disposition. ECF No. 119 at 20 n.11. Since completion of the latest round of briefing, the case for an SEIS and for maintaining the vacatur has, if anything, become even more compelling. Notwithstanding Defendants’ past rosy predictions that the Metrorail problems would be well on their way to resolution by now, the grave fiscal problems facing the system remain as daunting as ever, ridership continues to decline, and safety and reliability issues remain rampant — indeed, within the last several days the Red Line again had to be shut down for hours because of smoke. See, eg, httpy//www. washingtonpost,com/news/dr-gridlock/wp/2017/04/03/metros-red-line-service, ' In addition, the Trump Administration is now on record opposing federal funding for projects such as the Purple Line. The President’s proposed fiscal year 2018 Budget “[[I]imits funding for the Federal Transit Administration's Capital Investment Program (New Starts) to "In light of such ongoing problems, on March 2, 2017, Plaintiffs wrote to the new Secretary of ‘Transportation, Elaine Chao, explaining that the current circumstances facing the Metrorail system preclude Federal Defendants from making the findings that must be made under 49 US.C. § $309(f) to enter into a FGA and also further reinforce the need for an SEIS. Plaintiffs also pointed to a host of additional recent developments that call the viability and impact of the project into question, including the planned diversion, revealed only in 2017, of up to 100,000 gallons of groundwater a day for four years from a spring in Bethesda, which has never been mentioned, let alone analyzed, in any NEPA document. At this time, these additional issues remain pending before the Secretary. 4Projects with existing full funding grant agreements only.” Office of Management and Budget, America First: A Budget Blueprint to Make America Great Again, at 35 (attached as Exh. A). That category does not include the Purple Line which, as Maryland admits, is not the subject of a signed “FFGA.” Mot. at 5 n.1. The stated reason for the Administration’s proposed limitation is that projects such as the Purple Line should be “funded by the localities that use and benefit from these localized projects” rather than being paid for by federal taxpayers. Id. (emphasis added). Likewise, even for the remainder of this fiscal year ~ funding for which expires. on April 28 under the existing continuing resolution — the Administration is also proposing to limit funding to projects that have full funding agreements already in place and to “suspend additional projects from entering the program” because as to “transit New Starts,” “localities should fund these localized projects.” OMB, FY 2017 Reduction Options (Exh. B) (emphasis added). ARGUMENT 1. This Court has the authority that is “inherent in every court to control the disposition of the cases on its docket” in a manner that the Court deems appropriate. Airline Pilots Ass'n. Miller, 523 US. 866, 879 n6 (1988). Accordingly, Plaintiffs defer tothe Court as to the appropriate management of the Court’s docket and how this case should be prioritized relative to the many other matters competing for the Court’s attention, However, there is simply no valid basis for Maryland’s suggestion that the Court has somehow failed to afford this case “just” and “speedy” attention. Mot. at 4 (quoting Fed. R. Civ. P. 1). As set forth above, the Court promptly held a hearing on the summary judgment motions; promptly issued a ruling granting partial summary judgment for Plaintiffs; and promptly resolved Defendants’ motion for reconsideration by largely reaffirming its summary judgment disposition. The fact that Maryland may not agreewith how the Court has resolved these matters does not mean the Court has failed to afford the case appropriate attention. Further, had Defendants opted to respond to the Court’s August 2016 ruling by immediately embarking on preparation of the SEIS that is so clearly called for here, Defendants could by now have completed that process, or at least been well on their way to completing it. Instead, Maryland made the tactical choices to request reconsideration and then continue to insist that the unprecedented Metrorail difficulties bear no relationship to the Purple Line, notwithstanding the overwhelming evidence and basic common-sense to the contrary. Maryland had the right to make those choices but, having done so, it cannot reasonably complain if they have, inevitably, prolonged the litigation. In any event, Maryland has provided no persuasive, let alone compelling, reason why the Court must abide by the State’s preferred schedule for resolving all of the issues in the “pending summary judgment motions.” Mot. at 1. Maryland rehashes the very same contractual commitments and related justifications for proceeding with the project on which Defendants have previously relied. /d. at 4. As Plaintiffs have previously explained, however, Maryland elected to enter into these commitments knowing that the State’s request for billions of dollars in federal funding necessarily brought with it the obligation to comply with NEPA, as well as review by a federal court as to how those NEPA obligations have been carried out. See ECF No. 92 at 14-15; ECF No. 100 at 25-28.? 2 Maryland proffers no explanation whatsoever for its “no later than” date of April 28. Mot. at 1. ‘As noted above, this happens to be the date that the existing continuing resolution expires and when the Trump Administration has proposed that funding should be halted for projects such as the Purple Line that have not already been the subject of finalized funding agreements. This may well explain what would otherwise appear to be a deadline plucked out of thin air. If so, there is no reason why the Administration’s policy determination that projects such as the Purple Line should be locally, instead of federally, funded must dictate this Court’s decisionmaking schedule, 6Moreover, Maryland’s request for an expedited resolution not only assumes that the State will prevail on all pending issues before this Court, but also that the Federal Defendants can and will enter into a FFGA as soon as the Court issues its ruling. Yet it is hard to see how or why Federal Defendants would take that action after having now issued public proclamations in their proposed budgets that projects such as the Purple Line should not receive federal funding. And even if Defendants did take such an anomalous step, itis difficult to discem how it could survive judicial review given the legal constraints imposed by 49 U.S.C. § 5309(A)(1). In view of the financial “death spiral” that Metrorail’s own General Manager has conceded confronts the existing system, see AR6_000779.1, it is now seemingly impossible for the Secretary of Transportation to make a lawful and non-arbitrary finding, as is required to dispense federal funding for the Purple Line, that “local resources are available to recapitalize, maintain, and operate the overall existing and proposed public transportation system .. . without requiring a reduction in existing public transportation services or level of service to operate the project.” 49 US.C. § 5309(8(1) (emphasis added). Consequently, Maryland’s Pollyannaish assumption that the project will have smooth sailing so long as the Court resolves all of the existing legal claims on the State’s preferred schedule flies in the face of the law as well as factual reality. 2. Maryland’s “alternative” request that the Court “vacate” the Court’s vacatur of the ROD, Mot. at 5, makes no legal or logical sense, This request is tantamount to a Rule 59(e) motion for reconsideration of the Court's decision to impose vacatur as relief for the Federal Defendants’ let alone pave the way for rapid construction of the project. To the contrary, if, as is evidently the case, Federal Defendants are themselves revisiting their priorities for federal funding, that is all the more reason for the Court to maintain the status quo while Defendants prepare an SEIS analyzing the justification for federal funding and reasonable alternatives under present circumstances, if indeed the Secretary chooses to proceed at all in light of the announced policy of the Administration and the project's deteriorating support in fact. 7conceded APA violation. Not only has the Court already denied a motion for reconsideration on that precise issue, see Friends of the Capital Crescent Trail, 2016 WL 6901251, at ** 3-4, but ‘Maryland has not even cited, let alone endeavored to apply, the stringent standards for granting the “extraordinary remedy” of altering or amending a form of relief that the Court has twice determined is appropriate. Id. at * 2. In particular, Maryland has not pointed to any “intervening, change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Id. (quoting Patton Boggs LLP v, Chevron Corp., 683 F.3d 397, 403 (DC. Cir. 2012)). To the contrary, any “new evidence” before the Court lends further support to the propriety and importance of keeping the vacatur of the ROD in place. First, the “extraordinary events involving seemingly endless Metrorail breakdowns and safety issues” that led this Court to impose the vacatur remedy in the first instance, Friends of the Capital Crescent Trail, 200 F. Supp. 3d at 253, continue with no end in sight, in conjunction with ever greater uncertainty regarding the fundamental financial viability of the Metrorail system on which the rationale for the Purple Line is predicated for a large percentage of its projected ridership. See ECF No. 119 at 7 (explaining that Defendants’ own analyses found that up to 43% of the Purple Line’s projected ridership would be dependent on the Metrorail system); see also Friends of the Capital Crescent Trail, 200 F. Supp. 2d at 254 (explaining that the Court imposed the vacatur remedy in view of “important recent information that calls into question, at a minimum, whether nearly a billion dollars in federal funding should ultimately committed to a project for which serious questions have been raised as to its future viability”). Second, the Administration is now on public record stating unequivocally that, in the Administration’s view, it is not in the public interest to expend large amounts of federal taxpayerfunds on “local” projects such as the Purple Line. See Exhs. A, B. This reinforces the Court’s prior determination that it would “make little sense and cause even more disruption if defendants were to proceed with the project” while basic ques! s remain unanswered conceming the project’s financial viability, purported justification, and adverse environmental impact. Friends of the Capital Crescent Trail, 200 F. Supp. 3d at 254. CONCLUSION Plaintiffs defer to the Court’s management of its caseload, but there is no basis for Maryland’s suggestion that that Court has been less than “expeditious” in resolving this ease. Nor has Maryland set forth any rationale for the specific timetable the State asks the Court to impose on itself. Maryland’s altemati request that the Court reverse its ruling on vacatur of the ROD should be denied as devoid of any legal or factual support. Respectfully submitted, wid W. Brown, Knopf & Brown 401 E. Jefferson Street, Suite 206 Rockville, Maryland 20850 (301) 545-6100 - Phone (301) 545-6103 — Fax E-mail: brown@knopf-brown.com ric R. Glitzensteitt, DC Bar No. 35 Meyer, Glitzenstein & Eubanks, LLP 4115 Wisconsin Avenue, N.W. Suite 210 Washington, D.C. 20016 202-588-5206 - Office 202-588-5409 - Fax Email: eglitzenstein@meyerglitz.com Bar No. 415426A502 Elm Street ‘Chevy Chase, MD 20815 301-913-5409 - Phone 202-288-0231 - Cell Emai : johnmfitzgerald@earthlink.net Co-Counsel for Plaintiffs April 5, 2017 CERTIFICATE OF SERVICE THEREBY CERTIFY that this 5" day of. ‘April 2017, a true and correct copy of Plaintiffs "Response To State Of Maryland’s Motion For Expeditious Ruling On Summary Judgment Motions were electronically filed with the Clerk of the Court using the Cm/ECF system, which will send notification of such to the attorneys of record: Counsel for Department of Justice and Federal Transit Authority: Kevin W McArdle, Esq. U.S. Department of Justice Kevin.meardle@usdoj.2ov Jeremy Hessler, Esq. U.S. Department of Justice Jeremy hessler@usdoj.gov ‘Tyler Burgess, Esq. U.S. Department of Justice Tyler. burgess@usdoj.gov Counsel for Maryland Transit Administration: Linda E. Strozyk (DeVuono), Esq. Assistant Attorney General Albert M. Ferlo, Esq, Perkins Coie LLP aferlo@perkipscoie.corAmerica First A Budget Blueprint to Make America Great Again Office of Management and Budget Exhibit A p.1 of 26 OF TRAN, ¢ & , & ts & & % (™“ % Sates oF DEPARTMENT OF TRANSPORTATION ‘The Department of Transportation (DOT) is responsible for ensuring a fast, safe, efficient, accessible, and convenient transportation system that meets our vital national interests and enhances the quality of life of the American people today, and into the future. ‘The Budget request reflects a streamlined DOT that is focused on performing vital Federal safety oversight functions and investing in nationally and regionally significant transportation infrastructure projects. The Budget reduces or eliminates programs that are either inefficient, duplicative of other Federal efforts, or that involve activities that are better delivered by States, localities, or the private sector. ‘The President's 2018 Budget requests $16.2 billion for DOT's discretionary budget, a $2.4 billion or 13 percent decrease from the 2017 annualized CR level. ‘The President's 2018 Budget: + Initiates a multi-year reauthorization proposal to shift the air traffic control function of the Federal Aviation Administration to an independent, non-governmental organization, making the system more officient and innovative while maintaining safety. This would benefit the lying public and taxpayors overall + Restructures and reduces Federal subsidies to Amtrak to focus resources on the parts of the passenger rail system that provide meaningful transportation options within regions. The Budget terminates Federal support for Amtrak's long distance train services, which have long. been inefficient and incur the vast majority of Amtrak's operating losses. ‘This would allo Amtrak to focus on better managing its State-supporied and Northeast Corridor train services. ‘+ Limits funding for the Federal Transit Administration's Capital Investment Program (New Starts) to projects with existing full funding grant agreements only. Future investments in new transit projects would be funded by the localities that use and benefit from these localized projects, + Eliminates funding for the Essential Air Service (EAS) program, which was originally conceived of as a temporary program nearly 40 years ago to provide subsidized commercial air service to rural airports, EAS flights are not full and have high subsidy custs per passenger, Several EAS.cligible communities are relatively close to major airports, and communities that have EAS could be served by other existing modes of transportation. This proposal would result in a discretionary savings of $175 million from the 2017 annualized CR level. Po Exhibit A p.2 of 22017 Reduction Options (aret3232017 neem orca frre] xr erento, Tice BT Oona ge PRT [eset |ostnroreeon goa incr a see = a ae I cca [Stem cstnate sono tr store ie Shor thao mon puget wae [esq acest nbc msmen Pnee ny Bling he ion Sint war nia anny mor sng et Joona ttanayenanats namo resp ae a a ie Ser Scenes fn rman nag roan Pond RS TOTAL AL Sanaa [aos [ase oma [7 93 Exhibit B p.1.of 1