Purple Line Writ of Mandamus Appeals Court Filing
Purple Line Writ of Mandamus Appeals Court Filing
No. - - -
IN RE STATE OF MARYLAND,
Petitioner.
BRIANE. FROSH
Attorney General of Maryland
ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N. W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6262
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CERTIFICATE AS TO PARTIES
The parties in the district court proceeding, Case No. 14-1471, are as
follows:
The Plaintiffs are Friends of the Capital Crescent Trail, John McKnight
Department of Transportation, the United States Fish and Wildlife Service and the
The amici curiae in this proceeding are Prince George's County, Maryland,
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TABLE OF CONTENTS
Page
CERTIFICATE AS TO PARTIES ............................................................................ i
INTRODUCTION .................................................................................................... 2
CONCLUSION ...................................................................................................... 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
11
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TABLE OF AUTHORITIES
CASES
Dietz v. Bouldin,
136 S. Ct. 1885 (2016) ................................................................................. 17, 20
In re United States,
598 F.2d 233 (D.C. Cir. 1979) ........................................................................... 13
Rempfer v. Sharfstein,
583 F.3d 860 (D.C. Cir. 2009) ........................................................................... 18
lll
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Spencer v. Kemna,
523 U.S. 1 (1998) ....................... :....................................................................... 13
STATUTES
OTHER AUTHORITIES
IV
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RELIEF SOUGHT
the State of Maryland (the "State") respectfully petitions this Court to issue a writ
of mandamus in aid of its appellate jurisdiction, directing the United States District
Court for the District of Columbia to decide forthwith the dispositive cross-
motions for summary judgment now pending in the case below, Friends of the
Capital Crescent Trail, et al. v. Federal Transit Administration, et al., No. 14-
1471.
ISSUE PRESENTED
exercise its discretion to issue a writ of mandamus directing the district court to
decide dispositive cross-motions that have been fully briefed and pending decision
for nearly a year, where there are no disputed facts and the district court's
continued delay threatens to cause the State and its taxpayers a loss of over $800
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INTRODUCTION
lightly grant. However, the facts underlying the State's request are extraordinary.
By June 1, 2017, without the relief sought from this Court, budgetary requirements
will force the State to begin suspension of work on a multi-billion dollar project.
The suspension will in tum result in significant increases in the cost of the project
and eventually could lead to the cancellation of the project, which would deprive
the State of a vitally needed transportation facility and cause the irretrievable loss
of over $800 million. See Declaration of Pete K. Rahn, Secretary of the Maryland
The project in question is known as the Purple Line, a 16-mile long transit
Line ("Purple Line" or the "Project") has been in the planning and approval
process for well over a decade. It is supported by virtually all of the local
jurisdictions along the line, including the governments of l\.1ontgomery and Prince
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This case began in August 2014 when an .organization and two individual
plaintiffs sued the Federal Transit Administration ("FTA"), the U.S. Department of
Transportation, and two other federal agencies. The State intervened, in part to
ensure that the district court would understand that any delay in this litigation
would jeopardize the Project and impose great financial cost on the State. ECF 18-
1 at 8-9. Summary judgment motions have been pending and fully briefed since
June 20 I 6. Although the district court did issue an order on August 3, 2016
addressing and granting partial summary judgment on a single issue, the court
reserved judgment and did not address the 23 other issues in the case. The State
concern. However, as more fully explained below, from the time of the first status
conference in July 2015, the district court's handling of this case has created an
extraordinary circumstance that risks the ongoing viability of the Project, and so
summary judgment primarily arises from the district court's August 3, 2016 Order
vacating the FTA's Record of Decision ("ROD") approving the Purple Line for
federal funding. In the absence of the ROD, federal funding that is necessary for
the Project to continue is unavailable. The August 3 Order vacated the ROD
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because of the district court's belief that more analysis was needed on the impact
of recent ridership declines and safety issues on the Washington Metrorail system,
but the court gave no indication of when the other 23 issues would be decided.
Nine months later, the district court has not yet decided any of those issues, nor has
decision, and with the FTA's ROD vacated, the State lacks an appealable final
order from the district court, yet also lacks the ability to proceed with construction
of the Purple Line. With each passing month, the continued delay costs the State
By limiting its decision to only one of 24 issues raised in the case, and by
the district court has brought this Project to the brink of cancellation. If the Project
is canceled due to the district court's delay, that would deprive the State of the
claims in a timeframe that would allow the Project to continue if Defendants are
successful on appeal.
Because the State lacks any means to seek timely appellate review of the
district court's action, and given the extraordinary harm that the State is currently
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suffering and will suffer absent a prompt final decision on the merits by the district
court, the State has reluctantly taken this extraordinary step of invoking this
STATEMENT OF FACTS
required by the National Environmental Policy Act ("NEPA"), FTA issued its
ROD approving the Purple Line Project on March 19, 2014. On August 26, 20 I 4,
Plaintiffs filed their initial complaint against the federal Defendants. ECF l.
However, Plaintiffs did not complete service of the complaint on all federal
defendant on March I 0, 2015, noting its "strong interest in the swift resolution of
the case." ECF 18-1 at 12. On April 9, 2015, Plaintiffs filed an amended
complaint. ECF 20. The federal Defendants filed an answer to the amended
complaint on April 23, 2015 (ECF 22), and filed the administrative record by June
On July 15, 20 I 5, the district court held a status conference where it granted
the State's motion to intervene and directed the parties to develop a proposed
summary judgment briefing schedule. In response to the State's request that the
district court rule expeditiously, the district court stated that it was not likely that it
would be able to consider the case until the Spring of 2016, and that the parties
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should develop a briefing schedule reflecting that timeframe. July 15, 2015
1
Transcript ("Status Conf. Tr.") at 15. The district court noted that this timeline
could have "a little bit of a delaying effect, but, you know, not that much." Id. at
22.
When the State informed the district court that the proposed timeframe
"could kill the project ... ," the district court admonished the State Hnot [to] have a
doomsday attitude about it." Id. The district court then said that it had "no reason
to think contractors are going to be dissuaded if it might start a month or two later.
It's just not likely." Id. at 23. In dismissing the State's concern that a delayed
final decision could affect the Project's financing, the district court stated that the
Shortly after the July 15, 2015 status conference, Plaintiffs filed the first of
its two "supplemental complaints." ECF 32. Plaintiffs then filed a second
briefing schedule. Pursuant to that schedule, the parties filed cross-motions for
summary judgment, and briefing on those motions was completed on May 24,
2016. The district court held a hearing on the summary judgment motions on June
15, 2016. At the hearing, the State again advised the district court that a delay in
1
A copy of the transcript of the July 15, 2015 status conference is attached as
Exhibit B.
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the project would cost the State millions of dollars. June 15, 2016 Transcript
("Summary Judgment Tr.") at 78. 2 The State also informed the court that the
private parties who had won the right to build and operate the transit Iine had
succeeded in obtaining the financing they needed to implement the project - so that
all financing needed for construction was in place except for the FTA 's $900
During the hearing, the district court and Plaintiffs' counsel engaged in a
dialogue about the delay that might be occasioned if the court ordered Defendants
issue raised in Plaintiffs' summary judgment motion, and whether such a ruling
would be appealable. Id. at 55-60. Plaintiffs' counsel suggested that the agency
could complete the document "within six months," id. at 55, and, in response to a
question from the court, questioned whether such an order would be appealable, id.
at 59-60. Plaintiffs' counsel further stated that it would not make sense for the
government to appeal from such an order in any case "because the D.C. Circuit has
In response, the State's counsel informed the Court that a six-month delay
"would allow the private investors to pull out" of the Project, and if that were to
happen, "the state would incur all the costs that [the private investors] have thus far
2
A copy of the June 15, 2016 Transcript is attached as Exhibit C.
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incurred...." Id. at 77-78. Counsel for FTA also pointed out that the issue the
district court was considering for preparation of a Supplemental EIS was based on
events that occurred on the Washington Metrorail system after FTA had issued the
judgment briefs on June 29, 2016. ECF 92, 93, and 94. In its supplemental brief,
the State requested that the district court allow additional briefing on possible
remedies and noted that the possible schedule and financial impacts of even a short
15. 3
In late July 2016, the State announced that on August 8, 20 I 6, the Full
State with access to $900 million in vital funding for the project. 4 On August 3,
2016, shortly after the public announcement and five days prior to the scheduled
signing, the district court entered an order that has prevented the execution of the
3
A copy of the State's Supplemental Brief is attached as Exhibit D.
4
See Washington Post, July 28, 2016, "Signing of Purple Line's federal funding
agreement set for Aug. 8, officials say," available at
https://www.washingtonpost.com/news/dr-gridlock/wp/20 I 6/07/28/signing-of-
purple-lines-federal-funding-agreement-set-for-aug-8-sources-
say/?utm term=.f4e608c871 fl (last accessed on May 3, 2017).
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Grant Agreement. The court order decided only one of the 24 issues raised in
addressing the impact of recent ridership declines and safety issues on the
court stated that it was a matter of "common sense" to prepare the Supplemental
EIS before the FTA committed to providing the funding needed for the project.
Id. Without allowing an opportunity for briefing on the scope of the remedy for
this single issue, the district court vacated FTA 's ROD, thus preventing FTA from
signing the Grant Agreement and preventing the State from initiating construction
of the Project. The district court stated that it would "reserve[]" judgment on the
remaining issues in the case, id. at 2, and has never returned to them.
On August 23, 2016, the State and FTA filed motions to amend the
J
judgment to allow FTA to determine in the first instance whether the Metro
& 99. In the same motions, the State and FTA also moved the court to reinstate the
ROD while this additional analysis was prepared. Id. Briefing on the motions was
5
A copy of the district court's August 3, 20 I 6 Opinion is attached as Exhibit E.
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On November 22, 2016, the district court granted the motion m part,
allowing FTA to make the determination whether a Supplemental EIS was needed
on the Metrorail issue, the court declined to reinstate the ROD. November 22,
2016 Order, ECF 110. 6 The district court established a briefing schedule to
On December 16, 2016, FTA informed the district court that it had
completed the required analysis and determined that recent ridership and safety
issues facing the Washington Metro did not warrant a Supplemental EIS for the
Purple Line. FTA filed the analysis and its determination with the district court.
ECF 113. That same day, the State and FTA filed renewed motions for summary
judgment on all issues. ECF 115 & 116. Plaintiffs responded to the renewed
motions for summary judgment on January 5, 2017 (ECF 119), and the State and
FTA filed reply briefs on January 12 and 13, 2017, respectively. ECF 120 (State's
Reply) & 121 (Federal Defendants' Reply). Since that time, all issues raised in the
cross-motions for summary judgment - both in the initial motions and the renewed
On March 31, 2017, the State filed a motion seeking an expeditious ruling
on all remaining issues in the summary judgment motions or, in the alternative, an
order reinstating the ROD until those motions are decided. State's Motion, ECF
6
A copy of the district court's November 22, 20 I 6 Order is attached as Exhibit F.
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133. 7 The State informed the district court that the passage of time is causing
"grave harm" to the State and the businesses, counties, and cities that "are relying
on the Project to create jobs and to improve access to public and commercial
8
facilities and neighborhoods." State's Reply, ECF 135 at 3. Relying on
9
previously submitted declarations from the State official in charge of the Project,
the State reminded the district court that "each month of delay could result in an
estimated $13 million in additional cost." Id. at 4. The State also reminded the
district court that termination of the project as a result of a failure to resolve the
litigation could result in termination costs and delay damages that, at that time,
would have resulted in a total loss to the State of approximately $650 million. Id.
As of the date of the filing of this Petition, the district court has not granted
or denied the motion for an expeditious decision, nor has it issued a final
appealable order resolving all the issues in the case, nor has it reinstated the ROD
in response to FTA's resolution of the only issue on which the court has ruled thus
far. The State therefore requests that this Court order the district court to issue a
final decision addressing all issues raised in the parties' cross-motions for
summary judgment.
7
A copy of the State's Motion is attached as Exhibit G.
8
A copy of the State's Reply is attached as Exhibit H.
9
Declaration of Charles Lattuca, ECF 98-3 and Second Declaration of Charles
Lattuca, ECF 116-2. Copies are attached as Exhibits I & J.
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The State is now at a critical point in its efforts to maintain the viability of
the Project. The district court's order vacating the ROD stands in the way of the
State obtaining the federal funds needed to implement the Project, while the district
court's unexplained failure to address the other issues in the case deprives the
produce a Supplemental EIS was initially intended to preserve the status quo - i.e.,
conducted additional analysis of the effects of Metrorail safety and ridership issued
on the Purple Line. That period has long since passed, the required analysis was
completed and submitted to the district court in 2016, and yet the State remains
unable to move forward with the Project because no final decision has been issued
The district court's decision to address only a single issue out of the 24
issues raised in the parties' summary judgment motions, and its subsequent failure
to rule on the adequacy of the additional analysis ordered in its August 3 Opinion,
leaves the State with an inability to proceed or to appeal, and has created a
substantial risk that this dispute will ultimately be decided by pocket veto rather
than on the merits. This course has impeded the State's ability to implement this
important public transit project and now threatens to force the State to suspend
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caused by the district court's limited and interlocutory decision. The citizens of
timeframe that allows the State either to implement the Project without further
undue delay or to pursue available appellate review and relief from the district
court's order.
A writ of mandamus "has traditionally been used in the federal courts ... 'to
compel [a district court] to exercise its authority when it is its duty to do so."' In
re United States, 598 F.2d 233,236 (D.C. Cir. 1979) (quoting Roche v. Evaporated
Milk Ass'n, 319 U.S. 21, 26 (1943)). Mandamus relief is appropriate when a
district court's failure "to adjudicate a case properly before it" is "'obstructing the
appeal"' and might otherwise prevent the appellate court from exercising its
jurisdiction. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662 (1978) (quoting
Roche, 319 U.S. at 25). The Supreme Court expects that "as a general matter,
district courts ... will not unduly delay their own rulings," but if that expectation
is not met, "where appropriate, corrective mandamus will issue from the courts of
really extraordinary causes," the Supreme Court has instructed that the
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requirements for granting the writ, "however demanding, are not insuperable."
Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380, 381 (2004).
"Before a court may issue the writ, three conditions must be satisfied: (i) the
petitioner must have 'no other adequate means to attain the relief he desires'; (ii)
the petitioner must show that his right to the writ is 'clear and indisputable'; and
(iii) the court 'in the exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances."' U.S. v. Fokker Services B. V., 818 F.3d 733,
747 (D.C. Cir. 2016) (granting writ of mandamus against district court (quoting
Cheney, 542 U.S. at 380-81)). All of these conditions are satisfied here.
This case satisfies the first condition - the lack of any other adequate avenue
to relief - because, as the Supreme Court has long recognized, mandamus "is the
only adequate mode of relief, where an inferior tribunal refuses to act upon a
subject brought properly before it." Life & Fire Ins. Co. of N. Y v. Wilson's Heirs,
33 U.S. 291, 302-03 (1834). Here, it is clear that there are no other adequate
means for the State to attain the desired relief from the August 3, 2016 remand
The State could not seek to appeal the district court's August 3, 2016
remand order, because "(i]t is black letter law that a district court's remand order is
not normally 'final' for purposes of appeal under 28 U.S.C. 1291." N.C.
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Fisheries Ass 'n v. Gutierrez, 550 F.3d I 6, 19 (D.C. Cir. 2008) (citations omitted).
[a remand order] immediately rather than bear significant expenses that cannot be
recovered or take action pursuant to the remand that cannot be reversed if it is later
determined that the order was improper," id. (citation omitted), this Court has
applied that exception only when "the agency to which the case is remanded seeks
to appeal .... " Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir.
1989) (emphasis added). Here, the district court's August 3, 2016 order vacated
the ROD, and remanded to the federal agency that generated it, FTA, with
For similar reasons, the State could not appeal the August 3 Order under the
collateral order doctrine. In Lakes Pilots Ass 'n, Inc. v. US Coast Guard, 359 F.3d
624, 625 (D.C. Cir. 2004), this Court treated the "limited exception" for federal
agencies described above as a subset of the collateral order doctrine. The Court
held that an interlocutory appeal under the collateral order doctrine was generally
unavailable to parties other than the government agency to which the case was
remanded. Id.; see Sierra Club v. U.S. Dep't of Agriculture, 716 F.3d 653, 656-57
(D.C. Cir. 2013) (reaching the same conclusion but addressing separately collateral
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order analysis and the "limited exception" authorizing an appeal by the agency to
Finally, the district court's order vacating the ROD is not appealable as an
order granting injunctive relief. In Sierra Club, this Court held that even where a
district court's order included directives enjoining the federal agency to take
[federal agency] serves no function beyond the remand order." 716 F.3d at 660
reaching that conclusion, the Court cited with approval an Eighth Circuit decision
holding that "it lacked jurisdiction under l 292(a)(l) where," as in this case, "a
court order enjoining the agency from taking further action until it prepared an
EIS." Id. (citing Izaak Walton League of America v. Kimbell, 558 F.3d 751, 763
Quite simply, the district court has yet to issue an appealable order or to
provide any indication of when it will do so. Continuing delay comes with the
substantial risk that the State will be compelled to cancel the Project because of the
inability to access $900 million in federal funding and in order to avoid further
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and implement the Project. It is the lack of appealability of the order vacating the
ROD - a matter the district court confirmed with Plaintiffs' counsel before issuing
its August 3 Order - that has compelled the State to seek this extraordinary relief.
The State has no other adequate means of securing the necessary relief.
The second condition for mandamus is satisfied because the State is "clearly
summary judgment. The Supreme Court has insisted that all district court
procedures in civil actions serve "Rule l's paramount command: the just, speedy,
(20 I 6); see Fed. R. Civ. P. I (The Rules "should be construed, administered, and
employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding."). The Supreme Court has long
held that this "paramount command" of Rule 1, together with the language of Rule
motion when, as in this case, the submissions before the court establish that "there
'to secure the just, speedy and inexpensive determination of every action."'
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting former language of
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Fed. R. Civ. P. 1). A summary judgment motion "may, and should, be granted so
long as whatever is before the district court demonstrates that the standard for the
entry of summary judgment, as [formerly] set forth in Rule 56(c) [now in Rule
56(a)], is satisfied." Id. at 323 (emphasis added). "[T]he plain language" of Rule
56 "mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which
that party will bear the burden of proof.... " Id. at 322 (emphasis added). "Where
of law."" Lujan v. Nat'! Wildlife Fed'n, 497 U.S. 871, 884 (1990) (emphasis
added).
a summary judgment motion is all the more imperative, and should be all the more
action. For, as the district court acknowledged, it has only a "limited" task. See
Exhibit D, August 3 Opinion at 2-3 ("The Court's review 'is based on the agency
capriciously.' Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009)."
"serves as the mechanism for deciding, as a matter of law, whether the agency
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action is supported by the administrative record and otherwise consistent with the
(D.D.C. 2006).
summary judgment. The district court reasoned, in reliance on its own "common
sense," that a delay in implementing the Project was warranted, and that a
"temporary halt" for the agency to produce a Supplemental EIS on a single issue
was a prudent way for the federal government to proceed. Exhibit E, August 3
Opinion at 9. However, the district court never addressed how the "temporary
halt" to prepare a new environmental analysis on a single issue would interact with
its decision to reserve judgment on the remaining 23 issues in the case. For
example, the district court did not indicate if preparing the Supplemental EIS on
that single issue, in itself, would resolve the other NEPA claims in the lawsuit.
Notably, several of the issues "reserved" by the district court addressed the
Complaint, ECF 20, ,r,r 122-13 6. The district court did not indicate if, after FT A
had prepared a Supplemental EIS, the court would then grant summary judgment
to MTA and FTA on the Plaintiffs' claims that the underlying EIS was inadequate.
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Under the district court's decision on partial summary judgment, FTA could
that document for public comment, and issued an updated ROD, only to have the
district court find that the underlying EIS was flawed in other ways and then
require another Supplemental EIS to address those additional issues. The district
unclear whether there is a path to resolution or what the timeframe for such a path
might be.
In short, by failing to resolve finally the only issue on which it has thus far
ruled and reserving judgment indefinitely on all the others, the district court has
created a situation in which the State could be left without a -~final" judgment
indefinite uncertainty and delay, at enormous expense, deprives Maryland and its
taxpayers of the "just, speedy, and inexpensive resolution of disputes," and thereby
defies the Rules' "paramount command." Dietz, 136 S. Ct. at 1891. Mandamus is
Finally, "the writ is appropriate under the circumstances" that the State is
facing. Cheney, 542 U.S. at 381. This third criterion for mandamus has been
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consideration." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 762 (D.C. Cir.
2014). Foremost among the pertinent totality of the circumstances is the harm to
the State caused by the failure of the district court to issue a final appealable
The State has repeatedly informed the district court that a delay in issuing a
decision results in great financial cost to the State - an estimated $13 million for
each month of delay - and increases the probability that the Project will need to be
abandoned to prevent further financial harm to the State. Even now, the cost to the
State of cancellation of the Project has grown to more than $800 million. Exhibit
development of the Project of approximately $545 million; (2) delay costs, which
could reach approximately $150 million for an estimated 12-month delay: and (3)
harms to the State are real and substantial. The cascading effects predicted in the
State's supplemental brief (ECF 93) filed in June 2016, pose current and future
10
In anticipation of receiving the $325 million that Congress has already
appropriated for this Project, the State has expended that amount using State
taxpayer dollars to carry out ongoing and long lead-time pre-construction
activities, such as real property acquisitions, engineering and design, soil and
geotechnical analysis, utility relocations and community and small business
outreach and involvement. Exhibit A, Rahn Deel. ,r 33.
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harm to the Project. Failure to reinstate the ROD would result not only in a
tremendous financial loss to the State, but also a tremendous loss to the tens of
thousands of workers, students, and other residents of the State who would benefit
11
from a transit line connecting Montgomery and Prince George's Counties.
Declarations filed in district court informed that court of the substantial harm to the
State absent a final appealable decision. See Exhibits I & J, Latucca Declarations,
The harm to the State is not limited to the potential loss of over $800
million. The Project includes the replacement of eight bridges in the Counties -
replacement work by the Counties on these bridges was put on hold pending
implementation of the Project. One bridge was recently closed to vehicular traffic,
causing school buses and emergency vehicles to take longer routes to reach their
The State anticipates that as of June 1,2017, it will no longer have sufficient
ROD is not reinstated by that date, the State is likely to direct the private developer
to begin an orderly process of suspending Project activities. Id. The State will also
11
One of the benefits is quicker trips connecting large population centers in the
two Counties. For example, a trip between downtown Bethesda and downtown
Silver Spring is projected to take nine minutes. Exhibit A, Rahn Deel., ,I I 7a.
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initiate suspension of other activities it is carrying out on its own. Id. If Project
activities are able to resume in the future, this resumption will result in increased
inclusion in the federal budget, the Secretary expects that suspension of activities
now would impair the State's ability to obtain additional federal appropriations for
the 2018 Fiscal Year. Even in the event the Project were ultimately able to
proceed, a failure to obtain a 2018 appropriation now would cause yet further
this Project will also require the State to begin delaying or eliminating other
While the State will continue to take all reasonable steps to avoid
cancellation of the project, the Secretary expects that a decision to cancel the
Project could occur unless the ROD is reinstated within approximately 60 days
following the suspension of ongoing Project activities. Id. at ,r 65. If the Project is
terminated before a final decision by the district court, the case could become moot
- preventing the State from ever obtaining a final judgment on the merits in the
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district court or from appealing an adverse district court decision. Moreover, even
if the case were not found to be moot, a favorable ruling in the district court or on
appeal would be a hollow victory if it comes only after the Project has been
rendered non-viable due to the passage of time. A final decision by the district
As the State argued in its still-pending motion to expedite the district court's
decision on the merits, there is a simple reason for the State's request for a final
decision: the fate of the Purple Line hangs in the balance, and that fate should be
determined by policy makers responsible for the Project and accountable to the
inaction by the district court. Exhibit G. A writ of mandamus from this Court
directing the district court to issue a final judgment in this case forthwith is needed
to satisfy the "paramount command" of Rule I and to ensure that the interests of
CONCLUSION
For the foregoing reasons, the petition for a writ of mandamus should be
granted.
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USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 30 of 32
BRIAN E. FROSH
Attorney General of Maryland
@Ur7
ALBE RT NI. F ERLO
Perkins Coie LLP
700 Thirteemh Street, N. 'vV.. Suite 600
\Vashington , D.C. 20005 -3960
Telephone : 202 .654.6200
Facsimi le : 202 .654.62 l l
Emai l: alerlo01perkinscoie.com
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CERTIFICATE OF COMPLIANCE
1 hereby certify that this brief complies with the type-volume limitation of
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and
complies with the type style requirements of Fed. R. App. P. 32 (a)(6), because it
New Roman).
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CERTIFICATE OF SERVICE
I hereby certify that on May 12, 20 I 7, a copy of the foregoing Petition for a
Writ of Mandamus with accompanying Ex hi bits was served via U.S . First C lass
Mail and email on the following counse l of record in the U .S. District Court.
David Brown
Knopf & Brown
[email protected]
Kevin W. McArdle
U.S. Department of Justice
Keven. mcardle@usdoj .gov
Jeremy Hessler
U.S . Department of Justice
Jeremy.hessler@usdoj .gov
Tyler L. Burgess
U.S. Department of J ustice
Tyler. burgess@usdoj .gov
John M. Fitzgerald
4502 Elm Street
Chevy Chase, .MD 20815
[email protected]
Sheri Pai s
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EXHIBIT A
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personal knowledge of, the facts and matters discussed in this declaration.
STATEMENT
1. I am currently the Secretary of Transportation for the State of
Transportation (MDOT).
the Secretary of Transportation for the New Mexico State Highway and
1
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4. I also received the Vision Award from the National Council on Public
America in 2010.
Authority.
of MDOT and ensuring that their planning and capital project initiatives are
complementary to each other and that they help realize the Governors
transportation goals for the State. I am also responsible for managing MDOTs
financial resources, which are comprised of tax and fee revenues, operating
to ensuring for its citizens that the State advances its goals for economic success
2
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education and health care, and reducing congestion and air pollution in federally
administration, and operation of transit services throughout the State. In all, MTA
provides more than 112 million trips per year. Services operated by MTA include
the Maryland Area Regional Commuter (MARC) train, as well as the light rail
transit system, subway system, and local bus systems in the Baltimore area. It also
Maryland, Virginia and the District of Columbia, wholly separate from MTA.
metropolitan area, as well as a regional bus system, known as Metrobus. All three
transportation systems.
10. MTAs transit services, by design, intersect with each other as well as
with WMATAs Metrorail and Metrobus systems and with other transportation
3
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11. MTA is responsible for the planning and development of the Purple
12. The Purple Line is a light rail transit (LRT) project that connects
Takoma/Langley Park, College Park (and the University of Maryland), and New
Carrollton.
13. The Purple Line is located in the States two most populous counties,
Montgomery County and Prince Georges County (the Counties). Together, the
Counties have a population of more than 1.9 million residents, almost one third of
their own right. Between 2010 and 2040, employment is projected to grow by 43
and land use plans of both Montgomery County and Prince Georges County. In
4
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the case of Montgomery County, the Purple Line has been included in some form
in the Countys land use plans for more than 30 years. These land use plans
represent the visions adopted by the Counties, through a public process, for
16. There is strong demand for public transit service in the Purple Line
corridor, which contains a large number of residents who do not own a vehicle,
particularly in the eastern end of the corridor. But there is no existing east-west
Metrorail service in the Purple Line corridor, and east-west bus transit service is
roadway network.
17. The Purple Line would greatly improve east-west transit service in the
corridor by providing faster, more frequent, and more reliable transit service
connecting 21 stations along the 16-mile route. Some of the projects benefits
include:
with a 9-minute train ride, far faster than bus service on the regions
5
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riders when it opens in 2022 and that number will grow to more than
74,000 by 2040.
c) More than one billion dollars of new adjacent development has been
d) The Purple Line will run through the center of the campus of the
and will be accessible to more than 46,000 students, faculty and staff.
dozens of local and regional bus routes, two MARC commuter rail
f) The design and construction phase of the Purple Line project will
6
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The Purple Line: A Key Part of State and Regional Transportation Plans
18. The Purple Line is also an important part of State and regional
These plans are required by federal law and adopted through a public process in
defines the States long-term transportation priorities. One of the plans goals is to
speed to make transit a more attractive modal option, and, specifically, to Link
the regions inner Beltway employment and housing across its urban centers with
the construction of the Purple Line LRT and interconnect it with WMATA and
Plan (CLRP). The current CLRP dedicates substantial funds for maintaining
by 2040, plus another $123 billion for operating and maintaining the system during
7
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the same period. CLRP at 46. But the CLRP also recognizes the importance of
expanding public transit service throughout the region, and includes funding for 76
Line. CLRP at 47. Collectively, the CLRP reflects a regional consensus on the
need to both maintain the existing transportation and invest in expanding capacity
21. The Purple Line is expected to be funded, in part, with federal funds
Environmental Policy Act (NEPA) and other laws and was subject to a
statement (EIS) for the Purple Line in 2003, pursuant to NEPA and other federal
and State laws. FTA and MTA issued the Draft EIS for the Purple Line in October
2008 and issued the Final EIS for the Purple Line in August 2013. FTA issued a
8
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24. The FTA grant application process included multiple rounds of review
approval of the $900 million grant for the Purple Line in June 2016. In
High for project justification and High for local financial commitment, and
25. The final step in the New Starts application process is the execution of
the Full Funding Grant Agreement (FFGA), which can be signed only after a 30-
day review period by Congress. FTA submitted the FFGA for the Purple Line to
Congress for review on July 6, 2016 for the required 30-day review. The
FFGA was scheduled for August 8, 2016, but was postponed after the District
Courts order of August 3, 2016. To date, the FFGA for the Purple Line has not
been signed.
26. With a cost of more than $2.447 billion to develop and construct, the
MDOT.
9
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collaboration among the federal government, the State, the Counties, and the
private sector with multiple agreements between and among these entities.
Circumstances that affect one partys obligations under one agreement can have a
28. The funding for construction of the Purple Line involves substantial
private financing. The requested federal grant of $900 million represents 37% of
29. To implement a project of this magnitude, the State has entered into a
30. To date, Congress has appropriated a total $325 million of the $900
million anticipated federal grant for the Purple Line but none has been distributed
to the State. The $325 million has been appropriated in three consecutive years as
follows:
a) $100 million was appropriated for the Purple Line in Fiscal Year
2015;
10
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2017.
31. The State intends to continue seeking annual appropriations for the
remaining amounts of the anticipated $900 million federal grant in the Fiscal Year
2018 appropriations process and in future years until the full amount is
appropriated.
32. The $325 million in appropriated federal funds, including the $125
million in Fiscal Year 2017, cannot be distributed to the State until FTA enters into
an FFGA with MTA, and the FTA cannot execute the FFGA until the ROD is
reinstated.
appropriated over the last three fiscal years, the State has expended that amount in
activities, such as real property acquisitions, engineering and design, soil and
11
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authorized under Title 10A of the State Finance and Procurement Article of the
Annotated Code of Maryland (Title 10A), as a way to finance and operate costly
with the aim of achieving the most efficient expenditure of costs and allocation of
risk and reward between the State and the concessionaire. With a P3 agreement,
the State remains the owner of, and ultimately accountable for, the public
select a private partner to finance, develop, design, construct, and supply light rail
vehicles for the Purple Line and to operate and maintain the Purple Line for a
37. Through the three-year bid process, MTA selected Purple Line Transit
Partners LLC (PLTP) as the concessionaire for the Purple Line project and
12
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years (through 2052). At the end of the term of the P3 Agreement, PLTP is
required to return the Purple Line to the State in a state of good repair.
Works (BPW), which consists of three statewide elected officials: the Governor,
the P3 Agreement. The State and PLTP executed the P3 Agreement on April 7,
2016.
c) PLTP entered into a contract with a rail car manufacturer for the
40. On June 17, 2016, the State and PLTP completed the financing of the
Purple Line, with PLTP entering into the various debt and financing-related
agreements with bond-holders and lenders, including an $875 million loan to PLTP
13
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construction, the State pays PLTP a specified amount per year for the next 30
years. The State maintains oversight of the project throughout the life of the P3
Agreement and may deduct amounts from its payments to PLTP if PLTP does not
meet performance standards for operating and maintaining the Purple Line as
defined in the P3 Agreement. This defined payment schedule greatly helps the
Bethesda to Silver Spring, and (2) the Silver Spring Green Trail. The Bethesda
Station South Entrance and Silver Spring Green Trail are independent of the Purple
Line but are being built under the same contract for reasons of efficiency and cost
savings.
14
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43. On April 7, 2016, with FTAs approval, the State authorized PLTP to
44. On June 17, 2016, MTA gave PLTP full notice to proceed with pre-
45. On June 18, 2016, after submitting the required certification that all
activities on the Purple Line. PLTP then authorized its design-build contractor to
46. Since June 18, 2016, PLTPs design-build contractor has been
geotechnical borings, permitting and marking the location of utilities in the Purple
activities also are being carried out by the State, including right-of-way acquisition
and relocation activities, which have been under way since approximately May
2014.
15
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that takes into account thousands of factors to develop an efficient and cost-
effective plan and critical path to timely complete the Purple Line and the County-
Funded Projects. The project schedule has been carefully crafted to satisfy all
complex, with almost 6,000 discrete activities that must be coordinated and
48. On August 3, 2016, the U.S. District Court for the District of
Columbia issued an order (August 3 Order) finding that FTA was required to
prepare a Supplemental EIS under NEPA on a limited issue: to assess the effects of
WMATA Metrorail safety and ridership issues on Purple Line ridership. Based on
that decision, the District Court vacated FTAs March 2014 ROD for the Purple
49. The execution of the FFGA by FTA and MTA for the Purple Line was
scheduled for August 8, 2016, but was postponed after the District Court issued the
analysis as directed by the District Court to assess the potential effects of Metrorail
16
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safety and ridership issues on Purple Line ridership. This analysis culminated in a
51. On August 23, 2016, FTA and MTA filed motions with the District
Court asking the court to modify its August 3 Order to allow FTA and MTA the
opportunity to conduct a new analysis of Metrorail safety and ridership issues and
to be prepared. FTA and MTA also asked the court to reinstate the ROD while this
52. In a November 22, 2016 decision, at the request of FTA and MTA, the
District Court modified its August 3, 2016 order to allow FTA and MTA the
opportunity to conduct a new analysis of Metrorail safety and ridership issues and
53. In accordance with the District Courts November 22 Order, FTA and
MTA prepared an analysis of the effects of Metrorail safety and ridership issues on
Purple Line ridership, and concluded that even under extreme and unrealistic
assumptions about declining Metrorail ridership, the Purple Line still would have
sufficient ridership to qualify for FTA funding and to meet the projects purpose
17
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and need. Based on that analysis, FTA determined that a Supplemental EIS was
not required.
54. On December 16, 2016, FTA filed its analysis and determination with
the court as required by the November 22 Order. On the same date, FTA and
MTA filed motions asking the court to find that the new analysis was sufficient
55. As of this date, the FTAs and MTAs motions for summary judgment
potentially devastating consequences for the Purple Line project and for other State
57. In the absence of a ROD, FTA is unable to execute the FFGA, the
vehicle through which FTA can provide the federal funds critical to the project.
Because the ROD remains vacated, the federal funds anticipated for this project
have been delayed now for nine months. MDOT has been advancing State dollars
in lieu of federal funding while anticipating the timely resolution of the litigation
and reinstatement of the ROD and the reimbursement of those advances. MDOT is
rapidly approaching the point at which it cannot continue to advance these funds.
18
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proceeding with project construction even with State funds. Therefore, the ROD
remaining vacated is effectively prohibiting the State from moving forward with
the District Court decision would likely give rise to substantial delay claims by
60. The absence of a ROD also jeopardizes the States ability to secure
federal funding through the annual appropriations process. As noted above, the
FY2017 appropriations bill includes $125 million in funding for the Purple Line,
which the State cannot access without reinstatement of the ROD. With the
appropriations are beginning and will continue through the summer. During this
time, the absence of a ROD for the Purple Line will jeopardize the States ability to
secure additional federal funding needed and anticipated for the project in FY2018,
61. The State remains firmly committed to the Purple Line, and
completion of the Purple Line is one of the State's highest infrastructure priorities.
19
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Nonetheless, without access to the anticipated federal funding for the project, and
without any clear indication of when an FFGA may be executed, the State will be
62. I anticipate that as of June 1, 2017, the State will no longer have
reasonable expectation that the ROD will be reinstated, I anticipate that the State
will direct PLTP shortly after June 1, 2017 to begin an orderly process of
when federal funding is obtained would involve substantial additional delays and
64. I expect that the suspension of ongoing project activities also would
impair the States ability to obtain additional federal appropriations for the 2018
Fiscal Year, which begins on October 1, 2017. If such appropriations are not
20
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obtained, the delay in obtaining the remaining portions of the federal funding could
cause additional delays, increased costs, and possible cancellation of the project.
face the ultimate decision of whether to cancel the project altogether. While the
State has taken and will continue to take all reasonable steps to avoid that outcome,
I expect that a decision to cancel the project could occur unless the ROD is
project activities.
66. To date, MTA and PLTP have taken steps to minimize the cost of
delay through the re-sequencing of project activities. However, with the passage
of time, opportunities to avoid incurring delay costs have greatly diminished and
are nearly exhausted. MTA anticipates that delay costs will escalate rapidly in the
coming months if the ROD is not reinstated. As described below, those delay costs
67. Under the terms of the P3 Agreement, PLTP has the right to
occurs.
provided notice to MTA asserting that the August 3, 2016 District Court order
21
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vacating the ROD for the Purple Line constitutes a Relief Event under the P3
Agreement.
69. If the State is required to compensate PLTP under the terms of the P3
Agreement, the State (and consequently, its taxpayers) would incur substantial
letters of credit);
later;
(that serve as an extension of MTA staff) who are assisting MTA with
70. MTA has not yet made a determination regarding PLTPs claim of a
71. MTA has been advised by its project management consultant that the
approximately $13 million per month. This estimate includes but is not limited to
22
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delay costs that may be owed to PLTP under the P3 Agreement. Based on this
monthly estimate, a 12-month delay would result in delay costs in excess of $150
million.
Delay is defined to include a delay resulting from a Relief Event that lasts 180 days
in accordance with the P3 Agreement, the State would also have the obligation to
projects financing obtained by PLTP that would otherwise have been spread over
the 30-year operating term. If applicable, the termination payments to PLTP plus
74. The potential costs to Maryland taxpayers if the project were delayed
for an extended period and then shut down could exceed $800 million. This
estimate includes:
23
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a) the States total investment in the Purple Line project to date, which is
b) the potential delay costs, which are an estimated $13 million per
month, and therefore would be in the range of $150 million over a 12-
start of construction or termination of the project will delay or deprive the many
77. As one example, the project is causing eight bridges in the Counties to
maintenance or replacement was put on hold by the Counties pending the project.
The project delay has recently forced Montgomery County to close Talbot Avenue
to traffic. This bridge is one of four that provides an important link to Lyttonsville,
24
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Maryland. Emergency vehicles and school buses will now have to take longer
dollars. In effect, the cancellation of the Purple Line would have an immediate and
devastating negative effect on transportation funding for projects across the entire
State.
I declare under penalty of perjury that the foregoing is true and correct.
~ );a_
Pete K. Rahn
25
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EXHIBIT B
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1
[email protected]
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2
APPEARANCES CONTINUED
For the Defendants: Tyler L. Burgess
U.S. DEPARTMENT OF JUSTICE
Environment
& Natural Resources Division
601 D Street, NW
Room 3204
Washington, D.C. 20004
(202) 616-4119
[email protected]
Kevin W. McArdle
U.S. DEPARTMENT OF JUSTICE
Wildlife
& Marine Rescue Section
P.O. Box 7369
Washington, D.C. 20044-7369
(202) 305-0219
[email protected]
Linda M. DeVuono Strozyk
OFFICE OF THE
ATTORNEY GENERAL- MD
100 S. Charles Street
Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
[email protected]
Court Reporter: William P. Zaremba
Registered Merit Reporter
Certified Realtime Reporter
Official Court Reporter
U.S. Courthouse
333 Constitution Avenue, NW
Room 6511
Washington, D.C. 20001
(202) 354-3249
Proceedings recorded by mechanical stenography; transcript
produced by computer-aided transcription
[email protected]
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3
1 P R O C E E D I N G S
2 DEPUTY CLERK: All rise. The United States
9 Administration, et al.
[email protected]
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4
4 Transit Administration.
12 give you a chance to set on the record why you believe you
21 for many years, and the state has confirmed its desire to
[email protected]
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5
14 hour, but that will be the next addendum to the request for
18 this program?
25 intervention?
[email protected]
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6
4 in the case.
10 uncertainty today.
14 that have been made today and based on the documents that
23 intervene.
[email protected]
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7
2 case.
7 make more sense to just come here and talk about it today
17 discovery --
[email protected]
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8
1 complete.
13 start.
17 days of the time that the government said that they were
[email protected]
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9
9 are a lot of variables that can go into the bids, which are
12 target, and we were hoping that the Court would agree with
24 $50 million; at the very same time, the state is asking for
[email protected]
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10
2 out by the end of the year. And, frankly, we don't see any
22 using in this context. I'm not real sure. But that's what
25 bids and the plans are not even due until December?
[email protected]
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11
22 like down the road when the bids are in and the project is
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12
1 2016?
16 that, and we may amend the complaint based upon that and
20 count and bring into the record their denial of the SCIS as
[email protected]
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13
3 beginning of 2016?
22 breaking of ground?
[email protected]
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14
1 months.
13 here for WMATA here in the District and the other lines,
[email protected]
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15
8 criminal case.
22 November.
25 bids?
[email protected]
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16
5 spring.
18 also.
[email protected]
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17
8 consolidate.
19 our aim was to attempt to try and brief this up by the end
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18
4 frankly.
6 for the plaintiff and talk over, you know, some kind of a
16 months.
18 THE COURT: That way we'd have the briefs all done
22 basically.
[email protected]
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19
3 that; give you a chance to strut your stuff. And then I'll
5 the question.
16 briefing. We would --
19 the same day he submits his. And then you respond to his
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20
6 I don't think.
7 Less is more.
12 THE COURT: Are you all right? Got what you need?
21 the spring.
[email protected]
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21
4 details, they've known about this suit now for months, it's
5 been around. These issues have been out there for months.
13 judgment.
20 figure it out.
22 the first briefs will be due some time in January, and then
[email protected]
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22
22 It is true that --
24 it.
[email protected]
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23
18 financing.
22 about it.
[email protected]
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24
5 reasoning.
16 consider it, and maybe I'll agree with you, and maybe I'll
23 okay?
[email protected]
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25
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
[email protected]
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26
C E R T I F I C A T E
I, William P. Zaremba, RMR, CRR, certify that
the foregoing is a correct transcript from the record of
proceedings in the above-titled matter.
[email protected]
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EXHIBIT C
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1
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APPEARANCES CONTINUED:
For the Defendants: Tyler L. Burgess
U.S. DEPARTMENT OF JUSTICE
Environment
& Natural Resources Division
601 D Street NW, Room 3204
Room 3204
Washington, D.C. 20004
(202) 616-4119
[email protected]
Kevin W. McArdle
U.S. DEPARTMENT OF JUSTICE
Wildlife
& Marine Rescue Section
P.O. Box 7369
Washington, D.C. 20044-7369
(202) 305-0219
[email protected]
Linda M. Strozyk DeVuono
OFFICE OF THE
ATTORNEY GENERAL- MD
100 S. Charles Street
Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
[email protected]
Albert M. Ferlo, Jr.
PERKINS COIE LLP
700 13th Street, NW
Suite 600
Washington, D.C. 20005
(202) 654-6262
[email protected]
Court Reporter: William P. Zaremba, RMR, CRR
Official Court Reporter
U.S. Courthouse
333 Constitution Avenue, NW
Room 6511
Washington, D.C. 20001
(202) 354-3249
Proceedings recorded by mechanical stenography; transcript
produced by computer-aided transcription
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1 P R O C E E D I N G S
2 DEPUTY CLERK: All rise. This Honorable Court is
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9 defendant can split their half hour as they see fit. But no
20 man for all seasons, but Mr. Fitzgerald is much more deeply
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7 They don't like the project. But they -- and a lot of them
18 case come before Federal Court, when all of this work's been
24 impact statement.
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7 again?
14 August 28th.
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21 Metropocolypse.
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2 following a vacatur.
4 four points.
7 software and data form the basis for the NEPA evaluation of
12 okay?
23 in this case?
24 Is it proprietary information?
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2 not disclosed.
4 that says --
15 early on?
20 to that.
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23 alternatives.
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17 federal funding.
23 just a minute.
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11 complaint about this process. First they say the public got
14 in detail what they wanted and what they needed. You just
18 finalized.
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4 But basically, that was just -- you know, they were fumbling
6 really got the chance, and these disks basically show that
10 true. But the MTA, the lead agency for Maryland developing
13 did that. This just shows how result driven the process
16 told MPA to do X.
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4 did they claim the harm would have been to making this
7 confidentially? I mean --
12 executed, that the experts were bound by, and any failure to
14 repercussions.
20 worked out.
25 been prepared.
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10 transportation network.
14 landscape."
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3 other?
24 who want to travel from where they are to where they want to
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1 religiously.
6 other way. But that simply ignores the fact that you could
11 notes that the same thing could be said for the various
23 be done.
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6 made the rejection of the SEIS the lead point in our briefs.
12 information.
15 for and build into the construction the safety problems that
22 ago.
25 here.
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2 Your Honor.
5 economic analysis for the Purple Line, and all of this can
7 Supplemental EIS.
10 rise or fall with Metro, but we already know, from their own
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20 the ones that filed the federal register notice saying that
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4 our understanding.
12 record.
16 findings.
20 position on that.
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19 county and every other interested party was doing what they
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2 green track, would basically set back the county and the
6 did.
14 FTA's own guidance says you must use, for rail projects and
16 every six minutes, every seven minutes most hours of the day
17 and night.
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10 all over again for the Corps. They could have had the Corps
22 fundamental changes.
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11 The same DOT order says you will assess the air
23 the cars.
25 to drive those cars, and that means air pollution. They did
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9 Spring, I believe.
19 would not. And yet they proceed to say, well, it's okay if
21 law says.
24 defendants.
25 Ms. Burgess.
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3 proprietary-information issue?
10 by reference.
13 accessed by individuals.
20 Transit.
24 available.
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3 would have been made available if any FOIA request had been
21 record?
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23 But this was not an issue. They didn't complain that they
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25 consideration.
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4 of it required an SEIS.
8 not significant.
15 on this and we don't like what you did; we don't like the
19 supplement.
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11 used, if practicable.
16 analysis.
25 that mow lawn that's between tracks. I've never seen such a
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6 they only grow about eight inches high. They don't actually
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1 grow plant material in the area at all, and so those are the
12 engineering expertise.
17 treatment pond or what have you. And only if those are not
20 the agencies must scrap the process and start all over
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1 left, why don't you address the argument that the plaintiffs
5 straightforward argument.
10 requirements.
15 right?
23 other things.
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3 funding.
5 dotted line until it's sure that all of the promises from
6 all the local agencies that are involved are going to commit
18 and that is when the Secretary will sign-off and say, yes,
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1 could be made?
5 Record of Decision.
10 period and a lag between those two events. But, again, the
14 questions...
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8 between the Metro and the Purple Line: One, they are
16 for doing that is to give them the -- they call it the skin
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5 recognized.
14 quality-based standards.
16 the most stringent in the country. They don't just make the
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20 public.
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4 County.
18 will create more riders, lots more -- you know, more people
20 purpose.
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1 least-costly alternative.
5 all, there were -- the ones that they refer to were from the
15 which is provided.
19 contract with the MTA, and thus the request is denied under
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2 ridership.
11 information. Not only that, the State met -- and the record
12 will indicate and it's cited into our brief -- that the
13 State met with these requesters, the Chevy Chase -- the town
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6 have the skills that our consultants do, nor is the state
15 software.
20 with NEPA.
25 alternatives analysis.
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7 once you get a ROD, that's just one check box, one check box
10 quoted.
17 we're not going to provide you with all the money to do,
22 point -- and then there are some other reports that must be
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20 they do not.
23 over the past few weeks, has been gathering all of their
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2 closed.
6 information.
14 Your Honor...
18 or an administrative agency?
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9 Your Honor.
13 know.
18 All right.
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13 I'll hear -- I'm sure I'll hear from them a second about
14 this.
20 safety risks with the tracking, the fire risks and other
24 argument.
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21 the linkage between the Purple Line and these four other --
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8 Purple Line.
11 were made, then logically, and then by, I think, any sort of
22 because you could vacate the current ROD on that basis, say
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7 Your Honor.
17 can tell you precisely how long, but I do know that when
19 fairly quickly.
21 six months?
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12 case. This is not just a bunch of folks that sit around and
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4 for a challenge.
14 Congress's intent.
17 about the impact of the recent safety issues with the Metro
22 federal funds.
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4 course and it's difficult for them to get off that course,
6 look.
13 pro-jobs project.
15 Who's against having more jobs for more people? So one can
22 federal law.
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3 Your Honor.
10 circumstances.
21 Court were to agree with you that we should, you know, put
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1 the existing Metro system, and, you know, set a time frame
18 I'm not sure it would make any sense for them to appeal.
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4 own determination.
7 that order, unless they asked for a stay of the order, which
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4 review.
14 agreement?
16 head no, Your Honor. So that means I don't have any reason
17 to think that.
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1 Thank you.
8 that the agencies don't have to do an SEIS any time any new
21 would, indeed, have that kind of, you know, corrosive effect
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5 issue.
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2 that has not been done, maintenance that has not been done
16 Your Honor.
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9 questions.
13 directly on.
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12 long-term plan.
24 so.
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15 federal funding. The states are really the ones that make
17 projects.
23 try and develop and set forth the projects that they think
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3 I'm sure I'll hear from the State of Maryland on this issue
4 in a second.
13 ridership, and then roll that into one ball and get a
14 Supplemental EIS done in the next six months, and then see
19 around for, what did you say, it started eight years ago,
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14 20 percent?
23 this and briefed this with Federal Transit, and they have
24 agreed.
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19 that the ridership for the Purple Line was based primarily
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6 a burden that they have to show; that this decision that the
9 not only this issue of the Washington Metro but all the
13 they've made.
17 allotted.
20 Ms. DeVuono.
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9 license. And what they want -- what they didn't get was a
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2 They got all of the data, all the inputs, all the outputs.
3 They were given reports of all that data. And they were
14 already in engineering.
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1 that they will actually give that 900 million, they have to
7 Court, except for one line: They violated 5309. That's all
12 no longer be needed.
24 impact they think the current troubles with the Metro will
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3 people will ride the Purple Line because they don't want to
6 ride it from end to end, because you can ride the Metro
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5 infeasible.
14 last night.
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3 would incur all the costs that they have thus far incurred
7 up in that situation.
9 record that the ridership will decline in the year 2040 and
22 later and you say, I wish I'd said this, I wish I'd said
25 say what you wish you'd said. But you only got 15 pages in
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14 Your Honor?
18 I'm sorry.
23 for your review, we've offered a hard drive that would give
24 you clean and clear copies that are in color. If you would
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4 consented to this.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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C E R T I F I C A T E
I, William P. Zaremba, RMR, CRR, certify that
the foregoing is a correct transcript from the record of
proceedings in the above-titled matter.
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EXHIBIT D
Plaintiffs, *
v. *
and *
Defendant Intervenor *
* * * * * * * * *
TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES
Page
CASES
STATUTES
5 U.S.C. 706(2)(A)........................................................................................................................1
REGULATIONS
OTHER AUTHORITIES
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the four main reasons cited by Plaintiffs at the June 15, 2016 hearing in support of their claim
that a supplemental EIS should be prepared: (1) reliance on so-called proprietary information
regarding ridership forecasts used in the NEPA process; (2) the length of time since the
comparison of the selected light rail alternative to a bus rapid transit or BRT alternative; (3)
the potential effect of the Metro systems recent difficulties on the Purple Line; and (4) the fact
that FTA did not make determinations under 49 U.S.C. 5309 as part of its Record of Decision
(ROD) in the National Environmental Policy Act (NEPA) process. None of these arguments
has merit, and thus there is no basis for requiring a supplemental EIS.
STANDARD OF REVIEW
An agencys decision must be upheld unless a plaintiff establishes that the decision was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.
706(2)(A). Under NEPA, the existence of new information requires a supplemental EIS only
when the new information provides a seriously different picture of the environmental landscape.
National Committee for the New River, Inc. v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004).
Here, FTA reviewed and gave reasoned consideration to each of Plaintiffs many requests for a
supplemental EIS and found, in accordance with its regulations, that a supplemental EIS was not
warranted. Because Plaintiffs have not borne their burden of demonstrating that FTAs decision
ARGUMENT
At the June 15 hearing, Plaintiffs argued that MTAs alleged refusal to provide
proprietary information had stymied Plaintiffs ability to provide comments on the Purple Line,
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and a supplemental EIS would give them an opportunity that they did not previously have. As
explained below and in the States previous briefs, this claim has no merit and provides no basis
for requiring a supplemental EIS. The Plaintiffs have had the information and ability to analyze
ridership forecasts for nearly a year far longer than the six months in which they claimed at the
hearing they could complete such an effort. That is, even though the Plaintiffs never requested
any ridership forecasting data, the MTA and FTA provided directly to Plaintiffs the relevant
materials (data inputs and outputs, model scripts, certain proprietary software) and directions
for acquiring a license to commercially available modeling software almost a year ago. The
1. Plaintiffs Never Sought Data During The NEPA Process, Nor Did
They Object To MTAs Responses To Others Data Requests.
At the hearing, Plaintiffs claimed that FTAs decision was flawed because of the way
MTA responded in 2008 and 2009 to certain requests by others for technical information
related to cost estimates and ridership forecasts used in comparing alternatives. For all of the
reasons stated in the States previous briefs, FTA fully complied with its disclosure obligations
by ensuring that the public had sufficient information to allow for informed comment on the
NEPA documents. MTA Opening Brief 24-27; MTA Reply Br. 15-17. In this brief, we
elucidate only a few specific points related to matters raised at the June 15 hearing.
First, Plaintiffs claims that they were frustrated in their ability to comment on the Purple
Line NEPA process are disingenuous. The record on this point is clear: Plaintiffs did not submit
any of the public information requests at issue in this lawsuit; those requests were submitted
solely by other parties (the Town of Chevy Chase and the Columbia Country Club). Moreover,
Plaintiffs submitted comments during the NEPA process, but did not seek the information they
now claim should have been provided. Plaintiffs comments on the Final EIS are instructive: In
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total, Plaintiffs submitted 42 single-spaced pages of comments on the Final EIS. AR2_226851 -
65; AR2_226773 99. Their comments raised dozens of issues, many of them highly technical.
FTA responded to those comments point-by-point in the ROD. AR1_000093 267. Not a
single one of Plaintiffs comments on the Final EIS raised any concerns regarding the adequacy
of the data made available by FTA or MTA during the NEPA process. In short, Plaintiffs did not
give Defendants an opportunity during the NEPA process to address the disclosure concerns
The Court should not set aside FTAs NEPA document based on concerns that Plaintiffs
themselves did not raise during the NEPA process. See Dept of Transp. v. Pub. Citizen, 541
U.S. 752, 764 (2004) (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519, 553 (1978)) (participants in the NEPA process must structure their participation
At the hearing, Plaintiffs sought to characterize MTA as unresponsive to the Town and
the Clubs requests for technical information used in the comparison of light rail and bus rapid
transit (BRT) alternatives. As discussed below, the record shows the opposite an extended
dialogue involving correspondence and in-person meetings, which enabled the Town and the
from public record requests made by the Town and the Club in 2008 under the Maryland Public
Information Act (PIA), Md. Code Ann., General Provisions, 4-101 et seq. MTA Opening Br.
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with the Town and the Club, which focused on the relative merits of two distinct types of
alternative a BRT line along Jones Bridge Road, which the Town and Club preferred, or a light
rail line built in the Georgetown Branch right-of-way, which the Town and Club strongly
opposed. See MTA Opening Br. 9-11 and n.12 (list of administrative record citations).
Contrary to the Plaintiffs claims, the record includes extensive correspondence with the
Town regarding the assumptions used in the analysis of the Jones Bridge Road BRT alternatives
as well as other aspects of the analysis in the AA/DEIS. 1 Time and again, MTA responded to the
Towns technical questions, both in writing and in meetings. 2 The correspondence reveals a
highly technical discussion of the ridership forecasts, such as traffic signal timing assumptions
down to the number of seconds at each individual intersection on Jones Bridge Road. 3 In fact,
after MTA provided its detailed responses to the Towns PIA requests, MTA offered to meet
with the Town and its traffic consultants again to explain the modeling and the Town declined
the invitation. 4 Three times, MTA extended the invitation, and the Town did not take MTA up
1
See AR2_181401 (MTA letter to Town of Feb. 25, 2008); AR2_179780 (Town letter to MTA
of March 27, 2008); AR2_179776 (MTA letter to Town of April 16, 2008); AR2_179754 (Town
letter to Md. Secretary of Transportation of April 17, 2008); AR2_178719 (Md. Secretary of
Transportation letter to Town of May 27, 2008); AR2_161782 (MTA letter to Town of Aug. 15,
2008); AR2_214695 (Town letter to MTA of Sept. 30, 2008); AR2_161269 (MTA letter to
Town of Oct. 1, 2008); AR2_161082 (MTA letter to Town of Oct. 8, 2008); AR2_160905 (MTA
letter to Town of Oct. 20, 2008); AR2_160813 (MTA letter to Town of Oct. 24, 2008);
AR2_159983 (Md. Secretary of Transportation letter to Town of Dec. 1, 2008); AR2_156958
(MTA white paper responding to Town, Jan. 2009); AR2_145233 (Town letter to Governor of
June 2, 2009); AR2_133946 (Md. Secretary of Transportation letter to Town of July 30, 2009).
2
See AR2_156958 (referring to meeting regarding forecasts on March 11, 2008); AR2_167556
(referring to meeting regarding forecasts on July 31, 2008); AR2_161269 (referring to meeting
regarding forecasts and other issues on Aug. 26, 2008).
3
See AR2_160813 - 14 (explaining basis for MTAs assumptions regarding traffic signal timing
under Jones Bridge Road BRT alternative); AR2_150110 (responding to Towns proposal
regarding traffic signal timing for BRT on Jones Bridge Road).
4
See AR2_160813 (inviting Town to meet regarding forecasts); AR2_160568 (confirming Town
declined invitation to meet and re-extending invitation); AR2_149807 (re-extending invitation to
meet); AR2_133946 (noting that Town declined offer to meet).
4
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on that offer. Viewed in context of this entire body of correspondence, it is clear that MTA was
open and responsive in its communications regarding the modeling for ridership forecasts.
The record shows that the Town and the Club were represented by counsel, were advised
of their rights to appeal MTAs responses to their PIA requests, and did not appeal. Further, the
Town and Club never submitted any Freedom of Information Act (FOIA) requests to FTA.
See FTA Reply Br. 6 (citing Navajo Nation v. U.S. Forest Serv., 408 F. Supp. 2d 866, 878 (D.
Ariz. 2006)). When the Final EIS was issued, the Club submitted no comments, and the Town
submitted comments but raised no specific concerns regarding a lack of data. MTA Reply Br. 15,
n.9. On this record, it could not have been arbitrary and capricious for FTA to conclude that the
Towns and Clubs requests had been addressed sufficiently to satisfy NEPA requirements.
Plaintiffs repeatedly complain that data made available by MTA was unreadable.
Implicit in this argument is the assumption that MTA was obligated not only to release data, but
also to provide to the Town, the Club, or any other commenter that asked for it licenses to
use any of the software used by MTAs consultants in the NEPA process. When asked by the
Court to provide support for this novel claim, Plaintiffs cited a Council on Environmental
Quality (CEQ) regulation, 40 C.F.R. 1502.21. But as explained in the Defendants briefs,
reference in a NEPA document. See MTA Opening Br. 24, n.17. Nothing in Section 1502.21 or
elsewhere in the CEQ regulations requires agencies to purchase software licenses allowing the
general public to use computer programs used in developing the Final EIS.
In short, Plaintiffs have cited no legal authority and there is none for requiring a
federal or state agency to provide licensed software available upon request, for free, to any
commenter who asks for it in the NEPA process. To impose such a requirement would be cost-
5
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prohibitive and unduly burdensome, given the large number of commenters and the large number
4. Plaintiffs Have Had Access To The Model Data, Model Scripts, and
Software For Nearly A Year.
During Plaintiffs rebuttal argument, the Court asked whether it would be advisable for
the parties to enter into a confidentiality agreement that would allow Plaintiffs to review data or
software that Plaintiffs asserted was classified by MTA as proprietary. The Court also
suggested that implementation of the Project could be delayed for several months to allow
Plaintiffs to review and analyze the alleged confidential data without causing any significant
problems to either MTA or FTA. Plaintiffs indicated that they would welcome the opportunity
In fact, the administrative record in this case includes the model data used in developing
the ridership forecasts for both the AA/DEIS and the Final EIS, as well as model scripts and the
summarizing the model output. These items are specifically listed and described in the index to
the administrative record. See Attachment A (ECF No. 24-2, p. 1065). The same materials were
provided separately to the Town by letter dated July 30, 2014. See Attachment B. Prior to the
status conference held by the Court on July 15, 2015, Defendants counsel provided to Plaintiffs
counsel a copy of MTAs letter to the Town; the letter described the materials that had been
provided and identified the commercially available software needed to run the model itself. See
Attachment C, p. 3. In short, as of July 15, 2015, Plaintiffs had all of the data and all of the
5
Plaintiffs never directly requested this data or the software from FTA or MTA; Defendants
chose to include it in the administrative record because of the issues raised in their Complaint.
6
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After receiving this data, Plaintiffs complained that it was unreadable without
specialized software. In a letter to Plaintiffs counsel dated September 25, 2015, FTAs counsel
again described the contents of the disks, informed Plaintiffs counsel that the modeling software
was commercially available, and provided instructions on how they could purchase that
Because the Plaintiffs have already had the opportunity the Court offered to the Plaintiffs,
it would be unjust and serve no purpose to direct Defendants to again provide that information to
Plaintiffs now. Nor would there be any purpose in entering into a confidentiality agreement,
because the same materials were provided to the Town as well and are not confidential. The sole
remaining issue is whether Defendants have any obligation to purchase for Plaintiffs use a
commercially available software license allowing them to run the model. As explained above,
Plaintiffs have not cited any legal authority for requiring an agency to purchase software for use
by commenters or others who wish to re-run the agencys models. Therefore, Plaintiffs demand
Plaintiffs suggested at the June 15 hearing that a supplemental EIS is needed to ensure
that the public has a full understanding of the relevant differences among alternatives, citing
BRT (bus rapid transit) alternatives as requiring further review. However, the relevant
alternatives were fully analyzed, and the differences between them were stark and unmistakable.
The heart of this dispute and the central issue in the NEPA process involved the
choice between two very different approaches to providing public transit service in the western
7
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portion of the Purple Line corridor, where the Georgetown Branch right-of-way is located. 6 The
Town and many of its residents adamantly opposed using the Georgetown Branch right-of-way
for public transit service and instead advocated building a BRT (bus rapid transit) line along a
more circuitous route using Jones Bridge Road. The record demonstrates that Defendants took a
hard look at the Jones Bridge Road BRT concept, but ultimately decided that a light rail line
using Georgetown Branch would better meet the purpose and need of the project and better
Defendants explained their reasons for selecting the Georgetown Branch light rail over
the Jones Bridge Road BRT alternative. See AR1_001944 (summarizing rationale for selecting
light rail over BRT); AR1_002352, AR2_160104, and AR2_133946 (summarizing drawbacks of
Jones Bridge Road BRT alternative). In responding to comments from the Town, the Maryland
Secretary of Transportation summarized main drawbacks of the Jones Bridge Road BRT
alternative as follows: (1) reducing existing general traffic lanes on Jones Bridge Road ... would
result in adverse impacts to traffic flows along this east-west route, and would result in increased
demand on alternate roadways; (2) it would be very difficult to locate stations in the median
along the Jones Bridge Road alignment without substantial property impacts; (3) it is unclear
how left turns for traffic would be accommodated without substantially impacting BRT
operations; (4) the BRT proposals do not take into account the State Highway Administrations
plans for the Jones Bridge Road corridor; and (5) the State does not accept the Towns
assumptions regarding the percentage of existing automobile traffic on Jones Bridge Road that
would shift to the BRT. AR2_133946 47. The larger issue associated with using Jones
6
Georgetown Branch was used for freight rail service for over 100 years. After freight rail
service ended in the mid-1980s, Montgomery County acquired the right-of-way for
transportation and other uses. In 1990, the County designated the Georgetown Branch for use as
a light-rail transitway with a paved trail. See MTA Opening Br. 3-4.
8
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Bridge Road as an alternative alignment continues to be one of travel times. Any Purple Line
alternative utilizing Jones Bridge Road results in travel time delays for the larger travel market
which is destined for the Bethesda Central Business District. Id. (emphasis added). 7
In the Final EIS, as part of its responses to public comments, FTA again summarized the
reasons for selecting the Georgetown Branch light rail alternative over BRT alternatives, noting
that the BRT alternatives provided lower user benefits than the LRT alternatives; the BRT
alternatives were less reliable, did not provide the same level of travel time savings, and had
lower projected ridership. In addition, the BRT alternatives were limited in their ability to handle
increased ridership in the future beyond the design year. AR1_002352. Further, FTA noted
that stronger public and stakeholder support for the Georgetown Branch light rail alternative,
as well as that alternatives consistency with the Montgomery County master plan and
endorsements of that alternative by Montgomery County and Prince Georges County. Id.
As these responses show, the NEPA analysis identified fundamental differences between
the two main alternatives at issue in this case. Those differences involved a wide-ranging set of
issues related to transportation benefits, impacts, and costs; ridership was only one factor and
was not identified as the deciding factor. In the end, Plaintiffs and others disagreed with the
Defendants policy decision about which alternative to select. But the record shows that
decision-makers and the public understood the relevant differences among these alternatives.
There is simply no evidence that new ridership projections would affect the underpinnings of the
Defendants decision to select a Georgetown Branch light rail alternative; therefore, no new
7
One of the key advantages of the Georgetown Branch light rail alternative is that it provides
much faster travel time 9 minutes between Bethesda and Silver Spring, as compared to a 25-
minute travel time for the Jones Bridge Road BRT alternative. MTA Opening Br. 8.
9
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At the June 15 hearing, Plaintiffs asserted that a recent decline in ridership levels on the
regions Metrorail subway system (Metro) was new information that required FTA to
prepare a supplemental EIS. Plaintiffs arguments seek to capitalize on the intense public
attention and media coverage surrounding the recent Metro service disruptions, without actually
showing how those events undermine the basis for FTAs approval of the Purple Line. At
bottom, Plaintiffs arguments rest on little more than a speculative doomsday scenario in
which the Metro systems current difficulties are never effectively addressed, even by 2040.
response by FTA, which is intimately familiar with both the Purple Line and the repairs being
made to address the Metros dated infrastructure. As this Circuit has held, an agency is not
required to prepare a supplemental EIS or even a formal document explaining why ... a
supplemental EIS is unnecessary simply because new information has come to light. Friends
of the River v. FERC, 720 F.2d 93, 109 (D.C. Cir. 1983). Under this standard of this Courts
review, FTAs decision not to prepare a supplemental EIS addressing Metros ridership and
require a supplemental EIS. 8 As explained at the hearing, the travel forecasts used in the NEPA
process were based on projections for the horizon year of 2040. MTA Reply Br. 6. There is
simply no evidence before this Court that the Metro is experiencing the type of long-term decline
8
Plaintiffs submitted no data showing ridership declines on the Metro system, nor have they
shown that ridership is declining specifically at the stations that would connect to the Purple Line
(Bethesda, Silver Spring, College Park, and New Carrollton).
10
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in ridership that would continue through 2040, nor is there evidence that any future decline on
the Metro would (as Plaintiffs suggest) profoundly and negatively affect Purple Line ridership.
Further, it would be illogical to extrapolate from a ridership decline that occurs during a period
when Metro is temporarily reducing service to allow faster implementation of safety upgrades.
Major investments are based on long-term trends, not short-term fluctuations no matter how
Even if Metro were to experience a substantial and sustained ridership decline, there is no
evidence in the record to suggest that such a decline would greatly affect the ridership on the
Purple Line. To the contrary, nearly three-quarters of Purple Line riders would not use the Metro
for any portion of their trip; they would access the Purple Line by walking, by transferring from
a bus, or by driving. MTA Reply Br. 6. And in fact, only 13 percent of boardings at Purple Line
stations would involve transfers from Metro; 77% would arrive by other means (e.g., by bus or
on foot). AR1_005361 - 62. Given the relatively low number of Purple Line passengers
expected to transfer to or from Metro, fluctuations in Metro ridership caused by recent efforts to
remedy safety issues on the Metro system do not require preparation of a supplemental EIS.
Moreover, even if Purple Line ridership in 2040 is somewhat lower than the forecasts
used in the NEPA process, it would not undermine the fundamental rationale for building the
Purple Line project. The purpose and need for the project is centered on providing faster, more
direct, and more reliable east-west transit service connecting the major activity centers in the
Purple Line corridor at Bethesda, Silver Spring, Takoma/Langley Park, College Park and New
Carrollton. AR1_000003. The project achieves that objective even if the number of riders
11
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Line ridership would not provide a seriously different picture of the environmental landscape.
Finally, there is no basis for concern that FTA might commit federal funds to this project
based on outdated ridership forecasts that fail to consider recent developments. MTA has in fact
submitted updated forecasts, which are currently under review by FTA. If there were any
notable change in the forecasts (and there is not), FTA would have the opportunity to consider
that change before committing federal funds, and if needed would reevaluate its prior NEPA
approvals before doing so as required by its regulations. See 23 C.F.R. 771.129. Plaintiffs
unsubstantiated speculation about Metros potential effects on Purple Line ridership in 2040 does
At the hearing, the Court noted recent reports of safety issues involving the Metro and
asked whether those issues might require FTA to conduct a supplemental EIS. The Court asked,
in particular, about safety issues that have arisen after Plaintiffs made their October 9, 2015
request for a supplemental EIS. On the current record, there is no basis for requiring a
First, as MTA noted at the hearing, the Purple Line and the Metro are separate transit
systems that have different owners and use different technologies. The Metro is operated by the
body governed by its own board. The Metro is powered by an electrified high-voltage third
rail in the track-bed, which requires that the system be operated only in tunnels or on aerial
structures. By contrast, the Purple Line will be powered by overhead wires, which avoid the
need for an electrified third rail and thus allow the system to operate on the ground surface. The
Purple Line is being developed by the Maryland Department of Transportation (MDOT) and
12
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its transit agency, MTA, which have entered into contract under which a private consortium will
finance, design, build, operate and maintain the system to strict performance and safety standards
for a period of 35 years. MDOT and MTA retain ultimate responsibility for the safety of the
traveling public and for enforcement of all the contractual obligations, and they have
incentivized the contractor to adhere to its maintenance and operating obligations through
payment reductions. Given these facts, there is no basis for inferring that any safety issues
Moreover, the facts cited in Plaintiffs request for a supplemental EIS do not support an
inference that Metros safety problems will affect ridership on the Purple Line. Plaintiffs letter
of October 9, 2015 noted without explanation four items related to the Metro system, two of
which involve safety. AR5_006470 to 71. The two safety-related items cited in Plaintiffs letter
provide no support for their argument; to the contrary, they show that the federal government, at
the highest levels, has stepped in to ensure that Metros safety problems will be fixed.
The FTA Safety Directive. As Plaintiffs noted, FTA issued a safety directive to
WMATA in June 2015, requiring a series of safety improvements recommended in a June 2015
report. 9 But issuance of this safety directive, and FTAs heightened involvement more generally,
does not support Plaintiffs argument. Rather, it shows that Metros safety problems have been
identified and are being addressed. Moreover, to the extent the Court considers recent events, it
is clear that FTA remains actively involved in ensuring implementation of the safety directive,
and indeed many of the required safety improvements have been completed. 10
9
FTA Safety Directive 15-01 (June 17, 2015), at:
https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/Safety_Directive_15-1_Final.pdf.
10
FTA, WMATA Safety Oversight Activities, at https://www.transit.dot.gov/regulations-and-
guidance/safety/wmata-safety-oversight-activities.
13
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The NTSB Report. As Plaintiffs also noted, the National Transportation Safety Board
(NTSB) recommended that Congress shift responsibility for safety oversight of WMATA from
a regional body to a federal agency. AR5_006470. But again, the facts undercut Plaintiffs
the NTSBs report by directing FTA to take on an increased role in overseeing WMATAs
compliance with federal safety standards. 11 In communicating this decision, the Secretary stated
that this increased oversight means that FTA will now directly enforce and investigate the
safety oversight of WMATA Metrorail until a newly created regional body is in place to take
over those responsibilities. Id. As noted above, FTA is actively carrying out this oversight role.
In short, the evidence before this Court does not support Plaintiffs doomsday theory of
the Metro becoming permanently unsafe. Rather, the evidence shows that FTA has taken strong
action to ensure that safety issues are addressed. In this light, it is clear that FTA was not
arbitrary and capricious when it determined that WMATAs safety issues do not require a
supplemental EIS for the Purple Line. AR5_00003 at 04 (FTA); AR5_00005 at 09 (MTA).
Finally, even assuming hypothetically (and unrealistically) that Metros safety problems
are not effectively addressed, and assuming further that those problems lead to a long-term
decline in Metro ridership relative to current trends, there still is no evidence that such a decline
would negate the fundamental rationale for building the Purple Line. Plaintiffs present only
FTA was not arbitrary and capricious in deciding not to prepare a supplemental EIS.
In sum, FTA set forth a reasoned basis for deciding that a supplemental EIS is not warranted.
There is no basis for finding that the FTA was arbitrary or capricious in reaching that conclusion.
11
Letter from U.S. Transportation Secretary Anthony Foxx to NTSB Chairman Christopher
Hart, dated Oct. 9, 2015, at: https://www.transportation.gov/briefing-room/letter-us-
transportation-secretary-anthony-foxx-ntsb-chairman-christopher-hart-ntsb.
14
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At the June 15 hearing, counsel argued that Plaintiffs had failed to adequately plead a
claim under the New Starts program, 49 U.S.C. 5309, and that if such a claim were properly
pleaded, the administrative record would reflect the relevant submissions by the State and the
review by FTA of the Purple Line under the New Starts program. In short, Plaintiffs have not
pleaded a viable section 5309 claim; FTAs decision-making under section 5309 is ongoing; and
the question of whether a section 5309 claim can be brought in the future is not before this Court.
Plaintiffs section 5309 claim should be dismissed. See MTA Reply Br. 11-15. 12
For all the reasons stated above and in our previous briefs, there is no basis for finding
FTA in violation of NEPA and therefore no basis for issuing an injunction requiring a
supplemental EIS to be prepared. But if the Court were to consider providing such relief, the
State respectfully requests an opportunity to inform the Court of the complex contractual
arrangements involving the project, including the potential for a seemingly modest delay to have
12
There also is no merit to Plaintiffs claim that FTA must make its section 5309 findings
concurrent with the NEPA process. Plaintiffs misread the plain language of the statute. The
applicant must prepare information concurrent with the NEPA process, as MTA did here but
under the statute, FTA makes its section 5309 determinations only after the NEPA process is
completed. MTA Reply Br. 13.
15
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BRIAN E. FROSH
Attorney General of Maryland
16
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CERTIFICATE OF SERVICE
I hereby certify that on June 29, 2016, a copy of the foregoing document was served via
David Brown
Knopf & Brown
[email protected]
Kevin W. McArdle
U.S. Department of Justice
[email protected]
Jeremy Hessler
U.S. Department of Justice
[email protected]
Tyler L. Burgess
U.S. Department of Justice
[email protected]
John M. Fitzgerald
4502 Elm Street
Chevy Chase, MD 20815
[email protected]
Attachment A
(ECF No. 24-2, p. 1065)
Doc ID Begin Doc ID End Date Document Description / Title From / Author To CC / BCC DVD
AR2 219924 AR2_219949 Record of phone calls Purple Line Project DVD No. 4
Team
AR2 219950 AR2_219952 Responses to Roger Paden's Purple Line Project DVD No. 4
Questions Team
AR2 219953 AR2_219953 Silver Spring meeting log Purple Line Project DVD No. 4
Team
AR2 219954 AR2_219955 Talbot Avenue Bridge Purple Line Project DVD No. 4
Team
AR2 219956 AR2_219957 The Indian Spring Citizens Association Hausner, Tony DVD No. 4
Perspective on the Purple Line
AR2 219958 AR2_219958 Town of Chevy Chase Purple Line Purple Line Project DVD No. 4
Mitigation Priorities Team
AR2 219959 AR2_219963 Transportation Research Board No Boorse, Jack DVD No. 4
1930 Directly and Indirectly Reducing
Visual Impact of Electric Railway
Overhead Contact Systems
AR2_219964 AR2_219964 Travel Forecasting Data -- 2030 DVD No. 5
Forecasts-No Build and FEIS Build
Scenarios
--Inputs necessary to run models
--Outputs of model runs
--Model scripts
AR2_219965 AR2_219965 Travel Forecasting Data -- 2040 DVD No. 6
Forecasts-No Build and FEIS Build
Scenarios
--Inputs necessary to run models
--Outputs of model runs
--Model scripts
--PB Software (in "Root Directory"
folder
Attachment B
(Letter dated July 30, 2014)
Maryland
Page 160 of 219
July 30,2014
We understand the Town of Chevy Chase seeks additional information that would allow you to
validate ridership forecasts prepared by the Maryland Transit Administration (MTA) for the
Purple Line light rail project. In support of your inquiry I am enclosing three reports on the travel
forecasts, two DVDs containing over 6.6 Gigabytes of data, and information on how and from
whom to acquire software used to compile the results.
1. Purple Line FEIS Travel Forecast Results Technical Report (also available on the Purple
Line website)
2. Purple Line AAIDEIS Travel Demand Forecasting Technical Report (also available on the
Purple Line website)
3. New Starts Travel Forecasting Model Calibration Report for Evaluating the Purple Line and
Corridor Cities Transitway Projects (November 201 0)
4. Two DVDs containing:
- Inputs necessary to run the models for all four alternatives (2030 and 2040 No Build
and Build Alternatives) presented in the Purple Line FEIS (August 2013)
- Outputs of the travel forecasting model runs for the above four FEIS alternatives
- Model scripts, including the compiled Java scripts Gar files) to run the applicable
portions of the model.
5. Software developed by Parsons Brinckerhoff used to compile summaries of results. (See
Disk Bin the file "Root Directory" folder labeled "Software.") This software is not part of
the model that produces the forecasts; it only assists in summarizing the results. In order to
actually run the model, it is necessary to purchase a license to run Cube, the commercial
modeling software, which is available from Citilabs (www.citilabs.com).
The MTA has used nationally accepted practices for travel forecasting for the Purple Line
project, and we stand behind these practices and the results. The MTA continues to make itself
and its consultants available to provide further information and background on the process used
to prepare the Purple Line ridership forecasts. Thank you for your continued engagement in the
Purple Line project.
HenryM. Kay
Executive Direct for Transit Development and Delivery
Enclosures
Attachment C
(Letter dated September 25, 2015)
[Tables 1 and 2 omitted]
Re: Friends of the Capital Crescent Trail et al. v. FTA et al., No. 1:14-cv-01471-RJL
(D.D.C.)
Thank you for your letter dated August 25, 2015 providing a list of documents that
Plaintiffs wish to include in the Administrative Records for the Purple Line litigation. We
provide you the Federal Transit Administrations (FTA) and U.S. Fish and Wildlife Services
(FWS) response, recognizing that the parties are required to file a joint status report on
October, 14, 2015. ECF No. 30.
Table 1 responds to each document, or group of documents, that you referenced and
provides an explanation for the Agencies conclusions regarding your request. In addition, the
agencies have identified eight documents that were inadvertently omitted, see Table 2, and the
Agencies will file a corrected Certified List of Administrative Record Contents as soon as
practicable to add these documents to the appropriate Administrative Record.
FWSs Administrative Record for the January 7, 2014, August 22, 2014, and May 13,
2015 Endangered Species Act determinations related to the Purple Line (ECF Nos. 24-3, 24-4),
and FTAs AR3 supporting its May 19, 2015 decision not to prepare a supplemental
Environmental Impact Statement with respect to the Kenks or Hays Spring amphipods (ECF
No. 25), contain documents that post-date the ROD. However, the majority of the documents
that you brought to our attention post-date either the ROD or the subsequent agency
determinations supported by ECF Nos. 24-3, 24-4, and 25, or are unrelated to the subject matter
of those determinations. On that basis, the Agencies decline to include the documents in any of
the Administrative Records.
In addition, a number of the items such as news articles and blogs providing commentary
on the project are not relevant to the environmental analysis, nor were they submitted to the
agencies for their consideration. The final report by Dr. Culver (Doc. 19) and Dr. Manvilles
affidavit (Doc. 21) were never submitted to the agencies. Therefore, the agencies decline to
include those items in the Administrative Records because they were not directly or indirectly
considered by FTA or USFWS in taking any final action regarding the Purple Line.
It is the Agencies position that in order for Plaintiffs to rely on any documents not within
the Administrative Records, they will need to demonstrate that the documents fall within one of
the limited exceptions to the record review rule. Where the Agencies have concluded that the
documents should not be included within the Administrative Records, they also believe that
Plaintiffs will not be able to meet their burden to admit them as extra-record evidence.
In your August 25, 2015 letter, you also raise a number of issues not pertaining to the
scope of the Administrative Records. With respect to your request for the United States consent
to amend the pleadings, we will consent to the filing of a supplemental pleading consistent with
Federal Rule of Civil Procedure 15(d) and the schedule set forth below to address the events that
have occurred after the date of the pleading to be supplemented. The United States cannot,
however, stipulate that the operative pleading filed on April 9, 2015 (ECF No. 20) includes
events that happened after it was filed. In order to facilitate this supplementation, we propose the
following additional deadlines to address the anticipated claim alleging that FTA failed to
prepare a supplemental Environmental Impact Statement (SEIS):
-2-
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December 7 Federal Defendants file response to Plaintiffs motion challenging the
completeness of AR4
December 14 Plaintiffs reply to opposition to motion challenging the completeness of AR4
January 15 Plaintiffs opening summary judgment brief due (as established by the current
scheduling order, ECF No. 30)
Please note that the discussion above and in Table 1 regarding inclusion of the
documents, and groups of documents, in the Administrative Records does not address whether
any of these documents may be appropriate for inclusion in FTAs AR4.
The Agencies do not believe that it is necessary to provide an electronic library for the
parties to share documents from the Administrative Records. The agencies have fulfilled their
obligations under Local Civil Rule 7(n) to file a certified list of the contents of the
Administrative Records and provided Plaintiffs with the records on DVDs. This is standard
practice in record review cases. However, the Maryland Transit Administration (MTA)
restored access to the AA/DEIS documents on its website as you requested.
In response to Plaintiffs question regarding the travel model data included on DVDs # 5
and 6 of FTAs AR2 (AR2_219964 and AR2_219965) and listed at page 1061 of the index (ECF
No. 24-2 at 1065), the DVDs contain travel model inputs and outputs used in generating
ridership forecasts for the FEIS. Specifically, the following materials are included on those
discs:
Inputs necessary to run the travel models for four scenarios: the No Build Alternative in
2030 and 2040, and the Build Alternative in 2030 and 2040.
Outputs of the travel forecasting model runs for the above four scenarios.
Model scripts that were used to run the applicable portions of the model.
Software developed by Parsons Brinckerhoff used to compile summaries of results. This
software is not part of the model that produces the forecasts; it only assists in
summarizing the results.
To run the model, it is necessary to purchase a license to run Cube, the commercial
modeling software, which is publicly available from Citilabs (www.citilabs.com). The data on
these discs is identical to the data that was transmitted by MTA to the Town of Chevy Chase in a
letter dated July 30, 2014. A copy of that letter was provided to you in person prior to the status
conference held by the district court on July 15, 2015.
Plaintiffs August 25, 2015 letter states that the data [is] accessible only with software
that is proprietary and available only for rent at a substantial cost, which is incorrect. The
software is commercially available for purchase as described above, as is the case with other
software used in developing the analysis underlying the ROD. In addition, the data, as distinct
from the software, is not proprietary within the meaning of 40 C.F.R. 1502.21.
-3-
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Please dont hesitate to contact us if you have any questions or wish to discuss these
issues further.
Sincerely,
s/ Tyler L. Burgess
Tyler L. Burgess
Kevin McArdle
Jeremy Hessler
Trial Attorneys
-4-
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EXHIBIT E
MEMOr:l.NDUM OPINION
(August 3 ,2016) [Dkts. ##47, 54, 56]
Plaintiffs Friends of the Capital Crescent Trail ("FCCT"), John MacKnight
Fitzgerald, and Christine Real de Azua ("plaintiffs") challenge the March 19, 2014 Record
of Decision ("ROD") by the Federal Transit Administration ("FTA") and related approvals
by the U.S. Fish and Wildlife Service ("FWS," and together with FTA and the Department
of Transportation and the Department oflnterior, "federal defendants") for the Purple Line
Project, a 16.2-mile light rail transit project in Montgomery and Prince George's Counties,
Maryland. Plaintiffs raise multiple claims under the National Environmental Policy Act
("NEPA"), 42 U.S.C. 4321 et seq., the Federal Transit Act, 49 U.S.C. 5309, Section
4(f) of the Department of Transportation Act, 23 U.S.C. 138, the Endangered Species
Act, 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. 703 . See
generally Am. Compl. [Dkt. #20]; First Supp. Compl. [Dkt # 33]; Second Supp. Compl.
[Dkt #42]. Following the filing of the complaint, the State of Maryland joined the federal
defendants as an intervenor-defendant. See Minute Order, July 15, 2015. Currently before
the Court are cross-motions for summary judgment filed by plaintiffs, federal defendants,
and defendant-intervenor. See Pls .' Mot. for Summ. J. [Dkt. #47]; Federal Defs.' Cross-
Mot. for Summ. J. [Dkt. #54] ; Def.-Intervenor's Cross-Mot. for Summ. J. [Dkt. #56]. Upon
consideration of the pleadings, record, and relevant law, I find that the recent revelations
safety concerns merit a supplemental Environmental Impact Statement under NEPA and
reserve judgment as to the remaining issues. Accordingly, plaintiffs' motion for summary
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted "if
the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P.
56(a). The Court's review "is based on the agency record and limited to determining
whether the agency acted arbitrarily or capriciously." Rempfer v. Sharfstein, 583 F.3d 860,
865 (D.C. Cir. 2009). Whereas "the role of the agency [is] to resolve factual issues," the
sole "function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did."
Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (internal citation and
quotation marks omitted). TheCourt must determine "whether the agency acted within the
scope of its legal authority, ... explained its decision, ... relied [on facts that] have some
basis in the record, and ... considered the relevant factors." Fund for Animals v. Babbitt,
ANALYSIS
I. Statutory Background
NEPA requires that federal agencies consider the environmental effects of proposed
U.S. 332, 349 (1989). Under NEPA, a federal agency must prepare an Environmental
Federal action[] significantly affecting the quality of the human environment." 42 U.S.C.
4332(2)(C). The EIS "shall state how alternatives considered in it and decisions based
on it will or will not achieve the requirements of [NEPA] and other environmental laws
and policies," 40 C.F.R. 1502.2(d), discuss "[p]ossible conflicts between the proposed
action and the objectives of Federal ... land use plans, policies and controls for the area
concerned," id. 1502.16(c), and "present the environmental impacts of the proposal and
the alternatives in comparative form, thus sharply defining the issues and providing a clear
basis for choice among options by the decisionmak.er and the public," id. 1502.14. The
idea is that "[s]uch information may cause the agency to modify its proposed action."
Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1.151 (D.C. Cir.
2001).
EIS ("SEIS") when presented with "substantial changes in the proposed action that are
relevant to environmental concerns and bearing on the proposed action or its impacts." 10
C.F.R. 51.92(a)(l)-(2). "[A]n agency need not supplement an EIS every time new
information comes to light," Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 373 (1989),
but rather only when "new information provides a seriously different picture of the
environmental landscape,"' Nat'! Comm.for the New River v. FERC, 373 F.3d 1323, 1330
(D.C. Cir. 2004) (citation omitted). Courts review an agency's decision whether to
undertake an SEIS under the arbitrary and capricious standard. City of Olmsted Falls v.
The scope of review under the "arbitrary and capricious" standard "is narrow," and
"a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n
v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, the agency must
examine the relevant data and articulate a satisfactory explanation for its action including
a "rational connection between the facts found and the choice made." Burlington Truck
Lines v. United States, 371 U.S . 156, 168 (1962). An agency's act~on is arbitrary and
capricious if it "has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise." Motor
involving the Purple Line, but today I will only address plaintiffs' NEPA claim challenging
defendants' failure to prepare an SEIS based on recent events that raise substantial concerns
about WMATA's safety and in turn its possible decline in future ridership. I find that
defendants' failure to adequately consider WMATA' s ridership and safety issues was
arbitrary and capricious, and that these conditions create the "seriously different picture"
Plaintiffs submitted a letter on October 9, 2015, requesting that the agencies prepare
an SEIS based on WMATA's recent safety concerns and declines in ridership in the
Metrorail system, which, as a consequence, called the ridership forecasts for the Purple
Line into question. AR5 _ 0064 70-71. Plaintiffs pointed to a "series of incidents that have
raised questions about passenger safety," explained that the National Transportation Safety
Board had found that the "FTA and WMATA's Tri-State Oversight Commission are
incapable of restoring and ensuring the safety of WMATA's subway system," and
emphasized how these developments directly undermined the rationale for the Purple Line,
providing that:
Id. (footnotes omitted). Amazingly, the response from the Maryland Transit Authority
AR5 _ 000009. Curiously, this bare bones explanation was subsequently adopted by the
FTA, notwithstanding the fact that the Purple Line project is dependent on a future federal
grant of nearly a billion dollars. June 15, 2016 Oral Arg. Tr.at 21:25-22:4, 50:7-9
[Dkt. #95]. In a memorandum dated January 7, 2016, the FTA stated, in relevant part, that
required under NEPA. AR5 _ 000003. FTA simply reiterated MTA's response that "actions
and any potential issues related to WMATA, which is not the project sponsor for the Purple
"In making the factual inquiry concerning whether an agency decision was
'arbitrary or capricious,' the reviewing court 'must consider whether the decision was
based on a consideration of the relevant factors and whether there has been a clear error of
judgment.'" Marsh, 490 U.S. at 378 (quoting Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971 )). "[I]n the context of reviewing a decision not to
supplement an EIS," as here, courts must "carefully review[] the record and satisfy[]
themselves that the agency has made a reasoned decision based on its evaluation of the
significance-or lack of significance-of the new information." Marsh, 490 U.S. at 3 78.
Here, defendants wholly failed to evaluate the significance of the documented safety issues
and decline in WMA TA ridership, skirting the issue entirely on the basis that the Purple
Line is not part of WMAT A. While it is true that WMA TA is a distinct entity from MT A,
which would own and operate the Purple Line, AR5 _ 000009, this does not provide a
rational basis for defendants' summary conclusion that a decline in ridership thereon has
no effect on the Purple Line, given that the previous projections estimated over one quarter
of Purple Line riders would use the WMA TA Metrorail as part of their trip. See
1
AR1 _001973-74. Nor can I turn a blind eye to the recent extraordinary events involving
seemingly endless Metrorail breakdowns and safety issues. See ARS _ 0064 70-71 & nn. 2-
4 (citing public reports and media accounts discussing WMA TA' s safety issues and
ridership decline). 2 These serious issues, which may have long-term effects on Metro
1
See Paul Duggan , Metro acknowledges breakdowns might be adding to a ridership decline Wash. Post
(Oct. 6, 2015) https://www.'!l'.fi. hingtonpo t.com/I ca l/1raJricandconl[nutiug/melro-say - ubway-:
brcak.Q.ov ns-might-be-adding-to-a-steady-ridcr. hi p-decline/2015/ I0/06/4l?..959716-6c35-1 1e5-bJ Ic-
.f18Qtl_0.;,h~J e2 8_,~t<2D' Atrnl
(cited at AR5_006470 n 2.).
2
Furthermore, these safety issues show no signs of abating in the near future. See, e.g., Press Release,
WMA TA, Orange and Silver line service impacts to continue Saturday following derailment (July 29,
2016), http://www.wmato.com/about metro/news/Press Rclea seDcta i l.cfm ? Re leasel 0 =6143;
Press Release, WMATA, Metro releases preliminary findings of investigation into Saturday smoke incident
outside Friendship Heights (April 25, 2016),
http://www.wmata.com/a bout metro/ne\vs/Press Rclea eDeta il.cfm'?ReleasclD= 6096; Press Release,
WMA TA, All Metro rail service will be suspended Wednesday, March 16, for emergency inspections
(March 15, 2016), htip;l/w\Y..lY~iYlllatL~onVab__s~!~t_m~t. rol:news/f>.r~~~B.~J.~Be D etai l.cfrn?~. leaseJ_Q=6Q~Z;
ridership, only underscore how important it was for defendants to take the requisite hard
look at the potential effect of Metro's safety issues on future Purple Line ridership and any
related environmental issues. See, e.g., Sabine River Auth. v. US. Dep 't of Interior, 951
F..2d 669, 678 (5th Cir.1992) (citation omitted) (court must look outside the administrative
record to determine whether the agency adequately considered the environmental effects
of a particular project). At a minimum, WMATA and the FTA's cavalier attitude toward
these recent developments raises troubling concerns about their competence as stewards of
III. Remedy
The Administrative Procedure Act governs remedies for NEPA violations and
provides that a reviewing court shall "hold unlawful and set aside agency action, findings,
not in accordance with law." 5 U.S.C. 706(2); see Citizens to Preserve Overton Park,
Inc., 401 U.S. at 413 ("In all cases agency action must be set aside if the action was
"Pursuant to the case law in this Circuit, vacating a rule or action promulgated in violation
of NEPA is the standard remedy." Humane Soc'y of US. v. Johanns, 520 F. Supp. 2d. 8,
37 (D.D.C. 2007). The decision whether to vacate depends on "the seriousness of the
order's deficiencies" and "the disruptive consequences of an interim change .... " Allied-
Press Release, WMA TA, Orange and Silver line return to 6-minute rush hour service for first time since
Stadium-Armory substation fire (Dec. 30, 2015),
!.illn://www. wmata.co rn/about m etro/n ewslEL~fili.F. el easeDetail . cfm'?Re l easelD=6022 .
Signal, Inc. v. US. Nuclear Regulatory Comm 'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993).
Here, defendants failed to engage in the requisite supplemental analysis with respect to
important 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. While a temporary halt in the
project is not ideal, it would make little sense and cause even more disruption if defendants
were to proceed with the project while the SEIS was being completed, only to subsequently
determine that another alternative is preferable. Accordingly, it is hereby ordered that the
Record of Decision be vacated and remanded to the defendants for the preparation of an
CONCLUSION
For the foregoing reasons, plaintiffs' motion for summary judgment is GRANTED
judgment are DENIED in part. An order consistent with this decision accompanies this
Memorandum Opinion.
EXHIBIT F
0~
(November~ 16) [Dkts. ## 98, 99]
For the reasons set forth in the Memorandum Opinion accompanying this Order,
federal defendants' Motion to Alter or to Amend the Court's Judgment [Dkt. # 99] and
[Dkt. # 98] are GRANTED IN PART and DENIED IN PART. It is hereby ORDERED
and ridership issues require a supplemental EIS ("SEIS") for the Purple Line. Upon
completion, the FTA shall submit the assessment to the Court with a determination
as to whether the WMATA Metrorail safety and ridership issues require an SEIS.
2. If the FTA determines that an SEIS is required, the FTA shall file a notice with the
Court announcing that an SEIS will be prepared, and shall provide an estimate of
3. If the FTA determines that an SEIS is not required, the following supplemental
a. Together with the filing of the assessment and determination, or within seven
motions for summary judgment on the limited issue of whether the WMA TA
Metrorail safety and ridership issues require an SEIS for the Purple Line.
c. Seven days after plaintiffs file their opposition, federal defendants and
SO ORDERED.
EXHIBIT G
Plaintiffs, *
v. *
and *
Defendant Intervenor. *
* * * * * * * * *
moves this Court to enter a final judgment on resolving the pending summary judgment
motions (ECF # 46, 55, 56, 115, 116) as expeditiously as possible, but no later than April 28,
2017. In the alternative, the State requests that the Court vacate that portion of its August 3,
2016 Order (ECF # 96) vacating the Record of Decision pending a final decision on the merits of
the complaints. In support of this motion, the State submits the accompanying
Motions.
WHEREFORE, the State requests that the Court issue a final decision as expeditiously as
possible, but no later than April 28, 2017, or vacate the portion of its August 3, 2016 Order (ECF
BRIAN E. FROSH
Attorney General of Maryland
Plaintiffs, *
v. *
and *
Defendant Intervenor. *
* * * * * * * * *
The State of Maryland, Defendant-Intervenor in this case, respectfully requests that this
Court enter a final judgment resolving the pending summary judgment motions (ECF #s 47, 55,
56, 115, 116) as expeditiously as possible, but no later than April 28, 2017. In the alternative,
the State requests that the Court vacate that portion of its August 3, 2016 Order (ECF #96) that
vacated the Record of Decision pending a final decision on the merits of the complaints. The
State has conferred with the Federal Defendants and Plaintiffs prior to filing this motion. Federal
Defendants have not yet provided a response on its position. Plaintiffs state that they reserve the
1
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In making this request, the State relies on the legal arguments made previously in support
of the Defendants motions for summary judgment. The public interest lies in achieving a
definitive resolution of the legal issues raised in this case as promptly as possible, so that the
outcome of the case can be decided on the merits rather than having the outcome determined
by default, as continued uncertainty and delay risks threaten the financial viability of the Purple
Line project.
I. Procedural Background
The parties filed cross-motions for summary judgment (ECF #s 47, 55, 56) addressing all
of the issues raised in Plaintiffs amended and supplemental complaints. (ECF #s 20, 33, 42).
The cross-motions were fully briefed as of May 24, 2016 and oral argument was held on June 15,
2016. Supplemental briefs invited by the Court after oral argument were filed by all parties
on June 29, 2016. (ECF #s 92, 93, and 94.) In its Order of August 3, 2016, the Court found that
a Supplemental Environmental Impact Statement (SEIS) was needed to address recent safety
and ridership issues involving the regions Metrorail system, and therefore vacated the Federal
Transit Administrations (FTAs) March 19, 2014 Record of Decision (ROD) approving the
project. (ECF # 96.) The Court expressly reserved judgment on all remaining issues in the case.
As of the date of this filing, it has been over three years since the FTA ROD was issued, over
two-and-a-half years since Plaintiffs commenced this action, and over nine months since the
After the Courts August 3, 2016 ruling, Defendants filed motions to alter or amend the
judgment to allow the Federal Defendants to consider new information regarding Metrorail
2
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safety and ridership issues and determine whether, in fact, it meets the legal standard requiring
preparation of an SEIS. (ECF #s 98, 99.) Defendants also proposed a schedule for separate
briefing on that decision, if the Federal Defendant determined that an SEIS was not needed. Id.
In addition, Defendants moved the Court to reinstate the ROD while FTA completed its
additional analysis of the Metrorail issues. Id. On November 22, 2016, the Court granted
Defendants motions in part and issued an order that set a schedule under which Defendants were
allowed to submit renewed motions for summary judgment on whether an SEIS was needed to
address the Metrorail safety and ridership issues. (ECF # 109, 110.) The Court denied
On December 16, 2016, the Federal Defendants filed a notice with the Court of the
FTAs determination that the Metrorail safety and ridership issues did not require an SEIS under
applicable legal standards. (ECF # 113.) On the same date, in accordance with the Courts
November 22, 2016 order, the Defendants filed the administrative record supporting FTAs
determination, and the Federal and State Defendants each filed renewed motions for summary
judgment urging the Court to uphold FTAs determination. (ECF #s 114, 115, 116.) Briefing on
these renewed summary judgment motions was completed on January 13, 2017. (ECF # 120,
121.)
II. Argument
The State makes this request for an expeditious ruling on all pending summary judgment
motions for a simple reason: the fate of the Purple Line hangs in the balance, and should be
determined on the merits. The increasing delay risks caused by this litigation and the
uncertainty about how long it will take for the remaining issues to be decided has had far-
reaching and potentially devastating effects on the financing and contractual arrangements for
3
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the Purple Line. Federal Rule of Civil Procedure 1 directs the Court and parties to seek the just,
speedy and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. The
Supreme Court has stressed that the just speedy and inexpensive resolution of disputes is the
paramount command of Rule 1. Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016).
The potential effects of an extended delay have previously been presented in two
declarations of Charles Lattuca (ECF #s 98-1, 116-2). As set forth in the Lattuca declarations,
the States project management consultants have estimated that the State will incur delay costs of
approximately $13 million per month if the ROD is not reinstated resulting in total delay costs
in excess of $150 million if the project is delayed for a full year. (ECF # 116-2 at 3). Further, an
extended delay of the project could give the States private partner under the terms of the
Public-Private Partnership Agreement (P3 Agreement) the legal right to terminate the
agreement, potentially requiring the State (if required conditions are met) to pay termination
costs, which could exceed $100 million. Id. at 2-4. And if the project were cancelled as a result
of increased costs and/or termination of the P3 Agreement, the State would lose its entire
investment to date in the project, which is over $400 million. Altogether, the costs of project
As provided in the P3 Agreement, the State is working with its private partner to
minimize and mitigate the schedule and costs impacts of project delay risks that have resulted
from this litigation. Although the precise allocation of costs between the State and its private
partner has not been determined, with each passing month, the delay risks increase, and the risk
In vacating the FTAs ROD, the Court sought to ensure that FTA considered new
information regarding Metrorail safety and ridership issues before executing the Full Funding
4
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Grant Agreement, which would commit $900 million in federal funding to the project. 1 In
effect, the ROD was vacated to preserve the status quo while additional NEPA analysis was
conducted. (ECF # 96 at 9; ECF # 109, at 10-11.) That purpose has been achieved: FTA has
considered Metrorail safety and ridership information, and has documented its determination that
the new information does not meet the legal standard for requiring an SEIS. But as this case
remains pending without any resolution, the continued vacatur of the ROD is putting the
fundamental viability of the Purple Line at risk, and could have the practical effect of killing the
In short, if the Court does not resolve the motions for summary judgment in the near
future, or vacate that portion of the August 3 Order that vacated the ROD, the fate of the project
could be decided without regard to the merits. Resolving the remaining issues in this case
promptly will provide certainty to all parties and best serve the public interest.
III. Conclusion
The State respectfully requests that the Court issue a final decision as expeditiously as
possible, but no later than April 28, 2017, on all pending dispositive motions in this case,
including the parties cross-motions for summary judgment (ECF #s 47, 55, 56) and the
Defendants renewed motions for summary judgement (ECF #s 115, 116). In the alternative, the
State requests that the Court vacate that portion of its August 3, 2016 Order (ECF # 96) that
1
At the time of the Courts August 3, 2016 Order, the Full Funding Grant Agreement (FFGA)
had completed the required 60-day review by Congress and the FTA had announced its intention
to sign the FFGA on August 8, 2016.
5
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BRIAN E. FROSH
Attorney General of Maryland
6
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CERTIFICATE OF SERVICE
I hereby certify that on March 31, 2017, a copy of the foregoing document was served via the
CM/ECF system on the following counsel of record.
David Brown
Knopf & Brown
[email protected]
Kevin W. McArdle
U.S. Department of Justice
[email protected]
Jeremy Hessler
U.S. Department of Justice
[email protected]
Tyler L. Burgess
U.S. Department of Justice
[email protected]
John M. Fitzgerald
4502 Elm Street
Chevy Chase, MD 20815
[email protected]
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DRAFT -- 3/30/2017 -- PRIVILEGED AND CONFIDENTIAL
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Plaintiffs, *
v. *
and *
Defendant Intervenor. *
* * * * * * * * *
[Proposed] Order Granting Defendant-Intervenors Motion for Expeditious Ruling on
THIS MATTER having come before the Court on the Defendant-Intervenors Motion for
Expedited Ruling, and this Court having reviewed the motion and supporting memorandum and
BY THE COURT:
EXHIBIT H
Plaintiffs, *
v. *
and *
Defendant Intervenor. *
* * * * * * * * *
The premise of the State of Marylands (State) Motion For Expeditious Ruling is that
the passage of time has changed the status quo in this case. With no decision from the Court on
Environmental Impact Statement (SEIS), and no decision on the remaining issues addressed in
the long-completed summary judgment motions, the mere passage of time may create the
outcome that Plaintiffs clearly seek - abandonment of the Purple Line project (the Project). It
would be an injustice to the people of the State and to the FTA not to have a decision on the
merits of Plaintiffs claims regarding the August 2013 Final Environmental Impact Statement
1
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and the March 2014 Record of Decision (ROD) in a timeframe that will not cause grave harm
to the Project. The State submitted this Motion to the Court to assure that the Court was
When the Court issued its August 3, 2016 Order vacating the ROD approving the Project,
it did so intending to preserve the status quo. As stated in the Courts August 3 Memorandum, a
temporary halt in the project would allow the FTA to engage in the requisite supplemental
analysis with respect to impacts of safety and ridership issues being experienced by the
Washington Metro on the viability of the Purple Line. The Court recognized that speed was of
the essence in reaching a resolution of the issues, stating that the State should prepare the
implications, the Defendants began the requisite supplemental analysis immediately. The
analysis has been prepared, and FTA has issued a decision on the analysis and submitted that
analysis and decision to the Court. All issues are ripe for a decision.
When Plaintiffs filed this case in 2014, they failed to seek any preliminary injunctive
relief. Even when it became clear that the FTA and the State were about to sign the Full Funding
Grant Agreement (FFGA), Plaintiffs did not seek any form of preliminary injunctive relief. As
this Court noted in its August 3 Order, it chose to issue a decision that addressed the single flaw
it had identified in FTAs analysis and vacate the ROD, so that the FTA would not be able to
issue the FFGA. By doing this, the Court prevented the State from proceeding with construction
of the project. The Court clearly determined that a short delay would preserve the status quo.
The State takes the unusual step of filing this motion to inform the Court that further delay goes
beyond monetary delay damages and puts the entire project at risk. Without an expeditious
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The mere passage of time causes grave harm to the State, Montgomery County, Prince
Georges County, and the businesses and citizens who are relying on the Project to create jobs
and to improve access to public and commercial facilities and neighborhoods. The loss of the
Project would be monumental, as are the potential monetary damages. As previously established
in the declarations filed by Charles Lattuca (ECF 98-3 and 116-2), each month of delay could
result in an estimated $13 million in additional cost. Also, as previously discussed, further delay
puts at risk the $400 million that the State has already invested in making this vital public transit
project a reality. In addition, termination of the Project could result in additional termination
costs and delay damages, resulting in a total cost in the range of $650 million. ECF 116-2 at 15.
Given the decades of study, broad public support, and the importance of the Project to the local
communities (see the amicus briefs and supporting declarations filed by Prince Georges County
- ECF 111 and Montgomery County - ECF 112), cancellation of the Project as a result of
litigation delays would cause severe prejudice to the interests of the public.
It is clearly in the public interest to reach a decision on the legal issues as expeditiously
as possible. Nothing in Plaintiffs response to the States motion provides a reason for the
Court to delay its decision. Contrary to Plaintiffs assertion, the State does not dispute that the
Court has the inherent power to control its docket. Plaintiffs are correct that the State is
confident that the FEIS and the additional analysis of the Metro rail issues are sufficient under
applicable law and that once the Court has an opportunity to review the full merits of the case, it
will rule in the States favor. However, even should the Court find a flaw in the process, it is in
the public interest for the Court to issue an expeditious final decision on the merits of the claims
raised in this case so that the State can take whatever further steps it deems necessary in its
efforts to pursue and implement this vital transportation project. If the Courts docket does not
3
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permit an expeditious review of the now completed supplemental analysis, which was the basis
for vacation of the ROD, the preservation of the status quo dictates that the ROD be reinstated
Conclusion
The State respectfully requests that the Court issue a final decision as expeditiously as
possible, but no later than April 28, 2017, on all pending dispositive motions in this case,
including the parties cross-motions for summary judgment (ECF 47, 55, 56) and the
Defendants renewed motions for summary judgement (ECF 115, 116). In the alternative, the
State requests that the Court vacate that portion of its August 3, 2016 Order (ECF 96) that
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BRIAN E. FROSH
Attorney General of Maryland
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CERTIFICATE OF SERVICE
I hereby certify that on April 10, 2017, a copy of the foregoing document was served via the
CM/ECF system on the following counsel of record.
David Brown
Knopf & Brown
[email protected]
Kevin W. McArdle
U.S. Department of Justice
[email protected]
Jeremy Hessler
U.S. Department of Justice
[email protected]
Tyler L. Burgess
U.S. Department of Justice
[email protected]
John M. Fitzgerald
4502 Elm Street
Chevy Chase, MD 20815
[email protected]
1
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EXHIBIT I
Exhibit 2
My name is Charles Lattuca, and I have first-hand experience with, and personal
STATEMENT
oversee the team responsible for delivering MTA's program of major capital projects, including
MT A's Role
2. MTA is an agency of the State of Maryland (the "State"); MTA is a unit of the
services throughout the State. In all, MTA provides more than 112 million trips per year.
Services operated by MTA include the Maryland Area Regional Commuter ("MARC") train, as
well as the light rail transit system, subway system, and local bus system in the Baltimore area.
regional body, wholly separate from MTA, that operates the Metrorail subway system in the
Washington, DC, metropolitan area, as well as a regional bus system, known as Metrobus.
5. MTA's transit services, by design, intersect with each other as well as with
WMATA's Metrorail and Metrobus systems and with other transportation systems, including
county-operated bus services and intercity passenger rail service operated by Amtrak.
6. While MTA and WMATA's service areas overlap, MTA and WMATA are
independent entities.
7. The Purple Line is a light rail transit project that connects several major activity
centers in Maryland, including Bethesda, Silver Spring, Takoma/Langley Park, College Park
(and the University of Maryland), and New Carrollton. The general location of this project is
8. The Purple Line serves vital interests of the State because of the project's role in
improving public transportation access in an area with high demand for public transit and
because of its role in supporting the duly adopted land use plans of the jurisdictions in which it is
located, Montgomery County and Prince George's County ("the Counties"). Several factors
illustrate the importance of this project to the State, the Counties, and the public at large:
a) The Purple Line corridor has been and remains marked by high transit usage and
contains a large number of residents who do not own a vehicle. With 181,395
jobs in the corridor and 247,024 residents, there is strong ridership demand.
employment centers in their own right. Between 2010 and 2040, employment is
Georges County.
c) East-west bus transit service is available (from multiple operators) in the Purple
the connections among them. In addition to its four connections to the Metrorail
system, the Purple Line connects to dozens of!ocal and regional bus routes, two
e) The Purple Line is a key element of the economic development and land use plans
County, the Purple Line has been included in some form in the County's land use
f) The Purple Line connects downtown Bethesda and downtown Silver Spring - the
Counties' largest employment centers - with a 9-minute train ride, far faster than
g) The Purple Line includes three transit stations serving the University of Maryland
College Park campus, including one in the center of the campus, greatly
improving transit service for the University's 37,000 students and 13,000
employees.
9. The Purple Line was exhaustively analyzed by the Federal Transit Administration
("FTA") and other federal, state, and local agencies in an enviromnental review process that
lasted more than a decade. FTA issued its final enviromnental impact statement ("Final EIS")
for the Purple Line in August 2013 and issued a Record of Decision ("ROD") approving the
10. The Purple Line also has been exhaustively analyzed by FTA through its New
Starts grant application process, which requires FTA to evaluate and rate projects based on
statutorily defined criteria for "project justification" and "local financial commitment" and to
assign each project an "overall" rating based on the ratings for project justification and local
financial commitment. A project must receive at least a "Medium" overall rating to receive New
Starts funding.
11. In a 2016 report, FTA assigned the Purple Line an overall rating of "Medium-
High" based on ratings of"Medium-High" for both "project justification" and "local financial
commitment." The report identified $900 million as the proposed New Starts grant amount and a
total $ 2,448.22 million as the project cost. (FTA, "Annual Report on Funding
Recommendations, Fiscal Year 2017, Capital Investment Grant Program," Tables 1and2A).
12. On June 13, 2016, the FTA New Starts Team submitted a memorandum to the
FTA Acting Administrator and other senior FTA officials recommending approval of the Full
Funding Grant Agreement ("FFGA") for the Purple Line. The memorandum reported that the
Purple Line's overall rating is now "High" based on a rating of"Medium-High" for "project
justification" and "High" for "local financial commitment" and reported that the project cost
13. The final step in the New Starts application process is the execution of the FFGA,
which can be signed only after a 30-day review period by Congress. FTA submitted the FFGA
for the Purple Line to Congress for review on July 6, 2016 for the required 30-day review. The
14. The execution of the FFGA was scheduled for August 8, 2016, but was postponed
15. Since the initiation of the environmental review process in 2003, MTA has
expended more than $270 million on environmental, engineering, right of way acquisition,
project management, procurement, public outreach, mobilization, insurance, and other services
16. Title 1OA of the State Finance and Procurement Article of the Annotated Code of
Maryland ("Title 1OA'') authorizes State agencies to enter into public-private partnership ("P3")
agreements as an innovative way to finance critical transportation projects that may not
otherwise be affordable.
partner to perform certain functions normally undertaken by the govermnent, with the State
remaining the owner of, and ultimately accountable for, the public infrastructure asset and its
public function.
18. Pursuant to Title 1OA, the State conducted a procurement process to select a
private partner to finance, develop, design, construct, and supply light rail vehicles for the Purple
Line and to operate and maintain the Purple Line for a period of 30 years after operations begin.
The procurement formally commenced with issuance of the Request for Qualifications on
November 8, 2013.
19. Through the procurement process, MTA selected Purple Line Transit Partners
LLC ("PL TP") as its private-sector partner for the Purple Line project and negotiated a detailed
P3 agreement with PL TP ("P3 Agreement"). With the Governor's support, the contract was
presented to the State's Board of Public Works ("BPW"); the BPW consists of three statewide
elected officials: the Governor, Treasurer, and Comptroller. On April 6, 2016, the BPW
unanimously approved the P3 Agreement. The parties executed the P3 Agreement on April 7,
2016.
build period of approximately six years followed by an operations and maintenance period of 30
years. At the end of the contract term of the P3 Agreement, PLTP is required to return the
21. As is typical in this type of procurement, the State paid a stipend to each of the
four finalist proposal teams (including PLTP), partially offsetting the amount expended by each
team in developing its proposal. The amount of the stipend for each team was $2.5 million.
22. Following execution of the P3 Agreement, PLTP entered into separate design-
transactions. In addition, PLTP entered into a contract with a rail car manufacturer for the
supply oflight-rail vehicles for the Purple Line. PLTP also entered into debt and related
financing arrangements to perform its financing obligation under the P3 Agreement, discussed in
greater detail below. PLTP's plan of finance for the Purple Line also assumes the availability of
23. The P3 Agreement provides considerable certainty for the State in terms of
financial payments and risk. Following completion of construction, the State pays PLTP a
specified amount per year on average for the next 30 years. The State maintains oversight of the
project throughout the life of the P3 Agreement and may deduct amounts from its payments to
PLTP if PLTP does not meet performance standards for operating and maintaining the Purple
Line as defined in the P3 Agreement. This defined payment schedule greatly helps the State
24. On June 17, 2016, the State and PL TP completed the financing of the Purple Line,
with PLTP entering into the various debt and financing-related agreements with bond-holders
and lenders, including a loan by the federal "Transportation Infrastructure Finance and
Innovation Act" (or "TIFIA") office within the U.S. Department of Transportation.
25. The P3 Agreement gives PLTP the right to additional compensation ifa "Relief
Event" occurs and gives PL TP certain rights to terminate the P3 Agreement if an "Extended
Delay" occurs. Relief Events and Extended Delays as defined in the P3 Agreement encompass
delays due to the inability to proceed with work as the result of a court order.
Agreement, the State would have the obligation to make a significant termination payment to
PLTP, reimbursing PLTP for costs incurred in performance of the agreement, including costs
relating to the financing obtained by PLTP that would otherwise have been spread over the 30-
27. In addition to the Purple Line, PLTP's responsibilities under the P3 Agreement
The County-Funded projects include: the construction of a new Bethesda Station South Entrance
to the existing underground Metrorail system; the construction of a permanent Capital Crescent
Trail from Bethesda to Silver Spring and the Silver Spring Green Trail; and the replacement of
the deteriorating Lyttonsville Bridge (located just east of Brookville Road near Silver Spring).
Except for the Capital Crescent Trail, the County-Funded Projects are not part of the Purple Line
as approved in the ROD; they are independent of the Purple Line but are being built under the
28. Under the P3 Agreement, PLTP developed an initial project schedule over the
course of a year during the proposal development period and has spent significant resources
29. The project schedule is extremely complex, with almost 6,000 discrete activities
that must be coordinated and sequenced over the approximately six-year design and construction
period.
30. The development of the schedule takes into account thousands of factors to
develop an efficient and cost-effective plan to complete the Purple Line and the County-Funded
Projects. Constraints that affect the timing of construction activities include, among others:
addition, many tasks are interdependent; that is, one task will need to be completed before
31. The project schedule has been carefully crafted to satisfy all applicable constraints
32. The project schedule also has been carefully tailored to offer steady and long-tenn
employment of workers, which allows for efficient and cost-effective work during construction.
33. On April 7, 2016, the State authorized PLTP to perform certain "early work"
contractual submittals and permit applications. PLTP issued a corresponding limited notice to
proceed to its design-build contractor. The design-build contractor performed this specified
34. On June 17, 2016, MTA gave PLTP full notice to proceed with work under the P3
Agreement.
35. On June 18, 2016, after submitting the required certification that all necessary
preconditions had been met, PLTP commenced non-construction activities on the Purple Line.
PLTP then authorized its design-build contractor to commence its non-construction activities.
engineering work, geotechnical borings, and marking the location of utilities in the Purple Line
right-of-way.
36. Under the P3 Agreement, PLTP may commence construction activities for the
Purple Line once PLTP certifies to MTA that specified conditions precedent are met, including
the receipt of all required governmental approvals. That certification has not yet been submitted
by PLTP, and therefore PLTP is not yet authorized to commence construction of the Purple Line
37. Under the initial schedule submitted by PLTP, construction work would begin on
Agreement, certain other non-construction activities also are being carried out by the State.
39. Acting on behalf ofMTA, the Maryland State Highway Administration ("SHA")
and MTA consultants have been carrying out right-of-way acquisition and relocation activities
for the Purple Line since approximately May 2014. Of the 626 property acquisitions for the
Purple Line, more than half are already in the State's possession. Some property acquisitions
involve relocations of residents or businesses; of the 148 business and residential relocations
acquired in the Riverdale neighborhood in Prince George's County. Remaining buildings are in
41. This Court's Order of August 3, 2016, vacated FTA's ROD for the Purple Line
and directed FTA to prepare a Supplemental EIS "as expeditiously as possible" to assess the
potential effects of Metrorail ridership and safety issues on the Purple Line.
42. If the Order results in a months-long delay in the start of construction, relative to
the anticipated start date of October 31, 2016, the construction schedule will be substantially
disrupted, with potentially severe consequences for the State and its P3 partners, as the delay
cascades through the entire schedule. Depending on the length of the court-ordered delay, it
43. The following paragraphs (No. 44 to 53) set forth, for illustrative purposes, the
44. The schedule for the Purple Line's development includes a multitude of long-lead
and specifically designed items, including special track work, tunnel construction (on a 0.3-mile
long tunnel), traction power substations, manufacturing of light rail vehicles, train control,
station platforms and overall aligrunent. If construction is delayed, these activities will be
delayed, adversely impacting pricing and availability of such items. Since manufacturing and
delivery schedules in some instances were negotiated and are currently set in the project
10
45. More than 200 suppliers and subcontractors are expected to be involved in the
Purple Line's development, and any schedule delay will have a ripple effect on the local,
46. The delay is likely to have the greatest financial impact on approximately 80
project. As small businesses, DBEs generally are less well-positioned to withstand a sudden and
the production schedule will fit into their overall factory plan. As a consequence, any schedule
delay may result in a loss of a planned production window due to new or existing order
requirements, thus creating an adverse cost impact downstream throughout the supply chain.
The schedule delay could also lead to the loss of jobs as manufacturers and producers' staffing
48. Delay in the commencement of construction will also negatively impact the
49. Scheduling conflicts would likely appear in a competitive market with scarce skill
staffing being re-assigned to other projects and no longer available to the Purple Line, which will
result in an adverse cost impact to the project. Staffing issues would pose demobilization and
remobilization costs and delays to the project, raising project costs and delays.
50. Furthermore, the ripple effect of any delay would disturb many other components
and aspects of the project, such as: labor and equipment planning, material procurement, permit
11
51. The delay would require re-sequencing of many of the tasks in the schedule.
PLTP would need to negotiate a new schedule not only with MTA, but also with all of PLTP's
sub-contractors and their respective sub-contractors and suppliers, as well as utility companies
52. If construction work is delayed, PLTP would likely submit a claim under the P3
Agreement for reimbursement from the State of the additional costs incurred by PLTP.
53. Beyond any payments that may be owed to PLTP, the termination of the P3
Agreement would likely have a substantial negative effect on the State's ability to procure P3
Agreements (or other major infrastructure contracts) in the future and would likely prevent the
54. If the start of construction is delayed as a result of a court order, requiring the
State to compensate PLTP under the terms of the P3 Agreement, the State (and consequently, its
a) additional costs of financing and interest on bonds that have already been issued
b) additional cost escalation and inflation resulting from delaying the purchasing of
c) additional labor costs for state employees and MTA's consultants (that serve as an
extension ofMTA staff) who are assisting MTA with its functions and also
12
55. In connection with the development of this declaration, MTA has directed its
project management consultant to estimate the cost of delaying the start of construction as a
result of a court order. MTA has been advised that the delay costs borne by the State would be
approximately $13 million per month, taking into account the types of costs identified in the
preceding paragraph. Based on this monthly estimate, a 12-month delay would result in delay
PLTP as part of Purple Line construction. Montgomery County has informed MTA that the
County has determined the Lyttonsville Bridge to be structurally deficient and in need of
replacement; that the current bridge has posted weight restrictions; that prolonging those
restrictions create a significant cost impact to Montgomery County's Ride On bus operations,
because all buses must use other more circuitous routes to arrive at their starting points or return
to the bus depot; and that local businesses are adversely impacted as their delivery trucks may be
restricted from using this bridge. Further, Montgomery County has informed MTA that, if
construction of the Purple Line is delayed significantly, Montgomery County may need to close
the Lyttonsville Bridge entirely due to its deteriorating condition, further extending the cost
implications to the Ride On bus service as well as causing additional impacts to businesses and
the public due to increased travel times on congested routes to travel around this bridge.
with easy access to the Purple Line is under consideration. If construction of the Purple Line is
delayed significantly, it may affect the company's decision, potentially causing the company to
13
58. The State remains firmly committed to the Purple Line, and completion of the
substantial costs that the State would need to consider cancelling the Purple Line altogether.
60. In the event that a delay in construction caused the Purple Line to be cancelled,
the public would be deprived of the benefits of the Purple Line, and the State and its taxpayers
would entirely lose the investment made to date and would incur substantial additional costs to
I declare under penalty of perjury that the foregoing is true and correct.
14
EXHIBIT J
My name is Charles Lattuca, and I have first-hand experience with, and personal
STATEMENT
oversee the team responsible for delivering MTA's program of major capital projects, including
2. The Purple Line is a public-private partnership that was weighed and balanced by the
State for its environmental effects and mitigation, costs and funding constraints, public concerns,
3. The Purple Line serves vital interests of the State because of the project's role in
improving public transportation access to jobs, education, health care, shopping and activity
centers, increasing economic development opportunities for much-needed business and job
growth, and reducing roadway congestion and work, school, and recreational commute times.
4. The Purple Line is a key element of the economic development and land use plans of
both Montgomery County and Prince George's County. Citizens ofMontgomcry County have
consistently included a light rail transit line in the Purple Line corridor in some form in
Montgomery County's land use plans for more than thirty years. The alignment has evolved
from a light rail side-by-side with a freight line along the Georgetown Branch to a light rail
5. The Purple Line was exhaustively analyzed by the Federal Transit Administration
("FTA") and other agencies in an environmental review process that lasted more than a decade.
FTA issued its final environmental impact statement ("Final EIS") for the Purple Line in August
2013 and issued a Record of Decision ("ROD") approving the project on March 19, 2014.
6. On November 3, 2016, MTA submitted a report to the FTA assessing the potential
effects of recent Metrorail safety and ridership issues on the Purple Line project. Based on that
report, the FTA determined on December 13, 2016 that recent declines in Metrorail ridership,
even if they were to continue, would not alter the environmental impacts caused by the Purple
Line project and would not undermine the Purple Line's ability to meet the identified purpose
and need, therefore do not require a Supplemental Environmental Impact Statement ("SEIS").
The State has further determined that the financial viability ofthc Purple Line is not affected by
7. MTA selected Purple Line Transit Partners LLC ("PLTP") as its private-sector partner
for the Purple Line project and negotiated a detailed and complex public-private partnership
agreement with PLTP ("P3 Agreement") that combines federal, state, local and private
Event" occurs and gives PLTP certain rights to terminate the P3 Agreement if an "Extended
Delay" related to the Relief Event occurs. A Relief Event basically means a delay not caused by
PLTP but that prevents PLTP from proceeding with its work as scheduled, such as a court order
or force majeure that prohibits such work. An Extended Delay, in this context, means a delay
resulting from a Relief Event that lasts 220 days or more within a 365-day period.
with the P3 Agreement, the State would also have the obligation to make a significant
te1mination payment to PLTP, reimbursing P LTP for costs incurred in performance of the P3
Agreement, including costs relating to the project's financing obtained by PLTP that would
10. Under the P3 Agreement, any party may declare a Relief Event under certain
1 l. On November 14, 2016, PLTP provided notice to MTA asserting that the August
3, 2016 order vacating the ROD for the Purple Line constitutes a Relief Event under the P3
Agreement. The notice also stated that "Construction Work is currently contemplated to
12. MTA expects that the magnitude of any claims asserted by PL TP related to the
August 3, 2016 order will accelerate if the ROD is not promptly reinstated.
13. MTA has been advised by its project management consultant that the delay costs
to be borne by the State would be approximately $13 million per month. Based on this monthly
estimate, a 12-month delay would result in delay costs in excess of $150 million. Thjs estimate
includes but is not limited to delay costs that may be owed to PLTP under the P3 Agreement.
14. Unless swift action is taken to reinstate the ROD, additional irnpacts include:
restrictions allow tree removal only between September and March. Half of PLTP's anticipated
and staging all equipment and materials at a construction site could be delayed due to the
(c) Subcontractors, some of which are Disadvantaged Business Enterprises (DBE), will
not be able to start work on schedule. DBEs are, by definition, smaller companies which
particularly suffer from long delays in starting work and getting paid. These firms may have to
leave the Purple Line to seek work on other projects. The DBEs utilized on this project will be
15. The State remains firmly committed to the Purple Line, and completion of the
substantial costs that the State would need to consider cancelling the Purple Line altogether.
17. If a delay in construction caused the Purple Line to be cancelled, the public would
be deprived of the benefits of the Purple Line, and the State and its taxpayers would entirely lose
the investments made to date and would incur substantial additional costs to PLTP for
termination of the P3 Agreement. Those tennination costs could be in excess of $100 million.
18. The potential costs to the State if the project were delayed for an extended period
and then tenninated could exceed $650 million. This estimate includes:
(a) the State's total investment in the Purple Line project to date, which is approximately
$400 million;
(b) the potential delay costs from a Relief Event, which is an estimated $13 million per
month, and therefore would be in the range of $150 million over a 12-month period, as described
in paragraph 13 above;
(c) the tennination payment owed to PLTP under the P3 Agreement (if PLTP exercises
its right to terminate after a Relief Event that lasts 220 days or more), which may be in excess of
19. The delay and termination costs to the State (as estimated in paragraph 18 above)
do not include additional investments made by Prince George's County and Montgomery
County, which also would be lost if the project does not proceed.
I declare under penalty of perjury that the foregoing is true and correct.