Renew 81 For All v. Federal Highway Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

RENEW 81 FOR ALL, by its President Frank L.

Fowler; CHARLES GARLAND; GARLAND

BROS. OF SYRACUSE, INC.; CITIZENS TO

PRESERVE THE CHARACTER OF

SKANEATELES, by its Executive Director

Holland C. Gregg; SYRACUSE SOUTHSIDE

HOMEOWNERS' ASSOCIATION; CHARLES

PIERCE-EL; NATHAN GUNN; CHRISTOPHER

KOZUB; NEW YORK STATE MOTOR TRUCK

ASSOCIATION, INC.; TOWN OF DEWITT; and

TOWN OF SALINA,

Plaintiffs,

vs. 5:22-cv-1244

(MAD/TWD)

FEDERAL HIGHWAY ADMINISTRATION;

RICHARD J. MARQUIS, in his official capacity as

Federal Highway Administration New York Division

Administrator; NEW YORK STATE DEPARTMENT

OF TRANSPORTATION, Interested or Necessary

Party, Not a Named Defendant; and JOHN DOES,

Interested or Necessary Party, Not a Named Defendant,

Defendants

____________________________________________

APPEARANCES: OF COUNSEL:

KNAUF SHAW LLP ALAN J. KNAUF, ESQ.

2600 Innovation Square JONATHAN R. TANTILLO, ESQ.

100 South Clinton Avenue LINDA R. SHAW, ESQ.

Rochester, New York 14604

Attorneys for Plaintiffs

U.S. DEPARTMENT OF JUSTICE CHRISTOPER CHELLIS, ESQ.

ENVIRONMENTAL DEFENSE SECTION ANDREW R. TARDIFF, ESQ.

P.O. Box 7611

Washington, D.C. 20044

Attorneys for the Federal Highway

Administration and Richard J. Marquis

OFFICE OF THE NEW YORK STATE ANDREW G. FRANK, AAG

ATTORNEY GENERAL MEREDETH G. LEE-CLARK, AAG

The Capitol SUSAN L. TAYLOR, AAG

Albany, New York 12224-0341

Attorneys for the New York State

Department of Transportation and the

John Does

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs commenced this action seeking to annul the approvals issued by Defendants

Federal Highway Administration ("FHWA") and Richard J. Marquis in his official capacity as

Federal Highway Administration New York Division Administrator (the "Administrator," and

collectively with FHWA, "Defendants"), of the May 31, 2022 Joint Record of Decision and

Findings, published on June 2, 2022, and the Final Design Report/Final Environmental Impact

Statement/Final Section 4(f) Evaluation (the "FEIS"), by which Defendants have decided to

proceed with the Interstate 81 Viaduct Project P.I.N. 3501.06 (the "Project"). See Dkt. No. 1.

Currently before the Court is Plaintiffs' motion for a preliminary injunction, which

Defendants and the New York State Department of Transportation (as an interested or necessary

party) oppose. See Dkt. Nos. 28, 32-34. For the reasons set forth below, Plaintiffs' motion is

denied.

II. BACKGROUND

A. Statutory Framework

Plaintiffs seek an injunction based on purported violations of the National Environmental

Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., by the FHWA. NEPA requires that federal

agencies conduct environmental reviews of proposed agency actions. In particular, before

2

undertaking a major federal action, such as approving funding for a project, that would

"significantly affect[ ] the quality of the human environment," an agency must prepare an

environmental impact statement. See 42 U.S.C. § 4332(C). The environmental impact statement

must describe, among other things, the reasonably foreseeable environmental effects of the

proposed action, any unavoidable adverse environmental effects, and alternatives to the proposed

action. See id.

New York agencies have similar, but not identical, environmental review obligations

under the State Environmental Quality Review Act ("SEQRA"). See N.Y. Envtl. Conserv. Law

§§ 8-0101 – 8-0117. Before undertaking or approving action that "may have a significant effect

on the environment," the agency must prepare or cause to be prepared an environmental impact

statement that describes, among other things, the environmental impact of the proposed action,

any unavoidable adverse environmental effects, and alternatives to the proposed action. See id. §

8-109(2)(b)-(d). If a proposed project requires approval by both federal and state agencies,

SEQRA review and NEPA review are coordinated "in a single environmental reporting

procedure." Id. § 8-0111(1).

B. The I-81 Viaduct Project

Interstate 81 ("I-81") runs through downtown Syracuse on an aging viaduct whose

construction in the 1960s, before enactment of modern environmental laws, led to the

fragmentation of Syracuse's Southside neighborhood. Dkt. No. 28-5 at 2. The viaduct does not

comply with modern design standards and is increasingly unable to adequately accommodate daily

traffic that flows through the City, leaving the viaduct prone to congestion and high accident rates.

See id. at 3-4.

3

In 2008, the FHWA and the New York State Department of Transportation (the

"Department") recognized that the viaduct was nearing the end of its useful life and began

planning for its repair or replacement. Over the next five years, the agencies conducted a study

that examined the section of the highway that runs through Syracuse and identified strategies to

better meet local needs. In 2013, the FHWA published a notice of intent to prepare an

environmental impact statement. See 78 Fed. Reg. 52, 819 (Aug. 26, 2013). Throughout the

ensuing environmental review, the Department and FHWA served as joint lead agencies for

purposes of their NEPA and SEQRA obligations. See Dkt. No. 28-5 at 2.

C. The Environmental Review

Over the next nine years, the Department and the FHWA conducted an extensive

environmental review. During the initial scoping phase, the agencies considered a wide range of

alternatives, including the repair and continued maintenance of the existing viaduct, the

replacement of the current viaduct with a new viaduct that would meet modern design standards,

and the removal of the viaduct and re-routing of I-81 through a tunnel, via a depressed highway,

or on surface-level streets. To determine which alternatives warranted further analysis, the

agencies applied a variety of screening criteria, including consistency with the purposes and

objectives of the Project, the amount of property that would need to be acquired, constructability,

and estimated cost.

Ultimately, the agencies selected three alternatives for full evaluation: (1) the "no-build

alternative," which would include repair and maintenance of the existing viaduct; (2) the "viaduct

alternative," which would replace the existing viaduct with a new, larger viaduct at a higher

elevation to meet modern design standards; and (3) the "community-grid alternative," which

would demolish the viaduct, re-route local traffic to a street-level highway, and re-route some

4

through-traffic to the existing Interstate 481 ("I-481"), a part of which would be improved and

redesignated as I-81.

The agencies prepared a joint draft environmental impact statement that compared the

impacts of the three selected alternatives. That draft statement identified the community-grid

alternative as the preferred alternative, based on the project purpose, needs, and objectives; the

comparative social, economic, and environmental effects of the alternatives; and the relevant

environmental protection goals.

D. The Final Environmental Impact Statement and the Record of Decision

In April 2022, the Department and FHWA released a final environmental impact statement

("FEIS") that adhered to their conclusion that the community-grid alternative was the best option.

This decision was made after analyzing the impacts of all three alternatives and considering public

comments.

Regarding potential air-quality impacts of the three alternatives, the agencies examined

such impacts from a variety of pollutants. The agencies examined these potential impacts

throughout the project area, including along the existing I-81 corridor and along the I-481

corridor. For this purpose, the agencies created traffic models that studied traffic flow for each

alternative, identifying likely future "hot spots" of pollutants. Ultimately, the agencies concluded

that the community-grid alternative would have no significant adverse air-quality impacts. In fact,

they concluded that the community-grid alternative would actually improve long-term air quality

in the area of the existing viaduct, while reducing emissions in the study area overall.

Regarding the potential water-quality impacts of the three alternatives, the agencies

considered the potential impacts on surface waters, including Onondaga Creek and Lake.

Stormwater from and around the viaduct currently flows into the existing combined sanitary and

5

storm sewer system, which overflows in certain wet-weather events when its capacity is exceeded

and thus discharges polluted water directly into Onondaga Creek and thereby Onondaga Lake.

Analyzing the three alternatives, the agencies concluded that the community-grid alternative

would best address this problem, as it would permanently improve the water quality of the Lake.

The environmental impact statement explains that the community-grid alternative includes plans

to protect waterbodies from roadway runoff by diverting much of it to vegetative buffers and other

infrastructure features that promote ground infiltration as well as other treatment methods, rather

than allowing direct discharge of polluted water from the highway through the combined system.

The agencies also considered other potential environmental impacts of the three

alternatives, including potential impacts on, among other things, climate change, wildlife

(including threatened and endangered species), historic and cultural resources, traffic patterns

(including the frequency of crashes on the current and future I-81 and the availability of parking),

neighborhood character, and the impact on minority and low-income communities (also known as

environmental justice communities). All of these potential impacts and others were evaluated not

only for the areas directly adjacent to the current I-81 viaduct, but also for areas around the

sections of I-481 and I-690 that would be affected by alteration to the current I-81 viaduct.

In June 2022, the Department and FHWA published the Record of Decision, which

selected the community-grid alternative. The Record of Decision served as the final NEPA

document and satisfied the Department's SEQRA obligations. See 23 C.F.R. § 771.127; 17

N.Y.C.R.R. §§ 15.9(b), 15.6(c)(1).

E. The Micron Project

Four months after the publication of the Record of Decision, in October 2022, Governor

Hochul and other elected officials announced plans for Micron Technology to build a microchip

6

facility in Clay, New York, ten miles north of downtown Syracuse. While touting the immense

economic benefits the facility would bring to the region, the Governor's press release made clear

that the project would take "20-plus years" and involve "multiple phases." See Governor's Press

Office, Press Release, Hochul, Schumer, McMahon Announce: Micron is Coming to Onondaga

County!, available at https://www.governor.ny.gov/news/hochul-schumer-mcmahon-announce-

micron-coming-onondaga-county-micron-will-invest-unprecedented.

Following the announcement of the Micron facility, petitioners asked the Department and

FHWA to supplement the environmental review to account for the facility's possible impacts on

traffic. See Dkt. No. 1-8. The FHWA declined to provide a substantive answer, and the

Department has made no decision. See Dkt. No. 1-9.

F. The State Court Litigation

On September 30, 2022, a group of entities and individuals largely overlapping with the

Defendants in this case filed an Article 78 proceeding in Onondaga County Supreme Court

against the Department. See Renew 81 for All v. N.Y.S. Dept. of Transp., No. 007925/2022 (Sup.

Ct. Onondaga Cty.). The petition alleged five causes of action, including a claim that the

Department's environmental review, including the joint Record of Decision and the joint

environmental impact statement, was "illegal, arbitrary and capricious." The specific factual

allegations of the Article 78 petition concerned issues relating to greenhouse gas emissions, air

quality, traffic, cumulative impacts, and project alternatives. The state court petitioners later filed

a supplemental petition setting out a sixth claim alleging that it was "illegal, arbitrary and

capricious" for the Department not to have decided to prepare a supplemental environmental

impact statement to address potential traffic impacts due to the Micron project. The FHWA was

7

named as a party to the state court action, but the court dismissed it on sovereign immunity

grounds.

In early November 2022, the state court petitioners filed a motion for a preliminary

injunction. In February 2023, the Onondaga County Supreme Court issued a permanent

injunction that banned the demolition of the I-81 viaduct pending some additional environmental

review, but allowed construction to proceed on enhancements to existing I-481 and other parts of

the overall I-81 project. In its order, the state court found in the state court petitioner's favor on

three merits issues under SEQRA relating to air pollution, stormwater, and supplementation to

address the Micron project. On the remaining merits issues, the state court decision ruled in the

Department's favor.

On February 2, 2024, the Fourth Department reversed the Onondaga County Supreme

Court's decision on the three rulings in the state court petitioner's favor. In its order, the Fourth

Department held that "respondents complied with their substantive obligations under SEQRA

inasmuch as they took the requisite "hard look" at the relevant environmental factors, including air

quality and stormwater management, and "made a 'reasoned elaboration' of the basis for [their]

determination." Dkt. No. 39 at 5-6. As to the issue of supplementation of the environmental

review to address the Micron project, the Appellate Division ruled that the state court petitioners

failed to establish a clear legal right to such supplementation in the absence of a nondiscretionary

duty to perform such supplementation. See id. at 5. The Fourth Department further held that,

even if the absence of such supplementation constituted the Department's constructive denial of

the state court petitioners' request to perform such supplementation, that denial was not arbitrary

or capricious given the absence of evidence in the record of information sufficient to perform such

8

supplementation. See id. Accordingly, the Fourth Department modified the judgment by

dismissing the petition in its entirety, thereby dissolving the state court injunction. See id. at 6.

G. This Litigation

On November 22, 2022, Plaintiffs commenced this action setting out two causes of action.

See Dkt. No. 1. Using language parallel to the first cause of action in the state petition, the first

cause of action in the federal complaint alleges that the FHWA's environmental review, including

the joint Record of Decision and the joint environmental impact statement, was "illegal, arbitrary

and capricious." Id. at ¶ 314. Like the state petition, the factual allegations in the federal

complaint concerned issues relating to greenhouse gas emissions, air quality, traffic, cumulative

impacts, and project alternatives. See id. at ¶¶ 5, 7-9, 11, 73, 129-73, 205-21, 253, 272-73, 302,

304-05. Plaintiffs' NEPA claim also included allegations that it was unlawful for the FHWA not

to have decided to prepare a supplemental environmental impact statement to address potential

changes due to the Micron project. See id. at ¶¶ 309-10.

Although Plaintiffs raised multiple causes of action in their complaint, for purposes of

their motion for injunctive relief, Plaintiffs rely solely on their claims brought pursuant to NEPA.

See Dkt. No. 28-1 at 12-24. Specifically, Plaintiffs claim that the NEPA review was deficient in

multiple respects, including the following: (1) "the underlying analysis in the EIS failed to

properly analyze multiple impacts, as held by Supreme Court, Onondaga County;" (2)

"Defendants failed to consider cumulative impacts;" (3) "Defendants failed to properly analyze

alternatives;" and (4) "Defendants failed to prepare a Supplemental Environmental Impact

Statements ('SEIS') related to the newly announced plan by Micron Technology ('Micron') to

construct a semiconductor plant ... in the Town of Clay near I-81 north of the City of Syracuse."

Id. at 13.

9

III. DISCUSSION

A. Standard of Review

"Issuance of a preliminary injunction is an 'extraordinary and drastic remedy' that is 'never

awarded as of right.'" We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 279 (2d Cir. 2021)

(quoting Munaf v. Geren, 553 U.S. 674, 689-90 (2008)) (other citation omitted). "Preliminary

injunctive relief 'should not be routinely granted.'" Id. (quotation omitted). "When deciding

whether to issue a preliminary injunction, courts 'should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.'" Id. (quoting Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).

"A party seeking a preliminary injunction must demonstrate: (1) 'a likelihood of success on

the merits or ... sufficiently serious questions going to the merits to make them a fair ground for

litigation and a balance of hardships tipping decidedly in the plaintiff's favor'; (2) a likelihood of

'irreparable injury in the absence of an injunction'; (3) that 'the balance of hardships tips in the

plaintiff's favor'; and (4) that the 'public interest would not be disserved' by the issuance of an

injunction." Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015)

(quotation omitted). While in the Second Circuit the first prong can be sometimes satisfied if

there is merely "a serious question going to the merits," given the preliminary injunction "'will

affect government action taken in the public interest pursuant to a statutory or regulatory scheme,'

it 'should be granted only if the moving party meets the more rigorous likelihood-of-success

standard.'" Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (quotation omitted).

Additionally, where, as here, "the government is a party to the suit, the final two factors merge."

New York v. U.S. Dep't of Homeland Sec., 969 F.3d 42, 58-59 (2d Cir. 2020) (citing Nken v.

Holder, 556 U.S. 418, 435 (2009)).

10

B. Legal Framework

1. NEPA

NEPA requires federal agencies to consider the impacts of, and alternatives to, federal

actions significantly affecting the environment. See 42 U.S.C. §§ 4321, 4331. NEPA ensures that

federal agencies take a "hard look" at the environmental consequences of their proposed actions

before deciding to proceed and provides "for broad dissemination of relevant environmental

information." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). While

NEPA establishes procedures by which agencies must consider the environmental impacts of their

actions, it does not dictate substantive results. See id. (citations omitted). "If the adverse

environmental effects of the proposed action are adequately identified and evaluated, the agency is

not constrained by NEPA from deciding that other values outweigh the environmental costs."

Id. (citations omitted).

2. Review of Agency Action Under the Administrative Procedure Act

Judicial review of agency decisions under NEPA is provided by the Administrative

Procedure Act ("APA"), see Sierra Club v. U.S. Army Corps of Eng'rs, 772 F.2d 1043, 1050 (2d

Cir. 1985), which maintains that an agency action may be overturned only when it is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §

706(2)(A). Though a court's review under the APA "must be searching an careful," it is not de

novo. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (citation omitted). Instead,

the court is to determine "whether the decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment." Citizens to Pres. Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S.

11

99 (1977). "In reviewing agency action, this Court may not 'substitute its judgment for that of the

agency.'" Nat. Res. Def. Council v. U.S. EPA, 658 F.3d 200, 215 (2d Cir. 2011) (citation omitted).

C. Application

1. Irreparable Harm

Plaintiffs first contend that "procedural injury suffered by Plaintiffs as a result of

Defendants' failure to comply with NEPA constitutes irreparable harm in itself." Dkt. No. 28-1 at

10 (citing I-291 Why? Association v. Burns, 372 F. Supp. 223, 263 (D. Conn. 1974); Envir.

Defense Fund, Inc. v. Froehlke, 477 F.2d 1033, 1037 (8th Cir. 1973)). Plaintiffs further contend

that "Defendants failed to comply with their obligations under NEPA resulting in procedural

injury." Id. However, as the FHWA correctly notes, "failure to comply with NEPA" does not

"constitute[ ] irreparable harm in itself." Dkt. No. 34 at 13. As the Supreme Court has clarified,

assuming an injunction is the appropriate remedy in a NEPA case "invert[s] the proper mode of

analysis." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010) (citation omitted).

"No such thumb on the scales is warranted" and, in a NEPA case, "a court must determine that an

injunction should" – rather than should not – "issue under the traditional four-factor test." Id. at

157-58 (emphasis in original). Likelihood of success on the merits – that is, likelihood of

establishing a NEPA violation – is only one of the four factors and is a factor separate from

irreparable harm.

Plaintiffs also rely on the Project's potential impacts to various species, citing cases that

aesthetic injuries to species can be valid imminent harms. See Dkt. No. 28-1 at 10-11 (citing

Habitat for Horses v. Salazar, 745 F. Supp. 2d 438, 449 (S.D.N.Y. 2010); Fund for Animals v.

Norton, 281 F. Supp. 2d 209, 219-20 (D.D.C. 2003). But unlike the plaintiffs in those cases,

Plaintiffs here do not allege that they would be harmed if the Project caused impact to those

12

species. Compare Dkt. No. 1 at ¶ 270 (describing the Project's expected impacts on species), with

Habitat for Horses, 745 F. Supp. 2d at 448 ("The Moores assert irreparable harm based on

impending aesthetic injury. They travel regularly to North Piceance to experience the wild

horses"); Fund for Animals, 281 F. Supp. 2d at 219-20 ("[P]laintiffs maintain that it is

incontrovertible that their ability to view, interact with, study, and appreciate mute swans will be

affected by defendants' actions, and therefore irreparable harm to their aesthetic interests will

ensue"). As the Second Circuit has explained, "[t]o satisfy the irreparable harm requirement,

[p]laintiffs must demonstrate that absent a preliminary injunction they will suffer an injury."

Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quotation and

emphasis omitted). Plaintiffs fail to make any attempt to do so here, including through an

affidavit. Nor could they, because Plaintiffs' complaint makes clear that they are advocating for

other project alternatives, see, e.g., Dkt. No. 1 at ¶ 8 ("Defendants ... irrationally rejected the

'Viaduct Alternative'"), which the Record of Decision makes clear would also have impacts on

various indigenous species, such as the Indiana bat and the northern long-eared bat. See Dkt. No.

34 at 15. Moreover, the page of the Record of Decision that Plaintiffs themselves cite, states that

the I-81 project overall is "not ... likely to adversely affect" those bats, contradicting the assertion

of harm. See Dkt. No. 28-5 at 18.

Likewise, Plaintiffs argue that non-injunctive relief cannot adequately compensate for the

"removal of multiple infrastructure assets used by Plaintiffs." Dkt. No. 28-1 at 9. However, they

do not support their assertion with any evidence, such as an affidavit. Additionally, the removal

of the existing infrastructure could only constitute harm if they were advocating for the No Build

Alternative. But as Plaintiffs' complaint makes clear, Plaintiffs simply prefer alternatives other

13

than the Community Grid, which would also entail removal of the I-81 Viaduct. See Dkt. No. 34

at 16.

Plaintiffs also argue that an injunction is necessary to stop "utilization of taxpayer funds."

Dkt. No. 28-1 at 9. But they cite no case where such an injury was the basis for a preliminary

injunction and provide no evidence that the expenditures as such will affect them, for example, by

increasing their tax obligations. Cf. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 343 (2006)

(holding that taxpayers lacked standing to object to expenditures "simply because they are

taxpayers").

Plaintiffs also argue, through their attorney, that the Project is likely to have an impact on

"air quality." Dkt. No. 28-2 at ¶ 11. As a preliminary matter, a declaration from an attorney is not

probative support for irreparable harm. See Marks v. Lainoff, 466 F. Supp. 301, 304 (S.D.N.Y.

1979) (denying the plaintiff's motion for a preliminary injunction because there was "no evidence"

of irreparable harm "other than conclusory statements in plaintiff's attorney's affidavit"); see also

Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983) (holding that an attorney's affidavit,

which does not cite to specific facts and does not demonstrate how the attorney has first-hand

knowledge "is not entitled to any weight"). Based on a hearsay article, the attorney declaration

purports to establish harm from temporary traffic delays due to the allowed work at one

interchange. See Dkt. No. 28-2 at ¶ 21. However, Plaintiffs cite no authority that indicates that

such minor delays, if any, constitute irreparable harm, see id. at ¶¶ 21, 23-27, and there is case law

to the contrary. See West Alabama Quality of Life Coalition v. U.S. Fed. Hwy. Admin., 302 F.

Supp. 2d 672, 674-75, 684 (S.D. Tex. 2004) (holding that, in a NEPA challenge relating to

highway reconstruction, temporary effects of construction on traffic were not permanent or long-

duration injuries constituting irreparable harm).

14

The attorney declaration also refers to purported irreparable harm to "buildings and

neighborhoods." Dkt. No. 28-2 at ¶ 11. Again, however, neither that declaration nor anything else

identifies a building or neighborhood that the work will irreparably affect. See Tahoe Cabin, LLC

v. Fed. Hwy. Admin., No. 3:22-cv-175, 2022 WL 19296773, *3 (D. Nev. Oct. 4, 2022) (denying

injunction in NEPA challenge to highway project and noting that "[s]imply stating that something

may occur in the future does nothing to show the Court that irreparable harm is likely").

In short, the Court finds that Plaintiffs have failed to establish "an injury that is neither

remote nor speculative, but actual and imminent[.]" Rodriguez ex rel. Rodriguez v. DeBuono, 175

F.3d 227, 234 (2d Cir. 1999) (quotations and citation omitted). Accordingly, Plaintiffs' motion for

a preliminary injunction is denied on this ground. Even assuming that Plaintiffs had demonstrated

irreparable harm, which they have not, they have failed to demonstrate a likelihood of success on

the merits, which is discussed in detail below.

2. Likelihood of Success on the Merits

In their motion, Plaintiffs contend that the FHWA's traffic analysis was not based on

reliable data, that the FHWA's greenhouse gas and air quality analysis was unreasonable and

inconsistent, and that the FHWA failed to thoroughly consider the economic effects of the Project.

See Dkt. No. 28-1 at 12-19. Further, Plaintiffs claim that the FHWA's failure to prepare a

supplemental environmental impact statement violated NEPA because the Micron project

constituted "'significant new circumstances or information relevant to environmental concerns.'"

Id. at 19 (quoting 40 C.F.R. § 1502.9). The Court addresses each of these contentions separately

below.

a. Traffic Analysis

15

Plaintiffs allege that the FHWA's traffic analysis was based on "[f]aulty [d]ata and

[l]ogic." Dkt. No. 28-1 at 17. The Court disagrees. In November 2013, the FHWA collected

actual traffic data along various highway segments and at more than 290 intersections in the

Project area. This data indicates that, of the total traffic volume on I-81 through Downtown

Syracuse, only around 12 percent had origins and destinations beyond the limits of the two I-81

interchanges with I-481. Most traffic "is destined for Downtown and University Hill, the two

major regional employment centers." See Administrative Record ("AR") at 483. During the

morning peak hour, commuters travel from the outer suburbs towards Downtown Syracuse, and

the pattern reverses in the evening peak hour. See id. at 330.

Subsequently, the FHWA prepared I-81 Viaduct traffic simulation models using VISSIM

simulation software, "a microscopic, time-step and behavior-based model which analyzes multi-

modal traffic flows with the flexibility of modeling all types of geometrics and traffic control

schemes." AR at 4315. The VISSIM model's geographic scope was "developed specifically" to

allow for an "area-wide assessment" of traffic. See id. at 4316. The model area "was purposely

defined as the area where a major shift in local traffic using alternate routes could occur as a result

of the reconstruction or removal of the I-81 viaduct." Id. (emphasis added). As such, the model

area includes the I-81, I-690, I-481, and I-90 interstate system, as well as surface streets that could

be affected by the Project, including Downtown Syracuse and University Hill. See id. Roadways

excluded from the model are roadways where a significant shift in traffic is not expected to occur,

and that includes traffic from south of current I-481.

Plaintiffs allege that the EIS's traffic analysis is deficient because it fails to consider

vehicles avoiding Syracuse altogether by diverting through towns south and west of the Project

area. See Dkt. No. 28-1 at 17. As discussed above, however, the Final EIS does consider this

16

possibility; it simply concludes that significant diversions will not occur. It is not the Court's role

to second-guess this conclusion. See N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1544

(11th Cir. 1990) (deferring to the FHWA's traffic modeling and noting that a district court should

not serve as a "super professional transportation analyst") (citation omitted); see also Druid Hills

Civic Ass'n, Inc. v. FHWA, 772 F.2d 700, 711 (11th Cir. 1985). For instance, under the

Community Grid, "a comparison of traffic exiting I-81 at New York State Route 20 [(an exit south

of Syracuse that goes west to Skaneateles)] with the Community Grid Alternative versus the No

Build Alternative indicated a negligible number of traffic diversions along this route." AR at

32212.1

Plaintiffs further allege that the EIS improperly relied on 2013 base-year traffic data and

growth rates that are too low. See Dkt. No. 28-1 at 18. However, the FHWA ensured its 2013

base-year data remained reliable by conducting a traffic data revalidation study. See AR at 4779-

81. The study compared the expected 2019 traffic with actual 2019 traffic data. See id. The

FHWA retained the 2013 base year because the study confirmed that "the study area has not

experienced significant travel pattern changes in recent years." Id. at 329. Plaintiffs similarly

assert that "[t]he EIS relied on old job statistics from 2009" and therefore the EIS is "woefully out

of date" due to "large regional growth" since then. See Dkt. No. 28-1 at 18. However, the EIS

relies on nearly two decades of economic data which shows that Syracuse's labor force decreased

by 3.6 percent between 2000 and 2019. See AR at 737. In that same period, Onondaga County's

1 During construction, the Final EIS anticipates that truck volume may increase along

certain roads south and west of Syracuse. See AR at 506. For instance, along U.S. Route 20, the

truck volume increase is projected to be approximately 20 trucks in the peak direction during peak

hours. See id.

17

labor force increased by 2.9 percent, and the five-county region's labor force increased by just 1.1

percent. See id.

Finally, Plaintiffs allege that traffic analyses failed to account for "excess traffic events."

Dkt. No. 28-1 at 18. However, the EIS does account for "peak hour" travel, which the EIS found

occurred in the morning and evening rush hours. See AR at 474-86.

Accordingly, the Court finds that Plaintiffs are unlikely to succeed on the merits of this

claim because the FHWA took the requisite "hard look" at the relevant issues and Plaintiffs are

unlikely to establish that the traffic analysis was arbitrary or capricious.

b. Greenhouse Gas Emissions

Plaintiffs next allege that the EIS "illogically predicted" that greenhouse gas emissions

from the Community Grid would be less than the other alternatives because vehicles traveling at

slower speeds through multiple stoplights will have higher emissions. See Dkt. No. 28-1 at 14.

As the FHWA notes, however, the Final EIS does not rely on a static analysis. Instead, the Final

EIS predicts that the Community Grid "would shift some vehicles to different roadway types

resulting in vehicle speed changes. See AR at 954. For example, on existing I-481 and I-690,

"[t]raffic volumes will increase." Id. Given that vehicle efficiency depends not only on miles

traveled but also the travel speed, the FHWA determined that "[f]or all analysis years ... the

improvements in travel speed as well as the predicted shift in traffic between roadway and the

associated traffic conditions would result in decreases in annual emissions for all pollutants

analyzed." Id. at 935. In the end, "[t]he net effect would be GHG [greenhouse gas] emission

reductions." Id. at 954.

Against that, Plaintiffs contend that the EIS is fatally flawed because the Final EIS did not

account for "traffic diverting to the west from I-81 south of I-481." Dkt. No. 28-1 at 15. However,

18

as discussed above, the traffic model includes all areas where major traffic shifts "could occur as a

result of the reconstruction or removal of the I-81 viaduct." AR at 4316. Plaintiffs, therefore, fail

to demonstrate a likelihood of establishing that the FHWA's greenhouse gas analysis was arbitrary

or capricious.

c. Air Quality Analysis

Plaintiffs next contend that FHWA's air quality analysis had "glaring omissions." Dkt. No.

28-1 at 17. Plaintiffs rely on language from the Onondaga County Supreme Court's decision, in

which the court "pointed out contradictory assertions regarding the diversion of traffic as it related

to air quality." Id. Specifically, Plaintiffs note that "[t]he ROD claimed that the Community Grid

Alternative 'would not generate or divert substantial volumes of diesel vehicle traffic[,]' while also

claiming that 'traffic would increase substantially on former I-481 both north and south of I-690

and decrease on former I-81.'" Id. "As the Supreme Court, Onondaga County found, '[t]hese two

statements cannot logically coexist.'" Id. Plaintiffs also note that the state court found that

"'[d]espite the [State's] admission that traffic would increase substantially on the present I-481,

scant evidence of reviewing the I-481 corridor appears in the EIS and specifically the air quality

review sections." Id. (citing Dkt. No. 28-3 at 19).

First, the Court notes that the Fourth Department disagreed with the Onondaga County

Supreme Court's analysis and found that the Department "complied with their substantive

obligations under SEQRA inasmuch as they took the requisite 'hard look' at the relevant

environmental factors, including air quality and stormwater management, and 'made a reasoned

elaboration' of the basis for [their] determination." Dkt. No. 39 at 5-6. This Court agrees with the

Fourth Department.

19

The FHWA conducted a thorough mesoscale (regional) analysis for carbon monoxide

(CO), volatile organic compounds (VOCs), oxides of nitrogen (Nox), particulate matter (PM) less

than or equal to 2.5 micrometers (PM2.5) and PM less than or equal to 10 micrometers (PM10).

See AR at 17795, 17802. The analysis included impacts along current I-81 and all roadways

"where a shift in local traffic using alternate routes could occur" because of the Project, which

"includes I-81, I-690, I-481, and I-90 interstate systems." Id. at 17802.

Plaintiffs assert that "only two sites [were] chosen to conduct air quality testing," and that

this is inadequate. See Dkt. No. 28-1 at 17. Plaintiffs appear to be referring specifically to the

microscale (local) analysis, which was one small part of FHWA's comprehensive air quality

analysis. Microscale analysis can be conducted for both CO and PM. In deciding whether to

conduct CO microscale analysis, FHWA first conducted a volume threshold screening. See AR at

932. Based on the results of that screening, it concluded that CO microscale analysis was not

warranted. See id. As for PM microscale analysis, the FHWA reasonably relied on guidance from

the Environmental Protection Agency ("EPA") in determining that PM microscale analysis was

not warranted. See id. (citing USEPA, Transportation Conformity Guidance for Quantitative

Hot-Spot Analyses in PM2.5 and PM10 Nonattainment and Maintenance Areas, EP-420-B-15-

084, Nov. 2015); see also Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. U.S. Dep't of

Transp., 524 F. Supp. 2d 642, 694 (D. Md. 2007) (discussing the then-current 2006 guidance and

noting that the EPA "directed federal agencies to follow this guidance").

Regardless, the FHWA chose to conduct PM microscale testing "to address concerns

expressed by the public" pertaining to PM air quality in the I-81 area. See AR at 932-33. This

testing was conducted at four – not two – intersections, which were selected due to projected

traffic conditions, roadway modifications, and proximity to sensitive receptors. See id. at 933,

20

17802. Overall, as the FHWA contends, the record shows a thorough, area-wide air quality

analysis, bolstered by voluntary microscale testing at several locations of particular interest to the

community. See id. at 919-39; see also Senville v. Peters, 327 F. Supp. 2d 335, 358 (D. Vt. 2004)

(affirming the FHWA's decision to only partially update its air quality modeling because "the

Court's task ... is not to dictate the sort of hard look the agency must take, but to determine

whether it was hard enough").

Finally, Plaintiffs assert that the EIS is inconsistent because it concludes that the

Community Grid "would not generate or divert substantial volumes of diesel vehicle traffic" as

compared to the No Build Alternative, while also providing that "traffic would increase

substantially on former I-481." Dkt. No. 28-1 at 17 (citation and emphasis omitted). However, as

the Final EIS clarified, "[t]he Project [as a whole] would not generate or divert a substantial

volume of diesel vehicle traffic as compared with the No Build Alternative." AR at 919; see also

id. at 923 ("The Viaduct Alternative would not generate or divert a substantial volume of diesel

vehicle traffic as compared with the No Build Alternative"). In other words, the Final EIS is

referring to diversion outside the Project area, rather than diversion to different routes through the

Project area. But this is not to say that drivers of diesel vehicles will not select a different route

through the project area to get to their destination. Indeed, the Community Grid plan is premised

on traffic being dispersed differently. The Final EIS is explicit that, under the Community Grid,

"former I-481 [becomes] the quickest path for regional north-south travel through the project

area" causing traffic on that road to "increase substantially." Id. at 482.

Additionally, as the Department notes, the record determined that most diesel-powered

traffic on the viaduct is essentially local traffic bound for Downtown Syracuse locations and thus

would not switch to I-481. See AR at 212973, 323975-76. On the other hand, the Department

21

anticipates that replacement of the viaduct with the Community Grid Alternative will divert a

substantial portion of through traffic now on the viaduct to I-481. See id. at 212973, 212947. As

such, there is no inconsistency on this issue.

Again, as the Fourth Department determined, the Court finds that the FHWA took the

requisite "hard look" at the impact of the Project on air quality and that Plaintiffs are unlikely to

establish that the FHWA's air quality analysis was arbitrary or capricious.

d. Economic Effects

In an entirely conclusory manner, Plaintiffs claim that the EIS failed to assess the impacts

of future development that could be induced by the Community Grid. See Dkt. No. 28-1 at 19.

However, in Section 6-3-2 of the Final EIS, the FHWA considered the "potential beneficial and

adverse effects of the project alternatives on the local and regional economies" as they relate to

environmental concerns. See AR at 734. As the FHWA notes, NEPA does not require

consideration of "speculative and contingent" impacts. See Vill. of Grand View v. Skinner, 947

F.2d 651, 659 (2d Cir. 1991) (holding that the FHWA's analysis of an improved highway

interchange in Rockland County did not need to consider whether possible future developments in

the Tappan Zee Corridor would ultimately require another span of the Tappan Zee Bridge).

Plaintiffs do not identify any specific projects that the Community Grid may induce and the EIS

consequently failed to analyze; and, therefore, Plaintiffs failed to demonstrate a likelihood of

establishing that the FHWA's economic effects analysis was arbitrary or capricious.

e. The Micron Project

Plaintiff next alleges that "it was arbitrary and capricious for Defendants to fail to decide

to prepare [a supplemental EIS] due to the change in circumstances presented by the Micron

Project, in light of the huge impact on traffic patters and volumes that will result from the

22

projected 50,000 new employees (22% of the current Onondaga County workforce), and a

population grown of perhaps 125,000 (27% of the current County population) or more." Dkt. No.

28-1 at 20. However, agencies do not need to "supplement an EIS every time new information

comes to light after the EIS is finalized[.]" Friends of Cap. Crescent Trail v. Fed. Transit Admin.,

877 F.3d 1051, 1058 (D.C. Cir. 2017). Rather, the FHWA regulations require that the agency

supplement an EIS whenever it determines that "[n]ew information or circumstances relevant to

environmental concerns and bearing on the proposed action or its impacts would result in

significant environmental impacts not evaluated in the EIS." 23 C.F.R. § 771.130 (emphasis

added). An agency's determination of whether a supplement EIS is required under particular

circumstances is governed by a "rule of reason," which "turns on the value of the new information

to the still pending decisionmaking process." Marsh v. Or. Natural Res. Council, 490 U.S. 360,

374 (1989).

The Court agrees with the FHWA that, at this time, the proposed Micron plant north of

Syracuse would not result in significant environmental impact not already evaluated in the EIS.

The EIS already accounts for long-term growth of the Syracuse area and increased demand for

transportation in and through the Project area. Compare, e.g., AR at 475 (setting forth table of

expected travel times, delay, and speeds for 2026), with id. at 476 (setting forth table of expected

travel times, delay, and speeds for 2056). Moreover, the EIS specifically notes the "[p]lanned"

development of "White Pine Commerce Park," which is now the planned future site of the Micron

project, that may result in 2.5 million square feet of light manufacturing/electronics. See id. at

598.

Moreover, as the Department notes, it would be premature to supplement the EIS now to

account for the proposed Micron facility. The proposal to construct that plant was announced four

23

months after the environmental review was completed. There are no publicly available details

about the Micron campus, aside from information in the press. See Dkt. No. 32 at 27. As the

Department notes, at this time there is inadequate information for either the FHWA or the

Department to conduct a meaningful assessment of the impacts from the Micron facility. "To do

so either agency would need to know where the buildings, parking lots and employees will be

located, when the stages of construction are anticipated to occur, how many employees will likely

work at the facility and their likely times of commute, all of which are critical to a meaningful

assessment of the facility's potential impacts on traffic patterns." Id. at 28. Indeed, the Fourth

Department agreed with the Department, holding that "to the extent that respondents' failure to

respond to petitioners' request to conduct a [supplemental EIS] constituted a constructive denial

thereof, we conclude that the discretionary denial was not arbitrary and capricious in light of the

absence of evidence in the record that sufficient concrete information on the anticipated

semiconductor manufacturing campus project existed to permit effective review at that time." Dkt.

No. 39 at 6.

As such, the Court finds that Plaintiffs have not established that they are likely to succeed

on their claim that FHWA's failure to prepare a supplemental EIS was arbitrary or capricious.

f. Consideration of Alternatives

Plaintiffs next contend that "a major substantive deficiency in the NEPA Review of the

Project was the failure of Defendants to fully analyze a reasonable range of alternatives in order to

avoid or minimize adverse environmental impacts. Only the 'No Build Alternative,' and two

actual Project Alternatives – a new Viaduct Alternative, and the selected Community Grid

Alternative, were fully analyzed and presented in the DEIS for public comment." Dkt. No. 28-1 at

22. Plaintiffs note that other alternatives "were briefly discussed in the EIS but summarily

24

dismissed with little or no meaningful analysis, such as a depressed highway or tunnel." Id. at 23.

Plaintiffs claim that some alternatives, "such as the Viaduct Alternative, were burdened with

unnecessary features and physical configurations which were not placed on the Community Grid

alternative that arbitrarily and needlessly made them less desirable." Id. Additionally, Plaintiffs

argue that some "[a]lternatives were irrationally rejected out-of-hand by 'fatal flaw' screening if

they were inconsistent with any one of certain predetermined objectives ... or Project Needs that

appear designed specifically to result in recommending the Community Grid Alternative." Id.

According to the administrative record, including the No Build Alternative, the FHWA

considered a total of twenty different alternatives during its scoping process. See AR at 158. Five

of these were viaduct alternatives, two were community grid alternatives, eight were tunnel

alternatives, two were depressed highway alternatives, and two were classified as "[o]ther"

alternatives. See id. Plaintiffs allege that the dismissal of the V-5 New Stacked Viaduct Concept

was improper, that the "Bridge Alternative" was not "meaningfully analyzed," and that the

Viaduct Alternative was designed with "unnecessary features." Dkt. No. 28-1 at 23-24. But

"NEPA does not require the FHWA to pursue alternatives that present unique problems, or are

impractical or infeasible." Latin Ams. for Soc. & Econ. Dev. v. Adm'r of FHWA, 756 F.3d 447,

470 (6th Cir. 2014).

According to the record, two viaduct alternatives were eliminated after the scoping process

(V-1 and V-5). See AR at 164. Alternative V-5, for example, would eliminate east-west travel on

East Genessee Street, a New York State Route and "important east-west street between

Downtown and University Hill," where it crosses Almond Street. See id. The FHWA reasonably

concluded that eliminating east-west access at East Genesee Street would be inconsistent with the

Project objective to "maintain or enhance vehicular, pedestrian, and bicycle connections in the

25

local street network ... to allow for connectivity between neighborhoods, business districts, and

other key destinations." Id. Likewise, the depressed highway alternatives were considered and not

recommended for further study. See id. at 165. The FHWA noted that, given the high water table

and compressible soil in the Project area, those options posed construction concerns. See id. In

addition, they would result in the removal of local street connections between neighborhoods, as it

would not be reasonable to reconnect the streets at every east-west street. See id. Again, the

FHWA reasonably concluded that this would be contrary to the Project's purpose and need. See

id. Plaintiffs further allege that the rejection of some of these alternatives makes it "appear" that

the FHWA preferred the Community Grid Alternative from the outset. See Dkt. No. 28-1 at 22-

24. While the record before the Court does not indicate that the FHWA had a preferred

alternative from the outset, "evidence that an agency preferred a particular alternative from the

outset of the NEPA process does not, by itself, violate NEPA." Conservation L. Found. v. FHWA,

630 F. Supp. 2d 183, 202 (D.N.H. 2007) (citing cases).

Even though "[i]t is well-settled that under NEPA the range of alternatives that must be

discussed is a matter within an agency's discretion[,]" Friends of Animals v. Romero, 948 F.3d

579, 591 (2d Cir. 2020) (quoting Nat. Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 558 (2d Cir.

2009)), in response to public comments the FHWA elected to consider whether a long-span bridge

was a "reasonable concept ... warranting further evaluation." AR at 31906. The FHWA noted

that, due to their high costs, these types of bridges "are rarely, if ever, constructed solely to

provide a signature structure when more economical and less impactful options are available." Id.

The FHWA nevertheless considered interstate and non-interstate options, as well as cable stayed

and other bridge types, and analyzed a "Signature Bridge Concept" in more depth. See id. at

31907-16. The FHWA found that such a bridge would result in, among other things, (1) a project

26

cost increase of at least $800 million, (2) higher maintenance costs, (3) susceptibility to snow and

ice, and (4) numerous construction difficulties. See id. at 31914-15. Additionally, the record

indicates that while a bridge would accommodate through traffic (only about twelve percent of

existing viaduct traffic), it would eliminate an important interchange and primary point of access

to the city. See id. at 31915. Further, a bridge would cause negative impacts to environmental

justice (low income) communities, and it would be a "wider, taller, and more substantial barrier

between neighborhoods" that would put certain areas in "full shadow during winter months." Id. at

31916. As such, the FHWA reasonably concluded that such a bridge would not satisfy the

Project's objectives.

Ultimately, after evaluation, screening, and the submission of public input, the FHWA

advanced the (final) Viaduct Alternative, the (final) Community Grid Alternative, and the No

Build Alternative for further study. Id. In their motion, Plaintiffs allege that the Viaduct

Alternative contained "unnecessary features" but fail to specify what any of the alleged

unnecessary features were. The record, however, makes clear that the Viaduct Alternative was

designed to "correct most non-standard and non-conforming highway features" in the Project area.

See id. at 178. Although the Viaduct Alternative may have contained some "unnecessary

features," an agency is "not obligated to consider in detail each and every conceivable variation of

the alternatives stated." Friends of Animals, 948 F.3d at 591 (quoting Monroe Cnty. Conservation

Council, Inc. v. Adams, 566 F.2d 419, 425 (2d Cir. 1977)).

Because the FHWA satisfied NEPA's procedural requirements, Plaintiffs are unlikely to

succeed on the merits of their claim that FHWA unreasonably failed to consider alternatives or

failed to consider such alternatives in greater detail. See Sierra Club v. FERC, 867 F.3d 1357,

1368 (D.C. Cir. 2017) (holding that an agency's "analysis must be 'reasonable and adequately

27

explained,' but the agency's 'choice among reasonable analytical methodologies is entitled to

deference.' ... As always with NEPA, an agency is not required to select the course of action that

best serves environmental justice, only to take a 'hard look' at environmental justice issues")

(citing Latin Ams. for Social & Econ. Dev. v. Fed. Highway Admin., 756 F.3d 447, 475-77 (6th

Cir. 2014)). Having failed to establish a likelihood of success on the merits of any of their claims,

Plaintiffs' motion for injunctive relief is denied on this alternative ground.

3. Balance of Hardships

Finally, the Court finds that Plaintiffs' motion for injunctive relief must be denied because

the balance of hardships and public interest weigh against granting injunctive relief. While

Plaintiffs may have an interest in additional NEPA analysis, that interest is far outweighed by the

significant human and financial cost that would result from an injunction.

As the FHWA notes, Plaintiffs must prove that a preliminary injunction would serve the

public interest. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Plaintiffs,

however, offer nothing more than a conclusory statement that "the grant of preliminary injunctive

relief in this case is clearly in the public's interest." Dkt. No. 28-1 at 12. Yet granting a

preliminary injunction would halt a project that addresses structural deficiencies and non-standard

highway features that present safety issues for the 95,000 vehicles that travel through the I-81

corridor daily. See AR at 139. Such safety issues include the following: (1) sections of I-81 that

experience crash rates two-to-three times higher than the statewide averages for similar roads; (2)

over 190 non-standard and non-conforming features along the corridor; and (3) twenty bridges

that were not built to current standards and three bridges that are classified as "structurally

deficient." Id. at 309, 393-95. As the record makes clear, these are just a fraction of the safety

issues the aging infrastructure of the existing I-81 corridor presents. An injunction would only

28

further delay the FHWA's efforts to address these safety issues and any further delay in addressing

the many safety issues the existing I-81 corridor presents would put the public at an unnecessary

risk. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (holding that when deciding

whether to issue an injunction, courts must remain mindful of the public consequences).

Accordingly, Plaintiffs' motion is denied on this alternative ground.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the reasons set forth herein, the Court hereby

ORDERS that Plaintiffs' motion for preliminary injunctive relief (Dkt. No. 28) is

DENIED; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: July 19, 2024

Albany, New York

29